Multidistrict litigation (MDL) functions similar to class action lawsuits, with several key differences, including how courts address attorneys’ fees. However, as more mass tort cases are being directed toward MDL instead of class action lawsuits, courts are encouraging that attorneys’ fees in MDL should be handled in a quasi-class action manner. According to Jeremy Hays, in his article, “The Quasi-Class Action Model for Limiting Attorneys’ Fees in MDL Litigation,” despite some drawbacks in using the quasi-class action approach in determining attorneys’ fees in aggregate multidistrict tort litigation, the quasi-class action approach might be the best option for courts at this time.
Courts are favoring MDL over class action litigation as a way to resolve mass tort cases. Courts have held that the interests and injuries of the potential members of a class make certification inappropriate, and the class action lawsuits may result in a limited fund for reimbursing victims of the torts, which means class action litigation is not the superior vehicle for achieving a just outcome for the parties. Also, changes to Rule 23 of the Federal Rules of Civil Procedure have made class certification more difficult in mass tort cases.
However, unlike in class action lawsuits, courts do not have control over attorneys’ fees in MDL. Attorneys take the cases in a contingency basis, but the plaintiffs often have to do much of the paperwork for the case. In contrast, Rule 23(h) allows the courts to award “reasonable” attorneys’ fees in class action litigation. Because the attorneys’ fee issues create inefficiencies in MDL, the quasi-class action lawsuit was created.
Instead of discarding the idea of quasi-class actions, courts should allow the quasi-class action model to evolve. The quasi-class action was proposed principally to bring the protections of Rule 23(h) into the MDL context. The quasi-class action, which is still developing, will present a more efficient approach for dealing with attorneys’ fees, but the quasi-class action may not be accepted by all courts as it continues its development.