It looks as if the big Vioxx settlement offers plaintiffs not just the carrot, but the stick, too. And it's the plaintiffs' lawyers who have to wield the rod. If one of an attorney's clients accepts the deal, then that lawyer has to recommend it to the rest of his or her Vioxx clients. The lawyer then has to fire any clients who hold out.
Now, this provision isn't unique to the Vioxx case, but it is rare. And it's troubling to legal ethicists, who say it backs clients into a corner. These plaintiff's don't have a free choice. They have to accept or suffer the consequences.
Here's the framework: Merck has fixed a $4.85 billion payout, so the same amount of money will go out the door regardless of how many plaintiffs accept the deal. So from a financial perspective, the more, the better. From a legal perspective, the more plaintiffs who settle, the fewer additional claims the company will face in the future. And the plaintiffs remaining--the ones who didn't accept Merck's offer--suddenly won't have lawyers.
- read the report from The Wall Street Journal (sub. req)