Settlements, Consent Decrees & Preclusion

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gdane
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Settlements, Consent Decrees & Preclusion

Postby gdane » Thu Apr 26, 2012 6:04 pm

Are Consent Decrees given claim or issue preclusive effect? What about plain old settlements?

The issue Im having is that in a lot of cases Consent Decrees are just court enforced settlements and the issues/merits may not have been actually litigated and decided. So, Im not sure when they have preclusive effects. I would appreciate answers from those that actually know because I have gotten a lot of conflicting answers from others.

Thanks!

canesfan1986
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Joined: Fri Jun 25, 2010 6:28 pm

Re: Settlements, Consent Decrees & Preclusion

Postby canesfan1986 » Thu Apr 26, 2012 6:20 pm

gdane wrote:Are Consent Decrees given claim or issue preclusive effect? What about plain old settlements?

The issue Im having is that in a lot of cases Consent Decrees are just court enforced settlements and the issues/merits may not have been actually litigated and decided. So, Im not sure when they have preclusive effects. I would appreciate answers from those that actually know because I have gotten a lot of conflicting answers from others.

Thanks!


Under the R2d of Judgments, an issue has to be actually litigated and determined. A consent decree is a settlement that a court can enforce through contempt. Settlements, by definition, are not litigated and determined, so they can not be precluded as issue preclusion. The claim cannot be precluded either. All you would have is a breach of K claim, which would be asserted as an affirmative defense under 8(c), and then you would move for summary judgment and win.

I'm like 99% sure this is right. Agree?

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Judge Philip Banks
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Re: Settlements, Consent Decrees & Preclusion

Postby Judge Philip Banks » Thu Apr 26, 2012 6:30 pm

For settlement, you'd have claim preclusion, but not issue preclusion (since not necessarily actually litigated and decided). My notes on this are shitty, so I can't give a better explanation, but I believe the result is good. Hopefully someone here can explain.

And I don't know about consent decrees.

canesfan1986
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Re: Settlements, Consent Decrees & Preclusion

Postby canesfan1986 » Thu Apr 26, 2012 6:36 pm

Judge Philip Banks wrote:For settlement, you'd have claim preclusion, but not issue preclusion (since not necessarily actually litigated and decided). My notes on this are shitty, so I can't give a better explanation, but I believe the result is good. Hopefully someone here can explain.

And I don't know about consent decrees.


A settlement is a contract where one person promises to give up their property (the claim) in exchange for a payment. If the same person sues the same defendant, all you have is a breach of contract claim. You are not precluded from filing suit in another court. You will get a summary judgment motion granted, but you can file the suit in another court.

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gdane
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Re: Settlements, Consent Decrees & Preclusion

Postby gdane » Thu Apr 26, 2012 9:34 pm

Im praying a Consent Decree doesnt show up on my exam tomorrow. It probably will...

Thanks everyone.




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