ARTICLE
7 February 2019

California Legislature Amends Required CCP 1542 Language

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Cooley LLP
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California Code of Civil Procedure Section 1542 precludes the waiver of unknown claims unless the protections of the section are expressly relinquished.
United States Litigation, Mediation & Arbitration
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California Code of Civil Procedure Section 1542 precludes the waiver of unknown claims unless the protections of the section are expressly relinquished. In order to effectively waive the protections of California Code of Civil Procedure Section 1542, the language of the statute must be included in any agreement, and the parties to the agreement must acknowledge that they are waiving the rights and benefits of the statute. These requirements are not new, but the California legislature recently amended the statutory language required to be included in any waiver.

Effective January 1, 2019, Section 1542 now reads:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

While the changes are subtle – (1) adding "or releasing party"; (2) replacing "which" with "that"; and (3) changing "must" to "would" – it is imperative that the new language is used in all agreements containing Section 1542 waivers going forward to ensure their enforceability. This means keeping an eye out not just in settlement agreements, but in every document that contains a Section 1542 waiver – from contractual amendments to severance agreements to transactional documents and everything in between. Additionally, to the extent you have template documents containing Section 1542 waivers, they should be updated to include the new statutory language.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
7 February 2019

California Legislature Amends Required CCP 1542 Language

United States Litigation, Mediation & Arbitration
Contributor
Cooley LLP logo
Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation, where innovation meets the law. Cooley has nearly 1,400 lawyers across 18 offices in the United States, Asia and Europe, and a total workforce of more than 3,000.
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