February 15, 2008

Little is docketed for argument Thursday's hearing, the last before the February 29 enrollment deadline, where most Vioxx plaintiffs are expected to enroll in the settlement. No surprise, as predicted, Merck has objected in Docket No. 13379 to the Florida plaintiffs' motion to expand the settlement:

First, the Settlement Agreement is a private agreement entered into by the parties. Therefore, the Court is without authority to bind any parties to modified terms - essentially creating a different agreement from the one reached by the parties.
Second, the language of the Settlement Agreement does not, as plaintiffs contend, allow for the type of substantial modification plaintiffs seek. Rather, the Settlement Agreement merely provides that the Court may make minor changes where a modification would allow the provision in question to be enforceable in some form, which is certainly not the case here. ...

The Settlement Agreement is a private agreement between two parties - the NPC and Merck. This is not a class action settlement that requires Court approval; rather, it is a private agreement between parties. Courts do not have the power to unilaterally modify the terms of private settlement agreements, especially those outside of the class action context that do not require court approval. See Evans v. Jeff D., 475 U.S. 717, 726 (1986) ("the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed"); In re Air Crash Disaster at JFK Int'l Airport, 687 F.2d 626, 629 (2d Cir. 1982) ("[i]t is beyond a district judge's discretion to alter the terms of or refuse to enforce a settlement agreement, absent special circumstances, such as a material breach of the agreement . . . or duress"); In re S. Oil Correctional Facility v. Tate, 191 F.3d 453, No. 97-4491, 1999 WL 775830 (6th Cir. Ohio Sept. 24, 1999).