Because hard-and-fast formal rules are scarce and ethical obligations are murky, repeat players like lead plaintiff and defense attorneys can strategically play for “rules” (the shorthand term for practices that will tip the scales in their favor in future cases) in areas that affect what matter to them most. The chapter opens with Lance Cooper’s allegations in the General Motors Ignition Switch Litigation. He claimed that lead plaintiffs’ lawyers settled all their own cases confidentially before trial and cut a secret deal with GM to limit its financial exposure if plaintiffs won a big verdict. Cooper’s allegations give life to data that reveals a world open to exploitation: few rules, little oversight, multimillion dollar common-benefit fees, and a push for settlement can tempt repeat players to fill in the gaps in ways that further their own self-interest. Connected lawyers form their own groups, enforce norms, and financially sanction defectors much like a cartel would. This chapter’s empirical analysis confirms that repeat players populate plaintiff and defense leadership positions, and its social network analysis reveals that no matter what measure of centrality is used, a key group of attorneys maintains their elite position within the network and may disproportionately impact settlements.

Using illustrations from proceedings over Pradaxa, Yasmin/Yaz, Zimmer’s Durom Hip Cups, and the World Trade Center disaster, this chapter narrates some of the judicial nudges lurking behind the following statistics: a mere 8 percent of judges in the dataset took no steps whatsoever to endorse, promote, or enforce private deals. Instead, 64.7 percent of judges presiding over private aggregate settlements formally appointed the private claims administrator or settlement master. And, to varying degrees, 52.9 percent of federal judges “approved” private settlements, blurring conventional wisdom that private settlements are just that – private. Settlement designers hope that a judicial imprimatur will persuade nonlead lawyers and plaintiffs alike to settle, so they ask judges to intervene in some explicit or implicit way. But judges often lack the information they need to send reliable signals and conduct no formal inquiries to determine whether settlements are fair. Plus, when judges use their power to approve, enforce, and push plaintiffs into private settlements, they not only appear to exceed the authority that rightly belongs to them, they may also impinge on plaintiffs’ free will to consent.

When plaintiffs “settle,” they actually give up their lawsuit to enter into a settlement program that may or may not compensate them. So, mass-tort “settlements” don’t end disputes – they contractually move them out of the courts and into private resolution, or alternative dispute resolution (ADR) as it’s known. For instance, in American Medical Systems, all disputes over pelvic-mesh payouts went directly to JAMS, a for-profit arbitration company. And in the Conserve Hip Implant proceeding against Wright Medical, the court appointed a special master from JAMS to preside over the private settlement, used its “inherent authority” to give that special master the final say over any settlement appeal, and prohibited judicial review of those appeals. These private dispute resolution programs allow mass-tort defendants to regain some of the bargaining advantages they enjoy in the consumer context: they can pick the arbitrator, dictate the procedures used, and select which evidence the arbitrator may consider. Plaintiffs, however, don’t know whether they’ll recover anything. Claims administrators may tilt justice in favor of the repeat players who pick them, confidential awards make it hard for plaintiffs to tell if they’re treated fairly vis-à-vis one another, and internal “appeals” processes offer little relief.

It was her 29th birthday. After ending her shift as a nurse at West Atlanta Pediatrics, Brooke Melton headed out to meet her boyfriend for a celebratory dinner. She was a cautious driver – no speeding tickets, always a seat belt. But as she drove her Chevy Cobalt down the highway, it suddenly cut off. At just before 7:30 p.m. she swerved across the centerline. The oncoming car was unavoidable, it sent her careening into the fast-moving water of Picketts Mill Creek. Twenty minutes later, medics pulled her from the half-submerged Cobalt. And at 10 p.m., the hospital called Brooke’s parents and told them about her accident, her broken neck, and how doctors could not save her.

Our system needs a makeover, and this chapter uses basic economic and social principles as the bedrock of reform. It builds opportunities for dissent and competition into the fabric of multidistrict proceedings and incentivizes lawyers to use them. But doing so relies on judges. Educating judges and encouraging them to select leaders using a competitive process, tying leaders’ fees to the benefits they confer on plaintiffs, opening the courthouse doors to hear about those benefits (or not) directly from the plaintiffs, and remanding those litigants who don’t want to settle can allow the vibrant rivalries within the plaintiffs’ bar to see to it that dissent and competition flourish. As attorneys object and compete, they are likely to divulge new information, thereby equipping judges with pieces of the puzzle that they currently lack. In short, this chapter explains how arming judges with procedures that better align plaintiffs’ attorneys’ self-interest with their clients’ best interest equips courts to hold parties accountable even without legislation or rulemaking.

Using illustrations from the Yasmin/Yaz and asbestos proceedings, Chapter 1 introduces multidistrict litigation and its inhabitants, situating individual and class-action litigation in the rearview mirror. As class certification wanes, so too does formal judicial oversight aimed at thwarting self-dealing lawyers. This is not, however, a revival of individual litigation where a plaintiff can effectively monitor her own suit. To the contrary, when a plaintiff retains an attorney, she will typically be one of the many clients that her lawyer “warehouses.” Nevertheless, judges embrace a push for settlements that exists across all civil cases, but can result in ethically dubious deals in the multidistrict litigation context. When private settlements occur on the back end and tort-reform measures like punitive damage caps deter lawyers from suing on the front end, litigation’s ability to unearth information on corporate wrongdoing and generate public goods like precedent, transparency, and equal treatment is in peril.

Brooke Melton (GM), Michelle Pfeleger (Yasmin/Yaz), Linda Isner (Vioxx), Gene Weeks (Vioxx), Trudy Thomas (Kugel Mesh), Erika Langhart (NuvaRing), and David Foscue (Zimmer) are but a handful of the faces behind multidistrict litigation statistics. Stories like theirs lurk within many of the more than 312,500 actions included in this book’s dataset. In each case, it would be easy to pin blame on the lawyers, the FDA, the company, or the doctors. But targeting only one paints an incomplete picture and misses the point: there are problems with each that affect, reflect, and amplify failings elsewhere.

Chapter 2 poses three provocative questions: Do plaintiffs’ lawyers in leadership profit from quid pro quo arrangements with one another and with repeat defense attorneys? Even if one can fairly characterize features of their deals as self-serving, what harm is there? And if the deals do harm plaintiffs in some way, what leverage do plaintiffs have? In many respects, outsiders can only guess at the answers to the first two questions because they are privy neither to the negotiations nor to the private settlement’s payouts. But there is not a complete void; this chapter grounds its suppositions in the available data on the common-benefit fees that lead plaintiffs’ attorneys receive, and the private settlements they negotiate. Examining settlements that occurred over a 12-year span, every deal featured at least one “closure” provision for defendants (that helped end the lawsuits by goading plaintiffs to take the deal), and likewise contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Based on that evidence (along with the scant evidence on payouts to plaintiffs), there is reason to worry that when insiders play for rules, the rules they develop may principally benefit them at the plaintiffs’ expense.