The "Inherent Powers" of Multidistrict Litigation Courts

Authors

Lynn A. Baker

First Page

559

Last Page

590

Document Type

Article

Abstract

Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a “common benefit” assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges’ assertions of their inherent powers when managing MDLs and have concluded that the courts’ inherent powers do not properly extend to any of these four actions. In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within their inherent powers framework, I agree with Pushaw and Silver’s conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find unpersuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation.

Recommended Citation

Lynn A. Baker The "Inherent Powers" of Multidistrict Litigation Courts, 51 Pepp. L. Rev. 559 (2024)
Available at: https://digitalcommons.pepperdine.edu/plr/vol51/iss3/4