Mass tort claims can present a tremendous financial and legal burden on a company. In-house counsel recommending settlement of a mass tort to company management, often at significant cost, must be confident that the settlement will buy a lasting and comprehensive peace. There are several key negotiating points that can help in-house counsel achieve such finality.
Incentivize Plaintiffs to Participate
In all mass tort settlements, the parties are keenly interested in the settlement amount, but other settlement terms often are crucial to an individual plaintiff’s decision to participate. These include how an aggregate settlement amount will be allocated among the settling plaintiffs; how quickly payments will begin and will be completed; and whether and to what extent individual plaintiffs can challenge what they perceive as erroneous payment determinations after they sign a release. Because these terms do not directly affect the defendants’ and participating insurers’ bottom lines, they should be designed to attract as many plaintiffs into the settlement as possible, thereby providing the most “bang for the settlement buck.”
