St. John’s Law welcomed Professor Elizabeth Chamblee Burch, the Fuller E. Callaway Chair of Law at the University of Georgia School of Law, to campus recently to accept the Hugh L. Carey Center for Dispute Resolution’s 2019 Mangano Dispute Resolution Advancement Award.
Professor Burch received the honor for the groundbreaking scholarship she presents in the Vanderbilt Law Review article “Monopolies in Mass Litigation.” The third in a series of empirical pieces in a six-year-long data collection project, the article highlights the previously obscure multidistrict litigation (MDL) settlement process and prescribes needed reform.
The $5000 annual Mangano Award recognizes scholars whose published empirical research has furthered the advancement and understanding of the values and skills of dispute resolution. It was established through the generosity of Hon. Guy J. Mangano '55, '83HON, who has dedicated his long career to promoting dispute resolution, first as presiding justice of the New York State Appellate Division, Second Department, next as a state legislator, and then as an arbitrator and mediator. After reading Professor Burch’s article, Judge Mangano remarked, “I enjoyed it. It was well-written, well-researched, and on a topic that needed to be addressed at this point.”
The opioid crisis, and the lawsuits seeking to hold the drug’s prescribers, manufacturers, and distributors legally accountable for its devastation, have put MDL in the spotlight. MDL allows the opioid cases and other suits brought in federal courts across the country to be consolidated for preliminary proceedings before one judge. By some estimates, about 40% of all current federal cases are part of a MDL. The theory goes that centralizing pretrial business and settlement negotiations in cases that share common questions of fact creates greater, and much-needed, efficiencies.
After accepting the Mangano Award, Professor Burch talked about her MDL research and writing with St. John’s students and faculty members, including Elayne E. Greenberg, Assistant Dean for Dispute Resolution Programs, Professor of Legal Practice, and Director of the Carey Center, and Professors Keith Sharfman, Jeff Sovern, and Ettie Ward, who served on the Award selection committee that recognized Professor Burch’s outstanding scholarship in the dispute resolution field.
Discussing “Monopolies in Mass Litigation,” Professor Burch noted that federal judges assigned to MDLs choose the same lead plaintiffs’ and defendants’ lawyers repeatedly. These repeat players achieve their goals in tandem—defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. “There is a shroud of secrecy in these MDL proceedings,” she said, “and plaintiffs often end up twice victimized: first as a result of the harm that brought them into the legal system, and then again by the process and outcome of the MDL settlement.” Lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, and more coercive plaintiff participation measures in master settlements all signal that plaintiffs’ best interests are being ignored or marginalized in MDL proceedings, Professor Burch explained.
As she went behind the scenes to examine the deals that MDL lawyers negotiate, and their impact on plaintiffs, Professor Burch saw a way to counter the inherent pitfalls and achieve better results. Her article outlines structural modifications to improve the MDL settlement process for all parties, drawing in part from procedural safeguards that are already in place for class actions. Her effort to spotlight the shortcomings of MDLs and to suggest practical improvements that can benefit plaintiffs across the country goes to the heart of what the Mangano Award stands for.
"The purpose of the Mangano Award is to strengthen the legitimacy of the dispute resolution field by supporting quality empirical research that informs good dispute resolution practice,” Professor Greenberg said. “Professor Burch’s research examines the MDL settlement process and recommends procedural safeguards that will increase the likelihood that the process yields fairer outcomes to all involved.”
“I enjoyed sharing my work with the St. John’s Law students and faculty, who asked thoughtful and thought-provoking questions during our discussion,” Professor Burch said. “It’s an honor to receive the 2019 Mangano Award, to be included alongside the wonderful scholars who have been previous recipients, and to be recognized for my empirical work on multidistrict litigation.”