March 30, 2018 — Multidistrict litigation, the practice of consolidating mass torts in front of a single judge, can create opportunities for plaintiffs' lawyers and defense attorneys in ways that may ultimately harm the plaintiffs, according to a University of Georgia Law School professor.
Elizabeth Chamblee Burch, the Charles H. Kirbo Chair of Law, spoke Monday as part of the 2018 Distinguished Speaker Series at the University of Houston Law Center where she presented an early draft of her upcoming book, "Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation."
Mass tort cases such as opioid lawsuits, the recent GM ignition claims or the lawsuits from the BP oil spill, are all part of multidistrict litigation in federal courts.
Burch has been studying and tracking the progress of products liability and sales practice cases for five years. She has concerns about the development of working relationships between different parties that end in settlements benefitting plaintiffs' lawyers and defendants' self-interests. Lead lawyers receive what is known as a common benefit fee for doing work for the plaintiffs as a whole, not specific to their individual clients.
"In particular I'm concerned about whether lead lawyers are adequately representing all of the plaintiffs, whether they might be acting in ways that undermine plaintiffs' consent to settle, and whether that can lead to under-deterrence on the defense side," Burch said.
Burch says key stakeholders appear to benefit, even judges who get to clear their dockets, receive great press and may take future lucrative private sector jobs as special masters or arbitrators.
Two of the solutions Burch offers to combat any potential backroom bargaining include tying common benefit fees to plaintiffs' recoveries and incentivizing lawyers to adequately represent diverse clients.
"Judges should focus on adequate representation when appointing leaders, not just a lawyer's ability to get along well with other lawyers. Judges should also allow challengers who can demonstrate that leaders ignored a critical conflict of interest to either join or replace those
who ignored the conflict. Doing so helps ensure that plaintiffs with different interests are being adequately represented at the bargaining table," Burch said.
Burch also told UHLC faculty members her goal is to bring these issues to the public's attention and make suggestions.
"There is no silver bullet. These problems have existed in one form or another for decades. But we can make the system better by building in fair procedures. I'm hoping to move the ball forward," Burch said, "The more people who are looking at this and the more people who care about it, the better."