confidential settlements may threaten the private character of tort
litigation and may decrease settlements.
Are there means to reduce
confidential settlements voluntarily?
This chapter addresses that
question by examining the incentives order to understand why confidential adopted in a particular litigation.
faced by mass tort defendants in settlements might or might not be In particular, I examine the non-
confidential settlements that ended most in order to understand these incentives.
Somewhat surprisingly, I found that mass tort defendants can
actually benefit from eschewing confidentiality agreements under
Promoting limited transparency
among plaintiffs and itself to offering a
certain their limited
array of take-it-or-leave it offers to plaintiffs.
example of how communications among plaintiffs can further the
defendant’s commitment strategy. inconclusive: total compensation
Net public welfare effects are to claimants was almost certainly
than it would have been had Bayer sought confidential settlements the process was also somewhat more transparent to plaintiffs and increased horizontal equity.
If policymakers decide that this model of limited private-sector
should be encouraged, there are two important that emerge from the cerivastatin experience.
publicizing dangers reduces the incentives for defendants confidentiality agreements as a condition for settlement. problems with rhabdomyolysis and cerivastatin were highly
to demand Since the publicized,
exposure by insisting on confidentiality agreements.
____________ See Helland and Lee (infra)at 1. 52