ABSTRACT
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 …
Smith-Drelich, Noah, Curing the Mass Tort Settlement Malaise, (2014) 48 Loyola of Los Angeles Law Review 1 (2014).
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