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Enforcing Settlements and Consent Decrees

September 13, 2018 (23 min read)

By: Jim Wagstaffe, The Wagstaffe Group

COURTS HAVE INHERENT POWER TO ENFORCE SETTLEMENTS between the parties in cases pending before them.1 However, courts have no inherent power to enforce settlement agreements after a case has been dismissed: “Enforcement of the settlement agreement . . . is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”2

Finalizing Settlement Through Consent Decree

The parties’ settlement may be embodied in an injunction requiring continuing compliance by the parties. This is known as a consent decree. “A consent decree is no more than a settlement that contains an injunction.”3

A consent decree can provide greater relief than originally requested, as a judgment entered pursuant to a settlement agreement need not be limited to relief the court could grant on the merits. So long as the pleadings state a claim within federal subject matter jurisdiction and the settlement is “within the general scope of the case made by the pleadings,” the judgment can grant whatever relief is agreed to by the parties.4

Court Approval Required

Most courts will not blindly lend their imprimatur to stipulated consent decrees (for example, imposing future non-monetary obligations) because enforcement may affect the rights of third parties or otherwise be unjust. The court will want to know the background of any consent decree and insist on deciding whether the order is one that the court would approve.5 The criteria applied in deciding whether to approve and enter a proposed consent decree are whether it is “fair, adequate, and reasonable, as well as consistent with the public interest.”6 The court may not modify a consent decree sua sponte. It must approve or reject the decree as it is presented.7

Modifying a Consent Decree

Even if there has been a significant change of circumstances, a party cannot disobey the decree. Rather, it must seek modification from the court, which retains continuing jurisdiction to modify a consent decree. Situations in which modification might be appropriate are:

  • One or more of the obligations placed on the parties later becomes impermissible under federal law.
  • Statutory or decisional law has changed in such a way as to make legal what the decree was designed to prevent.
  • The parties entered into the decree under the mistaken belief certain conduct was constitutionally mandated.8

The proper procedure for modifying a consent decree is a motion for relief from the judgment under Rule 60(b).9 For example, modification is often sought under Rule 60(b)(5) when applying the consent decree “prospectively is no longer equitable.”10 It is also possible to seek modification through a motion to alter or amend the judgment under Rule 59(e).11

The party seeking modification bears the initial burden of showing a significant change either in factual conditions or the law that makes compliance with the decree substantially more onerous.12 The fact it is no longer convenient for the parties to adhere to the terms of a consent decree is insufficient to justify modification. Significant changed circumstances must always be shown.13 Minor changes to which a party should ordinarily consent (for example, paint color of building) may be made even if one party refuses. In such circumstances, the moving party need only show a reasonable basis for the change.14

The moving party does not always need to show the changed circumstances were unforeseen or unforeseeable.15 However, if, when a party agreed to a consent decree, it anticipated changing circumstances, that party would bear a heavy burden to convince the court to modify the decree.16

Rufo’s flexible standard for modification has also been applied to consent decrees other than those involving institutional reform.17 When the consent decree is based on settlement of private, commercial litigation, some courts insist the power to modify must be sparingly exercised, reflecting the importance of finality to a negotiated bargain between private parties. Thus, courts consider the circumstances leading to the decree, the degree of hardship faced by the party seeking modification, and the opposing party’s need for continuation of the decree.18

Enforcing a Consent Decree

A district court retains continuing jurisdiction to enforce its judgments, including those obtained through consent decrees.19

The parties to a consent decree, as well as its intended beneficiaries, have standing to seek enforcement of the resulting judgment: “When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party.”20 However, incidental beneficiaries of a consent decree (as opposed to its intended beneficiaries) lack standing to enforce it.21 When a consent decree requires continuing supervision, it may be refused enforcement if it does not serve any federal interest.22 A party may move to vacate a consent decree when the judgment has been satisfied, released, or discharged through substantial compliance.23

Enforcing a Settlement Agreement

Courts have inherent power to enforce settlements between the parties in cases pending before them.24

However, courts have no inherent power to enforce settlement agreements after a case has been dismissed: “Enforcement of the settlement agreement . . . is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”25 When the original action has been dismissed (without retention of jurisdiction to enforce the settlement agreement), a new action must be filed in a court having subject matter jurisdiction. This generally means diversity jurisdiction because enforcing a settlement does not involve a federal question.26

Court Does Not Retain Jurisdiction Absent Language in the Order

Parties who wish to retain the court’s jurisdiction to enforce their settlement agreement may do so by having the court expressly retain jurisdiction in the order of dismissal. Although this is the better, more straightforward, course, incorporating the terms of the settlement agreement in the order of dismissal also creates jurisdiction. In the latter event, breach of the settlement agreement violates the court’s order, thereby creating ancillary jurisdiction to enforce the agreement.27

Neither the parties’ nor the court’s agreement to retain jurisdiction is sufficient absent language in the dismissal order expressly retaining such jurisdiction.28

A settlement agreement providing that, in event of breach, the plaintiff could “reinstitute this action” does not preserve the court’s jurisdiction following dismissal.29

An order for dismissal that merely states it is “based on” or “pursuant to” a settlement does not embody the agreement, and there is no ancillary jurisdiction to enforce the agreement.30

The court’s “mere awareness and approval” of the settlement agreement “do not suffice” to make the terms part of the dismissal order for purposes of retaining jurisdiction.31

Although a dismissal order to which the settlement agreement is attached may indicate the judge’s awareness and approval of the settlement, it does not “incorporate” the agreement into the order as required by Kokkonen; that is, there is no incorporation by implication.32

Jurisdiction is not reserved if the case is dismissed without prejudice to reinstatement if the settlement agreement “is not consummated.” Mere reference to the fact of settlement does not incorporate the settlement agreement into the dismissal order.33

A settlement agreement that authorizes the parties to seek enforcement in the trial court, and a dismissal ordered “pursuant to” that settlement agreement, sufficiently manifests the court’s intent to retain jurisdiction.34

Even if a permanent injunction is entered pursuant to settlement, it does not confer on the court ancillary jurisdiction to issue a permanent injunction enforcing any aspect of the settlement agreement the parties did not specify could be enjoined. The agreement and the court order incorporating it must meet the requirements of Rule 65(d)35 for injunctive relief (describing in reasonable detail the specific conduct to be enjoined and the reasons for issuance of an injunction).36 When the settlement agreement has been incorporated into a judgment and provides for liquidated damages in event of breach, the court may impose “sanctions in the form of liquidated damages” for breach of the settlement agreement and judgment based thereon.37

When the district court has retained jurisdiction to enforce a settlement agreement, federal jurisdiction exists over either a motion to enforce the settlement in the original action or a new federal action alleging breach of the agreement.38

Exclusivity of Retained Jurisdiction

Unless the order provides otherwise, a federal court’s retention of jurisdiction to enforce a judgment is deemed exclusive of state courts: “(I)t would make no sense for the district court to retain jurisdiction to interpret and apply its own judgment . . . yet have a state court construing what the federal court meant in the judgment.”39

The district court may enjoin litigation in state court that would pose a significant risk of frustrating the district court’s exclusive jurisdiction over the judgment.40

The Anti-Injunction Act generally bars federal courts from enjoining state court proceedings but authorizes a stay “where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”41 The parties may apply to a court that has retained jurisdiction to enforce a settlement for an injunction requiring dismissal of a rival action.42

Reopening Original Controversy for Breach

The U.S. Supreme Court has not decided whether breach of a settlement agreement is a sufficient ground under Rule 60(b) to set aside a dismissal and reopen the lawsuit (in which jurisdiction existed).43 Lower courts are sharply divided on whether, in the absence of fraud or undue influence, a settlement bars reopening the original controversy.44

When the Court Retains Jurisdiction

As distinguished from enforcing the settlement agreement, the court clearly has ancillary jurisdiction to enforce its own orders and decrees. Therefore, to the extent the settlement is embodied in the judgment, the court can enforce it by execution and by contempt proceedings in appropriate cases.45

When breach of the settlement agreement itself gives rise to a federal question, the district court has an independent basis for subject matter jurisdiction.46

If the dismissal is not final,47 the court has continuing jurisdiction to enforce, modify, or vacate the settlement agreement. When an order of dismissal is interlocutory, “no reservation of jurisdiction over the parties’ dispute is needed because jurisdiction has never been lost.”48

Settlement Agreement Disputes

Most courts hold disputes concerning a settlement agreement are governed by applicable state contract law, whether the underlying claim is state or federal.49 Federal law governs settlements that depend on application of a federal statute or regulation.50

Settlement Must Contain Enforceable Agreement

The court cannot enforce a settlement agreement when there is none; a completed agreement that has been authorized by the parties is necessary to establish a breach of a settlement agreement. The power to enforce a settlement cannot be exercised unless the terms have been agreed to, though they need not be in writing. The district court “may not enter a ‘consent’ judgment without the actual consent of the” parties.51

Oral Settlement

A settlement may be enforced although none of its terms were put on the record or reduced to writing, so long as the moving party demonstrates there was in fact such an agreement.52 If no writing exists, the court must always determine whether it was a completed agreement or whether the parties intended to be bound only upon execution of a final written settlement agreement.53

Settlement Agreement Not Signed

When a settlement agreement contemplated that the parties would sign a release at a later date but did not state a signed release was required for contract formation (rather than as a condition for payment), the fact that the plaintiff did not ultimately sign the release was immaterial to the issue of whether the parties formed a binding settlement agreement.54

Authorizing a Settlement Agreement

When the agreement was negotiated between counsel, the attorneys were required to have their respective clients’ actual authority. Attorneys do not have inherent power by virtue of their employment alone to compromise a client’s claim.55 Courts are split on whether state law or federal common law governs whether an attorney who appears in federal court is authorized to bind a client to a settlement agreement. Several circuits apply federal common law with a presumption favoring the attorney’s authority.56 Other courts hold state law governs whether an attorney is authorized to settle on behalf of a client.57

The Supreme Court seems to side with this latter view, stating that federal common law “exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases” and the issue of an attorney’s authority to settle on the client’s behalf does not come within any of those narrow areas.58 If the action is still pending or the federal court otherwise has jurisdiction, either party may move for an order to enforce a settlement agreement.59

Court’s Authority

The interpretation of a settlement agreement may be a mixed question of law and fact. Thus, “(i)f the settlement agreement is ambiguous, then interpretation of the agreement presents a fact issue that cannot be resolved on a motion to dismiss.”60

The court has the power to adjudicate disputed issues of fact relating to the settlement, such as whether there was a meeting of the minds, whether the agreement was authorized, or whether grounds for rescission exist.61

In adjudicating disputed factual issues, it appears that the court must conduct a plenary hearing and make findings on the disputed facts.62

There is no need for an evidentiary hearing if the parties have made an oral settlement on the record in open court. The court may require the parties to comply with their representations without holding a hearing.63

When evidence outside the record affects enforceability of a settlement agreement reached in court (for example, additional terms not mentioned in court), counsel should request an evidentiary hearing pursuant to Rule 43(c).64

The court has wide discretion in deciding whether to permit or deny oral testimony on a motion hearing.65 When factual questions “are not readily ascertainable from the declarations of witnesses or questions of credibility predominate, the district court should hear oral testimony.”66

Court Ordered Remedies

The court has power to order specific performance of the settlement agreement or to award damages against the party in breach or to impose sanctions for contempt.67

For a settlement to be enforceable by contempt, the provisions must be specifically set forth in a court order (that is, no incorporation by reference).68

A party may, on noticed motion, be sanctioned for refusing to sign a written settlement that embodies terms orally agreed to before the court: “An agreement announced on the record becomes binding even if a party has a change of heart after (he or she) agreed to its terms but before the terms are reduced to writing.”69

The court has inherent power to sanction a party for bad faith conduct in executing the settlement—for example, repeatedly advising the court a settlement had been reached while at the same time making demands to change the settlement terms, refusing to sign the agreement, seeking extensions of the payment due date, and failing to make timely payment as required under the agreement.70


An order denying a motion to enforce a settlement agreement ordinarily is not immediately appealable as a collateral order or otherwise (unless a final judgment has previously been entered in the case, making it appealable as a post judgment order): The “rights under private settlement agreements can be adequately vindicated on appeal from the final judgment.”71

James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. He maintains a diverse litigation practice, including complex litigation, professional and governmental representation, will and trust disputes, legal ethics, First Amendment cases, and appeals in state and federal courts. He has particular expertise on virtual world issues, including electronic discovery and wi-fi technology. In 2017, California Lawyer named him Attorney of the Year for his successful representation of The State Bar of California in a high-profile privacy trial. He has authored and co-authored a number of publications, including The Wagstaffe Group® Practice Guide: Federal Civil Procedure Before Trial. As one of the nation’s top authorities on federal civil procedure, Jim has helped shape the direction and development of federal law.

To find this article in Lexis Practice Advisor, follow this research path:

RESEARCH PATH: Federal Civil Practice > Settlement > Practice Notes

For guidance on making an offer of judgment, see


RESEARCH PATH: Federal Civil Practice > Settlement > Practice Notes

For a discussion of preliminary injunctions, see


RESEARCH PATH: Federal Civil Practice > Pretrial Injunctive Relief > Practice Notes

For assistance on drafting settlement agreements, see


RESEARCH PATH: Federal Civil Practice > Settlement > Forms

For a list of steps to take in memorializing a settlement agreement, see


RESEARCH PATH: Federal Civil Practice > Settlement > Checklists

For more information on class action settlements, see


RESEARCH PATH: Federal Civil Practice > Class Actions > Practice Notes

1. Román-Oliveras v. Puerto Rico Elec. Power Auth. (PREPA), 797 F.3d 83, 86–87 (1st Cir. 2015) (power to enforce binding oral settlement before case dismissal); Hensley v. Alcon Labs., Inc., 277 F.3d 535, 540 (4th Cir. 2002); Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir. 1978). 2. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378 (1994); Langley v. Jackson State Univ., 14 F.3d 1070, 1073 (5th Cir. 1994). 3. In re Masters Mates & Pilots Pension Plan, 957 F.2d 1020, 1025 (2d Cir. 1992); see Taylor v. United States, 181 F.3d 1017, 1032 n.10 (9th Cir. 1999); Hook v. State of Ariz., Dept. of Corr., 972 F.2d 1012, 1014 (9th Cir. 1992). 4. Sansom Comm. v. Lynn, 735 F.2d 1535, 1538 (3d Cir. 1984). 5. See United States v. Int’l Bhd. of Teamsters, 970 F.2d 1132, 1137 (2d Cir. 1992); In re Masters Mates & Pilots Pension Plan, 957 F.2d at 1026. 6. United States v. Lexington-Fayette Urban County Gov’t, 591 F.3d 484, 489 (6th Cir. 2010). 7. Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003) (district court cannot unilaterally modify the provisions of a consent decree through its order approving the proposed decree). 8. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 388–390 (1992); see United States v. City of Chi., 978 F.2d 325, 333 (7th Cir. 1992). 9. See Hook, 972 F.2d at 1016. 10. Fed. R. Civ. P. 60(b)(5). 11. Fed. R. Civ. P. 59(e). 12. Rufo, 502 U.S. at 384 (modification under Rule 60(b)(5) of consent decree governing institutional reform of prison conditions). 13. Rufo, 502 U.S. at 383. 14. Rufo,502 U.S. at 383 n.7; United States v. Sec’y of Housing & Urban Develop., 239 F.3d 211, 217 (2d Cir. 2001). 15. Rufo, 502 U.S. at 385; see New York State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 969 (2d Cir. 1983). 16. Rufo, 502 U.S at 385. 17. See United States v. Asarco Inc. 430 F.3d 972, 979–982 (9th Cir. 2005) (in case involving environmental clean-up consent decree, court held that Rufo applies “to all petitions brought under Fed. R. Civ. P. 60(b)(5)” to modify consent decrees). 18. See Alexis Lichine & Cie. v. Sacha A. Lichine Estate Selections, Ltd., 45 F.3d 582, 586 (1st Cir. 1995). 19. Pigford v. Vilsack, 777 F.3d 509, 514 (D.C. Cir. 2015) (jurisdiction to enforce empowered court to correct facilitator’s error in transmitting claim to wrong resolution track—adjudication rather than arbitration); Florida Ass’n for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001) (court may assert jurisdiction to enforce terms of consent decree even after case is administratively closed); Hook, 972 F.2d at 1014. 20. Hook, 972 F.2d at 1014 (internal quotes omitted) (new inmates had standing to enforce consent prison conditions); see Fed. R. Civ. P. 71. 21. See Hook, 972 F.2d at 1015. 22. Evans v. City of Chi., 10 F.3d 474, 475 (7th Cir. 1993) (consent decree requiring city to pay tort judgments in order of their entry refused enforcement because it was not supported by any substantial federal due process or equal protection claim); see Labor/Community Strategy Ctr. v. L.A. County Metro. Transp. Auth., 263 F.3d 1041, 1050 (9th Cir. 2001) (federal court must not unduly insert itself into institution’s management). 23. Jeff D. v. Otter, 643 F.3d 278, 283–284 (9th Cir. 2011). 24. Román-Oliveras, 797 F.3d at 86 (power to enforce binding oral settlement before case dismissal); Hensley, 277 F.3d at 540; Dacanay, 573 F.2d at 1078. 25. Kokkonen, 511 U.S. at 378; Langley,14 F.3d at 1073. 26. Hendrickson v. United States, 791 F.3d 354, 362 (2d Cir. 2015) (absent retention of jurisdiction, post-dismissal enforcement of settlement agreement resides in state courts unless independent basis for federal jurisdiction exists); Limbright v. Hofmeister, 566 F.3d 672, 676 (6th Cir. 2009) (court with subject matter jurisdiction can summarily enforce settlement agreement that resulted in dismissal of earlier lawsuit). 27. Kokkonen, 511 U.S. at 381 ; K.C. v. Torlakson, 762 F.3d 963, 967 (9th Cir. 2014); See Hill v. Baxter Healthcare Corp., 405 F.3d 572, 576–577 (7th Cir. 2005). 28. Arata v. Nu Skin Int’l, Inc., 96 F.3d 1265, 1269 (9th Cir. 1996) (court had discretion to terminate previously retained jurisdiction to enforce settlement agreement); see SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) (court’s attempt to enforce settlement agreement after stipulated dismissal ineffective when dismissal stipulation failed to expressly provide for such jurisdiction and filing’s effectiveness not contingent on future action of court). 29. Ortolf v. Silver Bar Mines, Inc., 111 F.3d 85, 87 (9th Cir. 1997) (further holding that no new jurisdiction existed because amount in controversy was insufficient). 30. Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 433 (5th Cir. 2002); Caudill v. North Am. Media Corp., 200 F.3d 914, 916–917 (6th Cir. 2000); In re Phar-Mor, Inc. Secur. Litig., 172 F.3d 270, 274 (3d Cir. 1999); O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995). 31. Kokkonen, 511 U.S. at 381; see Hendrickson, 791 F.3d 354, 360 (court lacked jurisdiction when dismissal order mentioned that parties had reached settlement but did not retain jurisdiction or incorporate terms). 32. Hospitality House, Inc., 298 F.3d at 431. 33. Shaffer v. GTE N., 284 F.3d 500, 503 (3d Cir. 2002). 34. Schaefer Fan Co., Inc. v. J & D Mfg., 265 F.3d 1282, 1287 (Fed. Cir. 2001). 35. Fed. R. Civ. P. 65(d). 36. William Keeton Enters., Inc. v. A All Am. Strip-O-Rama, Inc., 74 F.3d 178, 182 (9th Cir. 1996). 37. Baella-Silva v. Hulsey, 454 F.3d 5, 11–12 (1st Cir. 2006) ($50,000 awarded as liquidated damages for breach of confidentiality clause in settlement agreement). 38. Myers v. Richland County, 429 F.3d 740, 747 (8th Cir. 2005) (including actions by thirdparty beneficiary of settlement agreement); Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 411 (7th Cir. 2000). 39. Flanagan v. Arnaiz, 143 F.3d 540, 545 (9th Cir. 1998). 40. Flanagan, 143 F.3d at 545. 41. 28 U.S.C.S. § 2283. 42. Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002). 43. Kokkonen, 511 U.S. at 378. 44. Keeling v. Sheet Metal Workers Int’l Ass’n, 937 F.2d 408, 410 (9th Cir. 1991) (breach of settlement allows relief under Rule 60(b)); see Sawka v. Healtheast, Inc., 989 F.2d 138, 140–141 (3d Cir. 1993) (contra); see also McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491, 503 (6th Cir. 2000) (revival of suit under Rule 60(b) is contrary to Kokkonen). 45. TNT Mktg., Inc. v. Agresti, 796 F.2d 276, 278 (9th Cir. 1986). 46. Bd. of Trs. of Hotel & Rest. Empls. Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1484–1486 (D.C. Cir. 1996) (suit to enforce settlement raised federal question because enforcement required construction and application of ERISA (and because ERISA rights were involved, federal court had exclusive jurisdiction)). 47. See Fed. R. Civ. P. 54(b). 48. Consolidation Coal Co. v. United States Dept. of Interior, 43 F. Supp. 2d 857, 863 (S.D. Ohio 1999). 49. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1017 (9th Cir. 2012); Dillard v. Starcon Int’l, Inc., 483 F.3d 502, 506 (7th Cir. 2007) (settlement of federal claim enforced “just like any other contract”); Panduit Corp. v. HellermannTyton Corp., 451 F.3d 819, 825 (Fed. Cir. 2006) (state law governs interpretation of patent infringement settlement agreement that did not require reference to patent statute). 50. Dillard, 483 F.3d at 507 (federal law governs interpretation and validity of settlement of Title VII employment discrimination claims when “knowing and voluntary” release of claim required); Stroman v. West Coast Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989) (same); Maynard v. Durham & Southern Ry. Co., 365 U.S. 160, 161 (1961) (federal law determines validity of releases under Federal Employers’ Liability Act). 51. United States v. Ward Baking Co., 376 U.S. 327, 334 (1964) (emphasis added); see Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 954 (9th Cir. 2013) (“unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect”). 52. Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 489–490 (7th Cir. 2002) (magistrate judge’s recollection of terms of oral settlement sufficient for enforcement). 53. Wang Labs., Inc. v. Applied Comput. Scis., Inc., 958 F.2d 355, 359 (Fed. Cir. 1992). 54. In re Deepwater Horizon, 786 F.3d 344, 355–356 (5th Cir. 2015) (however, evidentiary hearing was required regarding issue of whether settlement agreement was fraudulently induced). 55. Higbee v. Sentry Ins. Co., 253 F.3d 994, 999 (7th Cir. 2001); see Edwards v. Born, Inc., 792 F.2d 387, 390 (3d Cir. 1986) (result contra when client tells opposing parties his attorney has authority to settle). 56. See Larson v. Heritage Square Assoc., 952 F.2d 1533, 1537 (8th Cir. 1992) (“heavy burden” to rebut presumption that attorney had authority to act on client’s behalf); Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir. 1989); Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th Cir. 1984). 57. Anand v. Cal. Dep’t. of Developmental Servs., 626 F. Supp. 2d 1061, 1066 (E.D. Cal. 2009); Makins v. District of Columbia, 277 F.3d 544, 547–548 (D.C. Cir. 2002); Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000). 58. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–641 (1981). 59. See Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1088 (9th Cir. 2015) (plaintiff’s former attorney sought to enforce settlement agreement to collect contingency fee). 60. ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1008–1009 (9th Cir. 2014). 61. See Chavez v. New Mexico, 397 F.3d 826, 830–831 (10th Cir. 2005) (under New Mexico law, court denied enforcement and rescinded settlement agreement because plaintiffs’ counsel failed to disclose to defense counsel existence of second lawsuit similar to one parties were attempting to settle); see also Facebook, Inc. v. Pac. Northwest Software, Inc., 640 F.3d 1034, 1038 (9th Cir. 2011) (settlement agreement enforced). 62. Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (9th Cir. 1989) (no right to jury trial because motion akin to specific performance); Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987) (hearing required if dispute concerns existence or terms of settlement); Ozyagcilar v. Davis, 701 F.2d 306, 308 (4th Cir. 1983) (matter cannot be resolved on affidavits). 63. Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002). 64. See Fed. R. Civ. P. 43(c); Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 561 (8th Cir. 2008). 65. Fed. R. Civ. P. 43(c). 66. United Comm’l Ins. Service, Inc. v. Paymaster Corp., 962 F.2d 853, 858 (9th Cir. 1992) (emphasis added); see United States v. Mahoney, 247 F.3d 279, 285 (D.C. Cir. 2001) (opportunity for cross-examination required when there is genuine dispute whether parties have entered into binding settlement); but see United Comm’l Ins. Service, Inc. 962 F.2d at 858 (if motion based on interpretation of settlement documents and extrinsic evidence is undisputed, oral testimony is rarely required). 67. TNT Mktg., 796 F.2d 276 at 278. 68. See Fed. R. Civ. P. 65(d); Consumers Gas & Oil, Inc. v. Farmland Indus., Inc. 84 F.3d 367, 371 (10th Cir. 1996) (retention of jurisdiction to enforce settlement not enough). 69. Doi, 276 F.3d at 1138 (parentheses added; internal quotes omitted) (monetary sanctions imposed); see Lynch, 279 F.3d 487, 491 (case dismissed with prejudice when plaintiff refused to sign settlement agreed to before judge). 70. Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1258 (10th Cir. 2015). 71. Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 869 (1994).