What are the Different Types of Consent Decree?

Dale Marshall

The two main types of consent decree are those issued when defendants are governments or their agencies, and those issued when they are large private organizations, like corporations. Consent decrees are one of the ways judges bring civil lawsuits and some criminal cases to a conclusion; other ways include issuing judgments in civil cases and pronouncing sentence on defendants found guilty in criminal trials. Unlike other statements and judgments issued by a court, consent decrees are formulated by the parties, not the judge. These decrees cannot be appealed unless there is evidence of fraud.

A consent decree is one way a judge can bring a case to a conclusion.
A consent decree is one way a judge can bring a case to a conclusion.

A consent decree is a settlement that is reached between the parties and presented to the court, which reviews it and issues it as an official decree. When a court issues a consent decree, it becomes an ongoing participant in the case and routinely monitors the defendant's actions to ensure that the promises in the decree are being kept. Consent decrees differ from settlements in three ways: settlements are usually private and confidential between the parties, the case is usually dismissed as a condition of the defendant's settlement, and the court isn't involved in the settlement's enforcement.

A consent decree may be issued if an agreement is reached in mediation.
A consent decree may be issued if an agreement is reached in mediation.

The use of consent decrees expanded dramatically in the late 20th century when agencies of the US government sued state and local governments and their agencies for their failures to comply with some acts of Congress. There was no substantive dispute over the cases' facts, and the defendants agreed to consent decrees to avoid heavy fines. The defendants pledged to accomplish certain goals over time to bring themselves into compliance with the law, often promising certain disbursements as part of the process.

The other type of consent decree is issued when the defendant is a private organization, like a corporation. The plaintiffs in these cases are usually government agencies, such as the Environmental Protection Agency (EPA) or the Equal Employment Opportunity Commission (EEOC) in the United States, suing to compel compliance with a statute or regulation. EPA-initiated cases involving pollution, for instance, are often resolved by a consent decree in which the company agrees to stop its polluting behavior and clean up after itself. When the EEOC sues an employer to correct a pattern of discriminatory hiring behavior, it will often seek a consent decree setting goals and standards. In both cases, the court monitors the defendant's actions and progress, and takes immediate action to enforce the decree, if necessary.

Class actions brought in federal court, and antitrust lawsuits brought by the US Department of Justice (DOJ), can only be ended by consent decrees. They are required because in both cases, the judges have a statutory duty to determine if the terms are fair and reasonable; in the latter, the judge must also determine if the terms of the agreement between the parties advance the public interest. Consent decrees are also the only mechanism by which the final phase of any Superfund site cleanup can be settled by the EPA.

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