30 such “cheating” and it seems that plaintiffs’ counsel believed Bayer. As chief counsel of Bayer, George Lykos, put it, “no settlement is ever
Pharmaceutical mass tort trial lawyers compare notes
and the legal tools for enforcing a private secrecy agreement are of
only limited efficacy.
Accordingly, Bayer’s claim that it would
generally deviate sufficient number
from its schedule of plaintiffs and
was apparently believed their attorneys.
Comparing Bayer’s Approach to a Most-favored Nation Agreement as a Commitment Strategy
In agreement proof: t defendant period, t with addi entering defendant high pers worthwhil early-set
some ways the Bayer strategy is less flexible than an MFN
As Spier (2003) points out, the early-settling plaintiffs could
MFN is not renegotiation- renegotiate with the
the second period under certain conditions.
In the second
tional plaintiffs of a into the MFN agreement
with early-settling plaintiffs,
learns of a large number of high-valuation plaintiffs with onal expected values of recovery at trial. It might be e for the defendant to renegotiate with the first group of tling plaintiffs if it would allow settlement with the second
the first group
This is true even of plaintiffs the
if it would not be worthwhile to same deal necessary to prevent
trials with the second, high-valuation plaintiffs. MFN strategy can accommodate new information about plaintiffs.
this respect, the distribution of
In contrast, the Bayer approach allows no renegotiation with
early-settling plaintiffs, an
The combination of the large number of
____________ See Schuck (1995) on importance of maintaining credibility and reputation because many actors are repeat players in litigation. 30