What is Aggravated Settlement?

Okay Aggravated stands for Aggregate settlement.

What does it mean if you are asked to sign an aggregate settlement? I’ve been asked that question and women have asked me to research this and find out. I finally have something to share with you. However it is long so I am not going to include everything, just something you can read and consider. Is signing this a good deal for you? Well I don’t know and cannot decide for you but I am going to include the most important parts to help you understand. Then you can ask your lawyer more questions.

Can my lawyer drop me if I don’t sign? You can fire your lawyer with good cause or he can fire you, but there is a lot of paperwork involved and just saying it doesn’t make it so. Specific paperwork must be filed at the court where your case has been filed and if you are one of a hundred women who are refusing to sign this, then your lawyer has to file one hundred of these to release you all. You will not be released until the paperwork is signed and when I can I will try to find out more to give you. Even if you part ways he/she is still entitled to their part of the agreement money. If you find a lawyer once you’ve been dropped please double check that no more money will be taken out of your share. I advise getting everything in writing.

Update; I was searching for the right information and I finally have it so that you understand what our lawyers are supposed to do.

Rule 1.8(g) therefore imposes two requirements on lawyers representing multiple clients. The first is that the terms of the settlement agreement must be disclosed to each client. The second is that after the terms of the settlement are known, each client must agree to the settlement.

Rule 1.8(g) therefore imposes two requirements on lawyers representing multiple clients.  The first is that the terms of the settlement agreement must be disclosed to each client.  The second is that after the terms of the settlement are known, each client must agree to the settlement.

If it looks likely that parties will reach an aggregate settlement, plaintiffs’ counsel should send all clients an initial letter seeking consent to negotiate an aggregate settlement agreement. By keeping clients informed of the process and obtaining their consent at this early stage, any concerns raised by clients can be incorporated early into the settlement process. Clients are thus given time to consider the possibility of an aggregate settlement and will not be surprised after terms are worked out.

So if you have any concerns and are wondering how much you will get, talk to your lawyer. Not signing when you receive the client agreement, will not stop your case from continuing, and you will receive a notice later with exactly what you are being offered. This is where it states what is SUPPOSED to happen and you can read all of it here and then question your lawyer until you completely understand what you are doing. This is the full article explaining it.

Now to help you understand here is something else you can read first.

WHAT IS AGGREGATE LITIGATION

A. A Basic Definition:

Aggregate litigation occurs whenever any two or more clients consent to have their matters resolved together.

All aggregate litigation brings together the interests of multiple persons. While not the focus of this seminar, this basic definition naturally includes the “class action” as set forth under Federal Rule 23.1

B. Litigation Matters Best Suited to Aggregate Litigation:

With the rare exception, pharmaceutical litigation or defective products cases will not pass muster under Section 23(b)(3) of the Rule. To satisfy this requirement of the Rule and receive class certification, a plaintiff must show that common questions of fact or law predominate over individual questions and that class treatment is superior to other available methods of adjudication. For these reasons, the mass-tort and the accompanying aggregate settlement may be the preferred judicial tool for these types of cases.

C. Increasing Number of Aggregate Proceedings

The past few years have evidenced a rise in the number of non-class aggregate proceedings. The American Law Institute in its comprehensive undertaking of aggregate litigation surmised that the growth in the number of non class aggregate proceedings may be due to the ability of lawyers to solicit large numbers of clients with related claims and the creation of communication networks connecting attorneys. 2 The ALI also notes that the class action as a means of resolving as a means of resolving mass-tort claims arising from personal injuries has fallen into disfavor. It cites the difficulties presented by choice -of- law problems and the need for individual evidence of exposure, injury and damages among the reasons for its decline in use.3

D. How Plaintiffs are Brought Together

Again, aggregate litigation occurs whenever any two or more clients consent to have their matters resolved together. In an aggregate proceeding, plaintiffs may be brought together under joinder rules4, consolidation rules 5 or multidistrict litigation transfer and coordinated handling under Rule 14076.

Then I found this for you to read and because many of you are on phones, I have down loaded enough for you to begin reading and have given you the link to read it all.

Matthew L. Garretson

2651 Observatory Ave Cincinnati, Ohio 45208

513-300-9867 MGarretson@LMGAsettlements.com

A Practical Approach To Avoiding

Aggregate Settlement Conflicts

(As Well as Managing and Satisfying the Problem-Solving

Expectations of Individual Mass Tort Clients)

Matthew L. Garretson

1

Perspectives on Mass Tort Settlements

Undeniably, mass torts offer clients many benefits, including access to a team of the nation’s top legal talent, reduced per capita litigation expenses and increased leverage when taking on negligent corporate giants. The results speak for themselves – The playing field has been leveled. Despite the remarkable parity mass tort lawyers have brought to our civil justice system, pundits criticize mass tort lawyers, claiming the interests of individual clients are compromised and neglected in pursuit of huge legal fees. Many commentators believe victims are treated like mere inventory and are not adequately involved in the litigation power of aggregation. Common sense dictates that lawyers collectively representing hundreds or thousands of clients cannot have the same interpersonal relationship with clients as they would have in the traditional one-client, one-lawyer model.

2

This is not to say, however, that mass tort lawyers should not take proactive steps to match advocacy with expectations and provide multiple clients the same level of satisfaction as the one-client, one-lawyer © 2004 Matt Garretson – The Garretson Law Firm,

LLC

2 model. Based upon this author’s experience as special master and / or settlement administrator in numerous cases, mass tort lawyers can accomplish this objective by embracing the simple fact that all clients seek out a lawyer because they need help solving problems.

Some problems are economic while others are non-economic, such as the desired form-of-resolution and an acknowledgement of the client’s suffering as well as the defendant’s wrongdoing.

Mass tort clients, just like individually represented clients, want a trusted advisor with whom they can talk about all their problems. Mass tort practitioners with a keen awareness of this fact understand that at the same time they deploy their talents to reach resolution for the group as a whole they must also marshal additional resources to manage and satisfy the individual client’s “problem solving” expectations. All this, with the appreciation that at some point the expense associated with individualized client counseling can defeat the cost-savings / economies-of-scale leverage associated with mass tort.

The first step toward understanding the issues associated with settling multiple claimant cases is to examine the environment in which these cases are negotiated. In most every mass tort, the defendant approaches plaintiffs’ lawyers to discuss the settlement of an inventory of cases.

4

While this subject might be broached in various terms, the underlying message is the same – ”

How much will it cost us to get out of all of these cases?

” Complicating matters is the fact that defendants often condition their willingness to settle on high rates of participation by all plaintiffs, immediately creating leverage-based conflicts between clients with lower value claims (who can block a deal) and those with higher value claims.

Rationally speaking, these issues are not insurmountable. The current professional responsibility rules regarding conflicts of interest and settlements, however, predate mass torts and were not drafted with an eye toward addressing these unique mass tort issues. As a result, current professional responsibility regulations – built around the one-client, one-lawyer model – provide awkward direction to the mass tort lawyer.

5

The attorney must proceed in the face of certain inherent conflicts and client-counseling limitations, with little practical guidance on how to deliver the benefit of the mass tort mechanism without unintentionally running afoul with the letter of the Model Rules.

6

If clients are going to continue to benefit from aggregate representation when confronting negligent corporate giants, then arguably the Model Rules are in need of reform with regards to conflicts of interest and aggregate settlements

.

Until such reform takes place, mass tort lawyers must abide by these Rules in order to avoid legal malpractice exposure to those few clients that, rightly or wrongly, later suffer from “settler’s remorse”.

It is the intent of this article to provide the mass tort practitioner with a practical approach to avoiding aggregate settlement conflicts as well as a client-counseling model for managing and satisfying the individual client’s problem-solving expectations. These are not academic discussions – this author has successfully assisted many mass tort lawyers with applying the recommended approach to high profile, high stakes multiple client settlements. The methodology recommended below allows individuals, who are otherwise part of a group for settlement purposes, to experience “personalized” justice to a degree that is practical given the circumstances.

Read the rest here

I kept researching and then found another that may interest you.

3234

FORDHAM LAW REVIEW

[Vol. 81

I

NTRODUCTION

Following the Supreme Court decisions in

Amchem Products, Inc. v.

Windsor

1and

Ortiz v. Fibreboard Corp

.,

2 plaintiffs’ attorneys largely shifted from using class actions to resolve large numbers of personal injury

and other tort claims to using non class group litigation, 3including both formal and informal aggregations of individual claims,

4in which, unlike class actions, 5each claimant has a more-or-less traditional attorney-client relationship with the plaintiffs’ attorney.

6Although many of these claims are resolved individually—sometimes by trial and sometimes by settlement—it has become increasingly common for both plaintiffs’ and defendants’ attorneys to attempt to resolve large numbers of claims through negotiated settlements, including both a single, “global” resolution of virtually all claims7and more limited resolutions of each plaintiffs’ attorney’s “inventory” of claims. 8Neither courts, practitioners, nor scholars have focused much attention on the ethical issues confronting plaintiffs’ lawyers in the group representation

of mass tort claimants. 9To the extent that they have, however, most of their concern has been with American Bar Association (ABA) Model Rule.

2013]

BEYOND THE AGGREGATE SETTLEMENT RULE

3235

1.8(g)—the aggregate settlement rule—which provides that a lawyer representing multiple plaintiffs “shall not participate in making an aggregate settlement of the claims of . . . the client . . . unless each client gives informed consent, in a writing signed by the client.”

10They have offered various definitions of an “aggregate settlement” 11and questioned precisely what information must be disclosed in satisfaction of the rule’s requirements12

In addition, they have sometimes addressed the ethical propriety of the attempts by defense attorneys to indirectly achieve final resolution by inserting provisions in settlement agreements that prevent plaintiffs’ attorneys from taking on new clients with similar claims against the defendant.

13Such attempts raise questions concerning unethical restrictions on the right to practice,

14in violation of Model Rule 5.6(b), which prohibits a lawyer from offering or making “an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

15Most recently, ethics scholars have been preoccupied with attempts to make it easier to achieve global resolution through aggregate settlements by revising Rule 1.8(g) to permit plaintiffs to agree, in advance, to be bound by the decision of a majority or supermajority to accept the terms of an aggregate settlement.

16Courts and ethics committees have uniformly held that such advance waivers do not satisfy the current rule’s requirement that each client give consent after being informed of the particular terms of the proposed settlement.

17

Critics of this requirement argue that it i 2013]

BEYOND THE AGGREGATE SETTLEMENT RULE

3237 generally understood as a special application of general conflicts of interest rules (as well as rules specifying that it is for the client, not the lawyer, to determine whether to accept or reject a settlement), there is little understanding as to how these general conflicts of interest rules apply to plaintiffs’ lawyers prior to an aggregate settlement proposal, either at the outset of an individual representation or as the representation develops.

28At what point does a conflict of interestarise? Are any such conflicts ever non consentable, either at the beginning of a representation or as events unfold? What specific disclosures are lawyers required to make in order to assure that client consent is adequately informed? Are additional disclosures required as the representation evolves?

As for the specific issues raised by the Vioxx settlement agreement, commentators generally agree that it was improper for defense attorneys to require (and for plaintiffs’ attorneys to agree) that the plaintiffs’ attorneys would recommend the settlement to all their clients

29and would withdraw from the representation of any client who rejected the settlement.

30Even in the absence of such heavy-handed provisions, however, the question remains how plaintiffs’ attorneys can possibly exercise independent judgment in advising individual claimants whether to accept an aggregate settlement when defense attorneys require (as they are clearly permitted to do) that the settlement will be ineffective for any claimant unless all or a specified percentage of claimants agree to participate. And what if a plaintiffs’ attorney cannot afford to continue representing only a few clients—or even one—who reject the settlement and insist on going to trial?

Aside from what defense attorneys want them to do, is there no way that plaintiffs’ attorneys can protect themselves against the possibility that they will be unable to spread the costs of any ongoing representation among a large number of clients?

Read the rest here

Is any of this right? I can’t answer that and it is time to ask your lawyer more. Believe me I have been reading until I am sick of reading so will hunt for more answers tomorrow. For now I am truly aggravated.


7 Comments

  1. Anonymous

    Linda, You deserve wings for posting valuable information. I am so very down about all of this. I have 1 possibly 2 surgeries left to go and I am a broken mess. I cannot convey into words just how bad I feel. Just had surgery – in pain – and no hope of recovering the money we put out. And broke. God help us. We’ve been lied to. Those commercials blaring the millions paid out were such a disgusting LIE. Women are getting NOTHING and I was told to EXPECT a low amount. By the time the insurance steps in and gets their cut – I’ll be OWING money. God help us.

    Reply
  2. Broken

    I spoke with an attorney familiar with mesh cases who said, quote: “it is my understanding that women are only getting paid low amounts…”

    Why is everyone sitting still for this?? People get more than what’s being handed out from a car accident. WAKE UP AND SPEAK UP.

    Reply
  3. T

    I’ve not spoken to a lawyer yet because I was told point blank up front “we don’t treat patients involved in litigation”. I thought/think that’s absolutely ridiculous!! Everything is out of pocket/insurance for me. I looked up my manufacturer. They’ve already set aside an account to do payouts from what I understood from various sources. On the surface it sounds like a large sum of money; however, if you break it down by the number of women who could have this manufacturers mess it’s about $40k each. I’m not sure if I can get money from this without a lawyer, don’t know why I couldn’t, but if I use one the lawyer gets half. As my granny would say , that’s not a drop in the bucket!! Either amount. Sad & sickening. I’ve spent a year of my life (so far) in agony & pain, being treated like a pariah by the medical community, facing more surgery, etc. I’m no longer a mother or wife, & these jerks think I’m worth less than some 2 bit new car??

    Reply
  4. Broken

    I AM BESIDE MYSELF. I HAVE PERMANENT INJURIES THAT I HAVE NO IDEA HOW IN THE WORLD I’M GOING TO SURVIVE FINANCIALLY. SOME WOMEN GOT ~ MILLIONS ~ SO THE REST OF US GET THE CRUMBS FROM THE TABLE. HELL NO!

    Reply
  5. Broken

    t – I AM WHERE YOU ARE! I have permanent nerve damage, frustration from no sex, Went through 3 surgeries and need more! I was told the offer was ‘around $30,00 -$40,000 and the lawyers try ONE CASE – the lucky woman wins the jackpot, and we get NOTHING. I’ll end up on skid row. I’m keeping my house by the skin of my teeth. I worry constantly about bills and I am too battered to work! Where is justice in that??? Read this and weep: http://www.lawyersandsettlements.com/articles/ams-transvaginal-mesh/ams-transvaginal-mesh-lawsuit-lawyers-15-20711.html#.VhoLe_lVjwk

    Reply
  6. Broken

    …And the lawyers walk away with millions… what a sick set-up. We were set up from the start.

    Reply
  7. Debby Nyberg

    You all do know that you can shop your case around to other law firms…right? Use the website case intake form and state (in your own words):

    “Are you offering representation for American Medical Systems (AMS) Transvaginal Mesh MDL opt-out clients? I am currently represented by another law firm and I am awaiting a settlement offer. I am interested in speaking with someone about the pros/cons of taking my case to trial.

    I contacted four law firms using this exact language and received two responses. One offered representation, the other is staying in contact pending receipt of my settlement package.

    Reply

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