Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment

59 Pages Posted: 2 Feb 2004 Last revised: 4 May 2010

Date Written: March 1, 2004


The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies.

Class action is commonly thought to exacerbate the nuisance-value settlement problem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit.

This article proposes mandatory summary judgment (MSJ) as a solution to the problem of nuisance-value settlement in class actions and in civil litigation generally. Essentially, MSJ denies judicial enforceability to any settlement agreement entered into before the nuisance-value claim or defense has been submitted for merits review on a motion for summary judgment or other standard dispositive motion. Assessing the potential costs of the MSJ solution, we conclude that neither the opportunity for evading MSJ strictures nor the possibility of adding expenses to the settlement of non-nuisance-value litigation outweighs the benefits of MSJ. MSJ will be most cost-effective in the class action context, given the already existing general requirements of judicial review and approval of class action settlements, but MSJ should also prove beneficial in preempting nuisance-value strategies outside of class actions in the standard separate action context.

With the MSJ solution set out, the article moves finally to offering a more exhaustive analysis of the theoretical soundness and practical efficacy of MSJ in the class action context, where its marginal benefits are arguable the greatest. First, the article challenges the commonly held belief that class action certification exacerbates the nuisance-value settlement problem, attempting to displace the conventional understanding of complex litigation with a new conceptual framework based on the recharacterization of the class action as part of a continuum of litigation processes rather than an isolated litigation mechanism. Second, the article provides a comparative analysis of MSJ and PCMR as solutions to the nuisance-value problems that do exist in the class action context, concluding that MSJ presents the superior and more cost-effective option.

JEL Classification: K00, K13, K41

Suggested Citation

Rosenberg, Michael and Kozel, Randy J., Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment (March 1, 2004). Virginia Law Review, Vol. 90, p. 1849, 2004, Available at SSRN: or

Michael Rosenberg (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-496-4558 (Phone)
617-495-1110 (Fax)

Randy J. Kozel

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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