A long-running lawsuit dealing with allegations of price fixing in the title insurance and settlement industry is now before the Supreme Court--even years after it was supposedly resolved.

The case involves six large title search, examination and settlement services providers, including three units of Chicago Insurance Co.

The case, Ticos The Insurance Co., et al., vs. Walter Thomas Brown and Jeffrey Dziewit, No. 92-1988, deals with complaints that rating bureaus licensed in 13 states were used to fix the price of title and settlement services. Besides Ticor, a unit of Chicago Title, the parent firm, and Security Union Title Insurance, another unit, other firms involved include Lawyers Title Insurance Corp., Stewart Title Guaranty Co. and First American Title Insurance Co.

The issue the Supreme Court has agreed to review is whether a settlement of a class action lawsuit allows members of the class to opt out and pursue their own legal remedies. Oral arguments are unlikely to be held until early 1994.

The issues for mortgage bankers are the costs of the case to the title insurance industry and the uncertainty it creates. The fear is that if the adverse ruling in the Ticor Title case is not overturned, bankers' ability to settle these suits on a timely and cost-effective basis will end.

As the case stands now, any business defendant who wishes to settle a massive multistate federal class action lawsuit is vulnerable to continual challenges, said Patrick J. Roach, of Bell, Boyd & Lloyd in Washington, lawyer for Chicago Title.

The case was originally brought in the 3rd Judicial Circuit, based in Philadelphia, in 1985. Courts there declined to order opt-out procedures, holding that the due process rights of class members were "adequately protected by the Rule 23 requirement that the class be adequately represented by the representative plaintiffs and by qualified counsel."

Courts in that circuit also held that no opt-out procedures were needed if the class received some adequate form of notice of the proposed settlement and that the court approve the settlement only if it is "fair, adequate and reasonable." The District Court ruled that ordering opt-out procedures in the case, in the District Court's view, would "go against the strong public policy in favor of settlement of class actions."

But Brown and Dziewit sued in Arizona and Wisconsin, respectively, winning a ruling from the 9th Circuit Court of Appeals in San Francisco that refusal to allow Brown and Dziewit to opt out in terms of seeking monetary damages was a denial of due process.

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