To settle the thousands of claims arising from the defective painkiller Vioxx, Merck Pharmaceuticals brokered an agreement, not with the Vioxx plaintiffs but with their lawyers. This agreement required the plaintiffs’ lawyers to recommend settlement to all of their clients and to withdraw if any of those clients declined: plaintiffs’ lawyers could either settle all of their claims or none. Through this unusual arrangement, made without the involvement of the plaintiffs and outside of any formal judicial supervision, Merck was able to craft a favorable settlement group that mimicked a Rule 23 class. This Article explores the Vioxx Agreement as but the first consequence of the Supreme Court’s restrictive mass tort class certification jurisprudence. Starting with Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., the Court has repeatedly disapproved of lower courts’ broad readings of Rule 23 and denied mass tort class certification—even where justice appears to demand a class action. Now, with so little flexibility in Rule 23’s requirements, few mass tort plaintiffs can hope to file suit as a Rule 23 class. By removing a crucial tool for mass tort litigators, the Supreme Court has begun to push the resolution of mass torts out of the formal judicial system and into private contractual arrangements like the Vioxx Agreement. Although agreements like this may appear to be an adequate replacement for Rule 23 actions, they are far from it. Placing a substantial proportion of group litigation outside of a judicially controlled framework will lead to a fundamental shift in the carefully drawn balance between the interests of plaintiffs, plaintiffs’ lawyers, defendants, and society. Defendants will benefit from the ability to craft desirable settlement classes since plaintiffs’ lawyers will face the choice between maximizing their clients’ interests or their own gains—all without effective judicial oversight. Plaintiffs, and ultimately society, will bear the brunt of the changes brought about by replacing Rule 23 settlements with agreements like the Vioxx Agreement, as unjust settlements and systemic under-deterrence of future negligence will result. Previous scholarship has focused on either the ethical problems inherent in the Vioxx Agreement or the difficulties that prospective mass tort classes now face in seeking class certification. This Article analyzes these issues together and proposes that a proliferation of “Vioxx Agreements” is both inevitable and undesirable. This Article then presents a solution to this overlooked, but substantial, emerging problem: much of the deterrence value inherent in group litigation may be preserved in private settlements by aggressively sanctioning plaintiffs’ lawyers for even minor ethical violations in the context of Vioxx Agreements. Rule 23 is carefully crafted to prevent abuses of mass adjudication, and may therefore effectively guide regulators in sanctioning those abuses most harmful to plaintiffs and society.
Curing The Mass Tort Settlement Malaise,
48 Loy. L.A. L. Rev. 1
Available at: https://digitalcommons.lmu.edu/llr/vol48/iss1/1