You knew this would happen. Several plaintiffs’ lawyers have asked the federal judge overseeing the $4.85 billion settlement to allow them to keep some clients outside the deal while still permitting other clients to accept it, The New York Times writes. Currently, if the lawyers want any of their clients to receive any money, they must recommend the deal to all their clients.

The provision is considered by Merck to be a crucial part of the settlement and Ted Mayer, a lawyer for Merck, says the drugmaker will oppose the motion, adding that the deal had been carefully crafted to be fair to plaintiffs and the company. In an emergency motion filed in federal court in New Orleans, the lawyers argue the provision would prevent them from offering the best independent judgment for each client. And agreeing to the provision might open them to future lawsuits from disgruntled clients, they said.

“The settlement agreement, which allows Merck to dictate the advice a lawyer will offer, is improper in all states,” the lawyers wrote in the motion, which was signed by lawyers representing about 6,000 plaintiffs, or nearly 10 percent of the claims filed against the drugmaker (you can read it here).

The deal calls for lawyers to put all their clients into the settlement, and withdraw from representing those who don’t want to participate. Merck pushed this provision so that it won’t face the prospect of settling weaker claims while lawyers withhold stronger cases for trial in the future, the Times writes. Merck also wants to be sure that plaintiffs who do choose to go ahead will have to find new lawyers, a process that will probably be difficult because the firms with the most experience in the case are all part of the agreement.

For the deal to take effect, 85 percent of all plaintiffs must agree to the terms. But Benjamin Zipursky, a professor at Fordham Law School who has closely followed the case, said the all-or-nothing requirement might pose ethical problems. “The question is, is this really independent advice given to each client if the lawyer obligates himself or herself to say this to all the clients,” he tells the paper.

Mayer says the federal court might not be able to change the settlement, since the Vioxx cases were not being tried as a class action, in which any overall settlement requires judicial approval. He declined to say what the company would do if the parties are ordered to change the agreement.

Lawyers who agreed to the deal say they had good reason to accept the requirement. As a practical matter, plaintiffs will not be well served by bringing cases to court, given Merck’s strong record, says Chris Seeger, a plaintiffs’ lawyer who was on the negotiating committee that helped devise the deal. “We’ve tried 18 of these cases and these plaintiffs have lost of most of them,” he told the paper.

Source: The New York Times