Off Topic: “APPROVED AS TO FORM AND CONTENT” Settlement Agreement Language Does Not Give Rise To Actionable Misrepresentation Claims To Opposing Counsel As Against Approving Counsel

Although Not a Fees Issue, Decision Is Of Interest to All California Litigators.

     For all you litigators out there, every wonder if signing “APPROVED AS TO FORM AND CONTENT” language in a settlement agreement might result in exposure to a person other than your client (especially an opposing counsel)? An opposing counsel sued on that basis, attempting to assert actionable fraud claims against the approving counsel—arguing that this recital was tantamount to a representation by approving counsel about the accuracy of the settlement agreement.

     The Second District, Division 4, in a 3-0 opinion authored by Presiding Justice Epstein, disagreed and affirmed the sustaining of a demurrer without leave to amend. The case is Freedman v. Brutzkus, Case No. B213489 (2d Dist., Div. 4 Mar. 11, 2010) (certified for publication).