Even so, any settlement would still need judicial approval.
What distinguishes this structure and makes it novel is that, typically, a settlement is offered to members in a class-action suit only after it is agreed upon by the lawyers. Members of the class action can then vote to accept it or litigate on their own.
This plan gives participants more upfront voice and opportunity for scrutiny, Mr. Erichson noted.
“What’s brilliant and beautiful about this plan is that it provides an extra layer of protection against unfair settlement,” he said.
Some legal observers expressed reservations about the plan, because even if it were successful, it would not cover lawsuits by the states themselves.
“There’s still an 800-pound gorilla waiting outside — the state attorneys general,” said Elizabeth Burch, a law professor at the University of Georgia who has closely followed the litigation.
The state cases, such as the current trial in Oklahoma against Johnson & Johnson, are not in the proposal because they are not in federal court. The plan also doesn’t invite potential plaintiffs from among other types already in the federal litigation, such as tribes, unions and hospitals, as well as babies born with neonatal abstinence syndrome. But the municipal cases do represent the bulk before Judge Polster.
Samuel Issacharoff, who as a legal adviser to the lead plaintiff lawyers was an architect of the proposal, said it builds on models from asbestos trust settlements and, more recently, the National Football League’s fund for retired players with concussion injuries, a case in which he was involved.
Mr. Issacharoff noted that in this litigation, the plaintiffs are not individuals but governmental entities. He dismissed comparisons to the Big Tobacco settlement: That was not the result of a class action but a consortium of state attorneys general.