One of our colleagues here at the Monitor, Jeremy Grabill, recently published an article in the Seton Hall Law Review entitled “Judicial Review of Private Mass Tort Settlements” that we thought our readers might find engaging. Drawing upon his experiences in several prominent mass tort litigations, Grabill’s article identifies an emerging “opt-in” aggregate settlement paradigm that is increasingly being used to settle mass tort litigation in the post-class action era. The article is publicly available via the Seton Hall Law Review website and also at 42 Seton Hall L. Rev. 123 (2012).
“Private mass tort settlements” begin as a contractual agreement between plaintiffs’ counsel and the defendant(s) that sets forth a negotiated settlement offer for each individual plaintiff to consider. Although such settlements are usually contingent upon a certain percentage of eligible plaintiffs agreeing to settle, only those plaintiffs that affirmatively opt-in to the deal are bound by it. Moreover, plaintiffs that agree to settle are likely to receive individualized treatment of their claims by a claims administrator pursuant to complicated settlement formulas and matrices that are increasingly informed by the results of discovery, pretrial legal rulings, and bellwether trials. This new approach stands in stark contrast to “inventory” settlements and class action settlements that bound all class members unless they affirmatively opted out, though some courts have insisted upon treating private mass tort settlements as “quasi” class actions subject to judicial review. Ultimately, Grabill argues that courts do not have–and do not need–the authority to review the adequacy of private mass tort settlements because such deals do not impact the rights of absent or unrepresented parties. The article is a valuable source of information for anyone that finds themselves in the throes of a large mass tort litigation.