It's Good to Have the "Haves" on Your Side: A Defense of Repeat Players in Multidistrict Litigation

Repeat players in multidistrict litigation (MDL) get a bad rap. When thousands of cases from all over the country are consolidated for pretrial proceedings, it's no wonder that the judge assigned to manage the litigation picks experienced lawyers to lead the effort. But critics argue that the small group of elite lawyers who show up again and again in leadership positions on the plaintiffs’ side of MDLs can collude with each other and with repeat players on the defense side to restrict competition and shape the rules of the game to their advantage — all to the detriment of the one-shotter clients that they represent. Those criticisms have gotten louder as MDL has grown to make up more than one-third of the federal civil docket and encompass some of the nation’s largest controversies, such as the opioid epidemic, the BP oil spill, the NFL concussion litigation, and many defective product cases. In this Article, we challenge this narrative, drawing on Marc Galanter’s seminal explanation for why the “haves” come out ahead in litigation. Although the risks they pose are real, we argue that repeat players add significant value when they represent one-shotter plaintiffs, and that value may be worth running the risks. We show how MDL’s unique structure — its formal commitment to individualism but functional operation as a tight aggregation — allows repeat-player plaintiffs’ lawyers to “play for rules” more effectively than either the class action or traditional one-on-one litigation. And with potential reforms to MDL procedure on the agendas of both the Advisory Committee on Civil Rules and Congress, we urge policymakers and scholars not to lose sight of the significant benefits to plaintiffs of having repeat players on their side.