… The Article explores the reasons that, contrary to traditional wisdom, defendants would voluntarily settle claims. It argues that in cases of clear culpability, defendants can mitigate the harm to corporate reputation and reassure shareholders. But, these settlements can also operate at the opposite end of the spectrum, with far more substantial consequences. Correctly structured, these settlement offers allow defendants to preclude the certification of a class action. These settlements thus offer an incredibly powerful tool in deterring or rendering impotent nuisance-value litigation by de facto converting any claim from an opt-out class action into an opt-in settlement. While arbitration provisions have been used as a mechanism for preventing class certification, they inherently can only reach contractual relationships; bilateral mass settlements are not so constricted, allowing them to reach any mass claim … (more)
Jaime Dodge, ‘Privatizing Mass Settlement’, 90 Notre Dame Law Review 335 (2014).