Elizabeth Chamblee Burch’s book “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation,” published by Cambridge University Press in May 2019, exposes a troubling reality: mass tort settlements are often negotiated behind closed doors in ways that benefit plaintiffs’ lawyers and defense attorneys far more than the injured parties themselves. Through six years of original empirical research analyzing cases consolidated and settled over more than two decades, Burch documents how approximately 70 law firms occupy a dominant share of leadership positions in mass tort litigation—and how these repeat players engineer settlements that can leave individual plaintiffs significantly undercompensated. The research reveals a systematic problem in how federal courts oversee multidistrict litigation (MDLs).
Burch argues that the lack of robust checks and balances allows settlement structures to emerge that prioritize lawyer compensation while plaintiffs receive disproportionately small payouts. Consider the pelvic mesh litigation: thousands of women injured by defective surgical implants pursued claims through MDL processes, yet the final settlements were structured in ways that attorneys described as favorable to their clients—the manufacturers—while plaintiffs’ recovery often fell short of their actual medical damages. This pattern repeats across product categories examined in Burch’s work, from hernia mesh and Roundup to opioid litigation and talcum powder cases.
Table of Contents
- Who Is Elizabeth Chamblee Burch and Why Does Her Research Matter?
- The Scale and Scope of Mass Tort Deals in Federal Courts
- The Concentration of Power Among Repeat Player Law Firms
- How Settlement Structures Can Favor Lawyers Over Plaintiffs
- The Lack of Judicial Oversight in Multidistrict Litigation
- Specific Product Litigations Examined in the Research
- Accessing Burch’s Public Database and Continuing Impact
Who Is Elizabeth Chamblee Burch and Why Does Her Research Matter?
Elizabeth Chamblee Burch holds the Fuller E. Callaway Chair of Law at the University of Georgia School of Law, a position she assumed in 2019. Before that appointment, she served as the Charles H. Kirko Chair of Law at UGA, where she has been on faculty since 2011. She was promoted to full professor in 2015 and spent time as a visiting professor at Harvard Law School in 2017. Her credentials include a cum laude undergraduate degree from Vanderbilt University and a cum laude J.D.
from Florida State University College of Law, where she served as an editor of the Law Review. Burch’s scholarship has earned significant recognition within the legal academic community. In 2015, she received the American Law Institute’s Early Career Scholars Medal, an award given for scholarship with potential to improve the law governing class actions and multidistrict litigation—the exact areas where her research is centered. She also received the Fred C. Zacharias Memorial Prize for Professional Responsibility Scholarship in 2016 and the Mangano Dispute Resolution Advancement Award in 2019, the same year her book was published. These honors reflect the legal community’s view that her work addresses critical problems in how mass litigation operates.
The Scale and Scope of Mass Tort Deals in Federal Courts
Burch’s research analyzed mass tort cases that consumed a substantial portion of the federal civil caseload, examining settlements that occurred over a 14-year period and consolidations spanning 22 years. The sheer volume of litigation she examined—encompassing multiple product categories and thousands of individual claimants—provides a rare empirical window into how federal courts actually manage mass disputes. Most prior work on mass torts relied on anecdotal examples or limited case studies. Burch’s six-year research effort produced something far more systematic: a comprehensive database documenting patterns across the full landscape of modern mass tort MDLs.
The limitation of this research, however, is inherent to studying settlement negotiations at all: much of what Burch examines happens behind closed doors, away from public court filings. Judges, lawyers, and parties negotiate settlement structures, fee arrangements, and claim administration processes in confidential communications. While Burch conducted interviews and analyzed available court documents, certain aspects of “backroom bargaining” remain opaque. The book draws on the evidence that is available in public records, but the full scope of private conversations and agreements between lead counsel and opposing parties cannot be completely captured. What Burch reveals is what the documentary record allows—which is significant, but incomplete.
The Concentration of Power Among Repeat Player Law Firms
One of Burch’s most striking empirical findings is that approximately 70 law firms occupied a very large percentage of leadership positions across mass tort cases. This concentration reflects a repeat-player advantage: the same attorneys and firms appear as lead counsel in case after case, settlement after settlement. They develop relationships with judges, establish reputations with opposing counsel, and accumulate the resources to navigate complex MDL proceedings. This is not necessarily illegal or unethical, but it creates structural incentives that can diverge sharply from the interests of individual plaintiffs. When the same plaintiffs’ lawyers negotiate with the same defense attorneys over multiple years and across different product cases, they build a working relationship.
They learn what deals the other side will accept. They develop mutual interests in predictable, efficient settlements rather than protracted litigation. The pelvic mesh case provides one illustration: lead plaintiffs’ attorneys negotiated a settlement structure and fee arrangement with manufacturers’ counsel, concluded the case, and then moved on to the next major MDL. Individual mesh recipients had limited input into settlement terms and often received far less than they had sought. The repeat players—both on the plaintiffs’ side and the defense side—had successfully resolved another case on their preferred terms.
How Settlement Structures Can Favor Lawyers Over Plaintiffs
Burch’s core argument is that the structure of mass tort settlements can create misaligned incentives between plaintiffs’ lawyers and their clients. In an MDL settlement, lead counsel negotiates with defendants to establish a global settlement amount, a fee arrangement for attorneys, claim administration procedures, and payout formulas for individual claimants. On paper, everything appears transparent: the settlement amount, the attorneys’ fee, and the claims process are disclosed in court filings. But the real-world outcome is what matters. Consider a hypothetical settlement in an opioid litigation where the total settlement amount is $500 million.
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After lead counsel’s fee (often negotiated at 25 percent or higher), distribution goes to a claims administrator who subtracts administrative costs. The remaining pool is divided among tens of thousands of claimants using a formula based on documented injury. A person who required treatment for addiction might receive $5,000 to $25,000 depending on the claims matrix, while lead counsel’s firm receives $100 million or more. The incentive structure is clear: lead counsel benefits from closing the case quickly and collecting a large percentage of the settlement, whereas individual plaintiffs benefit from fighting for higher payouts and more favorable claim definitions. These interests often conflict. Burch’s research demonstrates that settlement structures are regularly engineered to resolve this conflict in ways favorable to repeat-player counsel.
The Lack of Judicial Oversight in Multidistrict Litigation
Federal courts have developed procedures to oversee class action settlements, including requirements that judges approve attorney fee arrangements and that settlements be “fair, reasonable, and adequate” to the class. MDL procedures include similar protections. However, Burch argues that these safeguards are insufficient in practice. Judges presiding over massive MDLs involving tens of thousands of claimants have limited capacity to scrutinize every aspect of a proposed settlement. The sheer complexity of a Roundup MDL with 42,000 cases or an opioid MDL with over 600,000 claims means that judges must rely heavily on representations from the lawyers themselves.
A critical warning: the repeat players who negotiate settlements are the same lawyers who present those settlements to the judge for approval. Lead counsel files a settlement agreement and argues that it serves the class’s interest. Opposing counsel, equally invested in closing the MDL, often supports approval. The court schedules a fairness hearing where objecting claimants may speak, but objections from scattered individuals rarely persuade a judge to reject a settlement that both legal teams endorse. The talcum powder litigation illustrates this dynamic: despite significant medical and scientific controversy over talc’s safety, settlements were structured and approved through procedures where the beneficiary lawyers and cooperating defendants faced minimal judicial friction. Systematic checks on whether individual plaintiffs were adequately compensated were limited.
Specific Product Litigations Examined in the Research
Burch’s database and research focus on major product liability MDLs that have consumed federal court resources over the past two decades. Pelvic mesh litigation—involving transvaginal surgical mesh used for pelvic floor prolapse and stress urinary incontinence—generated thousands of cases and multiple settlements. Hernia mesh cases similarly produced widespread injury claims and protracted negotiations. Roundup, the herbicide produced by Monsanto (later acquired by Bayer), became the subject of an enormous MDL after research suggested a link between exposure and cancer; the settlement structures in Roundup litigation are central to Burch’s analysis of how defendants and plaintiffs’ counsel manage mass exposure cases.
Opioid litigation represents the largest mass tort wave examined in her book’s timeframe—a litigation crisis spanning every state and involving hundreds of thousands of claims against manufacturers, distributors, and pharmacies. Talcum powder litigation, driven by claims that cosmetic talc products increased ovarian cancer risk, generated significant caseloads and settlement activity. Hip implant litigation involving metal-on-metal implants produced injury claims related to metallosis and immune response. These five product categories alone account for a massive portion of the federal civil docket in recent years, and Burch’s research traces how settlement negotiations proceeded in each domain.
Accessing Burch’s Public Database and Continuing Impact
One of Burch’s most valuable contributions is making her research publicly accessible. She developed a free, searchable database of 22 years of mass tort case consolidations and settlement data, available at elizabethchambleeburch.com/mdl-data. The database allows researchers, journalists, advocates, and the public to search and analyze the documentary record of mass tort MDLs in a way that was not previously possible. It functions similarly to PACER (the Public Access to Court Electronic Records system) but with enhanced search capabilities focused specifically on multidistrict litigation.
This database has become a resource for scholars studying settlement outcomes, for plaintiffs’ counsel evaluating comparable cases, for defense teams benchmarking settlements, and for journalists investigating particular MDLs. The existence of the database itself reflects Burch’s belief that transparency is essential to improving how mass tort deals are struck. By publishing the underlying data and documentation, she has enabled ongoing scrutiny of the patterns she identified. The research and the database together form a permanent record of how American courts have managed mass tort litigation over the past two decades, available for anyone to examine.
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