Rediscovering the Issue Class in Mass Tort MDLs

Abstract

For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation academy are emphatic that procedures for selecting and compensating class action counsel are uniquely rooted in the language, history and structure of Rule 23: when pirated away from their doctrinal home, we are told, these collective practices become contraband.

The thesis of this essay is that judges and commentators are wrong to categorically reject class-based procedures in mass tort MDLs, as they do. Contrary to popular belief, Rule 23 does provide, if not a grab bag (that’s too opaque), a Black & Decker toolbox chock-a-block with shiny and promising instruments. Most centrally, we contend that Rule 23(c)(4), when properly employed, provides a doctrinally sound and constitutional means for achieving scale efficiencies in mass tort cases. Indeed, the issue class device is unique, among potential approaches to mass-harm litigation, in its ability to confer – meaningfully and durably – preclusive effects to core issues and shave years off of otherwise “black hole” MDL litigations – all while remaining fully consistent with Supreme Court case law, the Seventh Amendment, the text of Rule 23 and other relevant sources of positive law.

Keywords: Issue Class, Multidistrict Litigation, Preclusion, Mass Torts, Aggregate Aettlements