Key Provision that Class Action Counsel Recommend Proposed Settlement of Class Action to All Clients Challenged by Certain Plaintiff Lawyers
As the hearing date on approval of the proposed Vioxx class action settlement nears, some of the lawyers for class action plaintiffs are seeking out of a key part of the settlement agreement. Specifically, the proposed settlement requires plaintiff counsel recommend the settlement to all of their clients; now, however, lawyers representing thousands of class action plaintiffs want permission to advise their clients to reject the deal. Merck reportedly considered this provision critical to the $4.85 billion settlement agreement, which would resolve more than 50,000 claims arising out of the prescription drug Vioxx. The lawyers argue that the settlement agreement infringes on their right to provide independent legal advice to their clients. In essence, plaintiff lawyers want to require Merck to settle the weak claims, but risk further litigation involving comparatively stronger claims. Merck’s approach had been to vigorously defend the Vioxx lawsuits, and it had prevailed in most of the 18 cases that had gone to trial.