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.
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