The Supreme Court’s Amchem decision struck down a proposed class action settlement that would have resolved present and future claims against asbestos defendants. In its opinion, the court stated that class members who have already been injured have an inherent conflict with absent class members who will suffer an injury in the future. Instead of class action settlements, most mass torts are now resolved through consolidated multidistrict litigation (MDL).

The 3rd U.S. Circuit Court of Appeals recently approved the NFL’s $1 billion class action settlement with more than 20,000 retired players who claimed that they had suffered traumatic head injuries during their employment with the league. Like in the Amchem case, some class members have already developed health consequences from their exposure, but for others, symptoms haven’t yet developed. To comply with the Amgen ruling, the judge in charge of the NFL case made sure that these future claimants had their own counsel during the settlement discussions and refused to allow the NFL to cap the total amount of payouts under the settlement.

The 3rd Circuit said that the lower court’s structural protections adequately resolved the conflicting interests of present and future class members. The opinion also stated that an opt out rate of less than 1 percent was an indication that plaintiffs’ negotiators represented the interests of all of the retirees. 3rd Circuit Judge Thomas Ambro wrote the opinion for a panel that also included Judges Thomas Hardiman and Richard Nygaard.

The NFL concussions case began as an MDL before both sides decided to settle via a class action. The most recent statistics show 40 percent of all civil litigation in U.S. courts takes place in an MDL. With the ruling of the 3rd Circuit, defendants and class counsel can once again use class actions to resolve mass personal injury litigation