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Opioid ‘Negotiation Class’ Experiment Draws Sixth Circuit Eye

Nov. 8, 2019, 10:20 PM

Judge Dan Polster’s novel “negotation class” for resolving the claims of more than 2,000 local governments against opioid makers, distributors, and pharmacies will get immediate appellate review, the Sixth Circuit ruled in two Nov. 8 orders.

“The question here—whether this class-action procedure is permitted under Rule 23—is both novel and relevant to class litigation in general,” the U.S. Court of Appeals for the Sixth Circuit said.

Polster of the U.S. District Court for the Northern District of Ohio granted certification of the negotiation class Sept. 11. The plan, opposed by nearly 40 attorneys general, may provide leverage for more than 34,000 U.S. local governments to enter a universal settlement with some of the largest companies in the nation, including Johnson & Johnson, Cardinal Health, and CVS.

Traditionally, classes have been certified for litigation or settlement purposes.

Six Ohio cities and a group of pharmaceutical distributors and pharmacies sought interlocutory review of the ruling under Federal Rule of Civil Procedure 23(f). The rule allows parties to seek immediate appeal of class certification decisions, but the appeals courts rarely grant the petitions.

The negotiation class is intended to give local governments a procedure for negotiating settlements with defendants alleged to be responsible for the national opioid epidemic. The governments would have to decide whether to opt out of the class before knowing the size of the settlement with any one defendant.

“The district court was mindful that a negotiation class was a novel procedure but concluded it was a legitimate one based on the unique facts of the case and the likelihood that it might facilitate a global settlement,” the appeals court said.

Judges Ralph B. Guy Jr., Richard Allen Griffin, and Raymond M. Kethledge served on the panel.

The cases are In re Nat’l Prescription Opiate Litig., 6th Cir., No. 19-305, immediate review granted 11/8/19 and In re Nat’l Prescription Opiate Litig., 6th Cir., No. 19-306, immediate review granted 11/8/19.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com