53 Pages Posted: 10 Mar 2009
Date Written: March 3, 2009
This article uses three recent multi-district litigations (MDLs) that produced massive settlements - Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million) - to study the emerging quasi-class action approach to MDL management. The approach has four components: (1) judicial selection of lead attorneys; (2) judicial control of lead attorneys' compensation; (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees; and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These widely used procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily on the plaintiffs' side and making them responsible for plaintiffs' success. They allocate monies in ways that likely over-compensate some attorneys and under-pay others, with predictable impacts on service levels. They also lack needed grounding in substantive law because the common fund doctrine, which supports fee awards in class actions, does not apply in MDLs. Academics have not previously noted these shortcomings; this is the first scholarly assessment of the quasi-class action approach.
This article also proposes an alternative method of MDL management. It recommends the creation a plaintiffs' management committee (PMC) composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work (CBW) for all claimants and monitor the lawyers' performance. The new approach would thus use micro-incentives to organize the production of CBW in MDLs rather than judicial control and oversight. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. If enacted as a statute, the proposal would restore judges' independence, preserve lawyers' loyalties, provide the requisite legal foundation for fee awards, and encourage the fairer, more efficient, and more appropriate representation of claimants in MDLs.
Suggested Citation: Suggested Citation
Silver, Charles and Miller, Geoffrey P., The Quasi-Class Action Method of Managing Multidistrict Litigations: Problems and a Proposal (March 3, 2009). NYU Law and Economics Research Paper No. 09-09; U of Texas Law, Law and Econ Research Paper No. 147. Available at SSRN: https://ssrn.com/abstract=1352646 or http://dx.doi.org/10.2139/ssrn.1352646