ELR Citation: ELR 20630
No(s). 91-6186 (10th Cir. Jan 6, 1993)

The court vacates and remands a district court's approval of a settlement concerning response costs sought under the Comprehensive Environmental Response, Liability, and Compensation Act, between original defendants and certain third-party defendants that asserted that they had not entered into such a settlement because their offer was withdrawn before it was accepted. First, the court concludes that it has jurisdiction over the interlocutory appeal, despite the appellants' premature filing of a notice of appeal and their failure to cure the premature notice. The appellants did manage to obtain certification before the court acted to dismiss the case. Next, reviewing the district court's approval of the settlement agreement for abuse of discretion, the court holds that an evidentiary hearing is required to resolve the dispute of whether the parties validly entered into the agreement. In a brief hearing the district court reviewed no sworn testimony subject to cross-examination and received no briefs or affidavits regarding the dispute over whether the appellants had agreed to settle. The district court was faced with conflicting attorney representations of material facts as to whether a settlement had been reached, and such unsworn representations, not subject to cross-examination, are unacceptable to prove the existence or nonexistence of a settlement.

[Previous decisions in this litigation are published at 17 ELR 20242, 20738, 21082, and 20741, 19 ELR 20254, 20 ELR 21307, 21 ELR 20706, 20714, and 20721, and 23 ELR 20624.]

Counsel for Plaintiff-Appellee
David C. Shilton, Steven Novick
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellants
Jeffrey N. Martin
Hunton & Williams
2000 Pennsylvania Ave. NW, P.O. Box 19230, Washington DC 20036
(202) 955-1500

Before TACHA and BALDOCK, Circuit Judges, and BROWN, District Judge.^*