Settlement (litigation)
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In law, asettlementis a resolution between disputing parties about alegal case,reached either before or after court action begins. Acollective settlementis a settlement of multiple similar legal cases.[1]The term also has other meanings in the context of law.Structured settlementsprovide for future periodic payments, instead of a one time cash payment.
Basis
[edit]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 incivilproceedings.Theplaintiffsand defendants identified in thelawsuitcan end the dispute between themselves without atrial.[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 jointstipulationby 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 asettlement offerearly in litigation. The parties may hold (and indeed, the court may require) asettlement 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 theTobacco Master Settlement Agreementbetween the attorneys general of 46 U.S. states and the four major U.S. tobacco companies in 1999.[5]Another example is within theGlobal Analyst Research Settlements.
Specific jurisdictions
[edit]United States
[edit]Usually, lawsuits end in a settlement, with an empirical analysis finding that less than 2% of cases end with a trial, 90% oftortssettle, and around 50% of other civil cases settle.[6]In American law, settlement agreements are normally privatecontracts,not court orders, except forconsent decrees,which are relatively uncommon in the United States.
Negotiations
[edit]Under Federal Rule of Evidence 408, settlement negotiations cannot usually be introduced as evidence at trial,[7]and many state rules of evidence have similar rules modeled after it.[8]
Confidentiality
[edit]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 inclass actioncases in the United States, where all settlements are subject to approval by the court pursuant to Rule 23 of theFederal Rules of Civil Procedureand counterpart rules adopted in most states.
In some cases, confidential settlements are requested in discovery. Federal courts can issueprotective orderspreventing the release, but the party seeking to prevent disclosure must show that harm or prejudice would result from the disclosure.[9]In specific states such as California, however the burden is on the party seeking release of the confidential settlement.[9]
Limitations
[edit]The confidentiality of settlements is controversial as it allows damaging actions to remain secret, as occurred in theCatholic sexual abuse scandal.[10]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.[11]Washington State,Texas,Arkansas,andLouisianahave laws limiting confidentiality as well, although judicial interpretation has weakened the application of these types of laws.[12]In the U.S. Congress, a similar federal Sunshine in Litigation Act has been proposed but not passed in 2009, 2011, 2014, and 2015.[13]Confidentiality agreements which keep secrets from regulators about violations is probably unenforceable, but a specific carveout granting regulators access is usually not included.[11]
England and Wales
[edit]InEngland 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 aconsent 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 aTomlin Orderis entered into. The order itself contains an agreement that the claim isstayedand 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
[edit]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
[edit]References
[edit]- ^Erichson, Howard M. (2010–2011)."Uncertainty and the Advantage of Collective Settlement".DePaul Law Review.60:627.Archivedfrom the original on 21 September 2021.Retrieved21 September2021.
- ^"settlement (law)".Encyclopaedia Britannica.Archivedfrom the original on 6 October 2014.Retrieved23 April2014.
- ^Weier, Steven (27 April 2020)."Negotiation & Settlement: What You Need To Know".Weier Law.Archivedfrom the original on 25 October 2020.Retrieved18 September2020.
- ^"questions.com".Archivedfrom the original on 16 June 2021.Retrieved19 April2016.
- ^Global Settlement of Tobacco Litigation: Hearing Before the Commerce,Science,and Transportation, U.S. Senate(U.S. Government Printing Office, 1997)
- ^Barkai, John; Kent, Elizabeth (1 January 2014). "Let's Stop Spreading Rumors About Settlement and Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts". Rochester, NY: Social Science Research Network.SSRN2398550.
{{cite journal}}:Cite journal requires|journal=(help) - ^"Admissibility of Settlement-Related Evidence at Trial".apps.americanbar.org.Archivedfrom the original on 14 March 2016.Retrieved21 March2016.
- ^"THE SETTLEMENT PRIVILEGE: FACT OR FICTION?"(PDF).Ethics & Privilege. Archived fromthe original(PDF)on 3 April 2016.
- ^ab"Confidential Settlement Agreements: To Produce Or Not To Produce?".Archivedfrom the original on 20 March 2016.Retrieved20 March2016.
- ^Goodstein, Laurie (27 June 2002)."Albany Diocese Settled Abuse Case for Almost $1 Million".The New York Times.ISSN0362-4331.Archivedfrom the original on 1 April 2016.Retrieved21 March2016.
- ^ab"Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice".americanbar.org.Retrieved20 March2016.
- ^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.JSTOR25047592.Retrieved20 March2016.
- ^Fan, Mary D. (18 September 2015). "Private Data, Public Safety: A Bounded Access Model of Disclosure". Rochester, NY: Social Science Research Network.SSRN2662678.
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