September 28, 2020 4:05PM

Using Artificial Classes To Settle Mass Litigation: What Ginsburg Knew

Last week the Sixth Circuit rejected a federal judge’s novel certification of an unusual “negotiating class” aimed at promoting a global settlement between opiate manufacturers and cities and counties around the country that have sued them. The designated class would have included thousands of cities and counties around the country that have not filed suit, and the way in which it would have handled their legal interests was assailed from many directions as lacking in fairness. Last week’s ruling triumphantly vindicates the prescience of the late Justice Ruth Bader Ginsburg, the modern Court’s most influential proceduralist voice, whose opinion for the Court in Amchem Products v. Windsor (1997) laid out the path correctly followed by the Sixth Circuit majority. (Judge Eric Clay wrote the opinion, joined by Judge David McKeague; Judge Karen Moore dissented.)

From my point of view, the opiates litigation demanding recoupment of public funds spent on addiction should never have been filed at all, and its proper settlement value would be $0.00. (More herehere, here, etc.) It’s not clear the courts will rule that way, however, and many legal observers expect that, as with many mass tort actions, this one will eventuate in a settlement. Such a settlement would extract money from drug company investors (as well as bystanders such as pain patients who may pay more for medication in future) and redistribute it to mayors, county executives, and their lawyers (many of the latter on contingency fee). As advocates of the “negotiating class” idea saw it, a settlement would be speedier and more generous to the extent that it could be more comprehensive and final. Federal judge Dan Polster in Cleveland agreed (more), and the appeal in In Re: National Prescription Opiate Litigation followed.

Not dissimilar arguments fueled the would‐​be global asbestos settlement brought before the Court in Amchem. There, too, a judge had been talked into what has been called a managerial approach to mass litigation, one that would convert court process into a sort of administered compensation scheme, like black lung, disability, or others commonly situated in the executive branch, while according short shrift to the individual procedural interests of some parties not (yet) suing.

The practical arguments for global disposition back then, as Ginsburg was the first to acknowledge, were weighty. Asbestos litigation was and remains enormously expensive, slow, and chancy, the reverse in all respects of how a beneficent thinker would design a compensation program. But the answer was not to cut corners in the process rights enjoyed by even the humblest federal court litigant by herding all into class outcomes without full and proper individual notice and chance to decide. Federal court procedure holds out a promise of individual hearing and individual adjudication that must not be lost in the felt practical need to aggregate litigant groups and move them by the hundreds and thousands as if on a game board.

Ginsburg and the Court were right then, and the Sixth Circuit panel is right now.