The Short Unhappy Life of the Negotiation Class

Abstract

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism. This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry. The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class. The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace. The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorneys general raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory. The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule. It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question of whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model.