Many years ago an especially wise in-house lawyer (he is a reader of the blog, and we know he will understand that this reference comes from respect, not sycophancy) told us that law firms angling for his business usually aimed their pitches incorrectly. Lawyers love to brag about their trial prowess. That turns out to be not so impressive. There is both a credibility and relevancy problem. Aside from a small number of trial gods and goddesses sprinkled throughout Chicago and a couple of other places (you know who they are), the bragging is mere puffery. Moreover, a vanishingly small percentage of cases actually go to trial. Law firms would be smarter to hawk their skills at crafting advantageous settlements.
We know that the settlement in In re CPAP, 2024 U.S. Dist. LEXIS 126219 (W.D. Pa. July 17, 2024), is well crafted. How do we know that? First, the long, long roster of lawyers involved is filled with superb practitioners. When we see names like Chris Seeger, David Boies, and John Lavelle (as well as many other brilliant attorneys) we know that things were done at a very high level. Second, this particular settlement withstood a vigorous attack by dissident plaintiffs, and the judge who rejected that attack (Judge Joy Flowers Conti) knows MDL practice as well as anyone.
What was the nature of the attack on the CPAP settlement? The dissenting plaintiffs, who had become officious intermeddlers, were MDL plaintiffs who did not have the injuries that the defendant agreed to settle with other plaintiffs. Those dissenters/objectors/interneddlers asked the court to rewrite the master settlement agreement to include their alleged injuries. They also argued that certain provisions of the settlement agreement, such as the standard language about how the plaintiff lawyers will cease advertising for new cases and will withdraw from representing eligible claimants who do not wish to settle, somehow violated the plaintiff lawyers' ethical obligations. The objectors cited ABA Model Rules 1.7 (conflicts of interest) and 5.6 (restriction on practice of law). That last argument seems specious when read against the explicit terms of the settlement agreement, which made clear that the settlement in no way restricted the plaintiff lawyers' practice of law, and that the plaintiff lawyers would act in the best interest of their clients.
But there was a more fundamental reason why the judge rejected the objectors' challenge to the settlement: those objectors lacked standing. This was a private settlement that is not a class action. The master settlement agreement was not subject to court approval. The Third Circuit has made clear that a "district court is not a party to the settlement, nor may it modify the terms of a voluntary settlement agreement between parties."
Private litigants can settle on any terms they find acceptable. There is no requirement that an MDL settlement embrace all plaintiffs and all claimed injuries. The objectors in this case were non-settlers. Their claimed injuries were not qualifying injuries under the master settlement agreement. Thus, their rights were not legally affected in any way by the decision of other plaintiffs to settle their claims for other injuries. The objectors suffered no legal prejudice, and they remain free to pursue their own claims.
The objectors likewise lacked standing to object to allegedly unethical restrictions on the practice of law by other attorneys that do not, and had never, represented them. Implicitly, although not discussed, this aspect of the opinion appears to stand for the proposition that MDL lead plaintiffs' counsel owe no ethical duties to MDL plaintiffs they do not formally represent – though we recognize that not everyone (including not every judge) agrees with that proposition.
This article is presented for informational purposes only and is not intended to constitute legal advice.