On Friday, Nov. 8, a Sixth Circuit panel (Guy, Griffin, and Kethledge) granted interlocutory appeals of drug manufacturers and distributors embroiled in the Northern District of Ohio opioid MDL. The appeals, brought under Federal Rule of Civil Procedure 23(f), oppose the district court’s certification of the novel “Negotiation Class.” Under the proposed procedure, any class member can opt out, no defendant must negotiate with the class, and the underlying litigation will continue while negotiations theoretically continue.

The district court, mindful that the “Negotiation Class was a novel procedure,” justified it “based on the unique facts of the case and the likelihood it might facilitate a global settlement.”

But as we covered in September, many parties—defendants and 6 plaintiffs, plus 12 states and the US Chamber as amici—oppose the Negotiation Class. They complaint that it fails to provide notice of the settlement, or of the parties’ opt-out rights, “until the settlement is already reached.”

Under Rule 23(f), the court of appeals may “permit an appeal from the grant or denial of a motion for class certification.” And here the court did.  Josh Douglas, Thomas P. Lewis Professor of Law at the University of Kentucky, stated “it’s not surprising for the court to have allowed the appeal, as the issue is novel, impacts major litigation, and could prejudice the defendants without real recourse if an appeal were not permitted.”

Judge Polster’s innovative deployment of Rule 23 has attracted the attention of the plaintiffs’ bar, civil-procedure buffs, and class-action lawyers of all stripes. The Sixth Circuit will now have its chance to weigh in. Stay tuned.