Ethical Issues in Mass Tort Plaintiffs’ Representation: Beyond the Aggregate Settlement Rule
نویسنده
چکیده
Those who have addressed ethics issues for plaintiffs' lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an offer of settlement. grateful to Howard Erichson and Benjamin Zipursky for organizing this Symposium on group representation. My thanks to the participants in the Symposium for their comments on an earlier draft and to Lynn Baker for her generous comments.
منابع مشابه
Allocation Rules and the Stability of Mass Tort Class Actions
This paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how...
متن کاملJackpot Justice: Verdict Variability and the Mass Tort Class Action
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys’ fees and court resources, a single adjudication of thousands of mass ...
متن کاملUnderstanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy
Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs....
متن کاملCost and compensation of injuries in medical malpractice.
The primary functions of the tort system in resolving medical malpractice claims are to deter injuries and to compensate victims.' One reason for the high overhead of the tort system is the separation of liability and loss determinations. Calculations of damages are expected to follow general rules. 2 All injury classification schemes yield categories with some intracategory variation in actual...
متن کاملPopulation-Based Liability Determination, Mass Torts, and the Incentives for Suit, Settlement, and Trial
We explore how the incentives of a plaintiff, when considering filing suit and bargaining over settlement, differ between suits associated with stand-alone torts cases and suits involving mass torts. We contrast ‘‘individual-based liability determination’’ (IBLD), wherein a clear description of the mechanism by which a defendant’s actions translate into a plaintiff’s harm is available, with ‘‘p...
متن کامل