As noted previously here, there’s big news in the plaintiff’s world as Vioxx has made a $4.85 billion settlement offer to thousands of plaintiffs.

The WSJ Law Blog picks up on part of the settlement offer:

The settlement puts forward that if a lawyer has one client participate in the $4.85 billion settlement, then the lawyer must recommend the settlement to all of his or her other clients, according to Merck’s counsel. And what happens if a client says, “sorry, not interested?” Then the lawyer must “take steps” to withdraw from representing that client, provided that the withdrawal doesn’t violate relevant ethical rules.

As the Law Blog correctly notes, Merck probably included this provision to prevent plaintiffs attorneys from settling their weaker cases while still bringing their stronger cases to trial, a win/win for plaintiffs.

Problem for Merck is, their offer is all bark and no bite. How do they plan to enforce this offer*? My clients have absolutely no power to tell me what to do with my other clients. In fact, in my humble opinion, it’s unethical for me to accept an agreement that for one client that materially limits my ability to provide objective advice to other clients. So I can’t and won’t agree to the terms that Vioxx has presented.

Moreover, what is there to stop a plaintiff’s attorney from referring their worst cases to another lawyer while keeping their best cases for trial? Let’s assume a plaintiff’s attorney has 100 terrible cases and 100 blockbuster cases. What stops them from referring to be 100 terrible cases to a friend for, say, 1% of the eventual recovery? In that scenario, the plaintiffs with the terrible cases get a settlement, the plaintiff’s attorney gets the bulk of the recovery, and the plaintiff’s attorney still gets to take their best cases to trial. Merck certainly can’t stop that from happening.

Maybe they know something I don’t; maybe there are a lot of plaintiff’s attorneys who don’t want to or know how to game the system and will go along with it, or maybe Merck wants to cause ethical violations by plaintiff’s attorneys to force them to disgorge their fees, or maybe Merck just wants to tie their opponents into knots to increase their settlement leverage.

As I see it, Merck just opened themselves up to some serious grilling by the trial judges who have to approve wrongful death settlements, many of whom will not be happy approving settlements that prejudice the rights of other plaintiffs.

* I don’t believe it’s truly an "offer" in terms of contract law. Unless there’s a specific additional benefit going to the plaintiff’s attorney, there’s no valid consideration for the ‘recommendation’ provision, which itself is collateral to the settlement of the underlying claim.