In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand individual cases aggregated for efficiency purposes. Nonetheless, Judge Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules of Civil Procedure, which provides for judicial approval of class action settlement, decided that the initial settlement was not enough, and sent the parties back to the negotiating table. There, the parties reached an amended settlement that Judge Hellerstein later approved. These actions inspired a debate over whether judges have the authority to approve or reject mass settlement absent class certification. This Note continues this discussion, and in doing so, contends that the 9/11 settlement "rejection" and subsequent "approval" was part of a larger trend of judges approving non-class mass settlement, even though the Federal Rules do not sanction such conduct. In examining this trend, this Note discusses three examples of non-class action, multidistrict litigation before turning to the 9/11 litigation and settlement. This Note concludes that judicial approval and rejection of non-class mass settlement, although a pragmatic response to the burdens of mass litigation, is inconsistent with the Federal Rules and the adversarial system.

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