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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

practices.

53

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.

reputation

and

thus

In other tort

be

unable

to

contexts, defendants may lack Bayer’s credibly commit to not “cheating,” even

without

confidentiality

agreements.

If

legislatures

wish

to

increase

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.

54

Alternatively, court-

appointed special masters could serve this same function.

55

In some cases, this auditing system might benefit the public,

plaintiffs,

and

defendants.

If

the

schedules

were

public,

the

public

would benefit an approach.

from the increased transparency that would accompany Rather than many tort settlements being shrouded by

such

confidentiality

agreements,

the

public

would

have

access

to

the

proposed

schedule of payment and be assured

deal. system

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

used

in

that

example.

Defendants

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.

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