Lynn Baker, ‘Mass Tort Remedies and the Puzzle of the Disappearing Defendant’

Unlike an agreement to resolve a traditional bipartite legal dispute, a non-class action, mass tort settlement agreement commonly will not specify the compensation to be paid any particular settling claimant. Rather, the confidential agreement will often state, inter alia, that the defendant: (1) will pay a particular, maximum lump sum to resolve the group of covered claims; and (2) will play no role in determining the settlement offer value of any individual claimant, that is, in determining the amount of the total settlement funds to be paid to any individual settling claimant. This Article takes up various issues that arise from this disappearance of the mass tort defendant with regard to specifying a traditionally material term of a settlement agreement.

The Article begins by detailing how mass tort settlement agreements frequently differ from an agreement to settle a typical bipartite dispute. It then speculates on why the mass tort defendant is commonly so uninvolved in determining the settlement offer amount for each individual claimant. Part III takes up the issues that arise for plaintiffs’ counsel when the mass tort defendant agrees only to a lump-sum settlement, including the conflict of interests that exists, and how it may properly be resolved. This part concludes that retaining a special master is neither necessary nor sufficient for managing this conflict. Part IV examines why and when, nonetheless, some mass tort plaintiffs’ counsel retain a third-party, ‘allocation special master’. It goes on to discuss the various routes by which an allocation special master may come to be involved in a mass tort settlement, as well as the circumstances under which the Claimants may most greatly benefit from such a special master’s involvement. The Article concludes in Part V by considering some implications of this examination of allocation special masters for recent broader discussions of the costs and benefits of using special masters in complex litigation.

Baker, Lynn A, Mass Tort Remedies and the Puzzle of the Disappearing Defendant (January 22, 2020). 98 Texas Law Review 1165 (2020); U of Texas Law, Public Law Research Paper No 715.

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