01-3202 Herrnreiter v. CHA

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“A court of appeals has the authority to implement a settlement reached while the case is on appeal. See Fed. R. App. P. 33. But first the court must know the settlement’s terms. When the parties do not agree on what their deal entails, an appellate court is placed in an untenable position. In a district court, a judicial officer oversees any negotiations, and an oral agreement may be put on the record before a court reporter. If the parties fail to preserve their agreement in this way, the district judge or magistrate judge may remember the terms and thus readily enforce the agreement. See Lynch, Inc. v. SamataMason Inc., No. 00-1491 (7th Cir. Jan. 29, 2002). The settlement process in this court, by contrast, does not occur before a judicial officer; it is handled by a settlement conference attorney under a promise to both sides that what occurs during the negotiations will not be revealed to the judges. The conference is never transcribed. A motion to implement a settlement easily could be a strategy to pierce the confidentiality of the negotiations and inform the judges of the parties’ positions, rather than to carry out an agreement actually reached. Even if it were appropriate to open the negotiations to the court by, for example, taking the testimony of a settlement attorney, a court of appeals lacks factfinding apparatus. What happens if the recollections of the three participants (the two litigants plus the settlement conference attorney) differ? Perhaps we could appoint a special master to take testimony and propose a resolution, but using a master in this fashion (followed by review by three appellate judges) would dissipate any savings from appellate settlement.”

Motion denied.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Easterbrook, J.