Harnessing Common Benefit Fees to Promote MDL Integrity
MDLs currently account for slightly more than one out of every two civil cases pending in the nation’s federal courts—a fact that is making waves and, not surprisingly, catalyzing calls to tame these “behemoth” actions. In this debate, many MDL features are criticized, including their duration (too long), personnel (too reliant on repeat play), and modes of judicial administration (too managerial, improvisational, and reluctant to remand to the transferor court).
Yet, one aspect of MDLs—and particularly mass tort MDLs, which comprise the lion’s share of the MDL docket—is garnering particular attention and is seen by experts on both sides of the proverbial aisle as especially problematic: MDLs’ apparent tendency to attract patently nonmeritorious claims. In moments of candor, plaintiffs’ lawyers concede “that cases that truly have no merit are a real problem in MDLs.” Judges, too, are expressing exasperation with suits “populated with many non-meritorious cases” that “probably should never have been brought in the first place.” The MDL Subcommittee of the Advisory Committee on Civil Rules has registered concern, lamenting the “unfortunate reality that . . . a significant number of claimants in [MDLs] turn out not to have supportable claims.” Congress has gone on record criticizing mass tort MDLs for becoming “magnets for . . . poorly investigated (and often patently invalid) personal injury claims.” Academics have joined the chorus. And defense lawyers and their allies have doubled down, contending that “it is not uncommon for plaintiff counsel to file cases where the plaintiff was never exposed to the product that allegedly caused the injury, where the plaintiff never suffered the alleged injury, or where the statute of limitations that sets the deadline for filing the claim has expired.” Some prominent defense-side interest groups even identify nonmeritorious claims as the single biggest problem afflicting the contemporary MDL ecosystem.
The prevalence of these claims is prompting calls for drastic action, for everything from heightened pleading standards to blatant end-runs around Rule 56 and dramatically expanded interlocutory review. Indeed, defendants are using the specter of spurious filings to resist the Judicial Panel on Multidistrict Litigation’s (JPML’s) front-end creation of MDLs, and they are even citing the problem when seeking the wholesale departure from federal district court in favor of claim resolution through bankruptcy.
And there is no doubt: some MDLs do feature a significant number of entirely nonmeritorious claims, and the prevalence of such claims imposes considerable costs. Their inclusion complicates life for the defendant and may compel the filing of unnecessary (and sometimes downright misleading) adverse incident reports and SEC filings. It’s not good for plaintiffs, as some without meritorious claims are made to believe otherwise—and some plaintiffs are even made to believe they’re sick when they are, in fact, well. Then, within the MDL, the claims’ inclusion confounds, prolongs, and undermines the bellwether selection process. Dockets groaning under the weight of meritless claims erode confidence in the integrity of the MDL process—and tarnish Americans’ perceptions of civil litigation more generally. The inclusion of a significant-but-unspecified number of non-cognizable claims frustrates settlement discussions. If a settlement is reached, and if some funds are diverted to those without a valid entitlement to relief, that leaves less for those with genuine impairments. And, more broadly, as two-time transferee Judge M. Casey Rodgers has explained, simply “dealing with unsupportable claims . . . drains the time and resources of the parties, counsel, and the courts.”
Yet, so far, judicial efforts to address the problem have had something of a Goldilocks quality, either too weak or too strong. On the weak end of the continuum, courts have attempted to knock nonmeritorious claims out of the MDL. Yet they have done so either very late in the case’s life cycle (at the time of settlement, after the claims have already taken a toll) or, in other instances, earlier, but without accompanying steps to discourage such claims’ future filing. On the opposite end of the continuum, courts have sought to cull nonmeritorious claims using strong medicine, such as Lone Pine orders. But this strong medicine comes with significant side effects: Lone Pine filings are expensive and time-consuming to complete—and the orders’ entry perverts the Federal Rules of Civil Procedure and risks excluding suits that are, in fact, compensable under governing law.
Recognizing these challenges, and also stepping back to pinpoint a root cause of the problem—chiefly, that the mass tort MDL process distorts contingency-fee-fueled screening incentives—we propose a third, more targeted and better calibrated, approach. In particular, we encourage transferee judges to deploy their existing discretion to take three simple steps. First, transferee judges should weed out nonmeritorious claims early in the litigation’s life cycle, using either no-frills plaintiff fact sheets or census orders. (The vast majority of transferee judges already require fact sheets, and they increasingly do so early in litigation, so the marginal burden of step one should be minimal.) Second, transferee judges should assess how each personal injury (PI) lawyers’ clients’ claims fared when subject to the above scrutiny. Third, transferee courts should harness their well-established authority to set common benefit fees (CBFs) to penalize those who filed a high proportion of nonmeritorious claims and reward those who didn’t. These simple steps, when combined, will restore a version of fee-based screening incentives—and will, in turn, encourage MDL lawyers to file supportable suits.
The remainder of this Article proceeds as follows. Part I explores the persistent problem of nonmeritorious claiming. It compiles the best available evidence about the meritless claim problem and then, drawing on a deep understanding of contemporary contingency fee financing, explains why MDLs—and particularly certain large mass tort MDLs—are particularly susceptible to these filings. Part II then canvasses current approaches that seek to promote claim integrity and analyzes why these approaches predictably fall short. As Part II explains, some current tools are too strong, others are too weak, and all are inadequately forward-looking. Current screens may succeed at weeding out the bogus claims already in a given MDL, but they do nothing to recalibrate underlying incentives. Against that backdrop, Part III sketches a straightforward, flexible, and easy-to-implement CBF-based reform. This Part contends that, by using existing mechanisms that are already at a transferee judge’s fingertips, the court can impose a (visible) financial penalty on PI lawyers who flood the MDL with noncolorable claims—and simultaneously reward those lawyers who don’t. In so doing, the court can fortify PI lawyers’ incentive to engage in rigorous pre-filing review and, by extension, promote the integrity of the MDL process.
Any discussion of meritless claims, whether in MDLs or otherwise, must begin with the critical fact that all available evidence suggests that most tort lawsuits are genuine and meritorious. The vast majority of federal judges, the professionals seemingly in the best position to evaluate claim validity, agree; for instance, in a 2005 survey, a mere 3% of surveyed district court judges reported that “groundless litigation” is a “large” or “very large” problem. And, other available evidence, while admittedly sparse, is in line with the judges’ conclusion.
That said, in two areas of the tort law ecosystem—namely, car wreck claims involving soft-tissue injuries and mass tort cases—there is reason to believe that “some non-trivial number of plaintiffs file claims without a valid entitlement to relief.” We now turn our attention to this latter category—first to describe the broad contours of the challenge, and, next, to identify and disentangle its potential causes.
It is clear that MDLs—and especially large mass tort MDLs—have become home to at least some nonmeritorious claims. But how big of a problem is this, exactly? It is impossible to say for sure. Further, even if we had a reliable general estimate (which we lack), the incidence of such claiming undoubtedly varies sharply from litigation to litigation, based (at least in part) on three key variables:
(1) Injury Verifiability: Whether the particular mass tort involves injuries that are or are not clearly verifiable. When injuries are not easily verifiable—and when even doctors may disagree about whether an individual suffers from the particular impairment—that lack of certainty breeds over-claiming. Thus, in a mass tort involving a plane crash where the injury is death, there is apt to be zero over-claiming. On the other hand, when the mass tort involves a hard-to-diagnose malady (such as asbestosis, silicosis, or fibromyalgia), we would expect more significant overclaiming.
(2) Specific Causation: Whether specific causation is obvious or contestable. When it is not clear that defendant’s tortious conduct actually caused this plaintiff’s injury, that ambiguity produces over-claiming. On the other hand, when specific causation is clear (as is true, for example, if the plaintiff is suffering from a signature disease such as chloracne, vaginal adenocarcinoma, or mesothelioma), that fact offers a strong brake on overclaiming.
(3) Size: Whether the mass tort is medium-size, large, or gigantic. All other things equal, the larger the MDL, the higher the risk of over-claiming, both because a high volume may indicate that there has been indiscriminate filing, and (less obviously but probably more importantly) a high volume can fuel it, since, as the MDL grows, each marginal claim is less likely to receive individualized scrutiny.
But while we hazard no guess of the percentage of nonmeritorious claims that, generally, make their way into large mass tort MDLs, we simultaneously observe that the nonmeritorious claim problem is well documented and enduring. For instance, in the Silica MDL, transferee Judge Janis Graham Jack concluded that thousands of claims were backed by diagnoses that were, upon inspection, “driven by neither health nor justice: they were manufactured for money.” In Diet Drugs, “numerous attorneys, some with nefarious intentions, operated echocardiogram mills to develop a vast inventory of claimants.” In the silicone-gel-breast-implant litigation, some claims were generated by a few dozen physicians who set up “assembly-line processes to diagnose women with a constellation of vague ailments.” And the problem has also plagued asbestos litigation, particularly among those seeking compensation for asbestosis, a lung disease that is notoriously difficult to identify.
Meanwhile, in Vioxx, plaintiffs’ lead lawyer recently explained that, of the roughly 45,000 claimants, “there were a couple thousand claims of people that didn’t take Vioxx; they couldn’t produce a medical record that they even took the drug.” In Deepwater Horizon, a single lawyer (Mikal Watts of Texas) submitted more than 40,000 claims, the overwhelming majority (at least 39,000) of which were bogus. Indeed, Watts’s initial roster of clients—supposedly consisting of “deckhands”—was pulled seemingly at random from the telephone book and included, among others, a cosmetologist, a dog, a librarian, a Buddhist monk, and a person who, at the time of the rig explosion, had been dead for five years. In Fosamax, the exasperated transferee judge observed that plaintiffs had something of a “habit” of dismissing cases once they were slated for scrutiny. In Digitek, it is doubtful that any plaintiff actually came into contact with an allegedly defective pill. In Abilify, even three years into the litigation, certain plaintiffs “conceded that they [were] unable to provide any evidence that they used” the targeted pharmaceutical. In Zostavax, at least 173 complaints were dismissed because, among other infirmities, the plaintiffs alleged “that they were induced to obtain a Zostavax vaccination by advertisements that began running years after plaintiffs were inoculated.” And, in the 3M litigation, where some 290,000 (supposed) veterans allege that the company’s earplugs offered them inadequate protection, Judge M. Casey Rodgers recently dismissed about 20,000 claims for failure to provide “basic proof of military service.”
What explains the relative prevalence of nonmeritorious claiming in mass tort MDLs, particularly given the paucity of such claims in the tort system more generally? In past work, one of us has interrogated that question in great detail. Here, though, it makes sense to focus on two factors that are distinctive to MDLs and also clearly conducive to such activity.
First and critically, in mass tort MDLs, typical incentives embedded in the contingency fee are either wholly inoperative or substantially relaxed. Typically, personal injury lawyers are paid via contingency fees, meaning that the lawyer is paid—and also generally reimbursed for out-of-pocket expenses—if and only if the lawyer’s client prevails. By tethering the lawyer’s fortunes to the client’s success, the contingency fee “gives lawyers a powerful incentive to rigorously evaluate cases prior to acceptance.” Unsurprisingly, given this incentive, most such lawyers are highly selective; the evidence shows that “[m]ost PI lawyers vet cases carefully and reject the majority (often, the vast majority) of would-be claimants who seek their services.”
When it comes to client selectivity, however, mass torts diverge from this model: as compared to their peers, the mass tort lawyers’ ability and incentive to screen are both radically reduced. On the former, the sheer volume of claimants, all seeking representation more or less simultaneously and often in response to the same stimuli—such as the recall of a product or the publication of a study showing a drug’s significant risk—may overwhelm a lawyer’s ability to perform requisite checks. Other features of the contemporary mass tort ecosystem, such as aggressive attorney advertising and the proliferation of for-profit claim generators, predictably compound these effects. As a lawyer for Mikal Watts put it: “Generally, in mass tort cases, lawyers representing thousands of clients do not personally meet with, investigate, and sign up the case of each individual client. That is literally impossible in such large cases.”
On the latter, as against the “typical” PI lawyer, a mass tort lawyer’s incentive to screen is also comparatively limited. Typically, the acceptance of a new client poses a substantial degree of risk and entails a non-trivial investment of time and money, creating (in a no-win, no-pay system) a powerful reason to represent only those with meritorious claims. But in an ongoing mass tort case, litigation costs for individual attorneys are (largely) fixed, and they are also borne mostly by others—primarily those on the plaintiff steering committee, or “PSC.” But, at the same time, rewards hinge significantly on claim volume—meaning, as Francis McGovern has explained, it becomes a matter of “the more [clients] the better.”
Beyond that, a mass tort lawyer may rationally decide it is beneficial to adopt something of an open-arms policy, in part because coveted and lucrative positions on the PSC are sometimes awarded based on the size of the lawyer’s inventory. (Tellingly, Mikal Watts—the lawyer who had thousands of bogus Deepwater Horizon claims—scored a seat on that MDL’s PSC after boasting on his leadership application that he “‘represent[ed] over 40,000 plaintiffs’ in the BP litigation.”)
Meanwhile, as compared to conventional tort litigation, MDLs are also distinctive because the various procedural safeguards that generally test the validity of civil claims—such as Rule 26 discovery obligations, Rule 30 depositions, Rule 33 interrogatories, Rule 11 motions for sanctions, and individually focused Rule 56 motions for summary judgment—are, as one federal judge put it, “difficult to employ at scale in the MDL context, where the volume of individual cases in a single MDL can number in the hundreds, thousands, and even hundreds of thousands.” In MDLs, transferee judges tend to focus on “common issues rather than the unique circumstances of each claimant”; with that focus, individual claim integrity (and the claim-by-claim scrutiny that promotes it) understandably takes a backseat.
It is, in short, a two-layer problem. In mass tort MDLs, contingency-fee-powered, lawyer-initiated screens—which, generally, impose the “first line of defense against frivolous litigation”—are substantially diminished. Compared to the typical PI case, there is little time to engage in rigorous screening, and there is little incentive to do so. Then, rule-driven, trans-substantive procedural screens are mostly nonoperational. In such a world, it is no surprise that some nonmeritorious claiming activity comes to the fore and that, even years into litigation, some noncolorable claims persist.
Partly given the problems that have prominently plagued so many mass torts, there now exists a broad consensus that transferee courts need to “weed out non-meritorious cases early, efficiently, and justly.” Eager to heed that call, many transferee courts are taking steps to scrutinize claims prior to settlement—and they are frequently doing so using some combination of three mechanisms: Lone Pine orders, plaintiff fact sheets, and census orders. Yet, as it stands, none of these mechanisms quite work. Below, we sketch the main attributes and core deficiencies of each.
Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders are case-management orders issued by trial courts in mass tort cases, sometimes prior to and sometimes after the start of discovery. Lone Pine orders:
[T]ypically require each plaintiff swept into an aggregate action to make three distinct evidentiary showings: (1) that she was exposed to the defendant’s product or contaminant and the circumstances of his exposure, (2) that she has suffered, or is suffering, a bona fide impairment (and, often, the circumstances of her diagnosis), and (3) proof of causation—which is to say, either an expert affidavit or expert report expressly connecting (1) with (2).
A deficient or missing submission may (and often does) result in dismissal with prejudice.
Yet, while Lone Pine orders do seemingly help to surface unsupportable claims, they do so at considerable cost. In particular, in demanding proof of specific causation, some experts believe they go too far—as they “demand what amounts to an impossible and unrealistic level of certainty,” and, in so doing, threaten to weed out not just noncolorable claims but instead claims that are entitled to compensation under governing law. Furthermore, in requiring the plaintiff, essentially, to prove a prima facie case—but without the benefit of discovery—Lone Pine orders make an end-run around, and ultimately subvert, the carefully crafted safeguards that surround summary judgment.
Fact sheets, meanwhile, have “grown up in the last few years” and have become “widespread in the largest MDL proceedings.” Usually answered under oath in lieu of interrogatories, plaintiff fact sheets (sometimes called PFSs, “Plaintiff Profile Forms,” or “Preliminary Disclosure Forms”) typically require each plaintiff swept into an aggregate action to submit basic information about her background, injury, past claims for compensation, and the identity of her diagnosing physician. These fact sheets also tend to “include a blanket authorization, which, once signed, permits the defendant to collect the plaintiff’s medical and employment records without running afoul of privacy laws.” Census orders, meanwhile, are similar to plaintiff fact sheets but are more streamlined and often used earlier in the case.
Fact sheets and census orders differ from Lone Pine orders chiefly because, unlike the latter, they do not inquire into specific causation; they focus instead on information that the plaintiff already knows, should already know, or can easily learn. As such, assuming they are appropriately targeted, fact sheets and census orders are not terribly burdensome to complete and, unlike Lone Pine orders, do not engender particular controversy. As one leading plaintiffs’ lawyer has explained, for instance: “I don’t see a major problem with a plaintiff . . . early on in the case coming up with some basic documentation, like a medical record showing that you were on the drug or a medical record indicating that you have at least suffered the type of injury that’s at issue.” Prominent defense lawyers seem to agree that these simple mechanisms can pay large dividends. Defense counsel Douglas Smith, for instance, explains: “Simply requiring production of basic information can frequently lead to the prompt elimination of claims that are unsupported,” while Lawyers for Civil Justice (LCJ) observes that “the early disclosure of evidence demonstrating both exposure to the alleged cause of an injury and the resulting injury would be a significant improvement for MDL judges and parties alike.”
And notably, there is evidence that even relatively bare-bones submissions can productively weed out invalid claims. According to the Federal Judicial Center, of sixty-six recent product-liability MDLs with plaintiff fact sheets, a solid majority (55%) “included evidence (including show cause orders) of activity to dismiss cases when substantially complete PFS had not been filed.”
Indeed, examples of such successes abound: In Silica, a bare-bones fact sheet ultimately triggered the dismissal of the entire litigation. In Phenylpropanolamine, the trial court used fact sheets to cull more than 850 claims that had otherwise languished on the court’s docket. In Welding Fumes, transferee Judge Kathleen O’Malley required each plaintiff to certify that she had been examined by a licensed physician and that the physician had diagnosed her with a qualifying neurological disorder. This no-frills order reportedly cut the number of pending cases in half. In Avandia, a straightforward disclosure requirement prompted the termination of roughly 1,000 cases. In Abilify, at least 350 claims—more than 10% of the pending total—were dismissed when plaintiffs failed to submit supporting documentation, failed to submit proof of Abilify use, or some combination thereof. In Taxotere (Docetaxel), the fact sheet process triggered the dismissal of hundreds of claims. And in 3M, defendant reports that “[o]nce obligations to comply with basic filing requirements, serve unverified census forms, and produce proof of military service were imposed, dismissals began rolling in.”
Deficient submissions can also spur the informal (and less visible) exclusion of claims, as plaintiffs’ lawyers will sometimes voluntarily dismiss claims once they see that essential evidence is wanting.
But despite these successes, even when judges are good at issuing relevant orders and following up to ensure timely compliance, both fact sheets and census orders suffer from a glaring drawback: They only cull noncolorable claims from the instant MDL, and they do so only after the claim is filed (and, for some claims and in some cases, after a lengthy stay on the docket). They do nothing to recalibrate broader incentives.
The above shows that even simple plaintiff fact sheets or census orders can successfully weed out nonmeritorious claims. But it also suggests that to rely exclusively on plaintiff fact sheets or census orders—or even Lone Pine orders—consigns courts to a game of judicial whack-a-mole. The court will probably, at some point and at some cost, figure out which extant claims are noncolorable and exclude them from further processing. But the root cause of the problem—skewed incentives that invite the submission of nonmeritorious claims in the first instance—will remain unaddressed.
Currently, as one prominent defense lawyer explains, “there is little incentive not to file unsubstantiated claims because lawyers are not punished for doing so or given any financial disincentive that would discourage such filings.” In this Part, we explain how plaintiff fact sheets and common benefit fees (CBFs), two prominent features of the MDL landscape that currently operate independently, can be coupled to operate in tandem and supply that now-missing incentive. Subpart III(A) sketches the reform, while subpart III(B) addresses its advantages and possible drawbacks.
We propose that transferee courts take three steps to ensure the integrity of MDL filings. In particular, courts should: (1) weed out nonmeritorious (i.e., entirely unsupported) claims early in the litigation’s life cycle, (2) assess how each lawyer’s claims fared when subject to the foregoing scrutiny, and (3) levy a higher CBF assessment on those lawyers who filed a high proportion of “failing” claims and a lower CBF assessment on those lawyers who didn’t. We elaborate on each of these three steps below.
First, whether framed as a no-frills plaintiff fact sheet or an initial census, plaintiffs should, relatively early in an MDL, be made to offer straightforward information (including, in certain contexts, limited documentation) as to the following:
(1) Injury: Description of the plaintiff’s symptoms and identification of, and information regarding, the plaintiff’s diagnosis.
(2) Exposure: Underlying facts concerning the plaintiff’s exposure to the defendant’s conduct or product, including the (approximate) dates when the plaintiff was initially and most recently exposed.
(3) Counsel: Identity of the plaintiff’s lawyer or lawyers.
(4) Past Claiming: (When warranted) whether the plaintiff has previously sought compensation for the instant (or a similar) injury, illness, or condition, and the compensation that was sought and obtained.
As subpart II(B) explains, requiring these bare-bones disclosures is not particularly controversial; experts agree that these straightforward and easy-to-answer questions can surface valuable information, and a scan of past MDLs offers good evidence to support experts’ assessments. Furthermore, while our immediate focus is on how to promote MDL integrity, these disclosures will likely also promote MDL efficiency, as this information (which should provide an accurate bird’s-eye view of the litigation) will aid in the selection of truly representative bellwethers, inform the defendant’s strategy regarding the filing of dispositive motions, and, ultimately, promote the parties’ discussion of settlement. Indeed, researchers have found that, all else equal, “proceedings terminate 58% faster with either a plaintiff fact sheet or plaintiff profile form than without.”
Second, after an appropriate opportunity to cure deficiencies, claims that fail the above screen should be dismissed. This means, for example, that in a case involving an allegedly defective drug, a plaintiff should see her claim dismissed if she is unable to furnish evidence that she: (1) has been diagnosed with an ailment allegedly linked to the drug, or (2) was ever prescribed the drug. Furthermore, the court ought to assess how each lawyer’s clients fared—and, in particular, the court ought to tally the percentage of the lawyer’s clients who passed (or failed) the screen.
Third and finally, courts ought to announce that, at the back end of litigation, CBFs will be assessed from lawyers based on the proportion of their “surviving” or “failing” claims. When it comes time to levy CBFs, sub-par screeners will have to pay somewhat more.
The third step of the proposal relies on adjustments to CBFs—and so, for the uninitiated, a word about CBFs is warranted. Transferee judges routinely require plaintiffs’ lawyers with claims in an MDL to contribute a portion of their fee to the common benefit fund. Judges then channel these funds to the subset of PI lawyers who performed qualifying “common benefit work”—work that benefits all plaintiffs and their counsel. With roots in the doctrine of unjust enrichment, CBFs seek to ensure that the lawyers who perform the valuable joint tasks that assist all plaintiffs are appropriately compensated—and also that no lawyer can pocket a windfall by free riding on others’ efforts. Although there are hearty disagreements as to the particulars (such as whether CBFs should be deducted from lawyers litigating in state, rather than just federal, court), judges’ baseline authority to require CBF contributions is well-established.
Today, CBF deductions tend to hover in the range of 4% to 8% of the entire recovery, and they tend to be one-size-fits-all; on a percentage basis, all PI lawyers in the MDL are usually made to cough up the same amount. But nothing compels that uniformity—and, importantly, there is ample precedent supporting more granular (and non-uniform) assessments.
Turning to the nuts and bolts, the differential assessment could (and likely would) be reverse-engineered from the average CBF deduction the judge plans to impose or the total CBF the judge seeks to award—thereby ensuring that they add up to a sought-after total. Beyond that, a range of approaches are possible. For instance, a judge interested in administrative ease—and who prefers carrots to sticks—might levy a uniform CBF but simultaneously rule that certain lawyers (i.e., truly excellent gatekeepers) are entitled to a CBF discount. (Here, the judge might rule that, if more than 90% of the lawyer’s claims survived the screen, that lawyer ought to pay a CBF of 3% instead of the “general” 6% assessment.) Or, conversely, a judge who wants to single out only the handful of lawyers who truly default on their screening obligations can do that—by ruling, for instance, that a CBF “surcharge” will be levied if more than a specified percentage (perhaps 50%) of the lawyer’s claims are deemed nonmeritorious. Or, seeking further specificity (and fewer knife-edge problems), a judge might impose a sliding scale roughly as follows.
|Percentage of the lawyer’s claims to “survive” the screen||CBF Percentage|
|95% to 100%||1%|
|90% to 95%||3%|
|80% to 90%||5%|
|70% to 80%||7%|
|60% to 70%||9%|
|50% to 60%||11%|
|40% to 50%||13%|
|Anything below 40%||15% or more|
Likewise, judges can deploy the same essential mechanism to reward or penalize those lawyers who are entitled to CBFs because they performed common benefit work. So, for example, if a lead lawyer’s own inventory of clients is shown to include a high proportion of “failing” claims—as, for example, Mikal Watts had in Deepwater Horizon—the lawyer’s entitlement to CBFs might be reduced (which might, in turn, deter lawyers from obtaining a seat on the PSC by artificially inflating their client inventories).
Numerous advantages attend this reform. Here, we highlight five. First, as noted above, the proposal liberates judges from playing a game of claim integrity whack-a-mole. It does not just weed out nonmeritorious claims in this MDL; if widely embraced, it promises to recalibrate underlying financial incentives.
Second, the approach is conceptually sound. After all, current MDL payment structures reserve for individually retained counsel (sometimes called “primary attorneys,” “IRPAs,” or “IRCs”) the bulk of the contingency fee (typically, 33% to 40% of the client’s recovery less the CBF) on the theory that these lawyers have furnished a valuable service and ought to be compensated accordingly. However, the chief services that IRPAs supposedly provide—and are theoretically being compensated for—are ex ante screening, client communication, assistance with individual discovery requests (including completion of questionnaires or fact sheets), and, at the back end of litigation, individualized advice regarding settlement. To the extent that a given lawyer has neither screened her client nor ensured that her clients’ fact sheets pass muster, it stands to reason that the lawyer should pay more into the CBF pot: She is not pulling her weight and is, instead, free riding on others’ efforts; rather than facilitating the broader litigation, she is affirmatively frustrating it.
Furnishing further conceptual support: It is exceedingly well established that payments from the common benefit fund ought to vary based on the lawyer’s contribution to the litigation. A lawyer whose contribution to the litigation is large is entitled to more than a lawyer whose contribution to the litigation is marginal. It logically follows that the lawyer’s payment to the common benefit fund ought to, or at least could, vary based on the same metric.
Third, the approach will predictably unleash salutary reputational effects. After all, who gets what will be public. That means, going forward, other judges and lawyers can see who vetted their client inventories—and who didn’t. In a world where lawyers negotiate with defendants for settlement funds, jockey for judicial appointment to coveted leadership posts, and also compete with one another for client referrals, those reputational effects ought to matter, and indeed we predict they will super-charge upstream effects.
Fourth, the approach complements, rather than duplicates, existing litigation misconduct mechanisms such as sanctions pursuant to 28 U.S.C. § 1927 and Rule 11, malicious prosecution actions, bar disciplinary proceedings, and even criminal penalties. In particular, to impose a sanction pursuant to one of these existing mechanisms, the court or state bar (in the case of disciplinary proceedings) or prosecutor, judge, and jury (in the case of criminal penalties) must make an explicit finding that the lawyer erred. To impose a sanction under § 1927, for instance, the court must find that the lawyer behaved “unreasonably and vexatiously.” Likewise, a court cannot impose a Rule 11 sanction absent a finding of “at least some level of culpability,” sometimes in the form of an express determination that the lawyer not only advanced an “objectively frivolous” claim, but that the lawyer “should have been aware” that the claim was frivolous. Similarly, liability for malicious prosecution hinges on a showing that the lawyer-defendant acted with “malice,” while bar disciplinary actions or criminal penalties come with a host of requirements, detailed procedures, and an elevated burden of proof (either by clear or convincing evidence or beyond a reasonable doubt, respectively). Such safeguards are useful and important. But they understandably complicate (and stunt) the mechanisms’ application. By contrast, the differential assessments we advocate are accompanied by no finding of fault.
Fifth and finally, the approach is flexible. As we demonstrate above, it need not be one-size-fits-all, and transferee judges can tailor our basic proposal to the needs of the individual case.
Against these advantages, we glimpse a number of possible complications, criticisms, and challenges. Below, we discuss six and also offer brief responses thereto.
First, some may worry that, to the extent lawyers are taxed for submitting claims that fail the relevant screen, unscrupulous lawyers may be tempted to double down—to fabricate fact sheets in order to evade detection—which would further subvert factfinding processes.
That concern, we believe, is genuine. But the critique is nevertheless unpersuasive. Unscrupulous lawyers are already tempted to fudge submissions—and, given baseline incentives, it is not obvious that the extra temptation (traceable to a marginally higher CBF assessment) is meaningful. The fact is: Lawyers who assist their clients in submitting false (sworn) affidavits are crossing a very clear, very bright line. When that behavior comes to light, judges—and also bar authorities and, when appropriate, prosecutors—can and should take strong remedial action.
Second, some might suggest that requiring plaintiffs to survive any screen is unfair—and penalizing lawyers, and not just litigants themselves, for failing to survive that screen is doubly unjustified.
We agree that, especially early in the litigation, plaintiffs should not be bombarded with elaborate requests for detailed information. But as long as fact sheets hew to our recommendations above, we do not believe that these submissions (basically, simplified, cookie-cutter interrogatories) impose an unreasonable burden. Moreover, the Federal Judicial Center has shown that transferee judges already demand that plaintiffs supply certain information—meaning that, although our proposal is likely to change how information is used, it is relatively unlikely to increase the quantum of information that is collected. Put another way: Even without our intervention, judges already require certain plaintiff-side disclosures; with our proposal, we’re just trying to ensure that these disclosures are (i) narrowly tailored and (ii) put to good use.
Nor do we believe, more generally, that it is unfair to levy a tax on lawyers who file high numbers of unsubstantiated claims. After all, under the Model Rules of Professional Conduct, which is in place in some form in every state, lawyers may not “bring . . . a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” And under Federal Rule of Civil Procedure 11(b)(3), a lawyer who has assisted a client in filing a complaint has already represented that the complaint’s “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Furthermore, although one might insist that it is wrong to require such exactitude of lawyers with a large inventory of clients, that argument is unavailing. It is legal ethics 101 that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.” If the size of the lawyer’s inventory is not conducive to adequate screening, what needs to change is the size of the lawyer’s inventory.
Third, some might criticize the approach because it adds to the already very heavy administrative burden that transferee courts must bear, as the court must now both verify the integrity of each fact sheet and calculate the percentage of claims within each lawyer’s inventory that passes the relevant screen.
This concern is valid, but possibly overstated: If the reform works, any additional judicial burden may well be partly offset (or more than offset) because fewer unfounded claims will be filed in the first instance. Moreover, sophisticated tools are already available to help judges process fact sheets, so tracking and analysis may prove a light lift.
Fourth, every reform is susceptible to gaming; when any change is made to one part of a complex system, sophisticated actors will change their behavior in response. This reform is no different. In a world with graduated (and public) CBF assessments, sophisticated counsel will adjust their behavior to avoid ponying up.
We see two ways lawyers may seek to circumvent the reform. First, lawyers who have filed high volumes of nonmeritorious claims, seeing possible financial penalties on the horizon, might move to dismiss before the judge’s screening mechanism is applied. Second, lawyers who are assessed penalties may seek to pass those costs on to others—most obviously, the claim aggregator or generator who sold them the bad “inventory.”
But both of these changes are salutary. If the reform spurs voluntary dismissals, it promotes judicial efficiency and MDL integrity—even if it does so via a potential (rather than imposed) assessment. And, if the reform spurs cost shifting to claim aggregators or generators, it is apt to cause those firms to vet cases more carefully—again, to positive effect.
Fifth, some might argue that the proposal’s resulting incentives could prevent attorneys from taking on certain types of claims—such as those where proof might be hard to come by or where structural barriers (e.g., language proficiency or housing insecurity) might cause a delay in fact sheet submissions and thereby yield “false positives.” 
This concern merits careful consideration. Indeed, some scholars have already expressed concerns regarding possible underclaiming in MDLs, and poorly tailored efforts to reduce nonmeritorious claiming could cause the pendulum to swing too far, reducing access in the name of rigor. We urge judges to implement with this risk in mind, particularly in contexts where such concerns might be particularly salient. Indeed, this issue underscores the importance of ensuring that fact sheets are straightforward, rather than bloated and burdensome. It also underscores that, in the “curing” process described above, judges should display appropriate flexibility, including offering attorneys an opportunity to seek extensions when information may be available but, for particular plaintiffs, especially difficult to access.
Sixth and finally, a larger concern also lingers. This reform relies upon several MDL features that yield discomfort among scholars, judges, and policymakers—including judicial ad hocery, hands-on management, and (federal) interference with the attorney-client relationship. If widely embraced, this reform might justifiably heighten “the image of judges as purchasers and allocators of legal services,” with an active role in who gets what, and who pays what, on an attorney-by-attorney basis. And indeed, we share, and have expressed, similar unease. But, for better or worse, judges are in this business, and their managerial load—and corresponding need for active case facilitation—shows no sign of easing. Given that, straightforward interventions, particularly those that simply repurpose long-established MDL practice, merit careful inspection and cautious implementation.
A Subcommittee of the Federal Civil Rules Committee has studied the problem this Article addresses, but it has thrown up its hands, lamenting that whether the problem has a “manageable solution remains unclear.” Taking the baton, this Article couples two familiar MDL mechanisms—plaintiff fact sheets and CBFs—which currently operate independently. And it offers a straightforward way to harness familiar financial incentives—which MDLs currently pervert—in order to give PI lawyers a strong reason to vet their claims prior to claim initiation. These incentives currently work well in most corners of the PI ecosystem. If judges harness common benefit fees, the same incentives could work well to deter certain PI lawyers from flooding MDLs with unsupportable claims.
- . For statistics, see Ronen Avraham, Lynn A. Baker & Anthony J. Sebok, The MDL Revolution and Consumer Legal Funding, 40 Rev. Litig. 143, 145–46 (2021). If one counts filed cases, rather than pending cases, MDLs are closer to 30%. Cf. Margaret S. Williams, The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years, 53 Ga. L. Rev. 1245, 1271 (2019) (suggesting that the “pending” statistic offers an exaggerated sense of MDLs’ share of the civil docket). ↑
- . E.g., Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, 107 Cornell L. Rev. 1835, 1844 (2022) [hereinafter Burch & Williams, Perceptions of Justice] (noting that “MDLs last almost four times as long as the average civil case”); Elizabeth Chamblee Burch & Margaret S. Williams, Repeat Players in Multidistrict Litigation: The Social Network, 102 Cornell L. Rev. 1445, 1520–21 (2017) [hereinafter Burch & Williams, Repeat Players] (criticizing the prevalence of repeat play); Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. 1, 15 (2021) (noting that “a remand is no longer a convenient fiction; it’s a virtual impossibility”). ↑
- . Avraham et al., supra note 1, at 145–46 (explaining that, as of 2020, 95% of all actions pending in MDLs involve mass torts). ↑
- . Here and below, we use “nonmeritorious claims” to refer to claims brought by plaintiffs with no cause of action (e.g., who never took the drug at issue). Jaime Dodge has called these “false claims,” a specific category distinct from “exposure-only or otherwise difficult-to-prove claims.” Jaime Dodge, Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation, 64 Emory L.J. 329, 349–50 (2014). For examples, see infra subpart I(A). ↑
- . Perry Cooper, Defendants’ Gripes with MDLs, and What to Do About Them, Bloomberg L. (Oct. 26, 2017, 6:07 AM), https://www.bloomberglaw.com/bloomberglawnews/class-action/X4RSHHK000000?bna_news_filter=class-action#jcite [https://perma.cc/X7UU-9CPK] (quoting prominent plaintiffs’ attorney Chris Seeger as agreeing with this assessment); see also Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 Cornell L. Rev. 941, 961 (1995) (“[M]ass tort actions attract, and mass tort settlements encourage and pay, a large number of claims that are insubstantial—or, in the words of one experienced plaintiffs’ lawyer, ‘junk.’”) (quoting plaintiffs’ lawyer Paul D. Rheingold); MDL Subcommittee Report, in Advisory Comm. on Civ. Rules 148 (2018) [hereinafter 2018 MDL Subcommittee Report] https://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf [https://perma.cc/Y57B-VVL7] (reporting that “plaintiff-side lawyers . . . recognize that other lawyers file cases without adequate investigation and, sometimes, in hope of a free ride to a profitable settlement”). But cf. Tricia L. Campbell & O. Nicole Smith, Mandatory Early Vetting in MDLs: Just a Red Herring?, 89 UMKC L. Rev. 865, 865 (2021) (insisting that “concrete data” has not “established” that “MDLs are being overrun with meritless cases”). ↑
- . In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004 (CDL), 2016 WL 4705827, at *1 (M.D. Ga. Sept. 7, 2016). As recognized by the Advisory Committee on Civil Rules:
There seems to be fairly widespread agreement among experienced . . . judges that in many MDL centralizations—perhaps particularly those involving claims about personal injuries resulting from use of pharmaceutical products or medical devices—a significant number of claimants ultimately (often at the settlement stage) turn out to have unsupportable claims, either because the claimant did not use the product involved, or because the claimant had not suffered the adverse consequence in suit, or because the pertinent statute of limitations had run before the claimant filed suit.
2018 MDL Subcommittee Report, supra note 5, at 142. ↑
- . 2018 MDL Subcommittee Report, supra note 5, at 143. ↑
- . H.R. Rep. No. 115-25, at 5 (2017). ↑
- . E.g., Dodge, supra note 4, at 350 (discussing MDLs’ propensity to attract “claims that, when investigated, reveal that the individual has no cause of action”); Francis E. McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L. Rev. 659, 688 (1989) (observing that “mature mass torts generate . . . a substantial number of false positive claims”); cf. D. Theodore Rave, Multidistrict Litigation and the Field of Dreams, 101 Texas L. Rev. 1595, 1602 (2023) (suggesting that the nonmeritorious claim problem is overstated but nevertheless concluding “it is quite plausible that MDLs bring more claims into the litigation system and that, on average, those claims will tend to have lower expected values than claims that would have been filed in the absence of an MDL”). ↑
- . Douglas G. Smith, The Rising Behemoth: Multidistrict and Mass Tort Litigation in the United States xii (2020); see also, e.g., Jason R. Harmon, Combatting “Count Me In” Pleadings: The Problem of Deficient Complaints in Multidistrict Litigation, For The Def., Feb. 2019, at 70, 70 (lamenting “the explosion of meritless MDL filings”); Andrew J. Trask, Ten Principles for Legitimizing MDLs, 44 Am. J. Trial Advoc. 113, 120 (2020) (“One of the unfortunate problems with modern MDLs is that the consolidated lawsuits are filled with junk claims.”); Christopher P. Gramling, Matthew J. Hamilton, Mary Margaret Spence & Jason A. Kurtyka, Early Assessment of Claims Can Help Reduce the MDL Tax, Wash. Legal Found., March 2020, at 1, 1 (“Instead of achieving efficiency, MDLs have encouraged plaintiffs’ lawyers to file a massive number of unmeritorious claims.”). ↑
- . E.g., Letter from Amy Sherry Fischer, President, IADC, to Rebecca A. Womeldorf, Secretary, Committee on Rules of Practice and Procedure 2 (Oct. 30, 2019) (“The most pressing problem with MDLs is that they are filled with what can only be called ‘junk’ claims.”); Letter from Corey L. Andrews, Vice President of Litigation, WLF, to the Advisory Committee on Civil Rules 2 (Sept. 23, 2019) [hereinafter Comment from WLF] (“Perhaps the greatest source of MDL inefficiency is the tendency to attract meritless claims.”). ↑
- . MDL Subcommittee Report, supra note 5, at 145 (discussing this proposal). ↑
- . See Staff of H. Comm. on the Judiciary, Rules Committee Print 115-5, Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017 (showing the text of H.R. 985 as ordered reported and H.R. 906 as reported by the Committee on the Judiciary; with conforming changes) (Mar. 1, 2017) (requiring, inter alia, that within forty-five days of transferring a personal injury action into an MDL, “counsel for a plaintiff . . . shall make a submission sufficient to demonstrate that there is evidentiary support . . . for the factual contentions in plaintiff’s complaint”). ↑
- . See Douglas G. Smith, The Myth of Settlement in MDL Proceedings, 107 Ky. L.J. 467, 473–74 (2018–2019) (referencing this proposal). ↑
- . See, e.g., In re Paragard IUD Prods. Liab. Litig., 510 F. Supp. 3d 1376, 1378 (J.P.M.L. 2020) (“[D]efendants contend that creation of an MDL would lead to the filing of numerous non-meritorious cases that will evade individualized scrutiny, thereby creating pressure on defendants to settle.”). ↑
- . See, e.g., Brief for Nat’l Ass’n of Mfrs. and Prod. Liab. Advisory Council, Inc., as Amici Curiae in Support of Appellee at 4, 22, In re LTL Mgmt., LLC, No. 22-2003 et al. (3d Cir. Aug. 22, 2022) (promoting the channeling of talc claims into the bankruptcy system because, inter alia, “MDL produces significant unfairness to defendants by subjecting them to a flood of non-meritorious claims”). ↑
- . For a thoughtful assessment of the costs these claims impose (or, sometimes, don’t impose), see generally Rave, supra note 9. ↑
- . See 2018 MDL Subcommittee Report, supra note 5, at 145 (discussing these effects). ↑
- . See In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 636 (S.D. Tex. 2005) (explaining that widespread misdiagnosis, as seen in Silica, causes some plaintiffs to believe they have an untreatable condition—when, in fact, the affliction may be treatable—and also has ripple effects that adversely affect many facets of the plaintiffs’ social, emotional, and financial wellbeing). ↑
- . See Judge M. Casey Rodgers, Vetting the Wether: One Shepherd’s View, 89 UMKC L. Rev. 873, 873 (2021) (explaining that “high volumes of unsupportable claims . . . interfere with a court’s ability to establish a fair and informative bellwether process”). ↑
- . For how perceived abuses affect public perception, see S. Todd Brown, Plaintiff Control and Domination in Multidistrict Mass Torts, 61 Clev. St. L. Rev. 391, 425–27 (2013). ↑
- . See Rodgers, supra note 20, at 873 (explaining that illegitimate claims “hamper settlement discussions”). ↑
- . See Silica, 398 F. Supp. 2d at 636 (“[E]very meritless claim that is settled takes money away from Plaintiffs whose claims have merit.”). ↑
- . Rodgers, supra note 20, at 874. See also Silica, 398 F. Supp. 2d at 636 (“Limited judicial resources are consumed weeding out meritless claims, costing the judiciary, costing other litigants whose suits are delayed, and ultimately costing the public, who pays for a judicial system that is supposed to move with some degree of speed and efficiency.”). ↑
- . See infra notes 77–99 and accompanying text. ↑
- . See infra notes 86–98 and accompanying text. ↑
- . See infra notes 72–75 and accompanying text. ↑
- . See generally Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019) (discussing the drawbacks of Lone Pine orders and the ways that such orders can run afoul of the Federal Rules of Civil Procedure). ↑
- . See Margaret S. Williams, Emery G. Lee III & Jason A. Cantone, Fed. Jud. Ctr., Plaintiff Fact Sheets in Multidistrict Litigation: Products Liability Proceedings 2008–2018 1, 3 (2019) [hereinafter Williams et al., Plaintiff Fact Sheets] (reporting that, between 2008 and 2018, fact sheets “were ordered in 87% of proceedings with more than 1,000 actions” and “81% of proceedings with more than 100 actions”). For further discussion, see generally Margaret S. Williams, Jason A. Cantone & Emery G. Lee III, Plaintiff Fact Sheets in Multidistrict Litigation Proceedings: A Guide for Transferee Judges (2019) [hereinafter Williams et al., Guide for Transferee Judges]. ↑
- . See Engstrom, supra note 28, at 23. ↑
- . David Rauma & Thomas E. Willging, Fed. Jud. Ctr., Report of a Survey of United States District Judges’ Experiences and Views Concerning Rule 11, Federal Rules of Civil Procedure, 4 tbl.1 (2005). ↑
- . In the medical malpractice realm, for example, the best evidence suggests that the majority of filed claims involve both a bona fide error and a genuine injury. See David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Gandhi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo & Troyen A. Brennan, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024, 2024, 2028 fig.1 (2006) (describing a study involving 1,452 medical malpractice claims, of which 3% had “no verifiable medical injuries, and 37% did not involve errors”). ↑
- . Engstrom, supra note 28, at 24. For more on specious claims in the auto accident context, see Nora Freeman Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639, 641, 660–61. ↑
- . We do not hazard a guess—and we have serious doubts about others’ estimates. Indeed, in attempting to quantify the problem, some contend that 30% to 40% of all MDL filings are nonmeritorious. E.g., Trask, supra note 10, at 120 (“Junk claims comprise an estimated forty percent of most MDL dockets.”); Comment from WLF, supra note 11, at 2 (“In the largest MDLs, meritless claims account for between 30% to 40% of all claims.”). The evidence commentators cite to justify that estimate is a roughly 14-minute video featuring Malini Moorthy, Vice President and Associate General Counsel of Bayer. In that frequently cited video, Ms. Moorthy states, without support, that “in fact, if you look at these settlements, and one of the things that confounds judges today, is the fact that, you know, roughly anywhere from 30–40% of claimants actually get zeroed out at the end of that global settlement.” Malini Moorthy, Gumming Up the Works: Multi-Plaintiff Mass Torts, U.S. Chamber of Com. Inst. for Legal Reform (2016), https://instituteforlegalreform.com/video/gumming-up-the-works-multi-plaintiff-mass-torts/ [https://perma.cc/TX75-2GTQ]. Even if it is true that, at the time of settlement, “30–40% of claimants actually get zeroed out” (as Ms. Moorthy contends), that fact does not indicate whether front-end claim filings were too broad or, by contrast, the agreed-upon back-end settlement criteria were too onerous. We doubt, in other words, that (compromise) settlement criteria are always so exquisitely calibrated that they ensure the compensation of all those with valid entitlements to relief. Accord Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, 129 Yale L.J. F. 64, 69 (2019) (“Of course, not all noncompensable claims are ‘meritless’; some may simply fall outside the strict parameters that settling parties negotiate.”). For further criticism of the 30% to 40% estimate, see Rave, supra note 9, at 4–5. ↑
- . Of note: uncertainty regarding injury verifiability and specific causation likely also yields substantial under-claiming. We do not hazard a guess as to the relative incidence of each phenomenon; nor do we know which phenomenon, in the aggregate, predominates. ↑
- . For further discussion of how a large claim volume might reflect—and also incentivize—the filing of nonmeritorious suits, see Engstrom, supra note 28, at 31, 33. ↑
- . In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005). ↑
- . Id. at 635–36; see also Engstrom, supra note 28, at 25. ↑
- . In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 553 F. Supp. 2d 442 (E.D. Pa. 2008), aff’d, 582 F.3d 524 (3d Cir. 2009). ↑
- . Id. at 476. ↑
- . Engstrom, supra note 28, at 26. ↑
- . Engstrom, Retaliatory RICO, supra note 33, at 657–60. ↑
- . In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741 (E.D. La. 2008), aff’d, 388 F. App’x 391 (5th Cir. 2010). ↑
- . MDL at 50—The 50th Anniversary of Multidistrict Litigation, Theory of Aggregation: Class Actions, MDLs, Bankruptcies, and More, N.Y. Univ. Sch. of Law: Ctr. on Civ. Just., at 27:41–27:57 (Oct. 12, 2018) [hereinafter MDL at 50], https://www.law.nyu
.edu/centers/civiljustice/2018-early-fall-conference-mdl-at-50 [https://perma.cc/UFW2-3WS3] (statement of Chris Seeger, Seeger Weiss LLP). ↑
- . In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mexico, on April 20, 2010, 21 F. Supp. 3d 657 (E.D. La. 2014). ↑
- . See The Evil Corrupt Plaintiffs’ Lawyers Do, Reuters (Oct. 30, 2015, 4:32 PM), https://www.reuters.com/article/idUS192592227220151030 [https://perma.cc/A9UQ-LN8N] (noting that, of the 44,000 claim forms initially submitted to BP by Watts, only four were ultimately deemed eligible for payment); Francesca Mari, The Shark and the Shrimpers, Atlantic, May 2020, at 42, 48, 50 (writing that Watts “filed more than 40,000” claims in the MDL and that “the firm ended up having only four actual clients”); Complaint at 11, BP Expl. & Prod., Inc. v. Watts, No. 2:13-cv-06674 (E.D. La. 2013) (indicating that Watts claimed to represent “more than 40,000 claimants” and that “fewer than 1,000 persons from that group filed claims”). ↑
- . See Duncan Litig. Invs., LLC v. Baker, Donelson, Bearman, Caldwell & Berkowitz, No. 4:19-CV-3094, 2022 WL 3566848, at *4 (S.D. Tex. 2022) (suggesting that the roster was selected from a telephone book and that one of the “claimants” died five years before the rig explosion); Nguyen v. Watts, 605 S.W.3d 761, 769 (Tex. App.—Houston [1st Dist.] 2020) (discussing use of a telephone book to identify claimants); Mari, supra note 46, at 48 (describing “claimants” as including a cosmetologist, dog, librarian, and Buddhist monk). Ultimately, the federal government indicted seven people (including Watts) on 95 felony counts related to these federal court filings. Seven Individuals Indicted for Conspiracy, Mail and Wire Fraud, and Identity Theft in Connection with Laswuit [sic] Against BP, U.S. Att’y’s Off. S.D. Miss. (Oct. 29, 2015), https://www.justice.gov/usao-sdms/pr/seven-individuals-indicted-conspiracy-mail-and-wire-fraud-and-identity-theft-connection [https://perma.cc/AT87-YYR5]. A jury ultimately acquitted Watts of all charges. Jeff Amy, Texas Lawyer Acquitted of BP Oil Spill Fraud, AP News (Aug. 18, 2016), https://apnews.com/article/43fd79cc294c42948c3a05bb5fb7b2cf [https://perma.cc/X9LC-KVN8]. ↑
- . In re Fosamax Prods. Liab. Litig., No. 06 MD 1789 (JFK), 2012 WL 5877418 (S.D.N.Y. 2012). ↑
- . Id. at *3. ↑
- . In re Digitek Prods. Liab. Litig., 821 F. Supp. 2d 822 (S.D. W. Va. 2011). ↑
- . See id. at 836 (“[N]ot a single double-thick Digitek® was ever found outside the plant.”). ↑
- . In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16md2734, 2019 WL 5445880 (N.D. Fla. 2019). ↑
- . Id. at *2 (emphasis omitted). ↑
- . In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 2:18-md-02848-HB, 2019 WL 2137427 (E.D. Pa. 2019). ↑
- . Id. at *1. ↑
- . In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19md2885, 2022 WL 2292862, (N.D. Fla. 2022). ↑
- . Id. at *2; Order Exhibit A at 274, No. 3:19md2885 (N.D. Fla. May 6, 2022), ECF No. 3076-1 (showing that 19,934 claims were dismissed); Amanda Holpuch, Two Army Veterans Awarded $100 Million in 3M Earplug Lawsuit, N.Y. Times (Jan. 28, 2022), https://www.nytimes.com/2022/01/28/us/veterans-earplugs-3m-lawsuit.html [https://perma.cc/9XHQ-BMUY]. ↑
- . Engstrom, Retaliatory RICO, supra note 33, at 660–65; Engstrom, supra note 28, at 27–33. ↑
- . Engstrom, supra note 28, at 31. ↑
- . Id. ↑
- . Id.; see Herbert M. Kritzer, Risks, Reputations, and Rewards 74–75 (2004) (explaining that PI lawyers tend not to accept cases with “dubious liability or a lack of damages”). For a broader description of contingency fee lawyers’ screening processes, see id. at 67–95. ↑
- . E.g., Sara Randazzo & Andrew Scurria, Boy Scouts’ Liability Insurers Challenge Sex-Abuse ‘Claim-Mining’, Wall St. J. (Jan. 25, 2021, 7:36 AM), https://www.wsj.com/articles/boy-scouts-liability-insurers-challenge-sex-abuse-claim-mining-11611575995 [https://perma.cc/6F5F-YE7V] (explaining that, in the Boy Scouts litigation, “some attorneys” reportedly “signed hundreds of claims in a single day”); Sara Randazzo & Jacob Bunge, Inside the Mass-Tort Machine that Powers Thousands of Roundup Lawsuits, Wall St. J. (Nov. 25, 2019, 10:48 AM), https://www.wsj.com/articles/inside-the-mass-tort-machine-that-powers-thousands-of-roundup-lawsuits-11574700480 [https://perma.cc/3WMJ-62H9] (reporting that, during one nine-month period, Roundup “appeared in 654,280 broadcast and cable-TV advertisements”). ↑
- . Robert McDuff, Statement of Robert McDuff, Attorney, for Mikal Watts, Regarding the Unsealed Indictment (Oct. 29, 2015), McDuff & Byrd 1, https://web.archive.org
/web/20170114165555/http://blogs.reuters.com/alison-frankel/files/2015/10/usvwatts-defensestatement.pdf (emphasis added). The statement went on to justify Watts’s approach by noting that “he knew that any fraudulent claims would be sifted through the routine processes in cases such as this.” Id. For further context for this filing, see The Evil Corrupt Plaintiffs’ Lawyers Do, supra note 46 (describing and linking to a “four-page rebuttal” to Watts’s charges). ↑
- . For the (generally limited) responsibilities of individually retained counsel, see infra note 116 and accompanying text. ↑
- . Francis E. McGovern, Looking to the Future of Mass Torts: A Comment on Schuck and Siliciano, 80 Cornell L. Rev. 1022, 1026 (1995). ↑
- . Engstrom, supra note 28, at 32; see also Dodge, supra note 4, at 350 (explaining that “highly coveted leadership positions are appointed, in part, based upon the size of counsel’s inventory”). ↑
- . Nguyen v. Watts, 605 S.W.3d 761, 769–71 (Tex. App.—Houston [1st Dist.] 2020). ↑
- . Rodgers, supra note 20, at 873. ↑
- . 2018 MDL Subcommittee Report, supra note 5, at 144 (discussing these dynamics and the fact that “[t]he transferee judge may focus at first on the common issues rather than the unique circumstances of each claimant”). ↑
- . Charles Silver, Unloading the Lodestar: Toward a New Fee Award Procedure, 70 Texas L. Rev. 865, 888–89 (1992). ↑
- . In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 4:08-MD-2004 (CDL), 2016 WL 4705827, at *2 (M.D. Ga. 2016). ↑
- . Courts have issued Lone Pine orders in many of the nation’s most prominent mass tort cases, including litigation involving asbestos, Vioxx, Fosamax, Rezulin, Celebrex, Baycol, Avandia, and Fresenius. Nora Freeman Engstrom & Amos Espeland, Lone Pine Orders: A Critical Examination and Empirical Analysis, 168 U. Pa. L. Rev. Online 91, 91–93 (2020). ↑
- . Engstrom, supra note 28, at 20. ↑
- . Id. ↑
- . Engstrom & Espeland, supra note 72, at 101. For more on this certainty problem, as well as how Lone Pine orders “impose a heavy (and lopsided) financial burden on plaintiffs,” see id. at 100–01. ↑
- . See id. at 101 (“Lone Pine orders function like summary judgment motions but simultaneously deprive plaintiffs of fundamental protections that Rule 56 generally affords.”). ↑
- . Civ. Rules Advisory Comm., April 2021 Meeting Minutes, U.S. Cts., 23 (Apr. 23, 2021), https://www.uscourts.gov/sites/default/files/minutes_from_advisory_committee_on_civil_rules_meeting_april_23_2021_0.pdf [https://perma.cc/E5MM-DTKH]; see Civ. Rules Advisory Comm., October 2019 Meeting Minutes, U.S. Cts., 14 (Oct. 29, 2019) [hereinafter Oct. 29, 2019 Rep.] https://www.uscourts.gov/sites/default/files/2019-10-civil-minutes_0.pdf [https://perma.cc/H5NF-HDSQ] (noting the use of fact sheets in “almost all” large MDL proceedings). For fact sheets’ popularity and widespread usage, see supra note 29. ↑
- . See Williams et al., Guide for Transferee Judges, supra note 29, at 1, 7 (describing the content of plaintiff fact sheets). ↑
- . Engstrom, supra note 28, at 20. ↑
- . See Oct. 29, 2019 Rep., supra note 77, at 15 (describing “initial census[es]” as simpler alternatives to fact sheets). ↑
- . See Engstrom, supra note 28, at 21 (explaining the differences between Lone Pine orders and plaintiff fact sheets). ↑
- . Unfortunately, in the past, some fact sheets have not been appropriately targeted and have instead become bloated and unwieldy. See MDL Subcommittee Report, in Advisory Comm. on Civil Rules 151, 152 (2020) [hereinafter 2020 MDL Subcommittee Report] https://www.uscourts.gov/sites/default/files/2020-10_civil_rules_agenda_book_final.pdf [https://perma.cc/A5ZG-4Q7N] (lamenting that some plaintiff fact sheets have become long and complicated, even though “the first page or few pages of a PFS . . . often will suffice”); Margaret S. Williams & Jason A. Cantone, An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation, 55 Ga. L. Rev. 221, 263–65, 264 n.183 (2020) (compiling examples of fact sheets that run for 53 pages, inquire into third-party financing, or ask the plaintiff to “list all places of residence for the past 10 years”); Burch, supra note 34, at 82 (describing some fact sheets that “span forty-eight pages (with forms and all), exceed 100 questions, and seek fifteen years of medical history, ten years of employment history, and information on everything from divorces to children’s names, addresses, and birthdays”). As fact sheets’ focus drifts, their value wanes. See Williams et al., Guide for Transferee Judges, supra note 29, at 7 (“[A]dding questions unrelated to the core issues in the litigation may cause inefficiencies or put an unreasonable burden on the plaintiffs.”); Amy Schulman & Sheila Birnbaum, From Both Sides Now: Additional Perspectives on “Uncovering Discovery”, 7 (May 11–12, 2010) (unpublished manuscript), https://www.uscourts.gov/sites/default/files/amy_schulman_and_sheila_birnbaum_from_both_sides_now.pdf [https://perma.cc/Q8LF-2FD4] (“[D]efendants should be judicious in seeking truly relevant data.”). ↑
- . MDL at 50, supra note 44, at 26:07–21 (statement of Chris Seeger). ↑
- . Smith, supra note 10, at 42. ↑
- . Laws. for Civ. Just., Comment to the Advisory Committee on Civil Rules and Its MDL Subcommittee, 3 (Mar. 8, 2022) [hereinafter LCJ Comment], https://www.lfcj.com/uploads/1/1/2/0/112061707/lcj_comment_on_mdl_sketch_rule_draft_3-8-22.pdf [https://perma.cc/MBP7-FN3N]. ↑
- . Williams et al., Plaintiff Fact Sheets, supra note 29, at 4. ↑
- . See Stephen J. Carroll, Lloyd Dixon, James M. Anderson, Thor Hogan & Elizabeth M. Sloss, The Abuse of Medical Diagnostic Practices in Mass Litigation: The Case of Silica 7–8, 17 (2009) (detailing how judge-required fact sheets exposed the dubious validity of plaintiff claims and ultimately led to dismissal). ↑
- . In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006). ↑
- . Id. at 1226 n.4. ↑
- . In re Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, 2010 WL 7699456 (N.D. Ohio June 4, 2010). ↑
- . Id. at *4; Engstrom, supra note 28, at 59. ↑
- . Engstrom, supra note 28, at 59. ↑
- . In re Avandia Mkt., Sales Practices and Prods. Liab. Litig., 817 F.Supp. 2d 535 (E.D. Pa. 2011). ↑
- . GlaxoSmithKline LLC’s Reply in Further Support of Motion for a Lone Pine Case Management Order at 4, In re Avandia Litig., No. 080202733 (Phila. Ct. C.P Jan. 28, 2011). ↑
- . See In re Abilify, No. 3:16-md-02734-MCR-GRJ, at 5 (Sept. 24, 2019) (dismissing 149 cases for failure to submit documentation); In re Abilify, No. 3:16-md-02734-MCR-GRJ, at 5 (Sept. 3, 2019) (dismissing 119 cases where plaintiffs had failed to respond to their attorneys); In re Abilify, No. 3:16-md-02734, 2019 WL 5445884, at *2 (Oct. 17, 2019) (dismissing 95 cases). See also Rodgers, supra note 20, at 875–76 (“[A]fter three years, more than 550 cases—representing over 18% of the litigation—had been dismissed with prejudice for failure to comply with court orders, failure to prosecute, and/or failure to provide even basic information regarding proof of use and/or injury.”). ↑
- . In re Taxotere (Docetaxel) Prods. Liab. Litig., 220 F.Supp. 3d 1360 (J.P.M.L. 2016). ↑
- . Williams et al., Guide for Transferee Judges, supra note 29, at 12–13. ↑
- . Informational Brief of Aearo Technologies, LLC at 34, In re Aearo Techs. LLC, 642 B.R. 891 (Bankr. S.D. Ind. 2022) (No. 22-02890-JJG-11). Defendant further reported that out of 140,000 plaintiffs subject to these requirements, 18,000 “have already chosen to dismiss their claims rather than comply.” Id. ↑
- . See Smith, supra note 14, at 476–80, 484 (discussing this dynamic and providing examples). ↑
- . Smith, supra note 10, at 12. See also John H. Beisner, Jessica D. Miller & Jordan M. Schwartz, MDL Proceedings: Eliminating the Chaff, U.S. Chamber Inst. for Legal Reform, Oct. 2015, at 19 (“The issue is . . . the lack of incentive on the part of plaintiffs’ lawyers in mass tort litigation to investigate each one of the cases in their inventories on the front end.”); accord S. Todd Brown, Specious Claims and Global Settlements, 42 U. Mem. L. Rev. 559, 623 (2012) (“[I]n order to deter effectively, the costs associated with discovery of a pattern of specious filings may need to be far greater than mere rejection of the offending claims. Otherwise, repeat players may simply view rejection of frivolous claims as a no-risk proposition.”). ↑
- . As noted, it is essential that these submissions zero in on only what is truly necessary. In the past, many fact sheets have become unnecessarily bloated, which defeats their purpose. See supra note 82; Engstrom, supra note 28, at 59 (“Scattershot or expansive disclosures are wasteful, intrusive, and self-defeating.”). ↑
- . If the plaintiff’s injury, illness, or condition is apt to develop over the course of the litigation, the plaintiff can be asked to furnish updates at specified intervals. ↑
- . This last question can be helpful as, in some past MDLs, it has come to light that certain claimants are “double dippers”—i.e., they have previously sought compensation for (arguably) the same affliction. For a discussion of this problem in Silica and asbestos respectively, see Carroll et al., supra note 87, at 7–8, and Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 Widener L.J. 97, 124–25 (2013). When double dipping is not a concern, this question should be omitted. ↑
- . See supra notes 29, 82–85, infra note 105, and accompanying text. ↑
- . For example, the Duke Best Practices advise: “At an early juncture, individual claimants should be required to produce information about their claims.” Duke Law Sch., Bolch Jud. Inst., Guidelines and Best Practices for Large and Mass-Tort MDLs 9 (2d ed. 2018) [hereinafter 2018 Duke Guidelines]. The Federal Judicial Center concurs. “Judges,” it instructs, “should . . . consider using fact sheets as a tool for early identification and winnowing of unsupported claims.” Williams et al., Guide for Transferee Judges, supra note 29, at 15. RAND likewise explains: “Requiring disclosure of the diagnosis, the identity of the diagnosing physician, and relevant medical records . . . as soon as the litigation has achieved a sufficient size would help ensure adherence to defensible diagnostic practices and allow defendants to more rapidly evaluate and value claims.” Carroll et al., supra note 87, at xiii. And at least some experienced transferee judges have joined the chorus. E.g., Robreno, supra note 103, at 187 (“[C]ourts must establish procedures by which, at an early point, each plaintiff is required to provide facts which support the claim . . . or risk dismissal . . . .”). ↑
- . See supra notes 86–98 and accompanying text. ↑
- . For discussion of these salutary ripple effects, see LCJ Comment, supra note 85, at 3. ↑
- . Williams & Cantone, supra note 82, at 270. ↑
- . Williams et al., Guide for Transferee Judges, supra note 29, at 10–13. However, “[t]he monitoring process [to cure deficiencies and ensure adequate fact sheet compliance] can be conducted in a number of ways.” Id. at 10. For various strategies, see id. at 10–13. ↑
- . For a primer, see generally 2018 Duke Guidelines, supra note 105, at 64–80. ↑
- . For discussion of the state court question, as well as the baseline consensus that transferee courts are authorized to order the payment of some CBFs, see generally In re Roundup Prods. Liab. Litig., 544 F. Supp. 3d 950 (N.D. Cal. 2021) and In re Gen. Motors LLC Ignition Switch Litig., 477 F. Supp. 3d 170 (S.D.N.Y. 2020). For a more skeptical take, see generally Charles Silver, The Suspect Restitutionary Basis for Common Benefit Fee Awards in Multi-District Litigations, 101 Texas L. Rev. 1653 (2023). ↑
- . See In re Bos. Sci. Corp., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2326, 2019 WL 385420, at *7 (S.D. W. Va. 2019) (collecting authority revealing a range in large MDLs from 4.3% to 14.5%); 5 William B. Rubenstein, Newberg and Rubenstein on Class Actions § 15:117 (6th ed. 2022) (reporting that, in one dataset, the mean CBF was 6.45% and the median was 6%); Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 Vand. L. Rev. 107, 109 (2010) (“Typically, fee awards range from 4 percent to 6 percent of total recoveries, but smaller and larger percentages can be found.”); but cf. In re Genetically Modified Rice Litig., No. 4:06 MD 1811 CDP, 2010 WL 716190, at *6 (E.D. Mo. 2010), aff’d, 764 F.3d 864 (8th Cir. 2014) (“Courts have ordered contributions between 9% and 17% in MDLs for common benefit work.”). ↑
- . See In re Genetically Modified Rice, 2010 WL 716190, at *6 (ordering that different groups of plaintiffs contribute different percentages to the common benefit fund, while explaining that “[a]ll pools of plaintiffs need not contribute . . . equally”); In re Bextra & Celebrex Mktg. Sales Pracs. & Prod. Liab. Litig., No. M:05-CV-01699-CRB, MDL 1699, 2006 WL 471782, at *2–3 (N.D. Cal. 2006) (levying differential assessments); Rubenstein, supra note 112, at § 15:115 (“Courts may set different [CBF] levels for different types of cases within the litigation.”); Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67, 112–13 (2017) (describing various MDLs with non-uniform CBF assessments). ↑
- . As we note below, judges’ choice among these (and other) versions of the proposal should also aim to minimize or eliminate any countervailing effect on the filing of meritorious (or plausibly meritorious) claims, particularly where the risk of such an effect is non-trivial. See generally infra notes 143–145 and accompanying text. ↑
- . Here, it bears emphasis: Even though financial incentives might militate against careful screening, many mass tort lawyers (nevertheless) continue to take their screening obligations seriously. ↑
- . See In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 605 (1st Cir. 1992) (describing IRPAs’ tasks); In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-md-02323-AB, 2021 WL 5299069, at *5–6 (E.D. Pa. 2021) (describing “seven non-exclusive categories of work undertaken by IRPAs”); Silver & Miller, supra note 112, at 128–29 (explaining that non-lead lawyers, critically, “evaluat[e] their [clients’] claims,” and additionally “develop the history of each client’s exposure to or use of a product and the details of each client’s injury”). Theoretically, too, the non-lead lawyer would try the case after it is remanded back to the transferor court. However, in practice, remands are vanishingly rare. See Gluck & Burch, supra note 2, at 16 (“More than ninety-seven percent of cases centralized through MDLs are resolved there, either via settlement or dispositive action.”). For the classic articulation of IRPAs’ obligations, see generally Judith Resnik, Dennis E. Curtis & Deborah R. Hensler, Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. Rev. 296, 309–20 (1996). ↑
- . Currently, “not all [plaintiffs] receive attorney assistance” when completing fact sheets. Burch, supra note 34, at 82–83. For how lawyers with nonmeritorious claims complicate others’ efforts, see supra notes 20–24 and accompanying text. ↑
- . In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., No. CIV. A. 99-20593, MDL 1203, 2003 WL 21641958, at *6 (E.D. Pa. May 15, 2003) (“As a general principle . . . [CBFs] are to be allocated in a manner that reflects the relative contribution of the individual firms and attorneys to the overall outcome of the litigation.”). ↑
- . See Brown, supra note 100, at 617 (observing, in a related context, “firms known as effective gatekeepers should enjoy an advantage in negotiating individual or inventory settlement terms, and firms with equally poor reputations may find future settlement values discounted, if settlement is forthcoming at all”). ↑
- . See Fed. Jud. Ctr., Manual for Complex Litigation 26 (4th ed. 2004) (“There is often intense competition for appointment by the court as designated counsel . . . .”). ↑
- . For a discussion of plaintiff-side referral networks, see generally Sara Parikh, How the Spider Catches the Fly: Referral Networks in the Plaintiffs’ Personal Injury Bar, 51 N.Y. L. Sch. L. Rev. 243 (2006). ↑
- . For more on these mechanisms, see Engstrom, Retaliatory Rico, supra note 33, at 680–89. ↑
- . Id. at 682–83. ↑
- . 5A Wright & Miller, Federal Practice and Procedure § 1336.1 (4th ed. 2022). ↑
- . Gulisano v. Burlington, Inc., 34 F.4th 935, 942 (11th Cir. 2022) (quoting Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998)). ↑
- . Engstrom, Retaliatory Rico, supra note 33, at 684–85. ↑
- . Perhaps as a consequence, judges seem loath to impose sanctions pursuant to certain of these mechanisms. See, e.g., Schulman & Birnbaum, supra note 82, at 26 (complaining that § 1927 “has been underutilized”). ↑
- . See 2018 MDL Subcommittee Report, supra note 5, at 149 (noting the importance of flexibility); accord D. Theodore Rave & Francis E. McGovern, A Hub-and-Spoke Model of Multidistrict Litigation, 84 L. & Contemp. Probs., no.2, 2021, at 21, 42 (underscoring that “no single model of case management” will work in all MDLs). ↑
- . A lawyer who assists a client in the submission of a fictitious fact sheet violates numerous Rules of Professional Conduct, including Rules 3.3(a)(3), 8.4(c) and 8.4(d), as well as other authority. Model Rules of Pro. Conduct r. 3.3(a)(3), 8.4(c–d) (Am. Bar Ass’n 2020). ↑
- . For example, Professor Burch has cautioned against courts’ reliance on fact sheets because, she asserts, they are susceptible to sprawl and, if not reined in, can “impact parties disproportionately.” Burch, supra note 34, at 83. In light of pervasive referral networks, see supra note 121, some might also say that it is unfair to impose a penalty on a lawyer when that lawyer is only in the case because of a client referral. We disagree. Under Model Rule of Professional Conduct 1.5(e)(1), when a client is referred, typically, both the referring and “receiving” lawyer bear joint responsibility for the representation. Model Rules of Pro. Conduct r. 1.5(e)(1) (Am. Bar Ass’n 2020). It follows, then, that both might incur a CBF penalty if a sizable portion of the “inventory” lacks merit. (This approach has the collateral benefit of incentivizing lawyers to choose their referral partners carefully.) ↑
- . As noted, in the past, some fact sheets have become unnecessarily burdensome. See Burch, supra note 34, at 82 & n.98 (collecting authority); supra note 82 (same). Some might also argue that an additional screen, accompanied by a financial penalty, risks causing lawyers to decline to represent litigants with claims of plausible-but-uncertain merit. We believe that such an effect will be minimal. The penalties described above do not overwhelm an attorney’s potential fee, and careful judicial implementation can minimize the possibility of an overinclusive screen—e.g., by triggering penalties only after a sufficient opportunity to cure and only when cases are truly nonmeritorious. ↑
- . See supra note 29. ↑
- . We offer the same general response to critics of common benefit fees—who might oppose our proposed reform because of a hostility to such fees writ large. Common benefit fees are a ubiquitous feature of contemporary MDL practice, and they do not appear to be going anywhere anytime soon. See supra notes 111–12. Given that, the relevant question becomes whether they should be levied in a one-size-fits-all way or, rather, with specificity—and to advance a salutary end. ↑
- . There is no question that a lawyer seeking payment from the common benefit fund would incur a penalty (in the form of a reduced allocation) if she shirked on her responsibilities. See supra note 118 and accompanying text. It follows, then, that when a court orders contributions to the fund, a lawyer who shirks can be made to incur a similar penalty. ↑
- . Model Rules of Pro. Conduct r. 3.1 (Am. Bar Ass’n 2020). A Comment explains that, although lawyers can file actions before the facts are “fully substantiated,” lawyers are duty-bound to “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.” Id. r. 3.1 cmt. . ↑
- . Fed. R. Civ. P. 11(b)(3). ↑
- . Model Rules of Pro. Conduct r. 1.3 cmt.  (Am. Bar Ass’n 2020). ↑
- . Compounding the burden, given ubiquitous referral networks, see supra note 121, many clients are simultaneously represented by multiple lawyers, and each lawyer’s tally must be separately calculated, see supra note 130. ↑
- . Evidence suggests that “proceedings with more actions take longer to close,” indicating that a reform that winnows the number of actions in an MDL ought to confer an efficiency dividend. Williams & Cantone, supra note 82, at 252–53. ↑
- . Third-party vendors already help litigants collect and analyze fact sheets. See Williams et al., Guide for Transferee Judges, supra note 29, at 9 & n.29 (collecting authority). For more on this third-party software, see Rodgers, supra note 20, at 877. Similarly, some might suggest that differential assessments would prove complex for judges and clerks—but judges have proven adept at these calculations. E.g., In re Genetically Modified Rice Litig., No. 4:06 MD 1811 CDP, 2010 WL 716190, at *6 (E.D. Mo. 2010), aff’d, 764 F.3d 864 (8th Cir. 2014) (dividing a case into three pools based on the type and location of the plaintiffs and then ordering differential assessments for each). ↑
- . Indeed, we would suggest that these changes are not so much “gaming” as predictable and sensible responses to a new equilibrium. And, as explained below, they are desirable—a feature, not a bug. ↑
- . For an inside look at the mass tort claim generation business, see Exhibit 1 to Complaint, Friedman v. Hammer, No. 19-cv-62481-PCH, 2020 WL 2559549 (S.D. Fla. May 20, 2020). ↑
- . If this troubling drawback does come to pass, it would, inadvertently, cause the MDL system to replicate the well-documented access problems that plague the traditional tort system—where, partly because of what we call the “dark side of screening,” certain plaintiffs are disproportionately unlikely to seek or obtain compensation. Nora Freeman Engstrom, Bridging the Gap in the Justice Gap Literature, Jotwell (May 6, 2013), https://torts.jotwell.com/bridging-the-gap-in-the-justice-gap-literature/ [https://perma.cc/NM3N-7THT] (compiling “a small body of evidence suggest[ing] that poor individuals are, and have long been, less likely to find counsel and initiate personal injury claims as compared to their wealthier counterparts”). For a related discussion, see Stephen Daniels & Joanne Martin, Plaintiffs’ Lawyers: Dealing with the Possible but Not Certain, 60 DePaul L. Rev. 337, 372 (2011) (surfacing evidence that attorneys screen in an effort to not take “a client that a jury will view negatively”). ↑
- . For discussion of the risk of underclaiming, see, for example, Lynn A. Baker & Andrew Bradt, Anecdotes Versus Data in the Search for Truth About Multidistrict Litigation, 107 Cornell L. Rev. Online 249, 265–66 n.59 (2023) (describing the problem of “under-claiming by individuals who deserve payment but do not sue” and noting that this problem, which is well-documented in the conventional tort ecosystem, may be “mitigated” but not “eliminated” in the mass tort ecosystem). Evidence is scant, however, and not all are in accord. See, e.g., McGovern, supra note 9, at 688 (“[M]ature mass torts generate an overabundance of plaintiffs . . . .”). ↑
- . This commendable flexibility is already on display. See, e.g., Order at 1, In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-md-2885 (N.D. Fla. May 6, 2022) (offering the plaintiffs who had missed prior deadlines “one final opportunity to submit” census forms); Case Management Order No. 40 at 2, In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-md-2885 (N.D. Fla. Mar. 23, 2022) (allowing different types of documentation because “some veterans may not be able to locate their DD214 form” and “a plaintiff may have a pending request for a replacement DD214 but may not receive it within the deadlines established”). Judges’ specific approach to variable assessments can further mitigate the aforementioned risk—including, for example, by allowing a “buffer” of nonmeritorious claims before additional assessments are levied. ↑
- . Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 U. Pa. L. Rev. 2119, 2162 (2000). ↑
- . 2018 MDL Subcommittee Report, supra note 5, at 142. Likewise, some have shined a light on the problem but complained that “the current rules do not provide courts the necessary tools to tackle” it. Alan E. Rothman, Managing MDL Mania: A Modest Early Vetting Proposal, N.Y. L.J. (Sept. 20, 2019, 11:15 AM), https://www.law.com/newyorklawjournal/2019/09/20/managing-mdl-mania-a-modest-early-vetting-proposal/ [https://perma.cc/DJ3G-VLNP]. We disagree. Our reform can be implemented tomorrow using tools already in the possession of the transferee court. ↑
- . See supra notes 31–32, 61 and accompanying text. ↑