Certifying Novel "Negotiation" Classes Following In re National Opioid Litigation

Employing Negotiation Classes in Future Cases and Multiple Jurisdictions

A live 90-minute CLE video webinar with interactive Q&A

Thursday, January 7, 2021

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 4, 2020

or call 1-800-926-7926

This CLE webinar will discuss why the Sixth Circuit's rejection of a novel "negotiation class" in In re National Prescription Opiate Litig. (Sept. 24, 2020) is far from the last word on negotiation classes and will explore the roadmap to certification set out in the dissent. Plaintiffs in the opioid litigation are seeking en banc review and may be headed to the Supreme Court. The program will also discuss the role of strict construction and "plain language" tools in this and other surprising class action decisions.


The ongoing opioid crisis has resulted in many lawsuits by cities and counties saddled with their residents' social and healthcare costs. In 2017, these local government lawsuits were consolidated in multidistrict litigation in the Northern District of Ohio. Seeking to facilitate a rapid settlement, the court worked with the parties to certify a creative new type of class--a "negotiation class."

Such a class was novel because it required members to opt out of the class before a settlement was reached. This reduced the risk that class members holding large claims would opt out of the class post-settlement and encouraged defendants to settle by reducing their risk of further litigation. This certified negotiation class would have been binding on all counties and cities in the United States--more than 35,400 separately identified municipalities--unless they opted out of the class. Fewer than 400 purported class members opted out, and roughly 50 parties objected.

A divided Sixth Circuit panel rejected outright the concept of a "negotiation class" by strictly construing the text of FRCP 23, which does not mention a "negotiation class.” Yet a strong and well-reasoned dissent offered both textual and historical reasons why the majority's opinion was not only cramped but not required, including that "settlement" and "negotiation" classes are indistinguishable in the text of Rule 23.

Listen has this experienced panel explains why the "negotiation class" is far from dead and the types of class actions in which it may be most useful, as well as illuminates possible pathways to certification in the future.



  1. History of settlement class actions as a judicial creation
  2. The majority's reasoning
  3. The dissent's arguments
  4. Best practices and strategies for future "negotiation" classes


The panel will review these and other issues:

  • What is a negotiation class?
  • Does a negotiation class differ from a settlement class?
  • What protections can be offered to plaintiffs?
  • What kinds of claims are most suited for this novel theory?
  • Can the plaintiff cure some of the problems relied on by the majority decision from the Sixth Circuit?


Martin, Linda
Linda H. Martin

Freshfields Bruckhaus Deringer

Ms. Martin has extensive experience resolving complex and cross-border commercial disputes across a broad range of...  |  Read More

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