The Imitation Game: Structural Asymmetry in Multidistrict Litigation

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.