## Facts

- Thousands of lawsuits by public entities alleging opioid manufacturers, distributors, and retailers contributed to the opioid crisis were centralized in an MDL in the Northern District of Ohio under 28 U.S.C. § 1407.
- Some public-entity plaintiffs sought certification of a nationwide “negotiation class” of more than 34,000 cities and counties.
- The proposed class was designed solely to negotiate potential settlements with opioid-industry defendants; it was not structured to litigate the merits as a traditional Rule 23 class.
- The district court certified the negotiation class for certain federal and related claims arising from common allegations and provided a post-certification opt-out period.
- Multiple defendants and some public entities objected and pursued appellate review of the certification order.

## Issues

1. Whether the court of appeals had jurisdiction to review the class-certification order and whether the objectors had standing to appeal.
2. Whether Rule 23 authorizes certification of a negotiation-only class and, if so, whether the certified class satisfied Rule 23(a) and Rule 23(b)(3), including predominance, superiority, and adequate procedural protections.

## Decision

- The Sixth Circuit held it had appellate jurisdiction to review the certification order and that objectors had standing to appeal.
- The court vacated the district court’s order certifying the negotiation class and remanded.
- The court concluded that the negotiation-class device, as certified, was not authorized by Rule 23 and did not satisfy Rule 23(b)(3).
- The court emphasized that MDL case management cannot alter or bypass the Federal Rules of Civil Procedure.

## Legal Principles

- MDL coordination under 28 U.S.C. § 1407 does not permit a transferee court to disregard or reshape governing procedural rules; the Federal Rules of Civil Procedure have the force of law.
- Rule 23’s class mechanisms are limited to those authorized by the rule; courts may manage class actions flexibly but may not create a materially new category of class procedure outside the rulemaking process.
- Rule 23(b)(3) requires a rigorous showing that common issues predominate over individualized ones and that a class action is superior to other methods; a nationwide aggregation of governmental entities with varied claims and remedial theories raises predominance and superiority concerns.
- Structural features affecting absent members’ rights—such as allocation formulas, settlement voting mechanisms, and opt-out design—bear on adequacy of representation and the procedural protections required for a Rule 23(b)(3) class.

## Conclusion

The Sixth Circuit rejected certification of a negotiation-only class in the opioid MDL, holding that Rule 23 does not permit courts to create an extra-textual class device for settlement bargaining and that the proposed nationwide class failed to satisfy Rule 23(b)(3) requirements, requiring vacatur and remand.


In re Nat'l Prescription Opiate Litig., 976 F.3d 664 (6th Cir. 2020)