Settlement Agreement
Liquidated Damages in Settlement Agreement Are Unenforceable Penalty in California, If Not Related to Actual Loss Suffered
May 19, 2014
A liquidated damages clause requiring payment of the entire $85,000 in dispute, which was settled in an agreement requiring payment of only $38,000, was held by a California appellate court to be an unenforceable penalty as there was no reasonable relationship to the damages actually suffered by the failure to make a timely payment of the settlement amount, notwithstanding an express waiver of any challenges to the liquidated damages in the settlement. Purcell v. Schweitzer, No. D063435 (Cal....
May 19, 2014
A liquidated damages clause requiring payment of the entire $85,000 in dispute, which was settled in an agreement requiring payment of only $38,000, was held by a California appellate court to be an unenforceable penalty as there was no reasonable relationship to the damages actually suffered by the failure to make a timely payment of the settlement amount, notwithstanding an express waiver of any challenges to the liquidated damages in the settlement. Purcell v. Schweitzer, No. D063435 (Cal....
After Agreeing to Mediators’ Proposal, Party Bound by Silence on Settlement Agreement
March 27, 2014
A fee-splitting dispute among some fifty law firms was resolved at the end of a difficult mediation when all parties finally accepted the mediators’ proposal for dividing fees. When the settlement agreement was drafted, however, one lawyer tweaked the terms and then was silent as the agreement moved forward and was signed by all other parties. Applying Illinois law, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s conclusion that based on the parties’ long course...
March 27, 2014
A fee-splitting dispute among some fifty law firms was resolved at the end of a difficult mediation when all parties finally accepted the mediators’ proposal for dividing fees. When the settlement agreement was drafted, however, one lawyer tweaked the terms and then was silent as the agreement moved forward and was signed by all other parties. Applying Illinois law, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s conclusion that based on the parties’ long course...
$85K Agreed Judgment Securing $38K Mediated Settlement Held Unenforceable Penalty
March 25, 2014
Michael Schweitzer gave a promissory note to Lennox Purcell in the amount of $85,000. When Schweitzer defaulted on the note, Lennox filed suit to recover the money he was owed. The parties signed a settlement agreement, according to which Schweitzer agreed to pay Purcell $38,000, along with interest at a rate of 8.5 percent over 24 months. The settlement agreement also stated that Schweitzer had to make the monthly payments at the beginning of each month, and that a late payment constituted...
March 25, 2014
Michael Schweitzer gave a promissory note to Lennox Purcell in the amount of $85,000. When Schweitzer defaulted on the note, Lennox filed suit to recover the money he was owed. The parties signed a settlement agreement, according to which Schweitzer agreed to pay Purcell $38,000, along with interest at a rate of 8.5 percent over 24 months. The settlement agreement also stated that Schweitzer had to make the monthly payments at the beginning of each month, and that a late payment constituted...
“Suck it” for $80,000 Alex
March 22, 2014
News reports from Florida tell us that confidentiality clauses in settlement agreements are enforceable. From the opinion in Gulliver Schools, Inc. v. Snay, which can be found here. And, a tip of the cap to Lowering the Bar ————————– On November 3, 2011, the parties executed a general release and a settlement agreement for full and final settlement of Snay’s claims, with the school to pay $10,000 in back pay to Snay with “Check # 1”; $80,000 to Snay as a “1099”...
March 22, 2014
News reports from Florida tell us that confidentiality clauses in settlement agreements are enforceable. From the opinion in Gulliver Schools, Inc. v. Snay, which can be found here. And, a tip of the cap to Lowering the Bar ————————– On November 3, 2011, the parties executed a general release and a settlement agreement for full and final settlement of Snay’s claims, with the school to pay $10,000 in back pay to Snay with “Check # 1”; $80,000 to Snay as a “1099”...
Fifth Circuit Summary of BP Decision Holding Settlement Did Not Violate Article III
March 17, 2014
In the latest round of appeals in the Deepwater Horizon settlement, the Fifth Circuit issues three opinions, but a panel majority affirms the District Court's conclusion that the language of the Settlement Agreement does not require extrinsic inquiry into causation and that the Settlement Agreement has not violated Article III, Rule 23, or the Rules Enabling Act by eschewing the need for evidence of causation. On Appeal from the United States District Court for the Eastern District of Louisiana...
March 17, 2014
In the latest round of appeals in the Deepwater Horizon settlement, the Fifth Circuit issues three opinions, but a panel majority affirms the District Court's conclusion that the language of the Settlement Agreement does not require extrinsic inquiry into causation and that the Settlement Agreement has not violated Article III, Rule 23, or the Rules Enabling Act by eschewing the need for evidence of causation. On Appeal from the United States District Court for the Eastern District of Louisiana...
Oral Settlement Agreement Not Enforceable Due to Disagreement over Material Term
January 23, 2014
While the parties agreed that an oral settlement agreement had been reached in mediation, a Delaware court refused to enforce it because of disagreement over the scope of the release, which the court concluded was a material term. Mediation confidentiality was waived by the parties relying on mediation communications. However, statements of the mediator during the mediation were generally excluded as hearsay because the court found no applicable hearsay exception. United Health Alliance v. United...
January 23, 2014
While the parties agreed that an oral settlement agreement had been reached in mediation, a Delaware court refused to enforce it because of disagreement over the scope of the release, which the court concluded was a material term. Mediation confidentiality was waived by the parties relying on mediation communications. However, statements of the mediator during the mediation were generally excluded as hearsay because the court found no applicable hearsay exception. United Health Alliance v. United...
Settlement Agreements Rarely Against Public Policy
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
May Mediated Settlement Agreements Bypass a Child’s Best Interests?
November 9, 2013
May a family court in Texas legally refuse to enter judgment on a mediated settlement agreement because the agreement is not in the best interest of the child? This cutting edge webcast will explore what results when two strong public policies collide (protection of children versus preference for alternative dispute resolution). We will explore what you need to include in your mediated settlement agreements to improve the chances that judgment will be entered on them. Find out what tools Texas...
November 9, 2013
May a family court in Texas legally refuse to enter judgment on a mediated settlement agreement because the agreement is not in the best interest of the child? This cutting edge webcast will explore what results when two strong public policies collide (protection of children versus preference for alternative dispute resolution). We will explore what you need to include in your mediated settlement agreements to improve the chances that judgment will be entered on them. Find out what tools Texas...
Disqualifying Post-Med-Arb-Med Conduct by Neutral Does Not Unwind Signed Settlement Agreement
October 8, 2013
The monitoring and regulation of mediators and arbitrators is a haphazard business in the United States. It is often said that “mediation is not the practice of law”—despite how often mediators are asked to help parties navigate contentious and confusing legal issues—so many states, such as Colorado, do not regulate the conduct of neutrals, even for court-annexed mediation. This is a convenient determination for the neutrals as it avoids the credentialing and regulatory schemes routinely...
October 8, 2013
The monitoring and regulation of mediators and arbitrators is a haphazard business in the United States. It is often said that “mediation is not the practice of law”—despite how often mediators are asked to help parties navigate contentious and confusing legal issues—so many states, such as Colorado, do not regulate the conduct of neutrals, even for court-annexed mediation. This is a convenient determination for the neutrals as it avoids the credentialing and regulatory schemes routinely...
Appellate Court Remands for Determination of Whether There Was a Meeting of the Minds in Mediation
September 24, 2013
An appellate court remanded a dispute over an annuity for determination of whether there had been a meeting of the minds in the mediation where the written settlement agreement did not clearly state all the terms and the insurance company provided one number for the value of the annuity during the mediation and a much larger number afterwards. National Western Life Insurance Co. v. Dunn, No. 2011-CA-01515-COA (Miss. App., July 16, 2013).
September 24, 2013
An appellate court remanded a dispute over an annuity for determination of whether there had been a meeting of the minds in the mediation where the written settlement agreement did not clearly state all the terms and the insurance company provided one number for the value of the annuity during the mediation and a much larger number afterwards. National Western Life Insurance Co. v. Dunn, No. 2011-CA-01515-COA (Miss. App., July 16, 2013).
