February 18, 2020

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Opioid Update: Briefing Begins in Interlocutory Appeal of Negotiation-Class Ruling

Several national pharmaceutical distributors and Ohio cities have filed opening briefs in their Sixth Circuit challenge to Judge Polster’s novel “negotiation class” certification order. As this blog covered back in November, the court of appeals (Guy, Griffin, Kethledge) granted interlocutory review of the negotiation procedure.

According to the distributors, the class creates conflicts of interest between plaintiffs’ attorneys participating in both bellwether trials and the negotiation class. And according to the dissenting cities which challenged the order, the intricate certification order puts too much financial pressure on municipalities to settle.

Appellees’ bottomside briefs are due late next month. If the appeal (unlike the first round of bellwether trials) culminates in a decision, the Sixth Circuit should be the first court to review one of the most novel innovations in civil procedure since, say, the very FRCP 23 class-cert rules that appellants contend bar Judge Polster’s invention.

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About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Law Firm

Benjamin Beaton is a litigator who handles complex appeals, trial proceedings and regulatory disputes. He has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk, and drafted dozens more in the federal courts of appeal and state supreme courts. In trial proceedings across the country, Ben has tried cases, briefed and argued dispositive motions, defended and examined high-profile witnesses and negotiated settlements. Outside the courtroom, Ben has drawn on his governmental experience to counsel a Fortune 100 CEO appearing before a US Senate...