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"I Can't Find a Lawyer": Anatomy of an Aggregate Settlement Part III

Why new lawsuits in ongoing mass torts have a hard time taking root.

In speaking with mass-tort plaintiffs from around the country for the new procedural justice project that I've been working on, I've heard over and over about how hard it can be to find a lawyer to bring suit against say, a particular pelvic mesh manufacturer nowadays. (By the way, if you're interested in participating in the study--a procedural justice survey for women's health MDLs--you can find out more here.)

So, why can't current pro se or would-be plaintiffs find a lawyer in these ongoing cases?

There are two main reasons, I suspect:

1) because terms in the current settlements inhibit lawyers from taking on new clients; and

2) because these cases are expensive and require expertise, the lawyer down the street can't afford to take on the Johnson & Johnsons of the world. So, they look to refer clients to "specialists." But, per #1, the specialists aren't taking on new cases.

This is a problem of market failure, one that I've written about extensively in a paper full of legalease called Monopolies in Multidistrict Litigation. In it, I have a lot of grand theories about systemic fixes, some of which I revamp in my Mass Torts Deals book, which will be out in April.

But none of that helps people with whom I've been speaking. So, a call to action: if you're a lawyer who is taking new pelvic mesh cases, please leave a comment below (note to readers: I'm not endorsing any of the attorneys who leave comments--take it as information only).

As an aside, I was heartened to see that the New York federal courts are starting assistance for do-it-yourself litigants. It'd be great to see programmatic expansions for pro se plaintiffs in MDLs.

Why would other people's settlements affect my ability to find a lawyer?

Now for the nitty gritty. This is the third in a series on the topic of aggregate settlements and our focus today is on the ways that corporate defendants try to prevent plaintiffs' attorneys from filing new lawsuits against them.

If you're new to the blog, welcome! Part I introduced some basic clauses that you'll find in most aggregate settlements and Part II explained the ethics (or lack there of) behind mandatory recommendation and withdrawal provisions.

Those clauses do two things: 1) prompt plaintiffs' lawyers to recommend the deal to all of their clients and 2) threaten to withdraw (or to actually withdraw) from representing clients who refuse to settle.

That leaves three key demographics who are affected by today's topic, what I call "new suit deterrence provisions."

  1. plaintiffs whose lawyers have withdrawn from representing them, converting them into DIY pro se plaintiffs;

  2. plaintiffs who have fired their attorneys for allowing them to fall through the cracks; and

  3. new and would-be plaintiffs. Once corporate defendants start settling cases, it shows up in the press. This can bring the litigation to the attention of those who didn't know about it before, but who are having similar problems, and prompt them to sue.

So, here's the rub: corporate defendants don't want new suits filed against them, but the ethics rules want to ensure that the best and brightest lawyers remain available to the public to take on new lawsuits. More specifically, the Model Rules of Professional Conduct (Rule 5.6(b)) state that:

A lawyer shall not participate in offering or making:
an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

In other words, defendants shouldn't be able to buy off the plaintiffs' lawyers by settling with their clients. With that in mind, let's take a look at some of the provisions I've found in mass tort settlements.

First up: American Medical System, Inc.'s deal with Freese & Goss:

And here's a clause from the Fosamax Master Settlement Agreement:

Isn't it clever how they've identified the ethics rule, declared that they in no way intend to violate it and then try to weasel around it by saying they have "no present intention" to solicit new claims?

Declaring that you're not violating the legal ethics rules and not violating the legal ethics rules are two very different things.

Provisions like these have been the subject of academic debate. Professors Stephen Gillers and Richard Painter argue that:

Market forces should assure that as some lawyers retire from suing certain defendants, others will replace them.

Based on what I know, I'm dubious about that. Perhaps those market forces exist, but I haven't seen them yet.

Comments welcome--prove my inclination wrong.


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