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48 Loy. L. A. L. Rev. [i] (2014-2015)

handle is hein.journals/lla48 and id is 1 raw text is: LOYOLA LAW REVIEW I LOS ANGELES FALL 2014 VOLUME 48 NUMBER 1 TABLE OF CONTENTS ARTICLES CURING THE MASS TORT SETTLEMENT MALAISE by N oah Sm ith-D relich .............................................................................. 1 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

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