Case: 1:17-md-02804-DAP Doc #: 2590 Filed: 09/11/19 1 of 40. PageID #: 413578

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
__________________________________________
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)
)
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THIS DOCUMENT RELATES TO:
)
)
All Cases
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)
and
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The County of Summit, Ohio, et al., v.
)
Purdue Pharma L.P. et al.,
)
Case No. 18-op-45090
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_________________________________________ )
IN RE: NATIONAL PRESCRIPTION
OPIATE LITIGATION

Case No. 1:17-MD-2804
Judge Dan Aaron Polster
MEMORANDUM OPINION
CERTIFYING NEGOTIATION
CLASS

Before the Court is Plaintiffs’ Renewed and Amended Motion for Certification of Rule
23(b)(3) Cities/Counties Negotiation Class. Doc. #: 1820. Various Defendants and a handful of
putative class members oppose the motion, as do 37 State Attorneys General and the Attorneys
General of Guam and the District of Columbia. After consideration of all of the briefing on this
motion, and oral argument held on August 6, 2019, and all of the prior proceedings herein, the
Plaintiffs’ Motion is GRANTED-IN-PART. This Memorandum opinion explains the Court’s
reasoning. An Order will issue separately.
I.

THE NEGOTIATION CLASS CERTIFICATION MOTION

A.

Background
On December 12, 2017, the Judicial Panel on Multidistrict Litigation (JPML) transferred

all opioid-related litigation pending in federal courts throughout the United States to this forum for
consolidated pretrial proceedings. Doc. #: 1. At present, this multidistrict litigation (MDL)
encompasses more than 2,000 individual actions. Most of these constituent cases have been filed
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by cities and counties throughout the United States seeking, inter alia, reimbursement for monies
they have expended – and continue to spend – addressing the opioid crisis. The Defendants include
numerous manufacturers, distributors, and pharmacies. Beyond the thousands of cases pending
here, many other municipalities are litigating similar opioid-related lawsuits in state courts
throughout the United States.
From the outset of this MDL, the Court has encouraged the parties to settle the case.
Settlement is important in any case. Here, a settlement is especially important as it would expedite
relief to communities so they can better address this devastating national health crisis. A Courtappointed Special Master (Professor Francis McGovern) has overseen extensive settlement
negotiations. The Defendants have insisted throughout on the need for a “global settlement,” that
is, a settlement structure that resolves most, if not all, lawsuits against them arising out of the
opioid epidemic. This has created an obstacle to settlement. In a standard settlement class action,
the class members can opt out of the class after the settlement is reached. With thousands of
counties and cities already litigating, the Defendants in this MDL are concerned that many of these
Plaintiffs could opt out. The Defendants would then have paid a lot of money to settle nonlitigating claims but would still have to litigate a host of potentially significant claims. This
situation required creative thinking. The Special Master, in conjunction with experts and the
parties in the case, developed an innovative solution: a new form of class action entitled
“negotiation class certification.”1

1

The Special Master and Professor Rubenstein, the Court’s expert in this matter, have produced a
scholarly version of the idea. See Francis E. McGovern & William B. Rubenstein, The Negotiation
Class: A Cooperative Approach to Class Actions Involving Large Stakeholders (Duke Law Sch.
Pub.
Law
&
Legal
Theory
Series,
Paper
No.
2019-41,
2019),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3403834.
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The idea is to undertake the class certification and opt-out process prior to a settlement
being reached, as is done in a normal class action geared toward trial. This will fix a class size
and provide the Defendants a sense of the precise scope of the group with whom they are
negotiating. The class members’ rights are protected in several critical ways. At the front end,
before having to make the opt-out decision, the class members can calculate their share of any
future settlement; here, groups of Plaintiffs and Plaintiffs’ attorneys have worked together to
establish a public health-based settlement allocation plan, the details of which are all made
available to the Class and public at a case website, www.opioidsnegotiationclass.info. At the back
end, each class member will be entitled to vote (yes or no) on whether a proposed settlement
amount is sufficient, and no settlement will be deemed accepted unless it garners a supermajority
(75%) of those voting; here, a proposal will need to secure approval from six separate
supermajority vote counts, reflecting different slices of the class. Additionally, of course, the
Court protects the absent class members:

Rule 23 requires that the Court make specific

determinations before permitting a class action to go forward, Fed. R. Civ. P. 23(a), (b)(3), (c), (g),
and similarly requires that the Court – independent of the class’s vote – approve any proposed
settlement and attorney’s fees, Fed. R. Civ. P. 23(e), (h).
As discussed more fully below, the Court is mindful of the fact that this is a novel procedure
and one opposed by the vast majority of State Attorneys General, who themselves are actively
pursuing important State opioid litigation. The Court has determined that the procedure is a
legitimate one, that certification is warranted based on the facts of the case, and that the whole
process is more likely to promote global settlement than it is, as the Attorneys General argue, to
impede it. Regardless, there is nothing coercive about this process: no Defendant has to employ
it. There is nothing exclusive about this process: it does not interfere with the States settling their

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own cases any way they want, and it does not stop parties in the MDL from settling in other ways.
And there is nothing intrusive about this process: it does not stop any litigation from continuing
and in no way interferes with the upcoming bellwether trials in this MDL. This process simply
provides an option – and in the Court’s opinion, it is a powerful, creative, and helpful one. The
Court therefore grants certification of the negotiation class but, mindful of the objections that have
been mounted against it, upon terms more carefully prescribed and delimited than those proposed
by the Plaintiffs.
B.

The Motion
By motion dated June 14, 2019, the Plaintiffs’ leadership team in this MDL filed a motion

on behalf of 51 cities and counties entitled, Motion for Certification of Rule 23(b)(3)
Cities/Counties Negotiation Class, Doc. #: 1683; Doc. #: 1690 (corrected version). A variety of
parties responded to this motion, including a group of Distributor Defendants, Doc. #: 1720, and
a group of Pharmacy Defendants, Doc. #: 1723, but no Manufacturer Defendants. Moreover, two
sets of State Attorneys General – representing 30 States, the District of Columbia, and Guam –
sent letters to the Court registering their disapproval of the proposed motion. Doc. ##: 1726, 1727.
The Court held a hearing on the initial motion on June 25, 2019, and at that time adopted a briefing
schedule enabling the Plaintiffs to re-brief the motion in light of the filed oppositions.
Accordingly, on July 9, 2019, the Plaintiffs filed a Renewed and Amended Motion for Certification
of Rule 23(b)(3) Cities/Counties Negotiation Class.

Doc. #: 1820; see also Doc. #: 2135

(Statement of City of Manchester, New Hampshire Supplementing Plaintiffs’ Renewed Motion).
On July 23, a set of nine Distributor and Pharmacy Defendants filed a brief opposing the motion,
Doc. #: 1949, while a group of Manufacturing Defendants filed a brief asking the Court to clarify

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the relationship of negotiation class certification to American Pipe tolling, Doc. #: 1952;2 other
Defendants subsequently noted their joinder in these responses, Doc. ##: 1954, 2057. A group of
six (6) Ohio cities filed a brief in opposition, Doc. #: 1958, later joined by a seventh city, Doc. #:
2064, while another putative class member (City of Fargo, North Dakota) filed a brief asking the
Court to clarify the end date for inclusion in a particular sub-group of the proposed negotiation
class, Doc. #: 1953. A letter to the Court joined by 37 State Attorneys General, as well as the
Attorneys General of the District of Columbia and Guam, strongly urged the Court to reject the
motion. Doc. ##: 1951, 1955. The Ohio Attorney General, who signed that letter, also filed a
separate letter of his own registering further opposition. Doc. #: 1973. On July 30, 2019, the
Plaintiffs filed a reply to these oppositions. Doc. #: 2076. On August 6, 2019, this Court held a
hearing on the motion.
C.

The Proposed Process
The negotiation class certification process unfolds in five stages:
1.

Allocation/Voting. Class members first develop a plan for allocating a lump sum

settlement among the class and a plan for voting on the reasonableness of any lump sum settlement
that is achieved. This enables each class member to know its settlement share and franchise prior
to the opt-out deadline. Here, the MDL Plaintiffs’ leadership has met with numerous groups of
Plaintiffs and public health experts to create the allocation plan. Doc. #: 1820-1 at 49. The plan
proposes distributing 75% of the lump sum to counties, with each county’s share calculated
according to three equally-weighted public health factors. Id. at 48–49, 55–60. The county’s share
is then divided among the county and its constituent cities, ideally through negotiated agreement.

2

Movants disclaim any tolling effect of their motion, Doc. #: 2076 at 19, so the Court need not
address this issue at this time.
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Id. at 60. Of the remaining 25%, 10% is set aside for a “Private Attorneys’ Fee Fund,” from which
private attorneys – defined as any counsel with representation agreements with one or more Class
members executed as of June 14, 2019 – could seek fees in lieu of enforcement of private
contingency fee contracts with their clients. Id. at 49–50. Finally, 15% is set aside for a “Class
Members’ Special Needs Fund,” to cover the special needs and expenditures of any Class member
that are not addressed by the class-wide allocation formula, including expenses associated with
litigation. Id. at 96. All of these amounts are subject to Court approval and any of this 25% (the
Private Attorneys’ Fee Fund and the Class Members’ Special Needs Fund) not so distributed is
then re-distributed across the class according to the allocation plan. Id. at 95, 97.
The voting model is both simple and complex. Doc. #: 1820 at 8–9. If a lump sum
settlement is reached with a Defendant, each class member will be given the opportunity to cast a
single, simple, yes/no vote as to whether the size of the lump sum settlement is sufficient. The
votes will then be counted to ensure the settlement is accepted by 75% of all voting entities by
number, 75% of all voting entities by population, and 75% of all voting entities by allocation; each
of those three types of votes will be counted twice, once among jurisdictions that had filed lawsuits
as of June 14, 2019 (“litigating entities”) and once among jurisdictions that had not (“non-litigating
entities”). The various counts ensure that: (1) the plethora of smaller counties cannot alone control
an outcome (the population vote guards against that); (2) the plethora of small-recovery counties
cannot alone control an outcome (the allocation vote guards against that); and that (3) neither the
litigating nor non-litigating entities alone can control an outcome.
Part IV of this Memorandum analyzes the equities of the allocation and voting plans.
2.

Class Certification. With the allocation and voting plans in place, plaintiffs move

for certification of the negotiation class, as have the present movants.

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3.

Notice and Opt-Out Period. If the Court approves the motion, the class members

are given notice of class certification and an opportunity to opt out. Here, movants propose a 60day opt-out period. During that time, class members can assess their share of a lump sum
settlement and the proposed voting structure at the class website to determine whether they want
to be part of this negotiating group.
4.

Lump Sum Settlement Negotiation. At the conclusion of the opt-out period, with

the size of the class set, the class is ready to negotiate a settlement with one or more defendants.
No defendant is required to negotiate with the class and the underlying litigation activities continue
unabated.
5.

Judicial Approval, Including Class Vote. If a settlement is reached, the parties

move for judicial approval, as required by Rule 23(e). That process encompasses three parts: (a)
the Court must preliminarily approve the settlement, Fed. R. Civ. P. 23(e)(1); (b) class members
are then given their opportunity to vote on the settlement, and they may file objections with the
Court, Fed. R. Civ. P. 23(e)(5); and (c) if the Class votes to accept the settlement, class counsel
moves for final approval.

The Court would then make the same determination as to the

settlement’s reasonableness as Rule 23 requires it to do in any class action. Fed. R. Civ. P.
23(e)(2).
II.

RULE 23 AUTHORIZES NEGOTATION CLASS CERTIFICATION
Rule 23 authorizes a court to certify a case, or issues within a case, for class treatment if

certain requirements are met. Since adoption of the current version of Rule 23 in 1966, courts
have generally certified two types of class actions: trial class actions and settlement class actions.
The present motion asks this Court to certify a “negotiation class action.” The concept and

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procedure are set forth above. The question addressed here is whether Rule 23 authorizes this
procedure. The Court finds that it does.
An important starting point is that the text of Rule 23 does not dictate, nor therefore limit,
the uses to which the class action mechanism can be applied. Rule 23(a) and (b) set forth the
requirements that must be met before a court can certify a class, but neither specifies that the class
to be certified is for “trial” or “settlement” purposes. Defendants point to the fact that several
passages in Rule 23 specifically reference settlement, as opposed to trial, classes. Doc. #: 1949 at
7. They argue that these passages demonstrate that the Rule authorizes only trial and settlement
classes. Id. Their argument is not convincing. The passages they reference were not added to
Rule 23 until December 2018, yet 21 years before that – when Rule 23 contained no explicit
reference to settlement class actions – the Supreme Court affirmed courts’ use of the settlement
class action device. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 618 (1997). Moreover, the
passages that were added in 2018 do not authorize settlement classes but simply identify certain
procedures relevant to those types of class actions.
The history of class action law provides further support for this new use of the class action
procedure. Soon after Rule 23’s adoption in 1966, parties began asking courts to certify settlement
class actions, that is, cases that had already been settled prior to the court’s certification of a class.
See, e.g., Philadelphia Hous. Auth. v. Am. Radiator & Standard Sanitary Corp., 323 F. Supp. 364
(E.D. Pa. 1970), aff'd and modified sub nom. Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d
30 (3d Cir. 1971). This development was deemed novel and had its share of detractors. See
Manual for Complex Litigation § 1:46 (4th ed. 1977) (“There is, to say the least, serious doubt that
this practice is authorized by Rule 23 as amended, even if it is conceded that the courts are expected
to develop new methods of employing the amended Rule 23.”). Many critics made the same

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argument then that detractors of the proposed negotiation class make now: that the use is not
authorized by the rule. The lower courts rejected this argument, and in its 1997 decision in the
Amchem case, the Supreme Court affirmed that Rule 23 authorized settlement class actions.
Amchem, 521 U.S. at 618 (noting that “all Federal Circuits recognize the utility of Rule 23(b)(3)
settlement classes” and approving use of the device). The Defendants’ reliance on Amchem for
the proposition that “in recent years [the Supreme Court has] repeatedly warned that new
innovations that go beyond the express scope of Rule 23 are prohibited,” Doc. #: 1949 at 8 n.8, is
therefore unpersuasive and inapposite.
Finally, it is not surprising that the history of Rule 23 supports different uses of the class
action device, and the text does not prohibit these, because Rule 23 is equitable in nature and its
purpose is to provide practical means for addressing complex litigation problems. Myriad judicial
decisions have accordingly supported liberal application of Rule 23. See, e.g., Schneider v. Elec.
Auto-Lite Co., 456 F.2d 366, 370 (6th Cir. 1972) (“[T]he District Court was correct in liberally
interpreting Rule 23 in order to avoid burdensome litigation and to give efficient disposition to this
action.”).
One aspect of the negotiation class action process that differs from a settlement class action
is that class members must make their decision whether to opt out before knowing the size of the
settlement. Some argue this violates the Due Process Clause. Doc. #: 1958 at 8–12. It does not.
In a normal trial class action, class members must make their opt-out decision at the outset of the
suit, before the result is known, and no one argues that process is unconstitutional. Moreover, in
that process, if their trial attorneys later settle the case, Rule 23 enables a Court to offer a second
opt-out opportunity but does not require it to do so. Fed. R. Civ. P. 23(e)(4). If there were a
constitutional right to opt out once the outcome was known, Rule 23 would require a second opt-

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out opportunity, not just authorize it. Here, class members are given sufficient information to
make an informed decision about whether they want to bind themselves to a negotiation process,
from which they will receive a known portion of the outcome and in which they will get a right to
vote on the settlement. Moreover, the Court always retains the option of enabling a second optout opportunity if circumstances require.
The Defendants also note that a few courts have rejected the 75% voting idea when
employed outside the class action context, Doc. #: 1949 at 25–26 (citing Tax Auth., Inc. v. Jackson
Hewitt, Inc., 898 A.2d 512, 521 (N.J. 2006); Hayes v. Eagle-Picher Indus., Inc., 513 F.2d 892,
894–95 (10th Cir. 1975)), and argue that the voting process therefore cannot be employed within
the class action context. But the two contexts are distinct: class members in class actions, unlike
individual mass tort plaintiffs, are not given individualized settlement approval rights. All class
members are automatically bound unless they can and do opt out. Moreover, in a normal
settlement class action, class members may either object or opt out, but if they object and lose their
objection, they cannot then opt out: they are instead bound to a settlement with which they
disagree. The voting process is therefore consistent with the class action mechanism.
More generally, the Defendants argue that a negotiation class violates Article III because
it is somehow unrelated to a judicial function. Doc. #: 1949 at 7–8. They concede, as they must,
that a settlement class is legitimate, noting that it assists a court in its judicial function of “entering
a judgment of approval on a class settlement.” Id. at 8. But negotiation class certification serves
an even more important judicial function at an even more important juncture in the litigation: in
certifying a negotiation class, the Court undertakes the familiar judicial function of ensuring that
the class certification requirements are met and the absent class members’ interests are protected
by those who purport to represent them, prior to those agents negotiating a settlement for the

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absent class members. Negotiation class certification therefore corrects one of the long-standing
concerns of settlement class actions: that un-approved agents have settled un-certified claims.
See, e.g., Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3d Cir. 1971) (examining
argument that lawyer, “having bargained the settlement terms with defendants prior to his official
designation by the court as class representative . . . may be under strong pressure to conform to the
defendants’ wishes”). Moreover, assisting parties in creating a settlement, particularly in a large
case of this type with contested liability and adversarial litigation, is itself a meaningful judicial
function. See, e.g., In re Nat’l Prescription Opiate Litig., 927 F.3d 919, 923 (6th Cir. 2019)
(noting, without censure, that “[t]he district court presiding over this potentially momentous MDL
has repeatedly expressed a desire to settle the litigation before it proceeds to trial”).
III.

THE REQUIREMENTS OF CLASS CERTIFICATION ARE MET

A.

The Claims and Issues
Rule 23(c)(1)(B) states that: “An order that certifies a class action must define the class

and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).” Fed.
R. Civ. P. 23(c)(1)(B). The Defendants argue that the movants have failed to proffer sufficient
evidence in support of their motion and/or that the motion is not tethered to a particular complaint.
Doc. #: 1949 at 9–13. (Defendants also complain about a lack of discovery concerning the class
representatives. Id. at 12 n.13. They filed two briefs in response to movants’ original proposal,
Doc. ##: 1720, 1723, and appeared at the June 25, 2019 hearing on the motion, yet never asked for
or filed a motion seeking discovery).
The current motion does not arise in a factual vacuum. This MDL has been pending for
nearly two years. The Court has undertaken extensive review of the factual and legal issues in the
case. Several bellwether trials will commence shortly and the Court has ruled on critical motions

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to dismiss, myriad discovery matters, and a variety of complex and voluminous summary judgment
motions. The Court and parties are deeply steeped in the legal and factual issues in the case, and
the extensive record of the case – now over 2,500 entries on the MDL docket alone – provides
more than sufficient factual and legal context for a decision on class certification. The Defendants’
concern that the present motion is not tethered to a specific complaint implies that there is an
absence of relevant pleading in this matter. If there is a problem in this case, however, it is one of
glut, not famine: there are more than 2,000 complaints pending here, many of which exceed 300
pages in length. Although parties sometimes make class allegations in their complaint, Defendants
point to no precedent holding that class allegations in a complaint are a necessary prerequisite to
a class certification motion under Rule 23; similarly, although in MDLs of this type there are
sometimes master complaints, there is no MDL-specific (or any other) rule requiring such a
complaint and, absent specific agreement to the contrary, such complaints are typically purely
administrative in nature. See William B. Rubenstein, 3 Newberg on Class Actions § 10:15 (5th ed.
2019) [hereinafter Newberg on Class Actions].
Contrary to the Defendants’ assertions, the movants specifically point the Court to the
allegations contained in Cuyahoga County, Ohio’s pleadings. Doc. #: 1820-1 at 78 n.40. Given
the Court’s extensive knowledge of the heavily-developed legal and factual record in this matter,
and the discretion Rule 23 delegates to it, the Court adopts movants’ approach but utilizes as its
reference the allegations in substantially similar complaints filed by Summit County, Ohio (Doc.
##: 513, 1466). The Court references the Summit County pleadings for several inter-related
reasons: (1) Summit County is one of two bellwether cases set for trial in the coming month, with
its facts and legal allegations well-known to the Court and litigants; (2) Summit County’s
complaint was extensively tested through motions to dismiss covering thousands of pages of

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documents and nearly a year of litigation, Doc. #: 1203; (3) Summit County’s complaint was the
basis of a “short form complaint” process that enabled all plaintiffs in this MDL to incorporate by
reference certain of the legal and factual allegations therein, Doc. #: 1282; (4) the vast bulk of the
49 putative class representatives – and numerous other plaintiffs – have accordingly adopted the
Summit County pleadings.3
The Summit County complaint and related short-form complaint enabled MDL plaintiffs
– by checking a few boxes – to adopt two federal RICO claims and a set of factual allegations
encompassing, inter alia, issues arising out of the federal Controlled Substances Act. The first
RICO claim, levelled against manufacturers labelled “RICO Marketing Defendants,” alleges the
manufacturers engaged in a variety of activities that misled physicians and the public about the
need for and addictiveness of prescription opioids, all in an effort to increase sales. See Summit
County Pleadings, Doc. #: 513, ¶¶ 814–48 (facts), ¶¶ 878–905 (law), Short Form Complaint
Ruling, Doc. #: 1282-1 at 3 ¶3, at 3–4, ¶5. The second RICO claim, levelled against manufacturers
and distributors labelled “RICO Supply Chain Defendants,” alleges these defendants ignored their
responsibilities to report and halt suspicious opioid sales, all in an effort to artificially sustain and
increase federally-set limits (quotas) on opioid sales. See Summit County Pleadings, Doc. #: 513,
¶¶ 849–77 (facts) ¶¶ 906–38 (law), Short Form Complaint Ruling, Doc. #: 1282-1 at 3 ¶3, at 3–4,
¶5. The complaints also allege that the Controlled Substances Act required the manufacturers,

3

The Court is aware that as Summit County’s bellwether trial has approached, the County has
settled with some defendants and that the County is no longer proposed as a class representative.
Doc. #: 2583 at 5. However, using its complaints as the reference for analysis of the claims and
issues suitable for class certification remains appropriate given that so many other plaintiffs here
have adopted those same claims and issues through the short-form process and/or have filed
complaints that are substantially identical in relevant passages to the Summit County complaint.
See, e.g., Second Amended Complaint of Cabell County Commission (W.Va.), Doc. #: 518;
Second Amended Complaint of County of Monroe, Michigan, Doc. #: 522; Second Amended
Complaint of Broward County, Florida, Doc. #: 525.
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distributors, and pharmacies to create internal systems to identify, report, and suspend unlawful
opioid sales, and that defendants failed to meet those obligations; these factual allegations underlie
the second RICO claim above and are also pertinent to adjudication of myriad state-based legal
claims, from public nuisance to negligence. See Summit County Pleadings, Doc. #: 513, ¶¶ 504,
506–659, Short Form Complaint Ruling, Doc. #: 1282-1 at 3 ¶ 3.
Based on these pleadings, which are common across many, if not most, of the MDL
litigants and putative Class Representatives, the Court will analyze the movants’ request to certify
for class treatment:4
1. a RICO claim arising out of the alleged Opioid Marketing Enterprise, as against
five (5) named Defendants – Purdue, Cephalon, Janssen, Endo, and
Mallinckrodt – under Rule 23(b)(3) (Doc. #: 1820-1 at 83);
2. a RICO claim arising out of the alleged Opioid Supply Chain Enterprise, as
against eight (8) named Defendants – Purdue, Cephalon, Endo, Mallinckrodt,
Actavis, McKesson, Cardinal, and AmerisourceBergen – under Rule 23(b)(3)
(Doc. #: 1820-1 at 84); and,
3. two issues related to Defendants’ obligations under the Controlled Substances
Act, against thirteen (13) named Defendants – Purdue, Cephalon, Endo,
Mallinckrodt, Actavis, Janssen, McKesson, Cardinal, AmerisourceBergen,
CVS Rx Services, Inc., Rite-Aid Corporation, Walgreens, and Wal-Mart –
under Rule 23(c)(4) (Doc. #: 1820-1 at 91 n.46 & at 84–86):
a. What are the specific obligations of each defendant under the federal
Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. and its
implementing regulations, 21 C.F.R. § 1301 et seq., arising out of the
requirement that registrants “provide effective controls and procedures
to guard against theft and diversion of controlled substances,” 21 C.F.R.
§ 1307.71(a)?
b. Did each defendant’s action satisfy these obligations with respect to
prescription opioids?

4

The Court uses simple names for the 13 Defendants listed in the following numbered paragraphs,
but adopts the definitions of the related Defendant entities set out in the Summit County
Complaint, Doc. #1466 at 13–35.
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B.

The Class Certification Standard
The Sixth Circuit has held that: “Any class certification must satisfy Rule 23(a)’s

requirement of numerosity, commonality, typicality, and adequate representation [and] fit under
at least one of the categories identified in Rule 23(b).” Clemons v. Norton Healthcare Inc. Ret.
Plan, 890 F.3d 254, 278 (6th Cir. 2018). Under Rule 23(b)(3), class certification is appropriate if
(1) “the questions of law or fact common to class members predominate over any questions
affecting only individual members,” and (2) class resolution “is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Additionally,
Rule 23(c)(4) states that “[w]hen appropriate, an action may be . . . maintained as a class action
with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). The Sixth Circuit recently affirmed the
utility of such “issue certification,” explaining that Rule 23(c)(4) “contemplates using issue
certification to retain a case’s class character where common questions predominate within certain
issues and where class treatment of those issues is the superior method of resolution.” Martin v.
Behr Dayton Thermal Prod. LLC, 896 F.3d 405, 413 (6th Cir. 2018), cert. denied, 139 S. Ct. 1319
(2019). After confirming existence of a cognizable class, this Court will accordingly consider all
of the factors of Rule 23(a) and 23(b)(3) as they apply to both the RICO claims and the CSA issues,
as against each relevant Defendant.
C.

The Class is Ascertainable
Rule 23(b)(3) classes must be ascertainable. Cole v. City of Memphis, 839 F.3d 530, 541

(6th Cir. 2016). For a class to be ascertainable, the “class definition must be sufficiently definite
so that it is administratively feasible for the court to determine whether a particular individual is a
member of the proposed class.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537–38 (6th
Cir. 2012) (citation omitted). It is administratively feasible for the Court to determine class

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membership if the class is defined by reference to objective criteria, and with reasonable accuracy.
See id. at 538–39; Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015).
The present motion seeks certification of a single national class, defined as:
all counties, parishes, and boroughs (collectively, “counties”); and all incorporated places,
including without limitation cities, towns, villages, townships, and municipalities, as
defined by the United States Census Bureau (collectively “cities”) as listed on the Opioids
Negotiation Class website, opioidsnegotiationclass.com.
Doc. #: 1820 at 3. The class definition is based on purely objective criteria and is accompanied by
an Excel spreadsheet at the website that lists the names of each of the proposed class members in
34,458 rows. The class is therefore not only ascertainable, its membership has been ascertained.
Defendants argue that the complexity of governmental structures across the country creates some
ambiguous situations and they provide a single such example. Doc. #: 1949 at 3 n.3. Such minor
technical issues can be worked out going forward. For purposes of class certification, the Court
finds that the class is adequately defined.
D.

Rule 23(a)(1): The Class is So Numerous That Joinder is Impracticable
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). The Sixth Circuit has held that “no strict numerical test
exists to define numerosity,” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722
F.3d 838, 852 (6th Cir. 2013), but that “‘substantial’ numbers . . . are sufficient to satisfy this
requirement.” Id. The proposed class consists of 34,458 public entities dispersed throughout the
entire United States. Defendants explicitly concede that “numerosity is self-evident here.” Doc.
#: 1949 at 13. The Court finds that the class is so numerous that joinder of all members would be
impracticable and thus that this requirement has been satisfied.

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E.

Rule 23(a)(2): There are Common Questions of Law or Fact
Rule 23(a)(2) requires plaintiffs to prove that “there are questions of law or fact common

to the class.” Fed. R. Civ. P. 23(a)(2). Despite the Rule’s use of the plural “questions,” the
Supreme Court has held that a single common question will suffice. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 359 (2011). Yet, “because the commonality requirement is qualitative, not
quantitative,” 1 Newberg on Class Actions § 3:22, at least one common issue must be central to
the litigation, see Wal-Mart, 564 U.S. at 350 (“That common contention, moreover, must be of
such a nature that it is capable of classwide resolution—which means that determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.”).
This putative class action occurs within a multi-district litigation (MDL). In creating this
MDL, the Judicial Panel on Multidistrict Litigation (JPML) has steered thousands of individual
actions pending throughout the nation to this Court. Its authority to do so turns on the presence of
common questions. 28 U.S.C. § 1407(a) (“When civil actions involving one or more common
questions of fact are pending in different districts, such actions may be transferred to any district
for coordinated or consolidated pretrial proceedings.”). In initiating this MDL, the JPML held:
All actions involve common factual questions about, inter alia, the manufacturing
and distributor defendants’ knowledge of and conduct regarding the alleged
diversion of these prescription opiates, as well as the manufacturers’ alleged
improper marketing of such drugs. Both manufacturers and distributors are under
an obligation under the Controlled Substances Act and similar state laws to prevent
diversion of opiates and other controlled substances into illicit channels. Plaintiffs
assert that defendants have failed to adhere to those standards, which caused the
diversion of opiates into their communities.
Doc. #: 1 at 3. Rejecting the argument that uncommon issues would generate inefficiencies if an
MDL were formed, the JPML concluded: “All of the actions can be expected to implicate common

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fact questions as to the allegedly improper marketing and widespread diversion of prescription
opiates into states, counties and cities across the nation . . . .” Id.
While commonality for pre-trial centralization purposes under § 1407 may not be precisely
the same test as commonality for class certification purposes under Rule 23, it is close5 and,
regardless, the JPML’s recitation, like the movants’ papers, Doc. #: 1820-1 at 64–66, 81, identifies
common issues that are qualitatively decisive for Rule 23 purposes. Moreover, there is direct
evidence of the commonality of the claims and issues in this matter given that the short-form
complaint process enabled MDL plaintiffs to adopt these specific claims and issues, and many did
so. The Court finds that there are questions of both law and fact, as to the specified claims and
issues, common to the class with respect to each relevant Defendant; the discussion in sub-section
I, below, concerning whether these common questions predominate, sets forth with more
particularity the specific common RICO and CSA issues.
F.

Rule 23(a)(3): The Class Representatives’ Claims are Typical of Those of the Class
Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical

of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Typicality is met if the class
members’ claims are ‘fairly encompassed by the named plaintiffs’ claims’” such that “by pursuing
their own interests, the class representatives also advocate the interests of the class members.” In
re Whirlpool Corp., 722 F.3d at 852–53 (6th Cir. 2013) (quoting Sprague v. Gen. Motors Corp.,

5

Defendants rely on In re Saturn L-Series Timing Chain Prod. Liab. Litig., No. 8:07CV298, 2008
WL 4866604, at *25 n.21 (D. Neb. Nov. 7, 2008) to argue that “[c]lass certification thus cannot
be bootstrapped from the existence of an MDL.” Doc. #: 1949 at 27. But the footnote that they
reference distinguished the JPML’s finding of commonality from Rule 23’s finding of
predominance. Moreover, in referencing the JPML’s commonality finding as a good description
of the common issues in this case, the Court is not “bootstrapping” on those findings; it is making
its own independent determination of the presence of these findings and using the JPML’s
recitation as a descriptor.
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133 F.3d 388, 399 (6th Cir. 1998)). “The test for typicality is not demanding . . . . [T]he plaintiffs’
claims need not be identical to those of the class; typicality will be satisfied so long as the named
representatives' claims share the same essential characteristics as the claims of the class at large.”
1 Newberg on Class Actions § 3:29 (internal quotation marks and footnotes omitted).
As to the claims and issues identified for class treatment, the Court finds that the Class
Representatives’ claims are typical of those of the Class. The movants propose a total of 49
different counties and cities – from 30 states – to serve as Class Representatives.6 The Court has
reviewed the complaints (and where filed, short-form complaints) of each of the 49 proposed Class
Representatives. These complaints demonstrate that the Class Representatives and the absent
Class Members share an identity of interests. All are cities or counties, and are all generally
interested in the same end: recouping money they have been forced to pay to address the opioid
epidemic and ameliorating that epidemic. If the Class Representatives pursue their own interests
identified in these complaints, they will necessarily be pursuing the interests of the absent class
members. There is nothing unique about any of the proposed Class Representatives that would set
them apart in meaningful ways from the absent class members.
The Defendants set forth a list of contentions to the contrary, Doc. #: 1949 at 38–39, but
most are either irrelevant, recede in importance given the Court’s adoption of the short-form
complaint claims and issues for certification (“Differences in the causes of action asserted in the
complaints . . . Differences in the identities of the defendants . . . Differences in the nature and
quality of evidence available . . . .”), or are differences that do not defeat typicality (“Differences
in the . . . scope of opioid-related harms . . . .”), see Daffin v. Ford Motor Co., 458 F.3d 549, 553

6

The movants initially proposed 51 class representatives, Doc. #: 1820 at 2, but later withdrew
two (Cuyahoga County, Ohio and Summit County, Ohio). Doc. #: 2583 at 5.
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(6th Cir. 2006) (finding typicality requirement met where class representative’s and “other class
members’ claims arise from the same practice . . . [and] the same defect . . . and are based on the
same legal theory. Typicality is satisfied despite the different factual circumstances regarding the
manifestation of the [defect] . . .”); 1 Newberg on Class Actions § 3:43 (“Courts routinely find that
the proposed class representative's claims are typical even if the amount of damages sought differ
from those of the class or if there are differences among class members in the amount of damages
each is claiming.”).
As to the RICO claims and CSA issues, the proposed Representatives’ claims align with
those of the class.

The Court therefore finds that the claims of the 49 proposed Class

Representatives are typical of those of the Class, as to the specified claims and issues, with respect
to each relevant Defendant.
G.

Rule 23(a)(4): The Class Representatives Will Adequately Represent the Class
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). The Court looks to two criteria in determining
adequacy of representation: “1) the representative must have common interests with unnamed
members of the class, and 2) it must appear that the representatives will vigorously prosecute the
interests of the class through qualified counsel.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532,
543 (6th Cir. 2012) (quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)).
Movants propose 49 Class Representatives. In their moving brief, movants describe each
entity and briefly summarize how the opioid epidemic has impacted it. Doc. #: 1820-1 at 19–46.
As above, the Court has also reviewed all of the relevant complaints and short-form complaints.
Those documents demonstrate that each of the proposed Class Representatives is a member of the
Class and each shares the same overriding interests as the other members of the Class in addressing

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the consequences of the opioid epidemic. Moreover, as each of these entities is a governmental
unit – some, like Chicago, enormous – the Court is confident that the representatives have the
capacity to perform the functions of being actively engaged in the litigation, assisting Class
Counsel with settlement negotiations, and, importantly, monitoring Class Counsel to ensure that
the Class’s interests remain paramount.
Most, if not all, of the proposed Class Representatives are entities that have been active in
opioid litigation prior to the filing of the class action motion (“litigating entities”). This of course
is of great value to the class: the litigating entities understand the case best and have been
expending their own resources for years in a way that may now benefit the whole class. Many are
large counties or cities with significant resources, skilled counsel, and enormous expertise as to
the opioid epidemic. Who better to serve as representatives of a class? Defendants latch on to the
fact that the allocation mechanism favors class representatives that primarily seek monetary relief
for past damages over non-litigating entities that may be more interested in non-monetary relief,
Doc. #: 1949 at 21–22, and that the voting scheme requires separate sets of approval from litigating
and non-litigating entities, Doc. #: 1949 at 23–25. Below, the Court addresses the fairness of the
allocation mechanism and finds no immediate fault.

For present purposes, it reveals no

fundamental conflict between litigating and non-litigating entities as to pursuit of this case against
the Defendants that would render the list of 49 proposed representatives inadequate. See 1
Newberg on Class Actions § 3:58 (“Only conflicts that are fundamental to the suit and that go to
the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy
requirement.”). Similarly, the Court rejects the Defendants’ contention that there is a fundamental
conflict between counties as a group and cities as a group that would require separate counsel and
sub-classing. Doc. #: 1949 at 19–21, 25. It is true that if a settlement is reached, each county and

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its constituent cities will need to work together – or, arguably, negotiate against one another – to
divide the county-level allocation amongst themselves. But these negotiations are local in nature,
will vary county to county, and, contrary to the Defendants’ assertions, there is not one set of
interests shared by all counties that fundamentally conflicts with one set of interests shared by all
cities.
Lesser concerns are as easily dismissed. The State Attorneys General suggest that the range
of Class Representatives is incomplete because it does not encompass representatives from each
of the 50 states nor, they allege, from “smaller counties and cities.” Doc. #: 1951 at 7; see also
Doc. #: 1973 at 5. Here, the Court has considered for certification two federal (RICO) claims and
several issues related to federal law (CSA) that are similar across the country and class. This is
not a situation requiring class representatives from each of the 50 states. Moreover, the list of
Class Representatives encompasses smaller areas such as Cass County, North Dakota; City of
Concord, New Hampshire; County of Fannin, Georgia; and County of Gooding, Idaho. Doc. #:
1820 at 1. Importantly, as discussed more fully below, the allocation formula rebuts any concerns
that hard-hit small counties are disadvantaged in some way by the movants’ proposal. Finally,
some of the Class Representatives are individually represented by lawyers who simultaneously
represent States that are objecting to certification of this Class. Doc. ##: 1949 at 17; 1949-2 at 16–
17. The Court finds that this situation does not disqualify these entities from serving as Class
Representatives.7 The Class Representatives themselves have no conflict and, as generally large
governmental units, they have the capacity to balance advice they might get from their individual

7

Defendants’ citation to the Seventh Circuit decision in Culver v. City of Milwaukee, 277 F.3d
908, 913 (7th Cir. 2002), on this point is inapposite. Doc. #: 1949 at 18. That case did not deal
with the question of a class representative’s separate lawyer, but rather with the class
representative’s lawyer as (former) class counsel. Culver, 277 F.3d at 913.
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lawyers against their responsibilities to the whole Class. The Court’s conclusion is buttressed by
the fact that there are both dozens of other Class Representatives and a set of experienced Class
Counsel, each of whom represents only counties and cities, not States.
Like the putative Class Members, the 49 proposed Class Representatives have allegedly
been adversely impacted by the Defendants’ actions with regard to the manufacturing and
distribution of opioids and they seek to be compensated for their losses. The Court finds that the
Class Representatives, individually and as a group, will adequately represent the interests of the
class members, as to the specified claims and issues, with respect to each Defendant.
H.

Rule 23(g): Class Counsel Are Adequate
Rule 23(g) states that “a court that certifies a class must appoint class counsel.” Fed. R.

Civ. P. 23(g). In undertaking this appointment, the Rule directs the Court to consider: “(i) the
work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's
experience in handling class actions, other complex litigation, and the types of claims asserted in
the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will
commit to representing the class.” Id.
Movants propose the “the appointment of Jayne Conroy and Christopher Seeger as CoLead Negotiation Class Counsel and Gerard Stranch, Louise Renne, Zachary Carter, and Mark
Flessner as Negotiation Class counsel,” Doc. #: 1820 at 2, and have submitted Declarations from
five of these lawyers, and a letter from one other, attesting to their experience, knowledge of the
case, and willingness to commit resources. Doc. ##: 1820-1, Ex. A; 1821. As this Court has
already held in appointing Interim Class Counsel:
These documents demonstrate that Seeger is a very experienced and successful
class action attorney, fully qualified to represent the Class. Two of the remaining
five (Conroy and Stranch) have significant and impressive experience in leadership
roles in mass tort MDLs in particular, Doc. #: 1820-1, Ex. A, while the remaining
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three are or were legal counsel for large cities (Renne/San Francisco; Carter/New
York; and Flessner/Chicago), Doc. #: 1820-1 at 52. All have been involved in
opioid-related litigation. Applying Rule 23(g)’s four factor test, the Court finds that
these lawyers are well-situated to represent the Class.
Doc. #: 2490 at 3.
In its Orders regarding appointment of Interim Class Counsel, Doc. ##: 2490, 2493, the
Court acknowledged the significant contributions to date of the MDL Negotiation Committee, the
members of which are identified in Doc. #: 118. While most of these lawyers will not serve as
Class Counsel for the Negotiation Class, their depth of knowledge about this case and their general
expertise can continue to provide significant benefit for the Class. Accordingly, the Court’s Order
will clarify that there is no bar to Class Counsel working with the MDL Negotiation Committee
members in negotiating with Defendants, nor is there any bar to these MDL lawyers applying to
share Class Counsel duties in the future should their representational situations change. However,
as the Court’s order appointing interim Class Counsel clarified, only Class Counsel will “(a)
represent the Class in settlement negotiations with Defendants; (b) sign any filings with this or any
other Court made on behalf of the Class; (c) assist the Court with functions relevant to a class
action, such as but not limited to maintaining the Class website and executing a satisfactory notice
program; and (d) speak on behalf of the Class in Court.” Doc. #: 2490 at 5. Thus, only Class
Counsel can bind the Class and Class Counsel must independently approve all final decisions
concerning any Class-based settlement and be the sole signatories on behalf of the Class of all
Class-based term sheets, settlement agreements, or similar documents.
With these clarifications in the final certification order, the Court finds that the proposed
Class Counsel will alone act for the Class and will fairly and adequately represent the interests of
the class.

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I.

Rule 23(b)(3): Common Questions of Law or Fact Predominate
Rule 23(b)(3) requires that “questions of law or fact common to class members

predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3).
The predominance inquiry consists of two steps: “[a] court must first characterize the issues in the
case as common or individual and then weigh which predominate.” Martin v. Behr Dayton
Thermal Products LLC, 896 F.3d 405, 413 (6th Cir. 2018) (alteration in original) (quoting 2
William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2010)). Common questions are
those where “the same evidence will suffice for each member to make a prima facie showing.”
Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 468 (6th Cir. 2017)
(citation and internal quotation marks omitted).
1.

RICO Claims

To prevail on their federal civil RICO claims, the Plaintiffs will have to establish that (1)
the defendants committed a RICO violation, (2) there was an injury to the Plaintiffs’ businesses or
properties, and (3) said injury occurred “by reason of” the RICO violation. See Aces High Coal
Sales, Inc. v. Cmty. Bank & Tr. of W. Georgia, 768 F. App'x 446, 453 (6th Cir. 2019). In turn, the
elements of a RICO violation are “(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.” In re ClassicStar Mare Lease Litig., 727 F.3d 473, 483 (6th Cir. 2013)
(citation omitted). Each of these prongs then breaks down into various elements. In the diagram
below, the Court sets forth these elements and sub-elements and characterizes each as either
common (blue) or individual (orange).

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RICO ELEMENTS: COMMON (BLUE) vs INDIVIDUAL (ORANGE)

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As is visually evident, there are a host of issues and sub-issues within the RICO claims.
As applied to Plaintiffs’ allegations concerning the existence of two national enterprises that
disseminated a set of standard falsehoods in marketing and distributing opioids, all of the elements
except injuries are common, not individual. Many courts have so held in similar circumstances.
See, e.g., Just Film, Inc. v. Buono, 847 F.3d 1108, 1121 n.3 (9th Cir. 2017) (noting that the issues
involved in proving a RICO violation “are appropriate for classwide litigation because they focus
on” the defendants’ conduct); In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d
Cir. 2013) (“[F]raud claims based on uniform misrepresentations . . . are appropriate subjects for
class certification.”) (citation and internal quotation marks omitted); McMahon Books, Inc. v.
Willow Grove Assocs., 108 F.R.D. 32, 39 (E.D. Pa. 1985).
Defendants argue that causation should be characterized as an individual issue, Doc. #:
1949 at 37, but in this case – as to these RICO claims – the characterization of causation as
common, not individualized, is supported by law and fact. Legally, plaintiffs alleging RICO
claims predicated on mail and wire fraud may show third-party reliance and “need not show, either
as an element of [their] claim or as a prerequisite to establishing proximate causation, that [they]
relied on the defendant’s alleged misrepresentations.” Bridge v. Phoenix Bond & Indem. Co., 553
U.S. 639, 661 (2008); see also Brown v. Cassens Transp. Co., 546 F.3d 347, 357 (6th Cir. 2008).
Factually, this Court has already held that the “[p]laintiffs have alleged sufficient facts to support
a . . . direct chain of causation” involving third-party reliance. Doc. #: 1203 at 9–10 (listing steps
in chain). Specifically, the Plaintiffs argue they suffered injuries because others (doctors, patients,
etc.) relied on the Defendants’ misrepresentations, enabling the Defendants to sell more opioids
than the legitimate medical market could support. Whether there was such third-party reliance is
a question susceptible to class-wide proof, justifying characterization of this issue as common.

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The numerous common issues obviously predominate. The fact that the “injury” prong
alone is plausibly individualized does not alter this conclusion. Predominance does not require
that every element can be established by class-wide proof, see Sandusky, 863 F.3d at 468, and the
predominance requirement is satisfied “when liability can be determined on a class-wide basis,
even when there are some individualized damage issues,” Beattie v. CenturyTel, Inc., 511 F.3d
554, 564 (6th Cir. 2007) (citation and internal quotation marks omitted). Similarly, the fact that
affirmative defenses may arise, and apply only to some class members, “does not compel a finding
that individual issues predominate over common ones.” Bridging Communities Inc. v. Top Flite
Fin. Inc., 843 F.3d 1119, 1125 (6th Cir. 2016) (citations and internal quotation marks omitted).
Given this analysis, it is not surprising that many courts within this Circuit have found that
common issues predominate in the adjudication of specific RICO claims. See Williams v. Duke
Energy Corp., No. 1:08-CV-46, 2014 WL 12652315 at *14 (S.D. Ohio Mar. 13, 2014); Lauber v.
Belford High Sch., No. 09-CV-14345, 2012 WL 5822243 at *9 (E.D. Mich. Jan. 23, 2012)
(bifurcating issues of liability and damages); Gokare v. Fed. Express Corp., No. 2:11-CV-2131JTF-CGC, 2013 WL 12094870 at *14 (W.D. Tenn. Nov. 22, 2013) (for settlement purposes). This
Court also so concludes.
2.

CSA Issues

The pleadings in this case, as discussed above, raise several specific issues arising out of
the Controlled Substance Act for which movants seek certification: the nature of each Defendant’s
obligations under the Act and the question of whether each Defendant complied with those
obligations. Doc. #: 1820-1 at 84. These issues may arise in the adjudication of a federal (RICO)
claim and of various state-law claims. The Court finds that common issues predominate in the
resolution of these two specific issues, standing alone. Applying the Sixth Circuit’s holding in

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Martin, the Court finds that both issues are “capable of resolution with generalized, class-wide
proof” and “need only be answered once because the answers apply in the same way” across the
Class. Martin, 896 F.3d at 414. The fact that these issues may be relevant to the pursuit of statebased legal claims that vary across the class, or to legal claims that entail the resolution of
individualized issues of causation or damages, “does not mean that [these] individualized inquiries
taint the certified issues.” Id. On the contrary, the certified issues can be addressed without
overlapping with other issues that may or may not be common. For example, the Summit County
complaint sets forth that the CSA issues are relevant to, inter alia, its common law absolute public
nuisance claim, Doc. #: 513 at ¶ 1010, and its negligence claim, id. at ¶¶ 1042, 1045, 1060.
Resolution of the certified issues would speak to the duty and breach elements of a negligence
claim, for example, without pretermitting non-class resolution of the causation and damage
elements. Moreover, since the Court is certifying for classwide treatment only the specific issues
identified, there are no “individualized inquiries that outweigh the common questions prevalent
within each issue.” Martin, 896 F.3d. at 414 (emphasis added).8
In sum, the Court finds that common issues predominate over individualized issues with
respect to both the RICO claims and the CSA issues, with respect to each specifically-identified
Defendant.

8

Heeding the Sixth Circuit’s guidance, the Court is aware of the potential Seventh Amendment
concerns raised by issue class certification and “will take care to conduct any subsequent
proceedings in accordance with the Reexamination Clause.” Id. at 416–17. Of course, since the
Court is certifying the class solely for purposes of negotiation, these concerns are not present.
Nonetheless, the Court notes the Sixth Circuit’s conclusion that, “if done properly, bifurcation will
not raise any constitutional issues.” Id. at 417 (citations and internal quotation marks omitted).
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J.

Rule 23(b)(3): A Class Action is a Superior Method of Adjudication
For a class action to be maintained, Rule 23(b)(3) requires the Court to determine that “a

class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). This requirement “is designed to achieve economies of
time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about other undesirable results.” Pipefitters
Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 630 (6th Cir. 2011)
(alteration in original) (internal quotation marks omitted) (quoting Amchem Prod., Inc. v. Windsor,
521 U.S. 591, 615 (1997)). Rule 23(b)(3) itself further enumerates four specific factors speaking
to the desirability of a class suit. Fed. R. Civ. P. 23(b)(3)(A)–(D). Here, all cut in favor of
certification of both the two RICO claims and two CSA issues as against all Defendants:
1.

The class members’ interests in individually controlling the prosecution or defense

of separate actions. This MDL consists of nearly 2,000 individual actions by class members. That
would appear to cut against class certification, as it seems that many class members are capable
of, and are, litigating individually. However, the proposed class consists of more than 34,000
entities, meaning that a small fraction of them (fewer than 6% here in federal court) are litigating
individually. The vast bulk of class members are not actively involved in opioid litigation. This
factor cuts in favor of certifying a nationwide class. This is particularly true in the negotiation
class certification context for two reasons: (a) any litigant interested in individually controlling its
action can opt out and the proposed procedure will in no way interfere with that individual
litigation, yet (b) negotiation class certification simultaneously engages absent class members in
the negotiation and voting process. To the extent this factor favors individual control and
involvement, the Court finds that the negotiation class will further that end, not impede it.

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2.

The extent and nature of any litigation concerning the controversy already begun

by or against class members. As just noted, there are about 2,000 individual cases within this
federal MDL and many more filed in state courts.

Among those in coordinated pre-trial

proceedings in this forum, a few have advanced toward bellwether trials, but all others are at earlier
litigation phases. The proposed negotiation class will not displace or interfere with any of this ongoing litigation. At the same time, this on-going litigation will resolve only a small quantity of
the class’s claims, as noted above, meaning that the extent of the on-going litigation is limited
compared to the size of the class. This factor cuts in favor of certifying a nationwide negotiation
class.
3.

The desirability or undesirability of concentrating the litigation of the claims in the

particular forum. The JPML has already coordinated the many pending cases in this forum. This
factor therefore cuts in favor of certifying a negotiation class, as a class approach is an efficient
means of handling the 2,000 individual matters that are here.
4.

The likely difficulties in managing a class action. This prong is inapplicable to the

proposed negotiation class, as the proposal is not for litigation or trial, but simply for settlement
negotiations. Amchem, 521 U.S. at 620 (holding that where the plaintiffs’ class certification
“proposal is that there be no trial,” it is unnecessary to “inquire whether the case, if tried, would
present intractable management problems”).
The Attorney General of the State of Ohio argues that a class action is not a superior form
of adjudication because the claims are more properly the province of the States, not the cities and
counties. Doc. #: 1973 at 4. The letter joined by roughly 40 Attorneys General implies the same
point without explicitly saying so. Doc. #: 1951 at 3–4. If the Attorneys General believe they
control their local governments’ litigation, then they can attempt to foreclose it directly. To date,

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they have made no effort in this Court to shut down their constituent entities’ cases. Until they do
so, this Court remains vested with more than 2,000 separate actions by cities and counties from
throughout the United States. The Court cannot pretend these cases do not exist. The Judicial
Panel on Multidistrict Litigation has ordered it to coordinate pretrial litigation in most of these
cases and Article III requires it to resolve those directly filed here.
***
For the foregoing reasons, the Court finds that all of the class certification requirements
are met with respect to the two RICO claims and two CSA issues, as to each relevant Defendant
on each claim or issue. In reaching these conclusions, the Court makes clear that it has not certified
these claims or issues for trial. Because of the limited nature of negotiation class certification,
including the fact that no defendant is required to utilize this process, many Defendants in this
MDL did not even file opposition briefs. The analysis in this Memorandum Opinion is in no way
meant to foreclose any Defendant from making any argument in opposition to a later motion for
class certification, if such a motion is ever made here or in another forum. The Court’s Order will
so hold.

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IV.

THE COURT WILL LIKELY BE ABLE TO FIND THAT THE ALLOCATION
AND VOTING PLAN TREAT CLASS MEMBERS EQUITABLY RELATIVE TO
EACH OTHER
Rule 23 requires judicial approval of any proposed class action settlement. Fed. R. Civ. P.

23(e). The Rule sets forth a two-step process whereby the Court first ascertains whether the
settlement is sufficiently likely to be approved as to warrant sending notice of it to the class, Fed.
R. Civ. P. 23(e)(1)(B)(i), and then, after a notice and objection period, the Court makes a final
determination of whether the settlement is “fair, reasonable, and adequate,” Fed. R. Civ. P.
23(e)(2). One of the factors the Court must consider in making these assessments is whether “the
proposal treats class members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). This
means that if a monetary settlement is reached, this Court will be required to find that the money
is being allocated fairly among the class members.
At this stage in the case, no settlement has been reached. However, with the negotiation
class certification proposal, the movants have identified the settlement allocation and voting plans
up front. They have done so to provide information to each class member about its relative share
of any settlements reached and its relative enfranchisement under this proposal, so as to make the
class member’s current opt-out opportunity as meaningful as possible. The allocation and voting
plans are therefore fixed – class members will make opt-out decisions based on them – and they
will not change if a settlement is reached. Given that this class certification order could set in
motion an elaborate negotiation and settlement process, the Court has stated that it should make a
preliminary determination of the equity of these plans, given that it “would be perverse – and an
enormous waste of judicial and social resources – to launch this whole negotiation class only to
later hold that the allocation scheme, identified at the outset, was inequitable ab initio.” Doc. #:
2529 at 3.

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The Court specifically focused on the fact that both the voting and allocation plans
distinguish between: (1) putative class members that filed litigation arising out of the opioid
epidemic by June 14, 2019 (“litigating entities”), Doc. #: 1820-1 at 52, and (2) those class members
that had not filed such litigation (“non-litigating entities”). As noted above, 10% of any settlement
achieved for the Class will be set aside to help defray the legal fees of the litigating entities alone,
with any unused portion flowing back into the full class’s recovery fund, Doc. #: 1820-1 at 95–96;
another 15% of any settlement is set aside for two purposes, one of which is to help defray the
litigation expenses of the litigating entities alone, with, again, any unused portion flowing back
into the full class’s recovery fund, id. at 96; the proposed voting structure requires separate
supermajority approvals from different sets of litigating class members and non-litigating class
members, id. at 53-55; and litigating entities primarily drafted the proposal. To assist the Court in
evaluating these distinctions, and in lieu of sending notice to and seeking reactions from the whole
class at this stage in the proceedings, the Court asked Special Master Cathy Yanni to file a report
analyzing whether the proposed allocation and voting plans treat the non-litigating class members
equitably. Doc. #: 2529.
On September 10, 2019, Special Master Yanni filed a 17-page report in response to the
Court’s request. Doc. #: 2579. The Court has carefully reviewed Special Master Yanni’s
thoughtful and thorough report and adopts her findings. As to the allocation plan, the Court agrees
with Special Master Yanni’s conclusion that the method for allocating the core class recovery
(75% of the fund) reflects a lot of hard work and is a significant and eminently fair step toward
resolution of these many cases. Nothing in the allocation model appears to skew toward any group
other than those hardest hit by the opioid epidemic. The Attorney General of Ohio argues that the
model favors large cities (many of which serve as Class Representatives), as opposed to smaller

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hard-hit counties he identifies by name, Doc. #: 1973 at 5, but his understanding is incorrect. A
review of the allocations to the counties he identifies demonstrates that the smaller, hard-hit
counties appropriately receive more recovery per capita than larger counties that have been lessseverely impacted.9 Similarly, a handful of counties filed an objection to the plan, arguing that the
counties hardest hit by the epidemic, as measured by the allocation tool, are not necessarily the
same counties that have been forced to expend the most resources combatting the epidemic. Doc.
#: 1958 at 6–7. The model sets aside 15% of the class’s recovery in its Special Needs Fund to,
inter alia, address precisely these sorts of possible problems. There are a variety of intricacies of
the model – how counties and cities will divide their county’s recovery; how to deal with cities
with recoveries so small as to be impractical to distribute; how the model works when a county
opts out but its cities do not, etc. – but despite opponents’ contentions, Doc. #: 1949 at 19–23, none
of these is fatal and the movants’ approach to each – as reflected in the updated notice and FAQ
documents – is thoughtful and defensible.
Separate from the fairness of the allocation tool governing 75% of the class’s recovery, the
Court agrees with Special Master Yanni’s conclusions that there is no inequity created by setting
aside funds to address the litigation costs and legal fees of the parties that filed the early cases. As
she notes, the “litigating class members are responsible for, inter alia, launching this litigation in
state and federal courts, generating the establishment of this MDL, pursuing bellwether cases,
uncovering critical facts through the discovery process, and creating significant negotiating

9

Application of the allocation tool at the case website shows that the large counties the Ohio
Attorney General identifies have per capita settlement values of $2.79 (Cuyahoga); $4.46
(Franklin); and $3.43 (Summit), for an average of $3.56; the smaller counties on whose behalf the
Attorney General protests have settlement values of $4.64 (Adams); $6.08 (Jackson); $2.65
(Perry); $6.15 (Ross); $5.68 (Scioto) and $3.01 (Vinton), for an average of $4.70, or 32% greater
than the large counties.
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leverage.” Doc. #: 2579 at 7. Given these facts, if a settlement is reached, these early champions
of the class will likely be able to demonstrate that they are eligible for fees and costs from a
common fund and, indeed, it may be unfair to them to force them to bear these costs alone. Id. at
7–8.

Additionally, as Special Master Yanni notes, all fees and costs in a class action must be

adjudicated according to the procedures set forth in Rule 23(h) and this Court will carefully
scrutinize each fee request, as well as the total amount of fees paid from the class’s recovery to all
of the many attorneys involved here – Class Counsel, the MDL leadership, litigating-entity
lawyers, etc. – to ensure that the Class is not unduly taxed. Id. at 8. Importantly, the model clarifies
that any monies in these separate pools that are not distributed to litigating entities would revert to
the entire class.
The Court also accepts Special Master Yanni’s conclusion that the voting plan – requiring
separate sets of votes from litigating entities and non-litigating entities – does not treat the nonlitigating counties unfairly. As she concluded:
(1) all class members have the same franchise (one vote); (2) the vote-counting
mechanism understandably ensures that any settlement is approved by a majority
of the class, counted by head, by population, and by impact; (3) the vote-counting
mechanism further ensures against the non-litigating class members approving a
low settlement unacceptable to the litigating class members; (4) that assurance is
defensible on the grounds that the litigating entities are the most knowledgeable
about the value of the class’s claims; and (5) the fact that nonlitigating entities must
separately approve the settlement tempers concerns that the litigating entities will
settle low to recover their costs, as does the fact that the litigating entities are likely
to be able to spread their costs across the whole class as described above.
Id. at 13.
Finally, having found that neither the allocation nor voting mechanisms enshrine any
fundamental intra-class conflict between litigating and non-litigating entities, Special Master
Yanni concluded that a single set of class representatives and class counsel could represent the
whole class, without the need for sub-classes. Id. at 13–17. The Court agrees.
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V.

THE NOTICE AND EXCLUSION PLANS ARE SUFFICENT

A.

Notice
The moving parties submitted proposed notices and a notice plan, Doc. #: 1820-2, Ex. A,

and Interim Class Counsel subsequently submitted updated versions of these documents. Doc. ##:
2583, 2583-1, 2583-2. The Court has carefully reviewed these documents and finds that they
comply with the requirements of Rule 23 and that, as due process requires, they are “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections [or otherwise safeguard their interests].”
Vassalle v. Midland Funding LLC, 708 F.3d 747, 759 (6th Cir. 2013) (citation and internal
quotation marks omitted).
Rule 23(c) requires the Court in a class action under Rule 23(b)(3) to “direct to class
members the best notice that is practicable under the circumstances, including individual notice to
all members who can be identified through reasonable effort,” and notes that such notice may be
“by one or more of the following: United States mail, electronic means, or other appropriate
means.” Fed. R. Civ. P. 23(c)(2)(B). Here the notice will be sent by first-class United States mail
to all class members. Doc. #: 2583 at 3–4. It will also be posted at the class website. Id. at 4.
The notice will also be emailed to that sub-set of the class for which the notice administrator has
email addresses. Id. at 4 n.1. The method requirements of Rule 23(c)(2)(B) are met.
The Rule further requires that the notice “clearly and concisely state in plain, easily
understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the
class claims, issues, or defenses; (iv) that a class member may enter an appearance through an
attorney if the member so desires; (v) that the court will exclude from the class any member who
requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect

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of a class judgment on members under Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B)(i)–(vii). The
notice packet contains a two-page notice along with a 13-page set of Frequently Asked Questions
(FAQs), Doc. #: 2583-1, in a format recommended by the Federal Judicial Center, see Fed. Judicial
Ctr., Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide 8–9
(2010), https://www.fjc.gov/sites/default/files/2012/NotCheck.pdf. The two-page notice alone
contains each of the seven pieces of information required by Rule 23 and the FAQs provide even
more detailed information as to most. The content requirements of Rule 23(c)(2)(B) are met.
Beyond the basics, the Court notes, as discussed above, that the moving parties have gone
to great lengths to make transparent the various aspects of this unique procedure – the allocation
formula and its underlying components, the voting plans, etc. A class website, active since June,
has provided a wealth of information to the putative class members and will continue to do so
following certification. The moving parties have done a commendable job making transparent all
of the moving parts of this novel procedure. The Court finds that the class members have been
provided a wealth of pertinent information that will enable them to make informed decisions about
whether to remain in or opt out of this Negotiation Class.
B.

Exclusion
Rule 23(c)(2)(B) requires, for any class certified under Rule 23(b)(3), that the district court

send notice to class members informing them “that the court will exclude from the class any
member who requests exclusion,” Fed. R. Civ. P. 23(c)(2)(B)(v), and specifying “the time and
manner for requesting exclusion,” Fed. R. Civ. P. 23(c)(2)(B)(vi). The Federal Judicial Center
recommends that a form be provided to class members, see Manual for Complex Litigation
(Fourth) §§ 21.311–21.312 (2004) [hereinafter Manual for Complex Litigation], and instructs that
the form should “clearly and concisely explain the available alternatives and their consequences,”

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id. at § 21.321. Exclusion notices should require “that class members (1) mail a letter or post card;
(2) by a date certain; (3) to a specific address; (4) clearly identifying themselves and/or some
information demonstrating their membership in the class” but “[c]lass members are not required
to give reasons for opting out.” 3 Newberg on Class Actions § 9:46. Rule 23 does not mandate a
time period within which class members must exercise their exclusion right, but the Manual for
Complex Litigation suggests that class members be given a “reasonable time” and states that courts
“usually establish a period of thirty to sixty days (or longer if appropriate) following mailing or
publication of the notice for class members to opt out.” Manual for Complex Litigation § 21.321.
The movants propose that Class Members be required to fill out a designated Exclusion
Request Form, Doc. #: 2583-2, and be given 60 days (until a date certain – November 22, 2019)
to do so. Doc. #: 2583 at 5. The movants explain that the “form can be submitted to the Notice
Administrator via either first-class mail or email.” Doc. #: 2583 at 3. The Exclusion Request
Form is part of the Notice packet and will be posted and distributed in the same manner as the
Notice packet. Id. The movants further explain that:
Exclusion Request Forms would not have to be notarized but, instead, would have
to be executed with an averment, pursuant to 28 U.S.C. § 1746, that the city or
county official has the authority to submit the exclusion request. Also, the form
would contain an express acknowledgment of the consequences of opting out
(including that the city or county will not share in any recovery achieved by the
Class and that it may not be afforded an opportunity at a later date to revoke its optout request). Mandating use of a specific form for opting out should sharply reduce,
if not eliminate altogether, both disputes as to whether opt-out requests comported
Court-directed requirements as well as potential arguments about whether optouts
genuinely understood the ramifications of their exclusion requests.
Id.
The Court has reviewed the Exclusion Request Form and finds that it meets the
requirements of Rule 23. It clearly explains the ramifications of exclusion, and it provides exact

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instructions about how and when to execute and return the form. The plan sufficiently protects
the absent-class members’ right to exclude themselves from this Class.
CONCLUSION
For the foregoing reasons, the Court certifies a Negotiation Class on the claims and issues
identified, against the Defendants identified, and appoints Class Counsel. The Negotiation Class
is authorized to negotiate settlements with any of the 13 sets of Defendants identified herein, on
any of the claims or issues identified here, or those arising out of a common factual predicate. See
Moulton v. U.S. Steel Corp., 581 F.3d 344, 349 (6th Cir. 2009) (“The question [of whether a
subsequent claim is barred] is not whether the definition of the claim in the complaint and the
definition of the claim in the release overlap perfectly; it is whether the released claims share a
‘factual predicate’ with ‘the claims pled in the complaint.’” (quoting Olden v. Gardner, 294 F.
App'x 210, 220 (6th Cir. 2008))). See generally 6 Newberg on Class Actions § 18:19. If Class
Counsel seek to utilize the Negotiation Class to negotiate against any other Defendants, they may
later make a formal motion to amend the class certification order accordingly. As set forth in an
accompanying Order, this Court does not authorize the Negotiation Class to negotiate on behalf
of cities and counties against their State governments, as its proponents suggested. Doc. #: 18201 at 53. This puts to rest a concern raised by the Attorneys General. Doc. #: 1951 at 3.
As noted throughout, an Order accompanies this Memorandum Opinion.
/s/ Dan Aaron Polster_______________
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
Dated: September 11, 2019

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