In re Relafen Antitrust Litigation, 2005 WL 2386119 (D. Mass. September 28, 2005).
A nationwide consumer class action targeting the drug Relafen inspired William G. Young, Chief Judge of the U.S. District Court for the District of Massachusetts, to take aim at what he characterizes as the atrophied state of Rule 23, the endangered American jury trial, and, briefly, at the Class Action Fairness Act of 2005.
“In the larger sense, the rise and fall of Rule 23 is a virtually perfect metaphor for the rise and decline of the federal district courts and American jury trial system,” Chief Judge Young wrote toward the end of his hefty decision, in which he tags federal judges as part of the problem.

Chief Judge Young approved a $75 million settlement in this class action antitrust litigation launched against pharmaceutical giants SmithKline Beecham Corporation and GlaxoSmithKline PLC. SmithKline was accused of misleading the U. S. Patent Office and the FDA about the Relafen-related patent, and of pursuing false litigation against generic drug manufacturers to thwart competition.
Following his exhaustive analysis of the propriety of the proposed settlement and an order approving the resolution of the claims, Chief Judge Young was nevertheless not quite through: “What has been accomplished?” and “Was it worth it?” Chief Judge Young posed these and other questions in the final section of his opinion, labeled “Reflections.”
The judge railed against the dilution of Federal Rule of Civil Procedure 23, which governs class actions. Among the culprits he cites: lukewarm interpretation by the federal bench, and legislation such as the Class Action Fairness Act of 2005. “The result all too often has been a virtual collusion between plaintiffs’ counsel and corporate interests bent on buying peace and excluding consumers from access to court,” the chief judge declared. A brief footnote observes that CAFA may actually increase, rather than staunch, the flow of antitrust class actions in federal court, but Chief Judge Young did not explain exactly how this would happen. (See Editor’s Note below for the thoughts of the CAFA Law Blog editors on this issue.)
The Chief Judge numbered himself among the guilty. “My own missteps – and attempts at correction – will illustrate these pitfalls. First, I have approved of class counsel with little more than a cursory look to assure myself that counsel were experienced, competent and vigorous,” Chief Judge Young wrote. This settlement was not the product of judicial eagerness, but he said that the system fosters that tendency.
He wrapped up with an observation, or perhaps a warning: “History will not look kindly on that generation of jurists who acquiesced in the eclipse of our greatest bulwark of personal liberty – the American jury.”
Editor’s Note: Antitrust cases will likely increase in federal court, because while suits by indirect purchasers cannot be brought under the federal antitrust statutes, they can be maintained under some state antitrust statutes. Those state lawsuits were typically made in state court, with only complete diversity jurisdiction as the available ground for removal. Under CAFA, only minimal diversity is required for removal jurisdiction, so antitrust litigation which would have stayed in state court pre-CAFA may now end up in federal court — a good example of the law of unintended consequences.