Herrmann posted last weekend about the Vioxx settlement. Everybody and his brother seems to be looking for “experts” to comment on the settlement; by posting on the subject, we knowingly entered the fray. And that’s fine. Herrmann is happy to discuss the settlement, but please remember three things:
1. Bexis has had nothing to do with any post commenting on the settlement (including this one). And he’ll have nothing to do with any future posts on this subject. His firm is involved in the Vioxx litigation, and he cannot speak on the topic.
2. Herrmann’s earlier post said absolutely nothing about the ethics of the settlement. Nothing. And, if you call and ask, he’ll still say nothing on that point.
Among other things, he refuses to answer these questions: (1) Is it ethical for plaintiffs’ counsel to threaten to withdraw from representing clients if the clients don’t agree to participate in the Vioxx settlement? (2) Does the settlement agreement actually compel plaintiffs’ counsel to withdraw in that situation? (3) Is any alleged ethical issue avoided by adding language that plaintiffs’ counsel must always act within the bounds of the rules of legal ethics? (4) If someone wanted to use the alleged ethical issue to attack the settlement, what should that person do? (He can’t “object,” since this is not a class action settlement; there’s no Rule 23 fairness hearing in this context. So how does an “objector” speak? Threaten lawsuits? File lawsuits? File ethics grievances? Against whom?)
Not our department.
Bexis isn’t talking. And Herrmann represents drug companies. When drug companies reach satisfactory settlements, he’s happy. He is not going to hypothesize about how people could try to disrupt things. So please stop asking. From what we’ve seen, Richard Nagareda at Vanderbilt appears to defend the ethics of the settlement, and Deborah Rhode of Stanford is more skeptical. For comments on the ethics points, please call one of them.
3. Finally, there’s been a ton of ink spilled (and a bunch more electrons activated — is that what happens when people publish blog posts?) over this issue, and this topic is sure to remain hot for weeks or months to come. If you want to pursue this issue, it’s awfully easy. You’ll find food for thought at the Mass Torts Litigation Blog, Pharmalot, Legal Pad, Point of Law, Overlawyered, the Wall Street Journal Law Blog, and the Wall Street Journal itself. (If you thought this topic was hot yesterday, just watch what happens today, after the Journal hits the newsstands.)
If you want a commentator on legal ethics, however, please call an ethicist. And, if you’re looking for someone to hypothesize how to attack this settlement, it ain’t me, babe. (On all other topics, of course, you know the name, look up the number.)
That was cute, wasn’t it? Dylan lyrics followed by The Beatles, separated by only six words. (We’re taking pleasure in mighty small things this morning.)