Consumer Financial Protection Bureau v. Access Funding, LLC et al

Filing 87

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 1/18/2019. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CONSUMER FINANCIAL
PROTECTION BUREAU
Plaintiff,
Civil Action No. ELH-16-3759

v.
ACCESS FUNDING, LLC, et al.
Defendants.

MEMORANDUM OPINION
Plaintiff Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) filed suit on
November 21, 2016, against a host of defendants: Access Funding, LLC (“Access Funding”);
Access Holding, LLC (“Access Holding”); Reliance Funding, LLC (“Reliance Funding”); Lee
Jundanian; Raffi Boghosian; and Michael Borkowski (collectively, the “Access Funding
Defendants”); as well as attorney Charles Smith. ECF 1 (the “Complaint”). CFBB seeks a
permanent injunction, damages, disgorgement, payment of redress to consumers, civil penalties,
and costs based on defendants’ alleged violation of various provisions of the Consumer Financial
Protection Act of 2010 (“CFPA”), 12 U.S.C. § 5481 et seq., relating to the transfers of structured
settlements. See ECF 1.1
Defendants filed motions for Burford abstention and a stay or, in the alternative, to dismiss.
See ECF 13; ECF 16. By Memorandum (ECF 27) and Order (ECF 28) of September 13, 2017,
Judge Motz denied these motions. But, he granted the motion to dismiss as to Counts I-IV, which
were based upon the conduct of Smith, and denied the motion as to Count V, lodged against the

1

The case was initially assigned to Judge J. Frederick Motz. It was reassigned to me on
December 7, 2017. See Docket.

Access Funding Defendants, alleging substantial assistance in regard to Smith’s unfair and
deceptive acts. Id.2
CFPB subsequently moved for leave to file an Amended Complaint as to Counts I-IV. ECF
37. By Memorandum and Order of December 13, 2017, I granted the motion. ECF 42; ECF 43.
The Amended Complaint (ECF 44) alleges three violations of the CFPA by Smith and two
by the Access Funding Defendants. The claims against Smith and one of the claims against the
Access Funding Defendants arise out of Smith’s conduct as an independent professional advisor
(“IPA”). Specifically, the CFPB alleges that Smith engaged in unfair (Count I), deceptive (Count
II), and abusive (Count III) acts and practices, in violation of 12 U.S.C. §§ 5531(a), (b), and (d),
and that the Access Funding Defendants substantially assisted Smith’s unfair, deceptive, and
abusive acts (Count IV), in violation of 12 U.S.C. § 5536(a)(3). See ECF 44, ¶¶ 62-92. Count V
is based on the conduct of the Access Funding Defendants with respect to credit advances. See
ECF 44, ¶¶ 93-99. According to the CFPB, the Access Funding Defendants engaged in abusive
acts and practices, in violation of 12 U.S.C. § 5531(d)(2)(a).
Smith and Borkowski filed motions to dismiss the Amended Complaint. ECF 46; ECF 48.
In a Memorandum and Order of June 4, 2018, I denied both motions. ECF 66.
Now pending is the defendants’ Joint Motion for Partial Summary Judgment with regard
to the Bureau’s claims for monetary damages on behalf of consumers. ECF 58. It is supported by
a memorandum of law (ECF 59) (collectively, the “Motion”) and several exhibits. ECF 59-1 –
ECF 59-4. Discovery is not yet completed.3 However, the basis for defendants’ Motion is a
2

Count VI, asserted against the Access Funding Defendants, alleged abusive acts and
practices related to advances to consumers. It was not addressed in ECF 28. Nor is it included in
the Amended Complaint. See ECF 44.
By Order of December 4, 2018, I granted the parties’ joint request that the Court further
extend the discovery deadline to February 19, 2019. See ECF 86.
3

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settlement agreement in connection with a class action suit filed in the Circuit Court for Baltimore
City, Crystal Linton, et al. v. Access Holding, LLC, et al., Case No. 24-C-16-003894-OT. ECF 59
at 1-2. In light of the settlement agreement, defendants contend that the Bureau’s demand for
consumer relief to enforce the CFPA “is barred by the doctrine of res judicata and the bar against
obtaining a double recovery.” Id. at 2.
CFPB filed an Opposition (ECF 64), along with two exhibits. ECF 64-1 – ECF 64-2.
Defendants have replied. ECF 69 (the “Reply”).
No hearing is necessary to resolve the Motion. See Local Rules 105.6. For the reasons set
forth below, I shall deny the Motion.
I.

Factual Background4

CFPB “is an agency of the United States charged with regulating the offering and providing
of consumer-financial products and services” under certain federal statutes, including the CFPA.
ECF 44, ¶ 5. It “has independent litigating authority, including the authority to enforce the CFPA.”
Id. (citing 12 U.S.C. § 5564(a)-(b)).
On or around December 1, 2012, Jundanian, Boghosian, and Borkowski founded Access
Funding. ECF 44, ¶ 14. Access Funding is a limited liability company with its principal place of
business in Chevy Chase, Maryland. ECF 44, ¶ 6. “Access Funding conducted business under
two alter-ego names, Assoc LLC, and En Cor LLC.” Id. Access Holding is “the sole and managing
member of Access Funding and is legally responsible for the liabilities of Access Funding.” Id.
¶ 7. Reliance Funding is a “successor in interest to Access Funding,” as Access Funding sold all
of its assets to Reliance Funding after it was notified of the CFPB investigation that forms the basis
of this suit. Id. ¶ 9.

4

The facts are derived from the Amended Complaint and the parties’ exhibits.
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Jundanian, Boghosian, and Borkowski all have “an ownership interest in Access Funding
and [each] helped develop Access Funding’s business model and manage its business.” ECF 44,
¶¶ 10-12. From February 2013 to May 2014, Jundanian served as CEO of Access Funding. Id.
¶ 10. As CEO, he “was responsible for managing all operations of the company.” Id. ¶ 14. “After
May 2014, Jundanian was an advisor to Access Funding.” Id. ¶ 10. Since May 2014, “Boghosian
has served as COO of Access Funding . . . .” Id. ¶ 11. His “responsibilities include[e] managing
marketing and sales activities.” Id. Also since May 2014, “Borkowski has served as CEO of
Access Funding . . . .” Id. ¶ 12. “Before May 2014, he served as CFO and COO of Access
Funding.” Id. As CFO, COO, and CEO, Borkowski “was responsible for managing all operations
of the company.” Id. ¶ 17.
Access Funding’s principal business was to acquire future structured-settlement-payment
streams and transfer those payment streams to third-party investors.” Id. ¶ 18. Access Funding
purchased the “payment streams from structured-settlement holders,” a practice known as
“structured-settlement factoring.” Id. ¶ 6. More specifically, structured-settlement factoring is the
offering to “recipients of structured settlements the opportunity to transfer a portion of their future
payment streams in exchange for a discounted immediate lump sum.” Id. ¶ 20.
“Structured settlements are often used to ensure the financial well-being of victims who
have suffered long-term physical or cognitive harm.” Id. ¶ 19. They “are established by legal
judgments or settlements of tort claims to provide recipients with an arrangement for periodic
payment of damages for personal injuries.” Id. Access Funding “provided advances to consumers
that were to be repaid through a deduction from the proceeds of structured-settlement transfers
once those transactions were completed.” Id. ¶ 7. Notably, the advances constitute extensions of
credit to consumers . . . .” Id.

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Charles Smith is purportedly an IPA who advised “almost all Maryland consumers who
made structured-settlement transfers to Access Funding.” Id. ¶ 13. However, he “did not have an
attorney-client relationship with the Maryland Consumers . . . .” Id.
Maryland is one of forty-nine states that has enacted a Structured Settlement Protection
Act (“SSPA”). Id. ¶ 21. See Md. Code (2013 Repl. Vol., 2018 Supp.), §§ 5-1101 et seq. of the
Courts and Judicial Proceedings Article (“C.J.”).

Maryland’s SSPA requires structured-

settlement-factoring companies, such as Access Holding, to obtain court approval before
purchasing a payment stream. ECF 44, ¶ 22; C.J. § 5-1102. It also requires “the court to find that
the consumer has consulted with an [IPA] before it can approve a structured-settlement transfer.”
ECF 44, ¶ 29.
The Amended Complaint asserts: “During the relevant period, Maryland’s SSPA required
that an IPA advise on the financial, legal, and tax implications of a transfer.” Id. ¶ 32. To finalize
transfers of structured settlements, “Jundanian, Boghosian, and Borkowski each had responsibility
for ensuring that Access Funding’s transferors had consulted an IPA.” Id. ¶ 30.
Access Funding conducted approximately seventy percent of its transfers in Maryland.
Id. ¶ 31. From 2013 to 2015, it sought court approval in Maryland for about 200 transfers, “of
which at least 158 have been approved.” Id.
The Bureau contends that Access Funding aggressively pursued structured settlement
holders in the hopes of purchasing their settlements. ECF 44, ¶ 25. Its business practices included
searching court records to identify consumers who had previously transferred a portion of their
structured settlements, then contacting those consumers and enticing them to transfer the
remainder of their settlements to Access Funding, id. ¶ 24; pressuring individuals who had already
entered into transactions with Access Funding to transfer to the company all of their remaining

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expected payments, id. ¶ 25; and more generally, pursuing structured settlement holders via phone
and mail solicitations. Id. ¶ 26.
The Bureau’s allegations focus on two of Access Funding’s business practices.
First, the Amended Complaint alleges that Access Funding abused consumers with respect
to the payment of advances. Id. ¶¶ 93-99. Access Funding entered into advance agreements with
consumers while they waited to complete their paperwork and finalize their transfers. Id. ¶ 59.
Under these agreements, consumers assigned their future payment streams to Access Funding and,
in return, the company advanced “a steeply discounted lump sum” payment to the consumers. Id.
¶¶ 27, 59. But, the advances provided by Access Funding typically “represented only about 30%
of the present value of those future payments.” Id. “These advances often consisted of $500 for
signing a contract, $1000 when a court date was set, and another $1000 when a judge approved
the sale.” Id. ¶ 59.
Jundanian, Boghosian, and Borkowski each allegedly “participated in establishing Access
Funding’s policies related to advances, including the terms of the advances and how they were
presented to consumers, and dictated when Access Funding would issue advances to consumers.”
Id. ¶ 60. The advance agreements notified the consumers that they would be liable to repay the
advances if they did not ultimately go through with the transaction, and that in order to keep the
advances, they would have to cooperate fully with the company in obtaining court approval for the
transaction. Id. ¶¶ 61, 96.
Specifically, the Amended Complaint alleges: “Consumers who could not otherwise repay
the advances were told that they were obligated to go forward with the transfer even if they realized
it was not in their best interest.” Id. ¶ 97. And, the consumers, many of whom “were lead-poising

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victims with cognitive impairments,” id. ¶ 28, “did not understand the risks or conditions of the
advances, including that the advances did not bind them to complete the transactions.” Id. ¶ 98.
The Amended Complaint also concerns Smith’s conduct as an IPA. Id. ¶¶ 62-83. The
Bureau asserts that Access Funding “steered nearly all its Maryland consumers” to Smith, “who
acted as the IPA for almost all of its Maryland transactions.” Id. ¶ 33.
According to the Bureau, “Smith had both personal and professional ties to the Access
Funding Defendants.” Id. ¶ 34. Ordinarily, Access Funding directly “paid Smith $250 for each
IPA letter he provided.” Id. ¶ 35. To initiate Smith’s contact with consumers, Access Funding
“sen[t] him a copy of the consumer’s structured-settlement-transfer-disclosure statement, along
with the consumer’s phone number.” Id. ¶ 36. In some cases, “Access Funding couriered to
consumers prepaid cell phones that Smith used to contact the consumers.” Id. ¶ 37. “Other times,
Access Funding’s salespeople initiated a three-way call with Smith and a consumer.” Id.
Before Smith spoke to the consumers, “Access Funding had consumers sign statements
indicating that they had received IPA services from Smith . . . .” Id. ¶ 38. However, “neither
Access Funding nor Smith typically informed consumers that Smith was an attorney, and
consumers typically did not know that Smith was an attorney.” Id. ¶ 39. Indeed, they “did not
believe that Smith was acting as their attorney, and they did nothing to indicate that they intended
to have an attorney-client relationship with him.” Id. ¶ 40.
Generally, before Smith spoke with a consumer, he “spent ten to fifteen minutes reviewing
the settlement-transfer-disclosure statement and any other documents provided by Access
Funding.” Id. ¶ 41. Beyond the documents Access Funding provided, “Smith did not ask for any
additional information . . . .” Id. ¶ 42. His “phone calls with consumers typically lasted between
five and ten minutes.” Id. ¶ 43. And, during the calls, he “merely recited the terms from the

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structured-settlement transfer disclosure statement provided by Access Funding and asked whether
the consumers understood them.” Id.
Notably, “Smith did not tell consumers he was acting as their attorney on these calls or at
any other time.” Id. ¶ 44. “In some instances, Access Funding’s salespeople were on these calls
along with Smith and the consumer.” Id. ¶ 45. And, “Smith did not explain to consumers that he
represented them, as opposed to Access Funding, or that their interests might be different from
Access Funding’s.” Id. ¶ 46. Aside “from this single, brief phone call, Smith typically had no
other contact with the consumer.” Id. ¶ 47. Indeed, he “never met with a consumer in person.”
Id. ¶ 50.
Following each telephone call, Smith drafted and sent a letter and invoice to Access
Funding, “stating that the consumer had received ‘independent professional advice.’” Id. ¶ 48.
Later, Access Funding “submitted the IPA letters to the court for approval of the transfer.” Id.
Consumers did not receive or approve these letters. Id. ¶ 49.
According to the Amended Complaint, Smith did not provide consumers with advice about
whether structured-settlement transfers would be in their best interest, id. ¶¶ 52-53; never advised
a consumer not to enter into a structured-settlement transfer contract, id. ¶ 54; and never advised
a consumer to seek additional money from Access Funding or to sell fewer payments, or a different
duration of payments, to Access Funding. Id. ¶¶ 55-56.
The Bureau maintains that “Jundanian, Boghosian, and Borkowski were aware that Access
Funding was steering nearly all of its Maryland customers to Smith, that Smith had ties to the
Access Funding Defendants, and that Smith was compensated directly by Access Funding . . . .”
Id. ¶ 58.

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II.

Linton v. Access Funding

On July 6, 2016, Crystal Linton and Dimeca D. Johnson, on behalf of themselves and others
similarly situated, filed a class action suit in the Circuit Court for Baltimore City against Access
Funding; Reliance Funding; Access Holding; Assoc, LLC; En Cor, LLC; Smith; and Smith’s law
firm, CES Law Group, LLC. ECF 59-1 at 8-50 (“Linton Complaint”). In addition, the Linton
plaintiffs sued another lawyer, Anuj Sud, and his law firm, SudLaw, LLC. Id. Notably, they did
not sue the three Access Funding executives that the Bureau has sued in this case: Jundanian,
Boghosian, and Borkowski. Id. The Linton Complaint asserted claims, under Maryland law, of
negligence, misrepresentation, fraud, and civil conspiracy. Id. at 39-49.
On May 10, 2016, the State of Maryland, Office of the Attorney General, Consumer
Protection Division (the “Division”), filed suit in the Circuit Court for Baltimore City against
Access Holding; Reliance Funding; Assoc, LLC; En Cor, LLC; Jundanian; Boghosian;
Borkowski; Smith; and Smith’s former law partner, Scott Blumenfeld. See State of Maryland,
Office of the Attorney General, Consumer Protection Division v. Access Funding, LLC, et al.,
Case No. 24-C-16-002855. The Division asserted, inter alia, state-law violations based on Smith’s
failure to provide IPA services to Access Funding’s customers. Litigation is ongoing. See
Division, Case No. 24-C-16-002855, Docket No. 169 (Jan. 9, 2019).
On March 28, 2017, the parties in Linton filed a “Joint Motion for Preliminary Approval
of Class Action Settlement” (ECF 59-1 at 52-60), with a proposed “Stipulation of Settlement.” Id.
at 61-83 (the “Settlement Agreement”). The settlement class consisted of “all natural persons who
were or are Maryland residents, . . . and who between January 1, 2012 and July 6, 2016, transferred
all or a portion of their structured settlement payment rights . . . to Access Funding, LLC, Assoc,
LLC, En Cor, LLC, Access Holding, LLC, or Reliance Funding, LLC, or any of their designees.”

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Id. at 70-71, ¶ 2.1. The parties estimated a Settlement Class of about 100 persons covering 163
transactions. Id. at 71, ¶ 2.2.
Of significance here, the Settlement Agreement provides, in relevant part, id. at 73:
3.2
Upon the Effective Date, each Settlement Class Member who has not opted
out of the proposed settlement shall be permanently enjoined and barred from filing,
commencing, intervening (as class members or otherwise) or receiving any benefits
from any lawsuit or arbitration proceeding arising out of or related to any of the
Released Claims.
3.3
Upon the Effective Date, each Settlement Class Member who has not opted
out of the proposed settlement shall irrevocably assign and transfer to the
Defendants any and all benefits or recoveries, including any recovery based on the
equitable remedies of restitution, disgorgement of profits or damages obtained by
the Bureau in the Bureau’s Lawsuit or the Division in the Division’s Lawsuit for
the benefit of each Settlement Class Member.
The term “Effective Date” is defined as “the date on which the Judgment finally approving
this Stipulation and Settlement becomes Final. The Effective Date shall be, if there are no timely
objections to the Settlement, thirty (30) days after entry of the Court’s order granting final approval
of the settlement.” Id. at 68-69, ¶ 1.11. And, “‘Final’ means the date which all appellate rights
with respect to the Judgment have expired or have been exhausted in a manner to affirm the
Judgment, and when no further appeals are possible, including review by the United States
Supreme Court.” Id. at 69, ¶ 1.12. Moreover, paragraph 1.1, ECF 59-1 at 67, defines the “Bureau’s
Lawsuit” as the case sub judice. And, paragraph 1.9, ECF 59-1 at 68, defines the “Division’s
Lawsuit” as the Division’s suit pending in the Circuit Court for Baltimore City: Division, Case No.
24-C-16-002855.
Further, the Settlement Agreement provides: “Each of the Defendants shall have the right
in each of their sole discretion to terminate the settlement if either the Bureau or [Maryland] does
not provide, in writing, its agreement to dismiss its respective lawsuit with prejudice upon a Final
Approval Order or [Maryland] or the Bureau opposes the Court’s Final Approval of the
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Settlement.” Id. at 79, ¶ 10.3. At this time, none of the Linton defendants have elected to exercise
this right. See Linton, Case. No. 24-C-16-003894-OT.
The State of Maryland moved to intervene as a plaintiff on April 13, 2017 (ECF 64-2 at 210), arguing that (1) the settlement amount was inadequate because the $770,000 in compensation
for class members covered only 4% of the financial harm that those individuals suffered; (2) the
settlement was unfair because it diverted $330,000 of the settlement amount to plaintiffs’ counsel;
(3) the settlement appears to draw exclusively on insurance money, requiring none of the
defendants to make a direct contribution to the settlement fund; and (4) the settlement purports to
“release” the defendants from claims brought by the Bureau in federal court. Id. at 5-8.
Shortly thereafter, the Linton court granted the State’s motion to intervene. ECF 59-1 at
102-06. On September 22, 2017, the court preliminarily approved the Settlement Agreement. Id.
at 108-16. And, it approved the “Notice of Class Action Settlement” (id. at 118-26), which was
sent to members of the settlement class. Only one member, Gregory Ramsel, elected to opt out of
the Settlement Agreement, entering into a separate “Settlement and Release Agreement” with
Access Funding. Id. at 128-133.
On February 9, 2018, over the State’s objections, the State court (Handy, J.) entered a
comprehensive “Final Approval Order,” id. at 135-62, approving the Settlement Agreement and
ordering the parties to comply with its terms. And, on the same date, the court dismissed the case,
with prejudice. Id. at 164 (the “Order”).
The State sought judicial review on February 22, 2018, in the Maryland Court of Special
Appeals. See Linton, Case. No. 24-C-16-003894-OT, Docket No. 77. That appeal remains
pending. See Consumer Protection Bureau v. Crystal Linton, et al., No. 2609, Sept. Term 2017.5

5

Oral argument is scheduled for March 2019.
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III.

Legal Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir.
2017) (“A court can grant summary judgment only if, viewing the evidence in the light most
favorable to the non-moving party, the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter of law.”). The nonmoving party
must demonstrate that there are disputes of material fact so as to preclude the award
of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585–86.
The Supreme Court has clarified that not every factual dispute will defeat the motion. “By
its very terms, this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). A fact is “material” if it “might affect
the outcome of the suit under the governing law.” Id. at 248, 106 S. Ct. 2505. There is a genuine
issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id.; see also Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir.
2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,

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522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see
also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary judgment motion, a court
must view all of the facts, including reasonable inferences to be drawn from them, in the light most
favorable to the nonmoving party.

Matsushita Elec. Indus. Co. Ltd., 475 U.S. at

587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th
Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). However, summary judgment is
appropriate if the evidence “is so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support
of the [movant's] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [movant].” Id.
The judge's “function” in reviewing a motion for summary judgment is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249, 106 S. Ct. 2505; accord Guessous v. Fairview Prop. Inv.,
LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the
court may not make credibility determinations. Jacobs v. N.C. Admin. Office of the Courts, 780
F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir.
2007).

Moreover,

in

the

face

of

conflicting

evidence,

such

as

competing

affidavits, summary judgment ordinarily is not appropriate because it is the function of the
factfinder to resolve factual disputes, including matters of witness credibility. See Black & Decker
Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

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IV.

Discussion

Defendants contend that, in light of the Settlement Agreement in Linton (ECF 59-1 at 6183), the Bureau’s claim for damages “on behalf of the class members is barred by the doctrine of
res judicata and the bar against obtaining a double recovery.” ECF 59 at 2. In addition, they argue
that the Bureau’s claim for monetary relief is “moot and not justiciable,” because the class
members in Linton “assigned to the [Linton] defendants . . . and Smith, all rights to any recovery
obtained by the CFPB on their behalf in this case.” Id.
The Fourth Circuit has made clear: “Settlement agreements operate on contract principles,
and thus the preclusive effect of a settlement agreement ‘should be measured by the intent of the
parties.’” Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir. 2009)
(citing 18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 4443 (2d ed. 2002)). A settlement “may be designed either to support or reduce the preclusion
effects of the adjudication.” WRIGHT & MILLER, § 4443 (2d ed. 2018). “There is no preclusion at
all if the parties do not intend to preclude later litigation, although . . . an objective manifestation
of intent may support preclusion that was not subjectively intended.” Id. Therefore, “careful
attention should be devoted to the specific circumstances of the particular litigation.” Id.
The basis for defendants’ Motion is a settlement agreement. Notably, however, the CFPB
is not a party to it. But, as discussed below, defendants contend that the Bureau is in privity with
the Linton plaintiffs “to the extent that it seeks to obtain private remedies for their benefit.” ECF
59 at 8.
I begin with a review of the principles of contract construction.

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A.

Principles of Contract Construction6

In general, a contract is defined as “a promise or set of promises for breach of which the
law gives a remedy, or the performance of which the law in some way recognizes as a duty.”
Richard A. Lord, 1 Williston on Contracts § 1:1, at 2-3 (4th ed. 1990); accord Restatement
(Second) Contracts § 1, at 5 (1981); see also Maslow v. Vanguri, 168 Md. App. 298, 321, 896
A.2d 408, 421-22, cert. denied, 393 Md. 478, 903 A.2d 416 (2006). “‘A contract is formed when
an unrevoked offer made by one person is accepted by another.’” Cty. Comm’rs for Carroll Cty.
v. Forty W. Builders, Inc., 178 Md. App. 328, 377, 941 A.2d 1181, 1209 (2008) (quoting Prince
George’s County v. Silverman, 58 Md. App. 41, 57, 472 A.2d 104, 112 (1984)). Thus, mutual
assent is an integral component of every contract. See, e.g., Joseph Saveri Law Firm Inc. v.
Michael E. Criden, P.A., ___ F. App’x ____, 2019 WL 181453, at *2 (4th Cir. Jan. 14, 2019)
(recognizing as a “bedrock principle of law” that an offeree must accept an offer to form a
contract); Cochran v. Norkunas, 398 Md. 1, 14, 919 A.2d 700, 708 (2007); Advance Telecom
Process LLC v. DSFederal, Inc., 224 Md. App. 164, 177, 119 A.3d 175, 183 (2015).
“In determining whether there was an enforceable contract, [courts] begin [the] analysis by
discussing the essential prerequisite of mutual assent to the formation of a contract . . . .” Falls
Garden Condo. Ass'n, Inc. v. Falls Homeowners Ass'n, Inc., 441 Md. 290, 302, 107 A.3d 1183,
1189 (2015). See also Mitchell v. AARP, 140 Md. App. 102, 116, 779 A.2d 1061, 1069 (2001)

“In a federal question case that incorporates a state law issue, such as contract formation,
a district court applies the choice-of-law rules of the state in which it sits unless a compelling
federal interest directs otherwise.” Baker v. Antwerpen Motorcars Ltd., 807 F. Supp. 2d 386, 389
n.13 (D. Md. 2011). Maryland courts follow the rule of lex loci contractus, applying the substantive
law of the state where the contract was formed, unless there is a choice-of-law provision in the
contract. Am. Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 573, 659 A.2d 1295, 1301
(1995). In this case, the Settlement Agreement includes a choice-of-law provision, providing that
Maryland law is controlling. See ECF 59-1 at 81, ¶ 12.6.
6

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(“An essential element with respect to the formation of a contract is ‘a manifestation of agreement
or mutual assent by the parties to the terms thereof; in other words, to establish a contract the minds
of the parties must be in agreement as to its terms.’” (citations omitted)). “Manifestation of mutual
assent includes two issues: (1) intent to be bound, and (2) definiteness of terms.” Cochran, 398
Md. at 14, 919 A.2d at 708.
A contract may be oral or written, as well as express or implied. “‘An express contract has
been defined as an actual agreement of the parties, the terms of which are openly uttered or
declared at the time of making it, being stated in distinct and explicit language, either orally or in
writing.’” Maryland Cas. Co. v. Blackstone Int’l Ltd., 442 Md. 685, 706, 114 A.3d 676, 688 (2015)
(quoting Cty. Comm’rs of Caroline Cty. v. Roland Dashiell & Sons, Inc., 358 Md. 83, 94, 747 A.2d
600, 606 (2000)). Whether oral or written, a contract must express with certainty the nature and
extent of the parties’ obligations and the essential terms of the agreement. Forty W. Builders, Inc.,
178 Md. App. at 377-78, 941 A.2d at 1209-10; see Canaras v. Lift Truck Services, 272 Md. 337,
346, 322 A.2d 866, 871 (1974). If an agreement omits an important term, or is otherwise too vague
or indefinite with respect to an essential term, it is not enforceable. Mogavero v. Silverstein, 142
Md. App. 259, 272, 790 A.2d 43, 51 (2002); see L & L Corp. v. Ammendale, 248 Md. 380, 385,
236 A.2d 734, 737 (1967); Schloss v. Davis, 213 Md. 119, 123, 131 A.2d 287, 290 (1956) (stating
that a “contract may be so vague and uncertain as to price or amount as to be unenforceable”).
Under Maryland law, the interpretation of a contract is “ordinarily a question of law for the
court.” Grimes v. Gouldmann, 232 Md. App. 230, 235, 157 A.3d 331, 335 (2017); see also
Spacesaver Sys., Inc. v. Adam, 440 Md. 1, 7, 98 A.3d 264, 268 (2014); Myers v. Kayhoe, 391 Md.
188, 198, 892 A.2d 520, 526 (2006); Towson Univ. v. Conte, 384 Md. 68, 78, 862 A.2d 941, 946
(2004); Lema v. Bank of Am., N.A., 375 Md. 625, 641, 826 A.2d 504, 513 (2003); Under Armour,

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Inc. v. Ziger/Snead, LLP, 232 Md. App. 548, 552, 158 A.3d 1134, 1136 (2017). This includes the
determination of whether a contract is ambiguous. Sy-Lene of Wash., Inc. v. Starwood Urban
Retail II, LLC, 376 Md. 157, 163, 829 A.2d 540, 544 (2003).
“‘The cardinal rule of contract interpretation is to give effect to the parties’ intentions.’”
Dumbarton Imp. Ass’n. Inc. v. Druid Ridge Cemetery Co., 434 Md. 37, 51, 73 A.3d 224, 232
(2013) (citation omitted). To determine the parties’ intentions, courts look first to the written
language of the contract. Walton v. Mariner Health of Maryland, Inc., 391 Md. 643, 660, 894
A.2d 584, 594 (2006) (“[G]enerally, when seeking to interpret the meaning of a contract our search
is limited to the four corners of the agreement.”); Hartford Acc. & Indem. Co. v. Scarlett Harbor
Assoc. Ltd. P’ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) (“[T]he court must, as its
first step, determine from the language of the agreement what a reasonable person in the position
of the parties would have meant at the time the agreement was effectuated.”), aff’d, 346 Md. 122,
695 A.2d 153 (1997).
“Maryland courts interpreting written contracts have long abided by the law
of objective contract interpretation, which specifies that ‘clear and unambiguous language’ in an
agreement ‘will not give way to what the parties thought the agreement meant or was intended to
mean.’” Urban Growth Prop. Ltd. P’ship v. One W. Balt. St. Assocs. LLC, No. 882, Sept. Term,
2015, 2017 WL 526559, at *5 (Md. Ct. Spec. App. Feb. 9, 2017) (citation omitted) (unpublished);
see Cochran, 398 Md. at 16, 919 A.2d at 709; Huggins v. Huggins & Harrison, Inc., 220 Md. App.
405, 417, 103 A.3d 1133, 1139 (2014) (internal quotations and alteration omitted). The court’s
“task, therefore, when interpreting a contract, is not to discern the actual mindset of the parties at
the time of the agreement.” Dumbarton, 434 Md. at 52, 73 A.3d at 232. Rather, the court is to
“‘determine from the language of the agreement itself what a reasonable person in the position of

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the parties would have meant at the time it was effectuated.’” Id. (quoting Gen. Motors Acceptance
v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985)).
As indicated, to determine the parties’ intention, courts first look to the written language
of the contract. See Walton, 391 Md. at 660, 894 A.2d at 594. “‘The words employed in the
contract are to be given their ordinary and usual meaning, in light of the context within which they
are employed.’” DIRECTV, Inc. v. Mattingly, 376 Md. 302, 313, 829 A.2d 626, 632-33 (2003)
(citations omitted).

A court will presume that the parties meant what they stated in an

unambiguous contract, without regard to what the parties to the contract personally thought it
meant or intended it to mean. See Dumbarton, 434 Md. at 51, 73 A.3d at 232; Dennis v. Fire &
Police Employees Ret. Sys., 390 Md. 639, 656, 890 A.2d 737, 747 (2006); PaineWebber Inc. v.
East, 363 Md. 408, 414, 768 A.2d 1029, 1032 (2001); see also, e.g., Scarlett Harbor, 109 Md.
App. at 291, 674 A.2d at 142 (“Where the language of a contract is clear, there is no room for
construction; it must be presumed that the parties meant what they expressed.”).
Moreover, a court will not “add or delete words to achieve a meaning not otherwise evident
from a fair reading of the language used.” Brensdel v. Winchester Constr. Co., 392 Md. 601, 623,
898 A.2d 472, 485 (2006). Indeed, “[i]t is a fundamental principle of contract law that it is
‘improper for the court to rewrite the terms of a contract, or draw a new contract for the parties,
when the terms thereof are clear and unambiguous, simply to avoid hardships.’” Calomiris v.
Woods, 353 Md. 425, 445, 727 A.2d 358, 368 (1999) (quoting Canaras v. Lift Truck Servs., 272
Md. 337, 350, 322 A.2d 866, 873 (1974)); see Loudin Ins. Agency, Inc. v. Aetna Cas. & Sur. Co.,
966 F.2d 1443 (Table), 1992 WL 145269, at *5 (4th Cir. 1992) (per curiam) (“[A] court will not
rewrite the parties’ contract simply because one party is no longer satisfied with the bargain he
struck.”).

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B.

Claim Preclusion

Res judicata, or claim preclusion, is a judicial doctrine by which “a final judgment on the
merits bars further claims by parties or their privies based on the same cause of action.” Montana
v. United States, 440 U.S. 147, 153 (1979); see Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d
156, 161 (4th Cir. 2008). The doctrine precludes parties from “contesting matters that they have
had a full and fair opportunity to litigate,” thereby conserving judicial resources and minimizing
the possibility of inconsistent decisions. Montana, 440 U.S. at 153-54. The doctrine of res judicata
was “designed to protect ‘litigants from the burden of relitigating an identical issue with the same
party or his privy and [to promote] judicial economy by preventing needless litigation.’” Laurel
Sand & Gravel, Inc., 519 F.3d at 161-62 (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322,
326 (1979)).
Res judicata also extends to claims that could have been asserted and litigated in the
original suit. Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013). But, it does not
bar a claim that could not have been brought in the earlier litigation. Lawlor v. Nat’l Screen Serv.
Corp., 349 U.S. 322, 328 (1955).
The party who asserts res judicata has the burden of showing its application. See Bennett
v. Garner, ___ F.3d ____, 2019 WL 209106, at *3 (4th Cir. Jan. 16, 2019). In this case, as Judge
Motz previously observed, ECF 27 at 11-12: “The Full Faith and Credit Act, 28 U.S.C. § 1738,
dictates that a federal court must give a state court judgment the same preclusive effect it would
be given in the courts of the state that rendered the judgment. Therefore, this court must give any
Maryland judgments the same preclusive effect they would be given in Maryland state court under
Maryland law.”

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Where a federal court assesses res judicata based on a prior proceeding in a Maryland state
court, Maryland preclusion principles apply. In re Genesys Data Techs., Inc., 204 F.3d 124, 127
(4th Cir. 2000); Williams v. 21st Mortg. Corp., PX-1210, 2017 WL 1133706, at *7 (D. Md.
Mar. 27, 2017) (citing Migra v. Warren Cty. School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)).
As the Fourth Circuit recently explained in Bennett v. Garner, 2019 WL 209106, at *2: “In
considering the preclusive effect of an earlier state court judgment on a new claim, [federal courts]
apply the ‘preclusion law of the State in which judgment was rendered.’” (citations omitted).
Under Maryland law, the doctrine of res judicata applies when the following three elements
are present: “(1) a final judgment on the merits in a prior suit, (2) an identity of the cause of action
in both the earlier and later suit, and (3) an identity of parties or their privies in the two suits.”
Clodfelter, 720 F.3d at 210 (citation and quotation marks omitted); see Weiner v. Fort, 197 F.
App’x 261, 264 (4th Cir. 2006); In re Varat Enter., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996) (stating
that “claim preclusion occurs when three conditions are satisfied: 1) the prior judgment was final
and on the merits, and rendered by a court of competent jurisdiction in accordance with the
requirements of due process; 2) the parties are identical, or in privity, in the two actions; and, 3)
the claims in the second matter are based upon the same cause of action involved in the earlier
proceeding”); Young–Henderson v. Spartanberg Area Mental Health Ctr., 945 F.2d 770, 773 (4th
Cir. 1991) (quoting Nash Cty. Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)).
See also Davis v. Wicomico Cty. Bureau, 447 Md. 302, 306, 135 A.3d 419, 422 (2016) (“The
requirements of the doctrine of res judicata [include] . . . that there was a final judgment on the
merits.”).
“A ‘final judgment’ is ‘a judgment, degree, sentence, order, determination, decision, or
other action by a court . . . from which an appeal . . . may be taken.’” Addison v. Lochearn Nursing

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Home, LLC, 411 Md. 251, 261, 983 A.2d 138, 144 (2009) (quoting Md. Code (2013 Repl. Vol.,
2017 Supp.), § 12-101(f) of the Courts and Judicial Proceedings Article). “A ruling of the circuit
court, to constitute a final judgment, must, among other things, be an ‘unqualified, final disposition
of the matter in controversy.’” Addison, 411 Md. at 262, 983 A.2d at 145 (quoting Rohrbeck v.
Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989)).
Of relevance here, “a private settlement agreement does not give rise to preclusion if it is
not transformed into a judgment. Whatever effect it has on the future relationships between the
parties derives from its force as a contract, not from res judicata.” WRIGHT & MILLER, § 4443. As
to the first element of res judicata, only an issue that is essential to a final judgment on the merits
can be afforded preclusive effect. Garrity v. Maryland State Board of Plumbing, 447 Md. 359,
368, 135 A.3d 452, 459 (2016).
Here, defendants assert that the Linton Order approving the Settlement Agreement
constitutes a final judgment under Maryland law. ECF 59 at 18. Further, they contend that if the
Court denies the requested relief, the Linton “class members and Ramsel would receive a double
recovery.” Id. at 18.
However, in reviewing the text of the Settlement Agreement, it is apparent that the Order
is not final. As mentioned, the Settlement Agreement states, in pertinent part, ECF 59-1 at 73:
Upon the Effective Date, each Settlement Class Member who has not opted
out of the proposed settlement shall irrevocably assign and transfer to the
Defendants any and all benefits or recoveries, including any recovery based on the
equitable remedies of restitution, disgorgement of profits or damages obtained by
the Bureau in the Bureau’s Lawsuit or the Division in the Division’s Lawsuit for
the benefit of each Settlement Class Member.
“Effective Date” is defined as “the date on which the Judgment finally approving this
Stipulation and Settlement becomes Final. The Effective Date shall be, if there are no timely
objections to the Settlement, thirty (30) days after entry of the Court’s order granting final approval
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of the settlement.” Id. at 68-69, ¶ 1.11. “‘Final’ means the date [on] which all appellate rights with
respect to the Judgment have expired or have been exhausted in a manner to affirm the Judgment,
and when no further appeals are possible, including review by the United States Supreme Court.”
Id. at 69, ¶ 1.12.
The State filed a timely objection to the Settlement Agreement, as noted in the Linton
Order. See ECF 59-1 at 164. And, the State subsequently appealed the Order, which is now
pending before the Maryland Court of Special Appeals. See Linton, Case. No. 24-C-16-003894OT, Docket No. 77. Therefore, as all appellate rights with respect to the Settlement Agreement
have neither expired nor been exhausted, the Settlement Agreement is not “Final.” Thus, the Order
is not a final judgment on the merits that can be afforded preclusive effect. And, in order to invoke
res judicata, there must be a final judgment on the merits.
A cause of action is “identical” for purposes of res judicata if it “involves a right arising
out of the same transaction or series of connected transactions that gave rise to the claims in the
first action.” Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986). Res judicata thereby
accounts for “issues that . . . could have been raised in that [first] action.” San Remo Hotel, L.P.
v. City and Cty. of San Francisco, Cal., 545 U.S. 323, 336 n.16 (2005) (quoting Allen v. McCurry,
449 U.S. 90, 94 (1980)). Moreover, “[a] plaintiff’s invocation of a different legal theory in the
subsequent action” does not preclude application of res judicata. Onawola v. Johns Hopkins Univ.,
No. AMD 07–870, 2007 WL 5428683, at *1 (D. Md. Sept. 24, 2007); see Restatement (Second)
of Judgments § 24(2) cmt. c (1982).
As to third element of res judicata, defendants contend that the Bureau, although not a party
to the Agreement, is in privity with the Linton plaintiffs. Therefore, to the extent that CFPB seeks
to obtain remedies on the consumers’ behalf, “the doctrine of res judicata bars the Bureau’s claims

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for monetary relief[.]” ECF 59 at 7. In response, the Bureau asserts that, in seeking consumer
redress, it “is not merely representing the private interests of those consumers who would receive
the redress; it is also vindicating the public interest in effective law enforcement.” Id. at 11
(emphasis in original).
Parties are in privity for purposes of res judicata where they are “so identified in
interest . . . that [they] represent the same legal right in respect to the subject matter involved.”
Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005). However, at this
juncture it is unnecessary to consider the parties’ contentions as to privity. Because the Order
approving the Settlement Agreement is not a final judgment on the merits, defendants’ res judicata
claim fails.
C.

Mootness Doctrine7

Defendants also contend that CFPB’s claim for monetary relief on behalf of the Class
Members and Ramsel is moot. ECF 59 at 21.
A case becomes moot when the issues presented are “‘no longer live or the parties lack a
legally cognizable interest in the outcome.’” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)
(quoting Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)) (other internal citations omitted);
see also Grutzmacher v. Howard Cty., 851 F.3d 332, 349 (4th Cir. 2017).
The Fourth Circuit has stated that “‘mootness goes to the heart of the Article III jurisdiction
of the courts.’”

Castendet-Lewis v. Sessions, 855 F.3d 253, 260 (4th Cir. 2017) (quoting

7

As defendants point out, ECF 59 at 21, n.12, because this case is founded on federal
question jurisdiction, and not diversity jurisdiction, I must apply the federal mootness doctrine,
which differs from Maryland’s mootness doctrine. See Thana v. Bd. of License Comm’rs for
Charles Cty., 226 Md. App. 555, 568, 130 A.3d 1103, 1111 (2016) (“Unlike the Article III
constitutional constraints on the federal courts, . . . [Maryland’s] mootness doctrine is based
entirely on prudential considerations that do not constitutionally bar us from reaching the merits
of a moot action.”) (internal quotation marks and citations omitted) (alteration in Thana).
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Friedman's, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)). “‘The inability of the federal
judiciary to review moot cases derives from the requirement of Art. III of the Constitution under
which the exercise of judicial power depends upon the existence of a case or controversy.’” United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting DeFunis v. Odegaard, 416 U.S. 312,
316 (1974)); see also Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (citations
omitted).
In Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 133 (2011), the
Supreme Court said: “Continued adherence to the case-or-controversy requirement of Article III
maintains the public's confidence in an unelected but restrained Federal Judiciary . . . . For the
federal courts to decide questions of law arising outside of cases and controversies would be
inimical to the Constitution's democratic character.” See also Campbell-Ewald Co. v. Gomez, ___
U.S. ___, 136 S. Ct. 663, 678 (2016) (“‘No principle is more fundamental to the judiciary's proper
role in our system of government than the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.’”) (alteration and citation omitted); Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 11 (2004) (stating that Article III standing “enforces the Constitution's caseor-controversy requirement”), abrogated in part on other grounds by Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127-28 (2014).
In other words, during the pendency of a case, an actual controversy must exist. See Steffel
v. Thompson, 415 U.S. 452, 459 n.10 (1974); Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.
2013). And, “[w]hen a case or controversy ceases to exist—either due to a change in the facts or
the law—‘the litigation is moot, and the court's subject matter jurisdiction ceases to exist also.’”
Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (quoting S.C. Coastal Conservation League v.
U.S. Army Corps. of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015)); see Chafin v. Chafin, 568 U.S.

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165, 172 (2013) (holding that “[f]ederal courts may not decide questions that cannot affect the
rights of litigants in the case before them or give opinions advising what the law would be upon a
hypothetical state of facts”) (internal quotation marks and brackets omitted); Knox v. Service
Employees Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (stating that “[a] case becomes moot
only when it is impossible for a court to grant any effectual relief whatever to the prevailing party”)
(internal quotation marks omitted).
Defendants maintain that, in accordance with the Settlement Agreement, the Linton class
members and Ramsel assigned to the defendants “all benefits or recoveries, including any recovery
based on the equitable remedies of restitution, disgorgement of profits or damages obtained by the
Bureau in the Bureau’s lawsuit . . . .” ECF 59-1 at 73. And, as a result of this assignment, the
Bureau’s suit is moot as no case or controversy exists. ECF 59 at 21-22. Defendants argue that
“the Court cannot provide effective relief to the consumers” because the class members and
Ramsel have already received the monetary relief they sought to obtain. Id. at 22; see also
Friedman’s, Inc., 290 F.3d 191, 197 (4th Cir. 2002) (“[W]hen a state court orders the same relief
sought by the plaintiff in a parallel federal action, there is no longer a live controversy and the
parallel federal claim is moot.”).
However, as noted by the Bureau, “the Linton class members’ potential recoveries have
not yet been assigned to Defendants because . . . the class settlement that includes the potential
assignment is not final or effective.” ECF 64 at 22. As discussed, supra, the Linton Order
approving the Settlement Agreement is not final. Therefore, the Bureau’s suit is not moot and
dismissal of the Bureau’s claim for monetary relief is not warranted.

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V.

Conclusion

For the reasons stated above, I shall deny defendants’ Joint Motion for Partial Summary
Judgment, without prejudice to their right to new the Motion when the settlement is final.8
An Order follows.

Date: January 18th, 2019

8

/s/
Ellen L. Hollander
United States District Judge

Even if the settlement order were final, I express no opinion as to the merits of the Motion.
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