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Unstoppable zombie yielding only to the lethal force of dispositive Court action

April 25, 2012

In 2009, a proposed class action against Merck, based on ERISA claims surrounding Vioxx valuation, the Federal Court Judge made a fascinating “zombie” remark that explains a kind of zombie jurisprudential theory or zombie judicial philosophy.

IN RE MERCK & CO., INC. SECURITIES, DERIVATIVE & “ERISA” LITIGATION; THIS DOCUMENT RELATES TO: THE CONSOLIDATED ERISA ACTION
MDL No. 1658 (SRC),Civil Action No. 05-1151 (SRC),Civil Action No. 05-2369 (SRC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
2009 U.S. Dist. LEXIS 10243; 46 Employee Benefits Cas. (BNA) 1102
Decided February 9, 2009

ERISA litigation, class action, stock derivatives, valuation of failed medication, – it’s all so complicated. And though this opinion is written in 2009 when derivatives and valuations started making headline news, these facts are from 2004 and predate the financial crisis. And who cares about all that, let’s get to the zombie –

Basically, all you need to know is that the plaintiff is arguing some statutory something about being a typical representative of the proposed class and Judge Stanley R. Chesler writing the opinion disagrees with one of their arguments stating:

if this Court accepted Plaintiffs’ argument, Plaintiffs could initiate the action but could not settle it.

And then kicker:

This would turn this case into an unstoppable zombie, yielding only to the lethal force of dispositive Court action

I love that quote.

Why would a case that could not settle be a zombie? I might have thought that kind of case to be the livest case of all. Except perhaps if we consider the law itself dead (?). Note also that, for Chesler, a Court disposition is a “lethal force”. Still I’m not sure I understand this metaphor. A legal challenge that can’t settle is a zombie-monster that the Court must slay? That seems a good explanation of a problem-solving perspective of jurisprudence – applying law to resolve disputes.

But if we take a more negative dialectic approach, then the law is not there to resolve disputes. All that exist is dead texts about past disputes and a zombie judge. The judge creates law and yet must act as if he is non-creative. Judicial creativity is akin to judicial activism. And so the law hopes the parties will resolve it themselves. This pressure to settle is how the law is maintained. Only if they absolutely will not settle then the Court will be forced to intervene at great risk to both sides.

So Judge Chesler is willing to certify part of the proposed class but plaintiff’s proposal is overbroad and must be restricted to a class of claims they are empowered to settle.

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