Settlement (litigation)

Last updated

In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. A collective settlement is a settlement of multiple similar legal cases. [1] The term also has other meanings in the context of law. Structured settlements provide for future periodic payments, instead of a one time cash payment.

Contents

Basis

A settlement, as well as dealing with the dispute between the parties is a contract between those parties, and is one possible (and common) result when parties sue (or contemplate so doing) each other in civil proceedings. The plaintiffs and defendants identified in the lawsuit can end the dispute between themselves without a trial. [2]

The contract is based upon the bargain that a party forgoes its ability to sue (if it has not sued already), or to continue with the claim (if the plaintiff has sued), in return for the certainty written into the settlement. The courts will enforce the settlement. If it is breached, the party in default could be sued for breach of that contract. In some jurisdictions, the party in default could also face the original action being restored.

The settlement of the lawsuit defines legal requirements of the parties and is often put in force by an order of the court after a joint stipulation by the parties. In other situations (as where the claims have been satisfied by the payment of a certain sum of money), the plaintiff and defendant can simply file a notice that the case has been dismissed. [3]

The majority of cases are decided by a settlement. Both sides (regardless of relative monetary resources) often have a strong incentive to settle to avoid the costs (such as legal fees, finding expert witnesses, etc.), the time and the stress associated with a trial, particularly where a trial by jury is available. Generally, one side or the other will make a settlement offer early in litigation. The parties may hold (and indeed, the court may require) a settlement conference, at which they attempt to reach such a settlement.

In controversial cases, it may be written into a settlement that both sides keep its contents and all other information relevant to the case confidential or that one of the parties (usually the one being sued) does not, by agreeing to the settlement, admit to any fault or wrongdoing in the underlying issue.

A "global settlement" is one employed where suits have been filed or charges brought in multiple jurisdictions and is defined as "a legal agreement that addresses or compromises both civil claims and criminal charges against a corporation or other large entity". [4] Examples of a global settlement include the Tobacco Master Settlement Agreement between the attorneys general of 46 U.S. states and the four major U.S. tobacco companies in 1999. [5] Another example is within the Global Analyst Research Settlements.

Specific jurisdictions

United States

Usually, lawsuits end in a settlement, with an empirical analysis finding that less than 2% of cases end with a trial, 90% of torts settle, and around 50% of other civil cases settle. [6] In American law, settlement agreements are normally private contracts, not court orders, except for consent decrees, which are relatively uncommon in the United States. [7]

Confidentiality

Most settlements are confidential. In these cases, the court order may refer to another document which is not disclosed, but which may be revealed to prove a breach of the settlement. Confidentiality is not possible in class action cases in the United States, where all settlements are subject to approval by the court pursuant to Rule 23 of the Federal Rules of Civil Procedure and counterpart rules adopted in most states.

In some cases, confidential settlements are requested in discovery. Federal courts can issue protective orders preventing the release, but the party seeking to prevent disclosure must show that harm or prejudice would result from the disclosure. [7] In specific states such as California, however the burden is on the party seeking release of the confidential settlement. [7]

Limitations

The confidentiality of settlements is controversial as it allows damaging actions to remain secret, as occurred in the Catholic sexual abuse scandal. [8] In response, some states have passed laws which limit confidentiality. For example, in 1990 Florida passed a 'Sunshine in Litigation' law which limits confidentiality from concealing public hazards. [9] Washington State, Texas, Arkansas, and Louisiana have laws limiting confidentiality as well, although judicial interpretation has weakened the application of these types of laws. [10] In the U.S. Congress, a similar federal Sunshine in Litigation Act has been proposed but not passed in 2009, 2011, 2014, and 2015. [11] Confidentiality agreements which keep secrets from regulators about violations is probably unenforceable, but a specific carveout granting regulators access is usually not included. [9]

England and Wales

In England and Wales, if the matter is already before the courts, except in a case where the claim is to be dismissed outright and the Claimant agrees to pay the Defendant's costs, the matter is usually dealt with by a consent order, signed by the legal representatives of both parties and approved by the judge.

To get around the issue of confidentiality referred to above, a standard procedure consent order, known as a Tomlin Order is entered into. The order itself contains an agreement that the claim is stayed and no further action can be taken in court (except for referring a dispute in the implementation of the order to court, which is allowed). The order also deals with payment of costs, and payments of money out of court if any money is held by the court (as these are matters which must be dealt with by Court Order). However, the actual terms of the settlement are dealt with in a 'schedule' to the order, which can remain confidential. Breach of the schedule can be dealt with as breach of contract, or breach of the consent order.

Israel

In Israel, which is a common law jurisdiction, settlements almost always are submitted to the court, for two reasons: (a) only by submitting the settlement to the court can the litigants control whether the court will order one or more parties to pay costs, and (b) the plaintiff (claimant) usually prefers for the settlement to be given the effect of a judgment.

See also

Related Research Articles

A class action, also known as a class action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action originated in the United States and is still predominantly an American phenomenon, but Canada, as well as several European countries with civil law, have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.

<span class="mw-page-title-main">Mediation</span> Dispute resolution with assistance of a moderator

Mediation is a negotiation facilitated by a third-party neutral. It is a structured, interactive process where an impartial third party, the mediator, assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.

<span class="mw-page-title-main">Non-disclosure agreement</span> Contractual agreement not to disclose specified information

A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement (SA), is a legal contract or part of a contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to. Doctor–patient confidentiality, attorney–client privilege, priest–penitent privilege and bank–client confidentiality agreements are examples of NDAs, which are often not enshrined in a written contract between the parties.

A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

New York divorce law changed on August 15, 2010, when Governor David Paterson signed no-fault divorce into law in New York state. Until 2010, New York recognized divorces only upon fault-based criteria or upon separation. The State Senate approved the No-Fault Divorce bill on June 30, and the State Assembly passed the bill on July 1.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

In English civil litigation, costs are the lawyers' fees and disbursements of the parties.

Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information.

<i>Quantum meruit</i> Latin Phrase

Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

<span class="mw-page-title-main">Forum selection clause</span> Contract clause which requires disputes to be resolved in a given manner or court

In contract law, a forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.

In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and occurs if the issues or parties involved overlap sufficiently to make the process more efficient or fairer. That helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement.

An adequate remedy or adequate remedy at law is part of a legal remedy which the court deems satisfactory, without recourse to an equitable remedy. This consideration expresses to the court whether money should be awarded or a court order should be decreed. "Adequate remedy at law" refers to the sufficient compensation for the loss or damages caused by the defendant with a proper monetary award. The court must grant the adequacy of remedy that will lead to a "meaningful hearing". Whether legal damages or equitable relief are requested depends largely on,whether or not the remedy can be valued. Both two elements, compensation and the meaningfulness of hearing, provide a proper way to have an adequate remedy. The word "meaningfulness" of hearing in the law process is the assumption that the defendant compensated must be meaningful for the injured party where the defendant made a fully covered compensation for all the losses. Hence, the hearing in which cannot give any right amount of compensation award or settlement is not "meaningful", and the unavailability of the compensation will lead to an inadequate remedy. The adequate remedy at law is the legal remedies by meaning it is satisfactory compensation by way of monetary damages without granting equitable remedies.

<span class="mw-page-title-main">Arbitration</span> Method of dispute resolution

Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision. The third party neutral renders the decision in the form of an 'arbitration award'. An arbitration award is legally binding on both sides and enforceable in local courts, unless all parties stipulate that the arbitration process and decision are non-binding.

<i>Attorney General v Blake</i> English contract law case on damages for breach of contract

Attorney General v Blake[2000] UKHL 45, [2001] 1 AC 268 is a leading English contract law case on damages for breach of contract. It established that in some circumstances, where ordinary remedies are inadequate, restitutionary damages may be awarded.

<span class="mw-page-title-main">Legal financing</span>

Legal financing is the mechanism or process through which litigants can finance their litigation or other legal costs through a third party funding company.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

<i>In re Zappos.com, Inc., Customer Data Security Breach Litigation</i>

In re Zappos.com, Inc., Customer Data Security Breach Litigation, 893 F. Supp. 2d 1058, was a United States District Court for the District of Nevada case in which the Court held that Zappos.com's customers were not held to the browsewrap terms of use because of their obscure nature. The courts also held that the agreement was unenforceable because Zappos had reserved the right to change it at any time without informing the customers. This court decision set a precedent for businesses that use browsewrap agreements and/or include a clause in their agreements that allow them to change the agreements at any time. The decision encouraged conversation on how a business should most fairly display its terms of use and how to avoid unfairness and ambiguity when writing them.

<i>Attorney General v Jonathan Cape Ltd</i>

Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484 is a UK constitutional law case, concerning the rule of law.

Reid Collins & Tsai LLP is a national trial law firm with offices in New York, Austin, Dallas, Wilmington, and Washington, D.C. The firm represents plaintiffs in complex commercial litigation on a mixed-fee or contingency-fee basis.

References

  1. ↑ Erichson, Howard M. (2010–2011). "Uncertainty and the Advantage of Collective Settlement". DePaul Law Review. 60: 627. Archived from the original on 21 September 2021. Retrieved 21 September 2021.
  2. ↑ "settlement (law)". Encyclopaedia Britannica. Archived from the original on 6 October 2014. Retrieved 23 April 2014.
  3. ↑ Weier, Steven (27 April 2020). "Negotiation & Settlement: What You Need To Know". Weier Law. Archived from the original on 25 October 2020. Retrieved 18 September 2020.
  4. ↑ "questions.com". Archived from the original on 16 June 2021. Retrieved 19 April 2016.
  5. ↑ Global Settlement of Tobacco Litigation: Hearing Before the Commerce, Science, and Transportation, U.S. Senate (U.S. Government Printing Office, 1997)
  6. ↑ Barkai, John; Kent, Elizabeth (22 February 2014). "Let's Stop Spreading Rumors About Settlement and Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts". Ohio State Journal on Dispute Resolution. 29. Rochester, NY: Social Science Research Network: 85–160. SSRN   2398550.
  7. 1 2 3 "Confidential Settlement Agreements: To Produce Or Not To Produce?". Archived from the original on 20 March 2016. Retrieved 20 March 2016.
  8. ↑ Goodstein, Laurie (27 June 2002). "Albany Diocese Settled Abuse Case for Almost $1 Million". The New York Times. ISSN   0362-4331. Archived from the original on 1 April 2016. Retrieved 21 March 2016.
  9. 1 2 "Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice". americanbar.org. Retrieved 20 March 2016.
  10. ↑ Lothes, Alison (December 2005). ""Quality, Not Quantity: An Analysis of Confidential Settlements and Lit" by Alison Lothes". University of Pennsylvania Law Review. 154 (2): 433. doi:10.2307/25047592. JSTOR   25047592 . Retrieved 20 March 2016.
  11. ↑ Fan, Mary D. (18 September 2015). "Private Data, Public Safety: A Bounded Access Model of Disclosure". Rochester, NY: Social Science Research Network. SSRN   2662678.{{cite journal}}: Cite journal requires |journal= (help)
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.