This question is inspired by the jamiemcgarry Pit thread, but I’m not looking to start anything up with him; I’m simply curious.
Let’s say I sue a professional – doctor, lawyer, whatever – for malpractice. On advice of their attorney and insurance company they settle and give me $XX,000 dollars. As a condition of the settlement, explicit in the settlement papers, I am supposed to stop alleging the defendant for malpractice.
If I continue to do so, what penalties might I face? Could it be as bad as having to return the entire settlement, or just part of it? Might it be even more? If i had to return the settlement, could I then refile? I should think the settlement agreement would preclude that, but I’m a corporate sales drone, not a lawyer.
IANAL but my guess is that the opponent would have to take you back to court and prove that you are not living up to the terms of the judgement. You get to pay lawyers’ fees and suchlike, in addition to returning all or part of the original settlement.
jamie is using [del]his real name[/del] the name of a real person, and has several times linked to articles about that person. So unless the SDMB’s jamie is pulling a complicated plan to screw with the life of the gent n teh articles (which I don’t believe; if nothing else he seems quite honest), I’d say he’s exposed himself.
Of course I could be wrong. I’m wrong all the time. I never thought Clinton would be president.
I believe that basic contract law would apply. In the hypo, you have entered into an agreement that states in exchange for dismissing your claim and not telling anything about the doctor, you will take $XXXX as settlement.
If you breach your agreement, and say bad things about the doctor, then he can take you back to court and sue you for damages that he has suffered. Depending on the content and method of your statement, he may recover a part, all, or in excess of what he paid to you.
Although exact specifics could vary; it depends on when the settlement was made
If it was made say before filing of suit or before the proceedings commence. then it would be governed by ordinary law of contract, unless the juridiction has a special law.
If it is made after suit is filed and proceedings commenced, the parties will almost always* ask that a Consent Decree be issued by the Court; in the terms of the agreement. If that is done, any ommision to follow the Consent Decree will be contempt of court.
Sometimes, especially in high profile media cases the parties might not ask for a consent decree and go for a confiential settlement instead; as a Court Order is a public docuement,
When defendant takes plaintiff back to court to recover (he’ll say, all of) his settlement payment, his complaint will also almost certainly request (additionally or in the alternative) specific performance of the broken promise, in the form of an injunction compelling compliance with the agreement (though I agree the plaintiff could separately find himself bound by such an order in conjunction with contempt proceedings if found to have violated a consent order/agreed judgment).
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Yes, true. However it is always adviable to get a consent order for this very reason. If you go back to obtain specific performance you have to essentially fight another suit to obtain specific performance. Contemp of court proceedings are the closest modern courts are allowed to act like the Star Chamber; the Defendent will have to explain to the court why he has disobyed a court order and will in the best case senario be simply commanded to stop.
And implicit in your mention of contempt is that the stronger flavor of contempt (criminal contempt, versus civil) allows a remedy you’d never get in a contract action, namely locking the joker up. Which tends to be . . . persuasive in getting someone to stop a behavior.
In U.S. practice, I’d say that the confidential settlement is more typical than the Consent Decree.
I’d have a hard time seeing the possibility of the professional recovering more than he paid in the original settlement. He might of course have a separate defamation claim, but that would likely require evidence that the complained of malpractice did not occur – that is, the defamation claim requires a trial on the same facts that the original malpractice claim was settled to avoid.
But other than that, I agree with the consensus – at the least, the settlement is a contract, and so the original plaintiff would be liable for breach of K.
I haven’t seen the thread in question, but IIRC the SDMB requires indemnification as a condition of posting. SO they’d theoretically be protected, and the poster would ahve to pay any damages they incur. Good luck trying to collect, though, if the poster is also having to pay a big judgment on his own.
It’s possible you guys are just talking about the same basic things that might be called differently in different venues. You are right that the court has to put something in the docket as the last paper to formally end the process that started with the summons. Whether it gets called a consent degree, an agreed judgment, a stipulated dismissal with prejudice, may be more a matter of semantics/local usage than anything else (and any of those type of judicial entries is consistent with a confidential contractual agreement having been entered into with the parties, thus leading to a joint motion for [whatever you want to call the judge’s order ending the litigation]).
The case I had set out the specific terms/conditions in the final agreement; to receive the money in the first place, I had to sign a statement of understanding that included (among other things) the promise that I would drop any and all claims against the company, an outline of the restrictions placed on me in case I ever had to go on company property, and the clause that if it could ever be shown that I disclosed information regarding the settlement/the case or defamed the company in a manner that was connected to the case, I would be required to return the entirety of the settlement as well as additional fines/penalties that would be tied to each separate incident (IOW, if I told my coworkers at lunch, then my parents, then some random stranger on the street, it would be three separate incidents, though the company could decide to be utter pricks about it and try to prosecute it as each individual rather than incident). My lawyer explained the latter as typically involving lawyer/court fees and, depending on the egregiousness of the violation, additional money for damages (libel/slander/defamation/whatever). It’s been a while since I’ve glanced at the agreement, but it might have mentioned something about being prosecuted for contempt of court.
I do know that my lawyer was very very very very emphatic about what is and is not acceptable as far as discussing the situation (a necessity, since it was an employment case and it would/did affect future employment). I wasn’t even allowed to share details with my therapist or my husband. Obviously I don’t know the specifics of the agreement referred to in the OP, but there’s no way I could get away with saying half the things on a public message board that have been disclosed regarding that particular case. They would’ve come knocking on my door ages ago.
For the record, my case was settled about two days before we were due in court- we’d already done all the legwork and were ready to begin trial.
IANAL (but I am in my 2nd year of law school, so consider me 35% of a lawyer. ) but one of the basic tenants of contract law is that a “penalty clause” in a contract will not be enforced. An aggrieved party can only recover sums that amount to actual damages that they have incurred. In your case it sounds like they have a liquidated damages provision meaning that instead of bickering and arguing over the amount of damages, we agree that it is $XXX. But that provision still must be reasonable.
For example, if you tell your priest about what happened, they would be hard-pressed to argue that they suffered anywhere near the full settlement amount damages, or any damages at all. If you took out a 30 second spot during the Super Bowl and told all, then they might have a much better argument.
My clients enter into these agreements all the time. (fortunately, few have been accused of breaching them). The confidentiality or non-disparagement clauses sometimes have “liquidated damages” clauses, saying essentially, you talk about this and you’ll owe us $10,000. As has been pointed out, it’s not clear that these are enforceable, but I know of one case where it was imposed. Usually, it’s just a promise that doesn’t specify the damages. If you breached it, they couldn’t undue the settlement, but could try to get a court to shut you up and ask for whatever damages they could establish, plus fees.
Contempt of court, return of any damages paid and an order of specific performance are all possibilities, depending on the court and the nature of the settlement decree or agreed judgment entry.
My answer would be the same as AK84’s answer: if proceedings have actually begun, then the minutes of settlement would be incorporated in an order of the court. Maybe it’s a Commonwealth thing…
) but one of the basic tenants of contract law is that a “penalty clause” in a contract will not be enforced. An aggrieved party can only recover sums that amount to actual damages that they have incurred. In your case it sounds like they have a liquidated damages provision meaning that instead of bickering and arguing over the amount of damages, we agree that it is $XXX. But that provision still must be reasonable.