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| vol 23, num 3 | DECEMBER 2024 |
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| Beware the Limits of Federal Rule of Evidence 408: “Confidential Settlement Communications” in One Matter May Not Be in Another |
| Lawyers often prominently designate a letter or e-mail communication as a “Rule 408 Protected Settlement Communication” that is “inadmissible” as evidence. That label will be in bold and italicized, maybe in all caps, for emphasis. Similarly, at the beginning of a telephone, virtual or in-person meeting, an announcement that it is a “Rule 408 Settlement Conference” may be uttered and met with general agreement. The assumption that statements made in such communication fora are not admissible must be considered carefully in context (the adage “When you assume, you make an a$$ out of ‘u’ and ‘me’” comes to
mind). In short, the labeling of something as a “settlement communication” is not determinative of the evidentiary issue that may arise when a party in litigation seeks to introduce a prior statement made. Federal Rule of Evidence 408 itself and case law interpreting the rule provide the necessary guidance. |
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| Consent in a Post-Purdue World |
| In the wake of the U.S. Supreme Court’s Harrington v. Purdue Pharma L.P. decision definitively doing away with nonconsensual third-party releases, courts and practitioners alike have been struggling with the meaning of “consensual” in the context of such releases. One such jurist is the Hon. Craig Goldblatt of the U.S. Bankruptcy Court for the District of Delaware, who tackled the issue in the recent In re Smallhold Inc. decision.
Before Purdue, the Third Circuit allowed nonconsensual third-party releases if the bankruptcy court found “fairness, necessity to the reorganization, and specific factual findings to support [those] conclusions.” Under that framework, prior to the Purdue decision, Judge Goldblatt had approved the debtor’s plan, including nonconsensual third-party releases. That plan had four classes:
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