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