The 'Inherent Powers' of Multidistrict Litigation Courts

51 Pepperdine Law Review 559 (2024)

U of Texas Law, Legal Studies Research Paper

32 Pages Posted: 17 May 2024

See all articles by Lynn A. Baker

Lynn A. Baker

University of Texas School of Law

Date Written: April 2, 2024

Abstract

Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a “common benefit” assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges’ assertions of their inherent powers when managing MDLs and have concluded that the courts’ inherent powers do not properly extend to any of these four actions.

In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within their inherent powers framework, I agree with Pushaw and Silver’s conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find un-persuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation.

Keywords: MDL, inherent power, aggregate settlements, aggregate litigation, mass torts, plaintiffs' attorneys, attorneys' fees, contingent fee, JPML, settlement, multidistrict litigation

JEL Classification: K10, K12, K13, K41

Suggested Citation

Baker, Lynn A., The 'Inherent Powers' of Multidistrict Litigation Courts (April 2, 2024). 51 Pepperdine Law Review 559 (2024), U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4821265

Lynn A. Baker (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1325 (Phone)

HOME PAGE: http://https://law.utexas.edu/faculty/lynn-a-baker/

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