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

handle is hein.journals/lla48 and id is 1 raw text is: 



FALL 2014                    VOLUME 48                      NUMBER 1

                      TABLE OF CONTENTS


  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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