Friendly Fire: Cy Pres, Consent Decrees, and Trump v. IRS

Controversy has swirled for years over litigation in which a plaintiff sues a friendly government defendant, and the case concludes with a favorable settlement. Critics argue that this practice creates a non-adversarial process that allows aligned litigants and agencies to shape policy and reward political allies outside the normal rulemaking and appropriations procedures. Defenders respond that these settlements generally resolve legitimate claims while conserving judicial resources and taxpayer dollars. The debate intensified during the Obama administration as the practice proliferated, particularly in environmental consent decrees.The controversy received renewed attention after the district court’s July 13 ruling in Trump v. IRS, concerning the settlement of President Trump's lawsuit against the IRS over the leak of his tax returns. The court concluded that the parties were never genuinely adverse and that there was therefore no Article III case or controversy. Its order went further, however. Reasoning that the suit was brought for an improper purpose, the court imposed sanctions on the plaintiffs and their counsel and directed that the order be transmitted to the bar authorities of senior DOJ officials.Join us for a discussion of Trump v. IRS, and the broader legal and policy concerns surrounding sue-and-settle litigation.Featuring:Anne Austin, Senior Advisor, Burke Law GroupZhonette M. Brown, General Counsel, Senior Litigation Counsel, New Civil Liberties AllianceAbhishek Kambli, Partner, Holtzman Vogel Baran Torchinsky & Josefiak PLLC(Moderator) John Shu, Attorney and Legal Commentator