Guide · Litigation

Settling a Civil Case: A Comprehensive Guide to Negotiation, Releases, and Enforcement

29 U.S.C. § 626(f)

Type
Guide
Jurisdiction
National
Date
2023-11-09
Topic
Litigation

A complete practitioner's treatment of civil settlement for litigators on both sides, from the first negotiation through enforcement of the agreement. Parts I through III cover the negotiation itself, the confidentiality rules that protect it under Rule 408 and mediation privilege statutes, mediation practice, and settlement authority. Parts IV and V cover the release: who releases whom, the scope of claims released, the treatment of unknown claims, covenants not to sue, and indemnity for liens. Part VI covers the claims that cannot be released in the ordinary way, including ADEA waivers under the OWBPA, FLSA claims requiring approval, administrative charges, and whistleblower communications. Part VII covers confidentiality and non-disparagement after McLaren Macomb, the Speak Out Act, and section 162(q). Parts VIII and IX cover taxation, allocation, and reporting, and the statutory and contractual lienholders including Medicare, Medicaid, and ERISA plans. Parts X through XII cover enforcement after Kokkonen, alternative structures including high-low, Mary Carter, Pierringer, and structured settlements, and settlements requiring court approval. Part XIII covers the insurer's role and Part XIV is the verification list.

Settling a Civil Case: A Comprehensive Guide to Negotiation, Releases, and Enforcement

Litigation > Settlement | Published 9 November 2023 - Updated 4 April 2026 | UpLaw - uplaw.us

In brief. Settlements fail in five places: formation (was there a deal?), scope (what did it buy?), unreleasable claims (what could it not buy?), money (who else has a claim to it?), and enforcement (who can make them pay?). Address all five in the term sheet, at the table, while everyone still wants a deal.

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