As part of their ongoing effort to combat misinformation about COVID-19, federal agencies have issued warning letters to more than 150 companies. While companies know that a warning letter is serious and requires immediate attention, perhaps the greater challenge is what often follows: the so-called “piggyback” class action lawsuit.[1] And recently, plaintiffs’ attorneys have gone one step further: they have been filing “piggyback” class actions not against the company that received the warning letter but against competitors that make similar products.
Continue Reading A Warning to One, A Warning to All?

Just over 50 years ago, Congress passed the Multidistrict Litigation (MDL) Act, with the intent to make it more efficient for parties to litigate factually similar but geographically dispersed complex cases. While the statute today is virtually unchanged from the original version, what has changed is the number of cases in MDLs. Ten years ago, MDLs represented only 15 percent of the civil caseload. By 2018, however, that number had more than tripled, and MDLs accounted for almost 47 percent of the total civil caseload in the United States.[1] Product liability MDLs alone make up almost 90 percent of pending MDLs.[2]

As the number of MDLs has grown, so has the focus on the MDL process and whether the process is working. One frequent criticism is that a significant percent – between 30-40 percent – of cases filed in any MDL turn out (often at the settlement stage) to be unsupportable.[3] Why is this the case? Likely in part because the MDL process does not have an effective mechanism to weed out non-meritorious cases early. This post addresses the meritless claim problem and analyzes some proposed solutions.
Continue Reading Meritless Claims Create Inefficiencies in Multidistrict Litigation