City of North Royalton v. McKesson Corp. (In re Nat'l Prescription Opiate Litig.)

Opinion

 [*667]  CLAY, Circuit Judge. The latest appeal in this multi-district litigation ("MDL") relating to the opioid crisis centers on the district court's order certifying a "negotiation class" under Federal Rule of Civil Procedure 23. The court has certified a class of all cities and counties throughout the United States for purposes of negotiating a settlement between class members and opioid manufacturers, distributors, and pharmacies. Appellants, objecting opioid distributors and retail pharmacies ("Defendants"), as well as six objecting Ohio cities, appeal the district court's order certifying this negotiation class. Appellees, putative representatives of the negotiation class ("Plaintiffs"), request us to approve this novel form of class action. For the reasons provided below, we decline to do so, and therefore REVERSE the district court's order.

BACKGROUND

The national prescription opioid MDL, consolidated in the Northern District of Ohio, consists of over 1,300 public-entity-led lawsuits, primarily filed by cities and counties. In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 923 (6th Cir. 2019). These cities and counties allege that opioid manufacturers, opioid distributors, and opioid-selling [**4]  pharmacies and retailers acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking and often becoming addicted to, opiates. Nat'l Prescription Opiate Litig. v. Purdue Pharma L.P. (In re Nat'l Prescription Opiate Litig.), 2018 U.S. Dist. LEXIS 176260, 2018 WL 4895856, at *2-5, *36-37 (N.D. Ohio Oct. 5, 2018), report and recommendation adopted in part and rejected in part, 2018 U.S. Dist. LEXIS 213657, 2018 WL 6628898 (N.D. Ohio Dec. 19, 2018). Plaintiffs allege that approximately 350,000 individuals in the United States died from an opioid overdose between 1999 and 2016. 2018 U.S. Dist. LEXIS 176260, [WL] at *2. The opioid industry's practices allegedly harmed Plaintiffs by forcing them to divert significant funding to emergency public health and public safety responses to the crisis. 2018 U.S. Dist. LEXIS 176260, [WL] at *37. Plaintiffs across the MDL allege numerous causes of action, including claims based upon the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., its state analogues, state statutory public nuisance law, and several other state common law claims. 2018 U.S. Dist. LEXIS 176260, [WL] at *5, *31, *35, *41, *44, *46.

Throughout its time overseeing the MDL, the district court has repeatedly sought to facilitate settlements between the parties. See, e.g., In re Nat'l Prescription Opiate Litig., 332 F.R.D. 532, 536 (N.D. Ohio 2019) ("From the outset of this MDL, the Court has encouraged the parties to settle the case."); R. 800, Op. & Order, PageID # 18971 (noting that the court's order will assist "in litigating (and hopefully settling) these cases"). ¹ Plaintiffs aligned [**5]  themselves with that goal when, on June 14, 2019, attorneys representing fifty-one cities and counties moved to certify a negotiation class under Federal Rule of Civil Procedure 23(b)(3). In re Nat'l Prescription Opiate Litig., 332 F.R.D. at 537. Plaintiffs sought to include within the class every city and county within the United States, some 34,458 identified municipal entities, id. at 543, unless a prospective class member exercised its right to opt-out within sixty days of class certification. Id. at 539.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.