CA4 -- 12/6

In DeLoach v. Lorillard Tobacco Co., the court had to decide if a settlement could be "reached" at a different time than when it was "entered into." The short answer is yes, under the contract at issue here. A class action settlement between tobacco farmers and tobacco companies included triggers on payments if a second settlement was reached "on or before the day before the first day of trial." Another provision included changes to the amount of tobacco the companies would buy if a settlement was entered into "before the beginning of trial." If you need pointers on the difference between reaching and entering into, and when trial begins, look within. Quickly, reach means a meeting of the minds, a decision to settle, as objectively manifested by the parties. Entered into basically means signed. Although a jury had been empaneled and was waiting to enter the courtroom when the agreement was announced, this was still "before trial," the court held, because nothing had happened yet.

On to a very interesting death penalty case, United States v. Barnette. The issue was the applicability to the Federal Death Penalty Act of Ring v. Arizona, which applied the Apprendi rule to death sentences. Barnette argued that aggravating factors had to be alleged in his indictment. (Actually, there are a lot of other issues in here, and it's worth reading in full, but this was the contentious issue.) Prior panels of the Fourth Circuit almost simultaneously (about ten weeks apart) issued directly contrary holdings: Wills, 346 F.3d 476, held that Ring did not require a FDPA indictment to allege aggravating factors; Higgs, 353 F.3d 281, held that it did. Judge Widener (who wrote Wills) was of the opinion that the panel in Barnette was required to follow Wills, regardless of whether it was right or not. It was first, and that's all that mattered (of course, he still thinks it's right, too). Judge Niemeyer, joined by Judge Michael, wrote the opinion of the panel as to this issue, and held that, under Higgs, the indictment was required to allege the aggravators, but that Barnette's indictment satisfied Ring and Higgs. Judge Widener wrote the unanimous majority opinion as to all the other issues, but part of his opinion was a bitter concurrence on the issue of which precedent to follow.

Readers might remember a recent dust-up in the Fourth Circuit over a similar issue arising in a Suits in Admiralty Act case, McMellon v. United States, 387 F.3d 329. (Here's more on McMellon from How Appealing and Steve Minor's Southwest Virginia Law Blog.) There, the panel was faced with arguably inconsistent panel precedents. Rehearing the case en banc, the court held that panels have to follow the first precedent on the issue (absent something like intervening Supreme Court case law, of course). Judge Niemeyer was the judge who brought the issue out in the McMellon panel opinion and wrote a strong concurring and dissenting opinion from the en banc decision. Judge Widener sounds, to me, pretty heated at Judge Niemeyer's apparent infidelity to very recent en banc instructions. I would say the odds are pretty good that Barnette could likewise go en banc.