Posts Tagged ‘settlement’

New floor for nuisance settlements?

Presidential attorney and former NYC mayor Rudolph Giuliani, on the Stormy Daniels payment [ABC News reporting on-air comments]:

“I never thought $130,000 — I know this sounds funny to people there at home — I never thought $130,000 was a real payment; it’s a nuisance payment,” Giuliani said. “People don’t go away for $130,000.”

Weinstein’s investigations — and settlements

Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]

Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]

Ted Frank enters the monkey arena

Mike Masnick, TechDirt:

As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling — the one saying, clearly, that animals don’t get copyrights — should be thrown out.

It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto — the monkey — has been left out of the settlement, and thus not “all parties” have agreed. No, really.

More: CEI. Earlier here, etc.

Sessions : DoJ will stop sending settlement money to private groups

My new piece at Cato begins:

In a memo dated June 5, Attorney General Jeff Sessions has ended the practice by which the Department of Justice earmarks legal settlement funds for non-governmental third-party groups that were neither victims nor parties to the lawsuit. This is terrific news and a major step forward in respecting both the constitutional separation of powers and the private rights that litigation is meant to vindicate.

On the separation-of-powers aspects of these slush funds, I go on to recommend a vigorous dissent by Judge Janice Rogers Brown in the recent D.C. Circuit case of Keepseagle v. Perdue. Whole thing here.

“Deaf man claims lawyer’s bad sign language cost him millions”

“A deaf former IBM worker claims he wrongly accepted a lowball discrimination settlement of $200,000 because his lawyer exaggerated his knowledge of sign language and confused the sign for ‘million’ with that for ‘thousand’ while negotiating the deal.” Software engineer James Wang, who had blamed his firing on his deafness, got $200,000 but says he expected $200 million. [New York Post]

Litigation reform moving fast through House of Representatives

With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:

  • The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
  • The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
  • The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
  • The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
  • The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
  • The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.

Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.

EEOC challenges “garden-variety” severance terms

To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)