Esshaki Legal Media TeamCurrent as of October 2023
Settlements are contracts, and enforcing one depends on where the case stands
and on what the agreement says.
Before dismissal. The court retains jurisdiction over the pending action and
may enforce a settlement reached in the case, usually by motion, if the
agreement is established. Oral settlements placed on the record are enforceable
in most jurisdictions; oral agreements not recorded face statute of frauds and
proof problems, and several states require settlements to be in writing or on
the record.
After dismissal. The court loses jurisdiction unless it expressly retained
it or incorporated the settlement terms into the dismissal order. Otherwise the
remedy is a new action for breach of contract, which is a substantial practical
difference.
Drafting for enforcement. Retention of jurisdiction requested in the
dismissal; or a consent judgment; or a liquidated damages and fee-shifting
provision that makes a contract action economic.
Disputes about whether an agreement was reached. Emails exchanging terms
followed by a refusal to sign are litigated frequently, and the outcome turns on
whether the parties intended to be bound before a formal document. Term sheets
should state expressly which it is.
Authority. Counsel’s authority to settle is presumed in some jurisdictions
and must be established in others.