UNDERSTANDING MASS TORT DEFENDANT INCENTIVES FOR SEEKING CONFIDENTIAL SETTLEMENTS: LESSONS FROM BAYER’S CERIVASTATIN LITIGATION STRATEGY 1
James M. Anderson
Settlement agreements that require a plaintiff not to
disclose or publicize any information about her claim are both common
some conditions, however, choose to discourage such
a mass tort
defendant can use publicity to act as a commitment device akin most-favored-nation agreement to increase its bargaining power
to a with
plaintiffs. cerivastatin practice and
The paper uses the real world example of Bayer’s litigation as a case study to illustrate this theory in to explore the public policy implications of this finding.
Transparency seems a self-evident aid -- if not a necessary
-- to an
and just civil justice system. concern over one of the least
transparent practices of the agreements that require both
civil justice system: private settlement parties to maintain confidentiality about
settlement and the nature of the underlying dispute. press and other parties can learn almost nothing from
or its public
outcome, and important public dangers can be concealed
public, litigation from issues and
the widespread sexual abuse of children by some priests have arguably
been concealed and perpetuated by the use of these
1 A version of this paper will be included as a chapter in a forthcoming UCLA-RAND book based on the November 2007 conference, “Transparency in the Civil Justice System” at the UCLA School of Law.
Associate Behavioral/Social Scientist, RAND Institute for Civil
thank Laurie Dore, Steve Garber, earlier drafts of this paper.