Repeat Players in Multidistrict Litigation: The Social Network
Abstract
To promote pretrial efficiency, the Judicial Panel on Multidistrict Litigation has transferred 36 percent of the entire federal courts’ civil caseload to transferee judges for coordinated handling. Transferee judges then pick plaintiffs’ attorneys to lead and manage those cases, and the same attorneys appear in proceeding after proceeding. While past studies have considered repeat play on the plaintiffs’ side, the current study is the first comprehensive empirical investigation of repeat play on both sides.
We found robust evidence of repeat play among both plaintiff and defense attorneys and, using social-network analysis, established that a cohesive multidistrict-litigation leadership network exists. That there are repeat players in multidistrict litigation matters considerably. Lead lawyers control the litigation, dominate negotiations, and design settlements. To consider repeat players’ influence, we examined the publicly available nonclass settlements these attorneys negotiated, looking for provisions that one might argue principally benefit the attorneys, and not one-shot plaintiffs. By conditioning the deal on achieving a certain claimant-participation rate and shifting the deal-making entities from plaintiffs and defendants to lead lawyers and defendants, repeat players tied all plaintiffs’ attorneys’ financial interests to defendants’ ability to achieve closure.
Over a 22-year span, we were unable to find any publicly available nonclass settlement that didn’t feature at least one closure provision (which benefits the defendant), and likewise found that nearly all settlements contained some provision that increased lead lawyers’ fees. Based on the limited settlements available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings — when they “play for rules,” so to speak — the practices they develop may principally benefit them at the expense of one-shot plaintiffs.