Judicial Supervision of Attorney Fees in Aggregate Litigation: The American Vioxx Experience as Example for Other Countries

13 Pages Posted: 26 May 2009

Date Written: May 20, 2009

Abstract

The American legal system has much stronger procedural devices for aggregating like cases -- such as consolidation and class actions -- than do other countries. Other countries have eyed the American approach to "aggregate litigation" with both interest and suspicion. There is recognition that the traditional single-party model of adjudication is not well-suited to situations today when the claims of many individuals arise from the same basic conduct of a defendant, whether it involve defective products, environmental hazards, or wrongful business conduct. But other countries have been troubled by what they consider to be the excesses of American class actions and "entrepreneurial litigation." Nevertheless experimentation with aggregate procedures has quickened in other countries, and the U.S. is no longer alone in allowing class, representative, or group litigation, or in consolidating similar litigation.

Aggregate litigation invariably impacts the individual attorney-client relationship. What was understood as to the attorney's responsibilities may be altered as aggregate committees of attorney consortia assume principal roles in the litigation. Nevertheless, in consolidated cases the individual attorney-client relationship remains, with attorneys continuing to perform services on behalf of their individual clients. Conflicts as to fees between attorneys who have fulfilled different functions have arisen, and courts are having to determine how much supervisory authority they can and should exercise. The experience of the Vioxx consolidated multi-district litigation case, with its unique global settlement extending across jurisdictional lines and its order capping contingent fees at 32%, provides a crucible for testing the parameters of judicial supervision in aggregate litigation. The growing experience of American courts in dealing with these issues should be of interest to other countries as they move towards greater aggregate litigation.

Keywords: attorney fees, aggregate litigation

JEL Classification: K41

Suggested Citation

Sherman, Edward F., Judicial Supervision of Attorney Fees in Aggregate Litigation: The American Vioxx Experience as Example for Other Countries (May 20, 2009). Tulane Public Law Research Paper No. 09-07. Available at SSRN: https://ssrn.com/abstract=1407559 or http://dx.doi.org/10.2139/ssrn.1407559

Edward F. Sherman (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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