May 21, 2012 Articles

Do "Private Settlements" Exist in Mass-Tort Litigation?

By Paul D. Rheingold

Several authors recently labeled certain mass-tort settlements as “private” and suggested that, in this type of outcome, judges have little or no role. Jeremy T. Grabill, “Judicial Review of Private Mass Tort Settlements” [PDF], 42 Seton Hall L.R. 123 (2012); Rothman, “Bringing an End to the Trend: Cutting Judicial ‘Approval’ and ‘Rejection’ Out of Non-Class Mass Settlement” [PDF], 80 Fordham L.R. 319 (2011).

The type of settlement that these commentators regard as private is below the level of a class-action settlement or a multidistrict litigation (MDL), which is still in full operation. Examples given are the World Trade Center litigation and Vioxx. To this may be added the very recent Medtronic Sprint Fidelis litigation.

There is really no such thing as a private, non-judicially supervised mass-tort settlement, nor should such an animal be permitted to exist.

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