X hits on this document

116 views

0 shares

0 downloads

0 comments

24 / 40

  • -

    22 -

class-action, Bayer’s settlement policy was cited to show that Bayer made some effort to provide relief.

MFNs, in contrast, remain somewhat controversial because they

are

accurately perceived as tying the hands settlements that otherwise would occur.

of the defendant to reach One federal judge rejected

them

explaining, “Because plaintiffs favored-nations agreements with strong public policies favoring

are ‘straight-jacketed’ by the most- certain prior settling defendants, the complete settlement … are being

frustrated.”

35

Similarly, the Manual for Complex Litigation (1977)

warned that “the complications and even inequitites which ‘most favored

nations’ clauses almost always generate make their use undesirable.”

Other commentators have also criticized MFNs (Spier, 2003).

36

To the

extent this creates doubt that they will be enforced, this may undermine

their effectiveness as commitment tools.

Interestingly, the Bayer strategy has exactly the same characteristic that the use of MFN is criticized for: “straight- jacketing” Bayer from reaching settlements with later plaintiffs that

otherwise would have been rational.

less apparent, grounds.

the

Bayer

strategy

has

Yet probably because

not

been

criticized

this effect on those

is

Proof of Causation of Injury Was Relatively Direct

The relatively direct connection between cerivastatin and rhabdomyolysis aided the adoption of this commitment strategy.

When

34 Incidentally, the earlier plaintiffs lost with the court finding that the outcome was a “judgment” rather than a “settlement” and therefore did not trigger the MFN (Spier, 2003).

35 In Re Chicken Antitrust Litigation, 560 F.Supp. 943, 947 (Ga. 1979).

36

As Spier notes, the latest version of The Manual for Complex

Litigation states “[MFN] clauses can provide an incentive for early

settlement as well Complex Litigation

as an obstacle to later settlement.” Manual

§

13.23.

See

also

In

Re

Chicken

Antitrust

for

Document info
Document views116
Page views116
Page last viewedSun Dec 11 10:21:43 UTC 2016
Pages40
Paragraphs2488
Words11844

Comments