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United States Court of Appeals for the Sixth Circuit
July 28, 2020, Argued; September 24, 2020, Decided; September 24, 2020, Filed
File Name: 20a0311p.06
[*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.
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.
976 F.3d 664 *; 2020 U.S. App. LEXIS 30514 **; 2020 WL 5701916
IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION. ALBANY COUNTY, NEW YORK, Negotiation Class's Class Representatives; CO-LEAD NEGOTIATION CLASS COUNSEL; CO-NEGOTIATION CLASS COUNSEL, Plaintiffs-Appellees, CITY OF NORTH ROYALTON, OHIO; CITY OF EAST CLEVELAND, OHIO; CITY OF MAYFIELD HEIGHTS, OHIO; CITY OF LYNDHURST, OHIO; CITY OF HURON, OHIO; CITY OF WICKLIFFE, OHIO, Plaintiffs-Appellants (19-4099), v. MCKESSON CORPORATION; CARDINAL HEALTH, INC.; AMERISOURCEBERGEN DRUG CORPORATION; PRESCRIPTION SUPPLY, INC.; DISCOUNT DRUG MART, INC.; WALMART, INC.; WALGREEN COMPANY; WALGREEN EASTERN CO., INC.; CVS PHARMACY, INC.; CVS INDIANA, LLC; CVS Rx SERVICES, INC.; RITE AID OF MARYLAND, INC., dba Rite Aid of Mid-Atlantic Customer Support Center, Defendants-Appellants (19-4097).
Subsequent History: Rehearing denied by, En banc Albany Cty. v. McKesson Corp. (In re Nat'l Prescription Opiate Litig.), 2020 U.S. App. LEXIS 40688 (6th Cir., Dec. 29, 2020)
Prior History: [**1] Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:17-md-02804; 1:18-op-45090—Dan A. Polster, District Judge.
Cty. of Summit, Ohio v. Purdue Pharma L.P. (In re Nat'l Prescription Opiate Litig.), 332 F.R.D. 532, 2019 U.S. Dist. LEXIS 155118, 2019 WL 4307851 (N.D. Ohio, Sept. 11, 2019)
settlement, negotiation, class action, district court, class member, certification, certifying, predominance, opt-out, opioid, courts, purposes, cases, class certification, cities and counties, opt out, parties, textual, litigating, subclasses, civil procedure, Plaintiffs', entities, settle, advisory committee note, putative class member, state law claim, crisis, notice, conflicting interest
Civil Procedure, Special Proceedings, Class Actions, Compromise & Settlement, Certification of Classes, Notice of Class Action, Content of Notice, Opt Out Provisions, Settlements, Settlement Agreements, Validity of Agreements, Appellate Review, Appeals, Reviewability of Lower Court Decisions, Adverse Determinations, Standards of Review, Abuse of Discretion, Judicial Discretion, Prerequisites for Class Action, Adequacy of Representation, Superiority, Typicality, Prerequisites for Class Action, Governments, Courts, Rule Application & Interpretation, Class Members, Named Members, Voluntary Dismissals, Class Attorneys, Appointments, Maintainability, Predominance, Federal Government, US Congress