existence of public fora for the discussion and dissemination of information about possible wrongdoing by defendants will therefore generally decrease the benefits of confidentiality agreements and encourage defendants to be more transparent in their settlement
This reduced incentive for confidentiality is a non-
obvious benefit of regulatory inquiry and subsequent publicity.
Second, Bayer’s corporate reputation for maintaining its commitments played an important role in its commitment to avoid settling
off the schedule.
In other tort
contexts, defendants may lack Bayer’s credibly commit to not “cheating,” even
the chance of the cerivastatin experience facilitate some formal auditing mechanism commit to a schedule, perhaps in exchange
becoming a model, they could to help defendants credibly for making the schedule itself
public and thereby furthering transparency.
appointed special masters could serve this same function.
In some cases, this auditing system might benefit the public,
would benefit an approach.
from the increased transparency that would accompany Rather than many tort settlements being shrouded by
schedule of payment and be assured
Transparency and horizontal compared to the status quo.
that everyone was getting equity would be increased In this respect it would
the same under this resemble
the 9/11 Victim Compensation Fund
without the confidentiality agreements would have an inexpensive means of
____________ Regulatory activity and advisories can catalyze this activity. 53 54 See Ibanez (2008) for discussion of facilitating entity. Even absent government intervention “Ulysses,” a commitment- 55 , a defendant might hire an
independent private-sector auditor to guarantee its commitment when the Bayer-style commitment strategy was sufficiently attractive.