Our system needs a makeover, and this chapter uses basic economic and social principles as the bedrock of reform. It builds opportunities for dissent and competition into the fabric of multidistrict proceedings and incentivizes lawyers to use them. But doing so relies on judges. Educating judges and encouraging them to select leaders using a competitive process, tying leaders’ fees to the benefits they confer on plaintiffs, opening the courthouse doors to hear about those benefits (or not) directly from the plaintiffs, and remanding those litigants who don’t want to settle can allow the vibrant rivalries within the plaintiffs’ bar to see to it that dissent and competition flourish. As attorneys object and compete, they are likely to divulge new information, thereby equipping judges with pieces of the puzzle that they currently lack. In short, this chapter explains how arming judges with procedures that better align plaintiffs’ attorneys’ self-interest with their clients’ best interest equips courts to hold parties accountable even without legislation or rulemaking.

Using illustrations from the Yasmin/Yaz and asbestos proceedings, Chapter 1 introduces multidistrict litigation and its inhabitants, situating individual and class-action litigation in the rearview mirror. As class certification wanes, so too does formal judicial oversight aimed at thwarting self-dealing lawyers. This is not, however, a revival of individual litigation where a plaintiff can effectively monitor her own suit. To the contrary, when a plaintiff retains an attorney, she will typically be one of the many clients that her lawyer “warehouses.” Nevertheless, judges embrace a push for settlements that exists across all civil cases, but can result in ethically dubious deals in the multidistrict litigation context. When private settlements occur on the back end and tort-reform measures like punitive damage caps deter lawyers from suing on the front end, litigation’s ability to unearth information on corporate wrongdoing and generate public goods like precedent, transparency, and equal treatment is in peril.

Chapter 2 poses three provocative questions: Do plaintiffs’ lawyers in leadership profit from quid pro quo arrangements with one another and with repeat defense attorneys? Even if one can fairly characterize features of their deals as self-serving, what harm is there? And if the deals do harm plaintiffs in some way, what leverage do plaintiffs have? In many respects, outsiders can only guess at the answers to the first two questions because they are privy neither to the negotiations nor to the private settlement’s payouts. But there is not a complete void; this chapter grounds its suppositions in the available data on the common-benefit fees that lead plaintiffs’ attorneys receive, and the private settlements they negotiate. Examining settlements that occurred over a 12-year span, every deal featured at least one “closure” provision for defendants (that helped end the lawsuits by goading plaintiffs to take the deal), and likewise contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Based on that evidence (along with the scant evidence on payouts to plaintiffs), there is reason to worry that when insiders play for rules, the rules they develop may principally benefit them at the plaintiffs’ expense.