A federal appeals court has agreed to review a novel class action concept approved by a federal judge in the opioid litigation in the hopes of reaching a global settlement.

In dual orders Friday, the U.S. Court of Appeals for the Sixth Circuit granted interlocutory appeal of a Sept. 11 order by U.S. District Judge Dan Polster of the Northern District of Ohio, approving certification of a "negotiation" class of potentially 33,000 cities and counties suing opioid companies over the epidemic. The idea of the "negotiation" class, put forth by the lead plaintiffs attorneys in the multidistrict litigation over opioids, was to bring both sides closer to the settlement table.

Several of pharmaceutical distributors and pharmacies, calling the certification order an "unauthorized expansion" of Federal Rule 23 of Civil Procedure, and six Ohio cities, petitioned the Sixth Circuit to review what they considered several flaws in the certification order.

The Sixth Circuit noted the novelty of the "negotiation" class idea and the lack of opportunity to challenge the order later as reasons to grant interlocutory review.

"The question here—whether this class-action procedure is permitted under Rule 23—is both novel and relevant to class litigation in general," both orders said. "Here, the district court entered a final order to certify the class, with no indication that it will review its decision in the future."

Lawyers for the defendants, which included Cardinal Health, McKesson, Walmart and Walgreens, did not respond to requests for comment, nor did Thomas Goldstein of Goldstein & Russell in Bethesda, Maryland, who represented the Ohio cities of North Royalton, East Cleveland, Mayfield Heights, Lyndhurst, Huron and Wickliffe.

Plaintiffs attorneys Chris Seeger of Seeger Weiss and Jayne Conroy of Simmons Hanly Conroy, whom Polster appointed earlier this year to serve as co-lead counsel for the "negotiation" class, also did not respond to a request for comment.

The class certification motion is unusual because it comes prior to any settlement but, also, is not for pursuing litigation. In most cases, judges certify class actions under those two circumstances, but lead plaintiffs lawyers in the opioid multidistrict litigation insisted that the proposal fits within the confines of the Federal Rule 23 of Civil Procedure, which governs class actions.

The idea of a "negotiation" class originated in a draft 2019 law review article by Duke University School of Law professor Francis McGovern, who is one of three special masters in the case, and William Rubenstein, a professor at Harvard Law School and expert on class actions whom McGovern hired as a consultant in the settlement discussions.

Under the plan, cities and counties with more than 2,600 lawsuits in the multidistrict litigation, and thousands more governments that have not filed cases yet, would have the choice to opt out of the class, but being part of it would give them voting powers. A settlement could go forward if 75% of the class member governments voted for the deal.

The class excludes state attorneys general, some of whom have brought lawsuits in state courts across the country and objected to the idea.

The defendants, in petitioning the Sixth Circuit, raised concerns that such a novel idea might not withstand appellate review. The Ohio cities, which could be part of the "negotiation" class, argued that the certification forces class members to make an unfair choice: opt out of a settlement that hasn't happened or stay in the class without a second opportunity to opt out once a settlement is reached.

Both petitions got support from the District of Columbia and a dozen states, including Delaware, Ohio and Texas, which accused Polster of creating a "new government entity" that usurps the interests of the states. The U.S. Chamber of Commerce, in an amicus brief filed in the defendants' petition, said the order would "distort class action practice."

In Oct. 16 responses, plaintiffs attorneys said the petitions were premature. They challenged the standing of the Ohio cities and insisted that the defendants, who did not have to participate in the "negotiation" class, were not "aggrieved" by its certification.

"It makes little sense to review the certification of a class that may never lead to a settlement," they wrote in both petitions.

In their reply, the Ohio cities cited the law review article, in which McGovern and Rubenstein wrote that the time to appeal certification of a "negotiation" class should be at its "inception."

"Respondents' position ignores the district court's words, is untethered from the text of Rule 23(f), and contravenes the process conceived by the creators of the class device from which respondents seek to benefit," Goldstein wrote, for the Ohio cities.