What MDL and Class Actions Have in Common

Abstract

This short article responds to Elizabeth Chamblee Burch's article, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Burch argues that lawyers in MDL leadership positions use their power to negotiate settlements that favor themselves over the plaintiffs they purport to represent. She points to particular terms that lawyers routinely insert in mass settlements. She contrasts MDL with class actions, where procedural safeguards presumably protect class members' interests. My response contends that Burch's concerns about MDL are on target, but that class actions, rather than providing a neat contrast, reveal powerful parallels to the ethical and procedural concerns she identifies in MDL. The article looks at the similarities and differences between class actions and MDL in terms of the risk of self-serving conduct by lawyers in the negotiation of collective settlements.

Keywords: class action, MDL, multidistrict litigation, aggregate settlement, settlement, Rule 23, class counsel, mass torts, mass tort litigation

JEL Classification: K41