Tuesday, February 19, 2008

Pilkington v. Cardinal Health, Inc. (9th Cir. - Feb. 19, 2008)

Sometimes timing is everything.

Defendants in the class action here file a motion for summary judgment in November. The parties have an unsuccessful mediation on December 12th, but continue to talk. The motion for summary judgment is heard and taken under submission on December 16th.

On January 10th, the settlement talks reach fruition, and the parties (1) sign a binding term sheet, and (2) deliver a letter to the district court advising it of the settlement. Meanwhile, Judge Klausner and his clerks have been working on the summary judgment motion, so that very same day, Judge Klausner signs an order granting the summary judgment motion, which is entered the following day.

The Class wants the settlement agreement approved, and files the appropriate motions, but the district court says: "Nope. I granted summary judgment. You're done." The Class appeals. And the Ninth Circuit reverses.

Even if you've done all the work on the underlying motion, when the parties settle, it's your job to approve (or disapprove) the settlement. You can't just go ahead and decide the motion, the Ninth Circuit holds. P.S. - For good measure, the Ninth Circuit holds that there was a genuine issue of material fact anyway.

Days -- sometimes even hours -- matter. Remember that. And get that settlement done.