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A LITTLE EXCESSIVE SETTLEMENT JURISDICTION NEVER HURT ANYBODY?
It is perfunctory for Courts approving settlements to write about the strength of the parties' positions and the risks of litigation, while generally ignoring such things as whether class action status could be maintained until judgment, and particularly turning a blind eye to the amount of discovery taken in the given case before the settlement. Such was the case earlier this year for example in Ellsworth v. U.S. Bank, N.A., 2015 WL 1883911, *3-*4 (N.D. Cal. April 23, 2015)(Beeler, USMJ).
Then the Magistrate Judge did something I have not often seen until recently. It is now pretty much boilerplate to include language like the following in motions requesting settlement approval and in Orders approving settlements of large cases, it seems:
VI. EFFECT OF THIS ORDER
1. All members of the classes including named Plaintiffs are hereby preliminarily enjoined from directly or indirectly: (i) filing, commencing, prosecuting, intervening in, or participating in (as class members or otherwise), any other lawsuit in any jurisdiction asserting the Released Claims; and (ii) organizing class members, or soliciting the participation of class members, in a separate class for purposes of pursuing any other action (including by seeking to amend a pending complaint to include class allegations, or seeking class certification in a pending action in any jurisdiction) based on or relating to any of the Released Claims. This injunction applies to all members of the classes as of the date of this order and will continue in full force and effect until the court issues a Final Approval Order and Judgment unless a class member properly and timely excludes himself or herself from the Settlement, at which time he or she will no longer be considered a class member and will no longer be subject to the Preliminary Injunction.
Ellsworth v. U.S. Bank, N.A., 2015 WL 1883911, *6 (N.D. Cal. April 23, 2015)(Beeler, USMJ).
And who shall determine whether a given person is asserting a "Released Claim" inanothercase?
And why is the defendant in that other case seemingly freed from the burden of pleading and proving its own affirmative defense of issue or claim preclusion, or of res judicata?
How does any Court in any case have jurisdiction to suspend the Rules of Civil Procedure in any litigation let alone in "any other action"?
These and similar questions arise from language like this, usually adopted by judges and magistrates from pleadings filed by the parties. These questions deserve to be addresssed.
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