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Opioid Update: Ohio Cities Now on Both Sides of Negotiation-Class Fight

Six Ohio cities represented by Tom Goldstein filed a petition at the Sixth Circuit Court of Appeals opposing Judge Polster’s certification of the negotiation class in the opioid MDL.

The cities’ petition urges the Sixth Circuit to immediately review the certification of the negotiation class now rather than on appeal—lest they risk wasting the time and money of the thousands of parties and tens of thousands of absent local governments.

According to the cities, the proposed negotiation class (and its five-part procedural structure) violates Rule 23 because the district court’s certifying a class for “purposes of settlement” fails to provide notice of the settlement—or of the parties’ opt-out rights—“until the settlement is already reached.”

Beyond that, they argue the negotiation class violates due process. “When a constitutional right is given away—like the individual’s right to litigate [his or her] own cause of action—that waiver is supposed to be knowing and voluntary. But class members here are being asked to tie themselves to the mast of the negotiation class without knowing whether the settlement will be for anything between millions and tens of billions of dollars.”

Coming on the heels of the Sixth Circuit’s order to the plaintiffs and Judge Polster to respond to the Ohio AG’s mandamus petition, this petition puts municipalities on both sides of the novel negotiation-class fight—and creates still another question for the Sixth Circuit to consider before the MDL bellwether trials are set to begin next month. Stay tuned.

Co-authored by Barrett Block

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 270
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About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH
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Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...

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