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Court of Appeal Overturns Class Action Settlement Arrived at in Mediation

by Jeffrey Krivis, Mariam Zadeh
November 2008

From the First Mediation Blog of Jeff Krivis and Mariam Zadeh.

The California Court of Appeal in Kullar v. Foot Locker Retail, Inc. found that the trial court abused its discretion in finding the terms of the class action settlement to be fair, reasonable, and adequate where the record failed to establish what investigation counsel conducted or what information counsel reviewed on which counsel based their assessment of the strength of the class members’ claims.

The Court further found that the record lacked sufficient information for the trial court to intelligently evaluate the amount in controversy and the realistic range of outcomes of the litigation. Furthermore, the fact that the settlement was reached during mediation did not eliminate the trial court’s obligation to evaluate the terms of the settlement. If there were some relevant information that was subject to a privilege that the trial court needed to respect, other data should have been provided that would have enabled the court to make an independent assessment of the adequacy of the settlement terms.

The Court of Appeals held that just because communications made during mediation and writings prepared for use in mediation were inadmissible and not subject to compulsory production did not mean that underlying data, not otherwise privileged, was also immune from production.

Biography



Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for twenty-five years. Krivis serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. He is also an Emeritus member of the board of visitors at Pepperdine. 


Mariam Zadeh was an active trial lawyer in New York City until September 11, 2001, at which time her life was dramatically changed. She moved to Los Angeles, obtained her L.L.M. in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University, and became a partner with Jeffrey Krivis at First Mediation Corporation. Since joining Jeffrey Krivis, Mariam has successfully mediated employment, class actions, commercial, premises & professional liability, mass torts, medical malpractice, ERISA and other tort actions as well as matters pending on appeal. In 2007, Mariam was featured as a “Rising Star” in the Southern California Super Lawyers magazine and was profiled by the Los Angeles Daily Journal. She is a published author and frequently lectures and teaches at ADR workshops and classes throughout California.

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