

A Georgia appellate court reversed a summary judgment which enforced a mediated settlement agreement based only on the signature of a party’s attorney when the party himself refused to sign the agreement and stormed out of the mediation. The appellate court concluded that with the party present and signature lines for both the party and attorney, there was no issue of apparent authority on which the lower court relied in enforcing the agreement.
Omni Builders Risk, Inc. v. Bennett, A11A1025 (Ga. Ct. App., November 29, 2011)
GlaxoSmithKline has reached a $3 billion settlement of federal civil and criminal charges over the diabetes drug Avandia, and a federal judge has ordered mediation of the thousands of remaining patient claims. The judge appointed a mediator and set a 75-day deadline to resolve 85% of the remaining cases. Earlier this year, GlaxoSmithKline agreed to resolve over 10,000 patient cases for more than $700 million. In a separate matter involving multidistrict litigation against Merck over its Vioxx painkiller, a federal judge delayed litigation by state attorneys general a year ago to give time for global mediation. Merck has now agreed on payments to the states of Florida, New York and South Carolina, although the size of the settlements is confidential. Merck has paid $4.85 billion to settle patient lawsuits involving Vioxx.
MedCity News (November 9, 2011); Businessweek (November 15, 2011)
A Washington state court of appeals overturned and remanded a trial court’s order enforcing a settlement agreement reached in mediation because the lower court omitted a substantive provision agreed to by the parties (setting aside funds to cover future Medicare expenses). The appellate court also rejected the imposition of interest from the date of settlement rather than when performance was due, even though it concurred that a reasonable time for performance could be implied and that defendant took too long by not providing the first draft of a two-page release agreement for 58 days, and by not providing the second draft for 24 days after receiving proposed changes.
Firth v. Juanita Country Club Condominium Owners Ass’n, No. 66211-2-I (Wash. Ct. App., October 24, 2011).
Based on a limited mediation privilege in Connecticut, a federal bankruptcy court concluded that the mediation statement in another case could not be disclosed, even after that case had ended. The court applied state rather than federal law on mediation privilege because all claims were based on state law. The court also noted that a settlement agreement approved by the court could not provide the basis for contempt because the agreement was not incorporated into the court’s order.
In re New England National, LLC, Adv. Pro. No. 10-3033, ECF No. 120, 124 (Bankr. D. Conn., October 24, 2011).
A federal trial court in Florida agreed to a proposal that the court-ordered mediation would occur with as few as three plaintiffs present, due to the large number of plaintiffs in the litigation, as long as plaintiffs had an opportunity to object to the proposed procedure prior to the mediation session and, as in a class action, the non-attending plaintiffs were able to object afterwards to any settlement reached at the mediation. The court noted that the non-attending plaintiffs must agree to maintain the confidentiality of mediation information they receive.
Figueiras v. Devereux Foundation, Inc., No. 1:09-cv-00227-MP-GRJ (USDC N.D. Fla., October 7, 2011).
The number of medical malpractice lawsuits filed in Pennsylvania declined for the sixth year in a row, with attorneys attributing the decrease to private mediation, among other changes. The current number of med mal lawsuits is now only about half the peak in 2002.
Beaumont Enterprise.com (May 22, 2011)
Parties signed a mediated settlement agreement which contemplated that a comprehensive formal agreement would be prepared and signed. When a dispute arose over details of the longer agreement, a federal court in Texas conducted a “tedious” examination of plaintiff’s objections and concluded that the formal agreement did not “materially differ” from the shorter signed agreement, and ordered plaintiff to sign the comprehensive agreement.
Alpert v. BAC Home Loans Servicing, LP, No. 3:09-CV-2095-B (U.S. N.D. Tex., May 9, 2011).
In mediation, parties reached a settlement agreement which required formal approval by defendant’s board of directors. Prior to action by the board and before a written agreement was signed, plaintiff decided to “back out” of the settlement. The court, applying Kansas law, concluded that the parties intended an enforceable oral settlement agreement to be formed despite the condition precedent, and that defendant simply needed to act in good faith to obtain board approval. Although the court’s opinion made no mention of mediation confidentiality, both parties and the mediator waived confidentiality to permit disclosure of mediation information and the mediator’s testimony in court.
Stephenson v. Young, No. 10-2197-KHV (U.S. D. Kan., May 26, 2011); Editor’s Research
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