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Consent Decree and Settlement Agreement With Affidavit of Confession of JudgmentThe end of this case has finally happened. What we have here are the settlement documents, which, significantly, are not sealed. In the settlement, the Defendants agree in paragraph 1 not to send any commercial mail to Comcast at all unless they can prove affirmative consent granted to them by the Comcast subscriber. They also agree to not violate CAN-SPAM. Paragraph 2 says that they also agree to maintain business records for three years proving that they have not violated the agreement. Paragraph 3 allows David Linhardt to consult. That's a good thing for Mr. Linhardt, since it looks like he is already involved in doing that. Paragraph 7 contains an odd provision that is a confession of judgment. It allows Comcast to go to court, and receive an immediate judgment against Linhardt without the need for notice or wait. As the Wikipedia article points out, these are controversial things, and I don't know what their status in the state of Illinois is (if someone knows, please leave a comment). The Affidavit of Confession of Judgment finally lays out the monetary terms of the settlement. If the settlement is broken within the first five years, then Linhardt has to pay $250,000. If it occurs between years five and ten, then $20,000 per year (after the fifth year) are subtracted from the liquidated damages. And, finally, anything after year ten won't include the monetary damages portion of the judgment.
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![[file]](http://www.spamsuite.com/icons//pdf.gif "Download CounterclaimSettlement.pdf"){kind=icon}
Legalities of 'confession of judgment'...
Did a quick glance at the wiki page.
First, if Comcast's lawyers pushed for it, then it has to be something which is honored in Chicago (IL) courts.
From the wiki, from a commercial perspective (which this is), the contract is valid. In this specific issue it will hold water. (Its a contractual agreement as part of a settlement.)
Linford is definitely toast if he violates this agreement. Looks like Comcast did their homework.
Re: Linhardt, et al, 'Confession of Judgement' clause
I'm in Illinois. I'm not a lawyer. But I do have a fair grasp of the principles involved.
AS WRITTEN the confession of judgment would, in all probability, survive a challenge in any court in the U.S. The language makes it expressly clear that the defendants (Linhardt, et al) were fully aware of, knew what they were doing, and were advised by competent (well FVSO that word, anyway :) counsel when they entered into the agreement.
In addition, note well the initial language that all parties contributed to the drafting of the agreement, and that the principle of (in situations of ambiguity) construing against the drafter is not applicable to this agreement.
Lastly, but not the least important, realize that — unlike the typical confession of judgment clause in a private contract — this "confessin" has already been blessed, as it were, by a Federal Court, when it is made part of the 'consent decree' that ends the case.
Note also, that the court that issues the decree is requested to retain jurisdiction over matters relating to performance under the agreement. If a different court, say a state court, tried to disallow the previously-agreed-to confession of judgement, Comcast could simply 'remove' the matter back to the court of 'original jurisdiction', where
the COJ had already been approved.
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