CONSENT DECREE
A settlement of a lawsuit or criminal case in which a person or company agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit.
A consent decree is a settlement that is contained in a court order. The court orders injunctive relief against the defendant and agrees to maintain jurisdiction over the case to ensure that the settlement is followed. (Injunctive relief is a remedy imposed by a court in which a party is instructed to do or not do something. Failure to obey the order may lead the court to find the party in CONTEMPT and to impose other penalties.) Plaintiffs in lawsuits generally prefer consent decrees because they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such
agreements because they limit the exposure of
damaging details. Critics of consent decrees
argue that federal district courts assert too much
power over the defendant. They also contend
that federal courts have imposed conditions on
state and local governments in CIVIL RIGHTS
CASES that usurp the power of the states.
Most civil lawsuits are settled before going to
trial and most settlements are private agreements
between the parties. Typically, the plaintiff
will file a motion to dismiss the case once the
settlement agreement has been signed. The
court then issues a dismissal order and the case
is closed.However, if the defendant does not live
up to the terms of the settlement agreement the
plaintiff cannot reactivate the old lawsuit. This
means filing a new lawsuit with the court and
going to the end of the line in order to process
the case.
In more complex civil lawsuits that involve
the conduct of business or industry, and in
actions by the government against businesses
that have allegedly violated regulatory laws, consent
decrees are regularly part of the settlement
agreement. A court will maintain jurisdiction
and oversight to make sure the terms of the
agreement are executed. The threat of a contempt
order may keep defendants from dragging
their feet or seeking to evade the intent of the
agreement. In addition, the terms of the settlement
are public.
Certain types of lawsuits require a court to
issue a consent decree. In CLASS ACTION settlements,
Rule 23 of the Federal Rules of Procedure
mandates that a federal district court must
determine whether a proposed settlement is fair,
adequate, and reasonable before approving it.
Under the Antitrust Procedures and Penalties
Act (the Tunney Act), 15 U.S.C.A. § 16(b)-(h),
the court must review proposed consent decrees
in antitrust suits filed by the JUSTICE DEPARTMENT.
The statute directs the court to review
certain items, including whether the decree
advances the public interest.
The U.S. Supreme Court, in Local No.93,
Int’l Ass’n of Firefighters v. City of Cleveland, 478
U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986),
ruled that consent decrees “have attributes both
of contracts and of judicial decrees.” The division
between contracts and judicial decrees suggests
that consent decrees are contracts that
resolve some issues through the consent of the
parties. However, for some issues, the decree
contains judicial acts rendered by the judge, not
the parties. Commentators have noted that these
dual attributes require a court to determine
when it is appropriate to “rubber-stamp” a proposed
settlement and when it is more appropriate
for the court to treat the proposal as it would
any judicial order.
The federal courts have been criticized for
using consent decrees to reform prison systems,
school systems, and other government agencies.
Some courts have maintained oversight of agencies
for many years and have imposed conditions
that have cost state and local governments
substantial amounts of money. Congress intervened
in one litigation area when it passed the
Prison Litigation Reform Act of 1995 (Pub.L.
104-134, 110 Stat. 1321). The law imposed strict
limits on what federal courts could do in the
future to improve prison conditions through the
use of consent decrees. In addition, it gave government
agencies the right to seek the termination
of consent decrees, many of which had
lasted for decades.
FURTHER READINGS
Kane, Mary Kay. 1996. Civil Procedure in a Nutshell. 4th ed.
St. Paul,Minn.:West.
Mengler, Thomas M. 1988. “Consent Decree Paradigms:
Models Without Meaning.”Boston College Law Review 29.
CROSS-REFERENCES
Civil Action.
