A stipulated consent judgment is one of the two main types of voluntary compliance agreements. The less formal administrative settlement is the other. Although there are more formalities that must be followed with a stipulated consent judgment, it is a more effective bar to litigation.
Definition of 'Voluntary Compliance'
An assumption or principle that taxpayers will comply with tax laws and, more importantly, accurately report their income and deductions honestly.
This is one of those "ideal world" principles; for example, in an ideal world we wouldn't need police officers.
A stipulated consent judgment requires the filing of an actual lawsuit by the U.S. Department of Labor (DOL) against the company. At the same time the lawsuit is filed, however, the parties also file a stipulated consent judgment in which the parties agree to resolve the case on the terms contained in the stipulated consent judgment. The agreement is subject to court approval and involves the actual entry of a judgment against the employer once the agreement is approved by the court. As a practical matter, most judges quickly approve these types of agreements and rarely hold a fairness hearing to determine if the settlement is fair and reasonable. The judgment becomes a matter of public record and is typically available by searching the federal docket using the PACER system. Additionally, the DOL typically issues a press release announcing the settlement. As a result, an employer should not expect that this type of settlement will be confidential.
Consent decree
A consent decree (also referred to as a consent order or stipulated judgment or agreed judgment) is a final, binding judicial decree or judgment memorializing a voluntary agreement between parties to a suit in return for withdrawal of a criminal charge or an end to a civil litigation. In a typical consent decree, the defendant has already ceased or agrees to cease the conduct alleged by the plaintiff to be illegal and consents to a court injunction barring the conduct in the future. A consent judgment can also memorialize payment of damages. Sometimes the defendant expressly does not admit to fault, illegality or damages. Consent decrees are used most commonly in criminal law and family law. They are frequently used by the U.S. Securities and Exchange Commission. They are sometimes used in antitrust law.
A consent decree can be either interlocutory or final. The former is given on some plea or issue arising in the cause which does not decide the main question; the latter settles the matter in dispute, and a final decree has the same effect as a judgment at law.
Once entered, a consent decree is binding on the consenting parties and cannot be reviewed except on a showing that the consent was obtained by fraud or that the decree was based on mutual error or a failure of consent.
If the party against whom the judgment is rendered violates the terms of the consent decree, the judgment is as binding as any other, and the non-breaching party may seek enforcement through a contempt action. Enforcement actions vary, but can include wage garnishment and/or property lien(s).
The principal advantage offered by a stipulated consent judgment is that this type of resolution offers the employer the greatest protection from subsequent claims by employees. When the DOL files an enforcement action, the act of filing the complaint eliminates an employee’s private right to bring an action for the same claim. And in an enforcement action it is the DOL, not the employee, who determines what is a fair resolution of the claims. Indeed, courts have consistently recognized that an employee does not have the right to contest the DOL’s determination of the value of an employee’s claim.
However, a key disadvantage is that a stipulated consent judgment will typically include an injunction. Historically, the DOL insists on injunctive language as a nonnegotiable, essential term of any such agreement. The injunction typically blocks an employer from violating the Fair Labor Standards Act (FLSA) in the future. An injunction is a powerful tool that allows the DOL to argue to the court that the employer is in contempt of a court order if the employer violates the FLSA in the future. As a result, an employer who enters into a stipulated consent judgment must have strong compliance mechanisms in place to ensure it is not vulnerable to a contempt proceeding in the future.
An alternative to a stipulated consent judgment is the less formal administrative settlement in which the DOL agrees to supervise the payment of back wages pursuant to Section 216(c) of the FLSA and back wage payments are accompanied by a back-wage receipt and release form referred to as a WH-58. The key advantage of this method lies in its informality. This method does not require court involvement and the DOL generally will not insist on any type of injunction in the agreement.
In addition, this type of administrative settlement usually receives less press attention, although the DOL will often issue a press release if the agreement covers a significant number of employees.
The key disadvantage of this type of settlement is that only those employees who accept the offered back wages are barred from bringing a lawsuit against the employer. As a result, even though the DOL and the employer have agreed to resolve the matter, an employee can disagree, reject the employer’s payment and pursue a private claim. In the past, most employees have accepted DOL supervised payments and not pursued private litigation. This trend seems to be changing as employees become more familiar with their FLSA rights and more plaintiffs’ lawyers aggressively advertise their services related to FLSA claims.
Mandamus
A writ of mandamus or mandamus (which means "we command" in Latin; pronounced, or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly."[1]
Mandamus is a judicial remedy which is in the form of an order from a superior court to any government subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.[2] It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.
Legal requirements
The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:[3] It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.[4]
Purpose
The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is therefore an equitable remedy; a matter for the discretion of the court, the exercise of which is governed by well-settled principles.[5]
Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority.[6] A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.
Types
There are three kinds of mandamus:
1.Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
2.Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.[7][8]
3.Continuing Mandamus: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.[9]
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