Article
The Imitation Game: Structural Asymmetry in Multidistrict Litigation
Mississippi Law Journal
(2018)
Abstract
This Article examines some of the consequences of asymmetric transaction costs in multidistrict
litigation, or MDL. Using principles from legal ethics, economics, and accounting, we show how the
structure of MDL affects attorneys’ incentives to recruit plaintiffs and screen cases to form mass
litigation. The low marginal costs required to file credible-seeming complaints and the need for global
peace in many-on-one settlement create a perfect storm for mass-produced nuisance litigation.
Separating quality claims from frivolous suits in complex litigation entails significant costs, rendering
much of MDL practice an “imitation game” in which vast resources are spent screening cases that
would not have been filed outside MDL. This gamesmanship tests ethical responsibilities of
plaintiffs’ attorneys, impairs efficient financial reporting, and strains scarce judicial resources.
Building on recent rulings by frustrated courts in drug and device litigation, we show how changes
in MDL management can put teeth into ethical rules, decreasing the challenges inherent in MDL
while preserving the scale economies offered to litigants.
Keywords
- civil proceedure
Disciplines
Publication Date
2018
Citation Information
Jeff Lingwall, Issac Ison and Chris Wray. "The Imitation Game: Structural Asymmetry in Multidistrict Litigation" Mississippi Law Journal Vol. 87 (2018) p. 131 Available at: http://works.bepress.com/jeff-lingwall/2/