                                                                         [DO NOT PUBLISH]
                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________            FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-13558         ELEVENTH CIRCUIT
                                ________________________       JUNE 22, 2011
                                                                JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 2:96-md-01130-MEF

IN RE: CONSOLIDATED 'NON-FILING INSURANCE' FEE LITIGATION,

PRINCESS NOBELS,
DOROTHY MCCOY, et al.,

                                                             Plaintiffs - Appellees,

   versus

SECURITY FINANCE CORP. OF GEORGIA,

                                                             Movant - Appellant.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Alabama
                             ________________________

                                        (June 22, 2011)

Before CARNES and PRYOR, Circuit Judges, and SEITZ,* District Judge.

SEITZ, District Judge:

       *
         Honorable Patricia A. Seitz, United States District Judge for the Southern District of
Florida, sitting by designation.
           Appellant, Security Finance of Georgia, LLC1 and its thirty-three related

entities,2 believe that the grass is greener on the other side of the fence – $5

million per year greener. The “fence” keeping Security Finance from all of this

greenery is a permanent injunction that it agreed to more than ten years ago as part

of a settlement between Security Finance and Plaintiffs. Security Finance sought

to tear down the fence by asking the district court below to dissolve the injunction.

The district court denied the motion, as well as the subsequent motion for

reconsideration and Security Finance appealed. Security Finance asserts that the

district court abused its discretion by failing to follow this Court’s decision in

Christ v. Beneficial Corp., 547 F.3d 1292 (11th Cir. 2008). Because we find that

the lower court did not abuse its discretion, we affirm.

I. FACTUAL BACKGROUND

       The Security Finance case and the Christ case were two of approximately

thirty-five cases which were ultimately consolidated for pretrial purposes in the

multi-district litigation styled: In Re: Consolidated “Non-Filing Insurance” Fee

Litigation. The consumer Plaintiffs contended that the defendants – consumer



       1
       Security Finance of Georgia, LLC is a successor to Security Finance Corporation of
Georgia.
       2
       Throughout this opinion, the Court will use the name “Security Finance” to refer to
Appellant, as well as its related entities which were parties to this action.

                                               2
finance companies and insurance companies – engaged in predatory lending

practices in violation of the Truth in Lending Act (TILA) by using “non-filing

insurance”3 schemes to exact unlawful loan charges from consumers. Plaintiffs

alleged the defendants charged unlawful interest on the allegedly unlawful charges

and collected fees for “non-filing insurance” that either did not exist or, at best,

were fees for general default insurance or self-insurance against default.

       A. The Litigation Process and Settlement

       The case against Security Finance began in 1994, when Security Finance

was sued not only for violations of TILA and the Racketeer Influence and Corrupt

Organizations Act (RICO), but also for fraud and breach of contract. The

litigation was long, extensive and hard fought. In August 1995, Plaintiffs moved

to certify the class of consumer borrowers as either an injunctive class or as a

hybrid class because they were seeking damages as well as injunctive relief. Other

cases involving Security Finances’ competitors were added to the MDL and

consolidated for all pretrial proceedings. In December 1997, Plaintiffs filed a

Consolidated Amended and Recast Class Action Complaint.




       3
        Non-filing insurance is insurance that a lender buys to save the cost of filing a UCC-1,
under Article 9 of the Uniform Commercial Code. It is not general default insurance, which is
insurance that protects the lender against the borrower’s default or other credit loss.

                                                3
       The following May, Plaintiffs moved for partial summary judgment.

Security Finance opposed the motion. Accompanying Plaintiffs’ motion were a

comprehensive supporting memorandum of law and evidentiary submissions that

detailed the evidentiary bases for their claims. Specifically, Plaintiffs proffered

that in at least fifteen states Security Finance used two schemes, one through a

captive corporation and the other a reinsurance program using the captive

corporation and an independent insurer, to violate TILA by charging blanket

premium rates for non-filing insurance when the fee charged was not to buy non-

filing insurance but merely to create a pool against bad debts. In addition to

charging the fee, Plaintiffs submitted that Security Finance also charged interest

on the fee.

       While the summary judgment motion was pending, settlements began to

occur. On June 12, 1998, the district court approved the settlement with the first

group of defendants. Thereafter, on March 12, 1999, the court approved

settlements with two more groups of defendants. All three of these settlements

resulted in entry of consent judgments that contained six-year injunctions limiting

these defendants’ ability to charge customers for non-filing insurance.4



       4
         The injunctions included specific parameters relating to the settling defendants’ non-
filing insurance programs.

                                                 4
      After nearly five years of litigation and extensive settlement negotiations,

Security Finance and Plaintiffs also reached a settlement agreement. Security

Finance agreed to settle “for business reasons, to avoid the risk and continuing

expense of litigation.” Unlike the earlier settlements involving six-year

injunctions, the settlement between Plaintiffs and Security Finance included an

injunction to “permanently prevent” Security Finance from charging any fees or

premiums for non-filing insurance in the future. It is noteworthy that two years

earlier Security Finance made the business decision to discontinue all of its non-

filing insurance programs. In addition to the injunction and the explicit

recognition of no admission of liability, the settlement also required certification

of a damage class under Federal Rule of Civil Procedure 23(b)(3), the payment of

$7.7 million in damages to the class, and dismissal of the conspiracy claims upon

the court’s approval of the settlement.

      Because the claims against Security Finance were class action claims, the

district court was required to approve the parties’ settlement. See Fed. R. Civ. P.

23(e). On February 9, 1999, the district court gave preliminary approval to the

settlement. On July 15, 1999, the court entered its Final Judgment, Approval of

Class Action Settlement and Dismissal with Prejudice of the Security Finance

Entities. The district court found the settlement agreement was “fair, adequate and


                                          5
reasonable,” the result of adversarial and hard-fought negotiations by the parties,

and would “avoid[] complex, expensive and prolonged litigation which could have

inured to the disadvantage of all parties and the Court.”

      B. The Christ v. Beneficial Litigation

      Although the Christ defendants were added to the MDL in 1998, they chose

not to settle. Thus, after granting the plaintiff class summary judgment on liability

in 2002, the MDL court remanded the Christ case to the Middle District of

Florida. In 2006, after a bench trial on damages, the district court awarded

plaintiffs injunctive relief under the Declaratory Judgment Act and over

$22,000,000 in restitution and disgorgement for violations of TILA.

      On appeal, this Court, in Christ v. Beneficial Corp., 547 F.3d 1292 (11th

Cir. 2008), addressed, for the first time, the scope of relief available to private

litigants under TILA and held that private litigants’ relief was limited to actual

damages, statutory damages, attorney’s fees and costs. Thus, Christ made clear

that injunctive relief is not available under TILA for private litigants.




                                           6
      C. Security Finance’s Motion to Modify

      On September 8, 2009, pursuant to Federal Rule of Civil Procedure

60(b)(5), Security Finance moved to modify the settlement agreement and final

judgment arguing that the Christ decision constituted a significant change in legal

circumstances, which required a modification of the consent decree’s injunction.

Security Finance also asserted that the injunction was a hindrance to its ability to

operate its business and to compete. To support its position, Security Finance

filed the eight paragraph affidavit of Ray Biggs, which made similar assertions but

did not provide any factual details to support the conclusory statements.5 While


      5
          The relevant portions of the Biggs Affidavit state:

      4. Since the entry of the Final Judgment in this case ten years ago, the Company
      has not purchased the product described in the litigation as “non-file insurance”
      and, likewise, has not charged a fee to customers for this product. Under the
      permanent injunction entered by the court, the Company is prohibited from doing
      so, regardless of the manner in which the product was described or disclosed by
      the Company to its customers.
      5. Due to the relatively small size of the loans made by the Company, which are
      less than $1,500.00, and the nature of the collateral securing the loans (personal
      property that is often difficult to locate when the debtor fails to pay a loan), the
      Company’s profitability depends on simplicity. The use of non-file insurance
      would, for example, allow the Company to avoid the more complicated process of
      perfecting a lien on the personal property, allow the Company to avoid
      participation in bankruptcy proceedings by relying on the non-file insurance, and
      help offset clerical costs incurred by the Company in connection with non-
      performing loans.
      6. During the last ten years, the Company’s competitors have continued to
      purchase “non-file insurance” and to charge a fee to their customers for the
      product, and the Company’s competitors apparently have the right to continue to
      do so in the future.
      7. The permanent injunction imposed by the Court necessarily places the

                                                  7
Plaintiffs opposed the motion, they did not file any opposing affidavits; they

directed the district court to their evidentiary support for their motion for partial

summary judgment.

      After considering the parties’ submissions, the district court applied the test

in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), and denied the

motion to modify the consent decree because Security Finance had not met its

burden. Rufo’s two prong test requires the moving party to establish, first, that a

significant change in circumstances warrants revision of the decree and, second,

that the proposed modification is suitably tailored to the changed circumstance.

Because the district court found that Security Finance had not established the first

prong of the Rufo test, the district court determined it did not need to reach the

second prong.

      In applying the first prong of the Rufo test, the district court found that

Security Finance had not carried its burden to establish that factual or legal

conditions had significantly changed to justify a modification of the consent

decree. The district court also concluded that Christ constituted a clarification of,



      Company at a competitive disadvantage that hinders the company’s ability to
      compete in its line of business and to operate its business.
      8. Amending the permanent injunction in this case to allow the Company to use
      “non-file insurance” would give the Company the same rights shared by its
      competitors with respect to “non-file insurance.”

                                             8
rather than a change in, the law and that Security Finance had not met its burden to

establish that the parties entered into the consent decree with a misunderstanding

of the law.

      Security Finance then moved to alter or amend the judgment, pursuant to

Federal Rule of Civil Procedure 59, and attached to its new motion the

Supplemental Affidavit of Ray Biggs. The new affidavit stated that Security

Finance would not have entered into the consent decree had it known that TILA

did not provide for injunctive relief and that Security Finance was at a competitive

disadvantage with major competitors, who do charge for non-filing insurance.6


      6
          The relevant portions of the Supplemental Biggs Affidavit state:

      5. At the time the Company agreed to the Final Judgment, the Company had the
      mistaken belief that the Truth in Lending Act likely provided for injunctive relief
      as well as restitution and disgorgement.
      6. Had the Company not been operating under this mistaken belief, I have no
      doubt that the Company would not have consented to the Final Judgment and the
      permanent injunction.
      7. The injunctions entered in this MDL against several of the other defendants in
      the Non-File MDL have expired, such as those relating to World Acceptance
      Corporation, American Bankers Insurance Group, Inc., The Voyager Group,
      American Security Insurance Company, and Standard Guaranty Insurance
      Company.
      8. World Acceptance Corporation is one of the Company’s major competitors.
      World Acceptance Corporation is now, and has been for several years, charging
      its customers for nonfiling insurance.
      9. As just one example, World Acceptance Corporation’s publicly-filed 10-K
      report shows that it earned over $5 million in revenue each year between 2007 and
      2009 as a result of nonfiling insurance. An excerpt of this 10-K report is attached
      hereto as Exhibit 1.
      10. The permanent injunction imposed by the Court necessarily places the
      Company at a competitive disadvantage that hinders the Company’s ability to

                                                 9
The district court denied this motion as well, finding that the supplemental

affidavit was also conclusory and unsupported by any evidence. This appeal

followed.

II. THE STANDARD FOR A RULE 60(b)(5) MOTION

      Federal Rule of Civil Procedure 60(b)(5) provides that “on a motion and just

terms, the court may relieve a party . . . from a[n] order [when] applying it

prospectively is no longer equitable.” Under this rule, a court applies a flexible

standard to determine whether changed circumstances dictate that a consent decree

should be modified. Rufo, 502 U.S. at 380. However Rule 60(b)(5) was not

intended to allow modification simply because “it is no longer convenient to live

with the terms of a consent decree.” Id. at 383. Thus, the party seeking

modification bears the burden of establishing that “a significant change in

circumstances warrants revision of the decree.” Id. (emphasis added).

      In Rufo, the Supreme Court set out six types of either changed factual or

changed legal circumstances that could warrant modification of a consent decree.

The Rufo Court held that a significant change in circumstances that warrants

modification may be established by showing: (1) changed factual conditions that

      compete in its line of business and to operate its business.
      11. Amending the permanent injunction in this case to allow the Company to
      lawfully use nonfiling insurance would give the Company the same rights shared
      by its competitors with respect to nonfiling insurance.

                                            10
make compliance with the decree substantially more onerous; (2) the decree is

unworkable because of unforeseen obstacles; (3) enforcement of the decree

without modification would be detrimental to the public interest; (4) one or more

of the obligations the decree places upon the parties has become impermissible

under federal law; (5) a change in the law has made legal what the decree was

designed to prevent; or (6) a clarification of the law, if it can be shown the parties

based their agreement on a misunderstanding of the governing law. Id. at 384,

388, 390.

      Security Finance argues that it is entitled to modification on three of the six

bases. First, changed factual circumstances make Security Finance’s compliance

substantially more onerous. Next, a change in the law makes the obligations

placed on Security Finance impermissible under federal law. Finally, in the

alternative, Security Finance asserts that the parties entered into the consent decree

based on a misunderstanding of the law. However, Security Finance has failed to

establish that any of these conditions exist.

III. SECURITY FINANCE HAS NOT ESTABLISHED A SIGNIFICANT
FACTUAL CHANGE

      Security Finance maintains that there are changed factual circumstances

warranting modification because its present inability to charge customers non-

filing insurance fees puts it at a financial disadvantage with its competitors, who

                                          11
are earning $5 million annually by charging such fees. It argues that the district

court erred in ignoring Security Finance’s undisputed evidence of this fact, namely

the first Biggs Affidavit. While Plaintiffs did not file opposing affidavits, the

Biggs Affidavit was at best conclusions devoid of factual underpinnings.

       More importantly, there is simply no factual evidence that the circumstances

have changed from the time Security Finance entered into the consent decree to

when it sought to modify the decree. Two years prior to agreeing to the consent

decree, Security Finance made the decision to terminate all non-filing insurance

programs nationwide. Thus, it had made a business decision not to use this

business model before settlement negotiations began. Moreover, at the time it

agreed to the consent decree, Security Finance knew that several of its competitors

would be able to charge for non-filing insurance in the future.7 Furthermore, there

is no evidence to show that Security Finance had any reason to believe that all

consumer lending companies would stop charging for non-filing insurance.

Therefore, at the time Security Finance agreed to the entry of the consent decree,



       7
         Security Finance argues that the district court applied the wrong standard because it
found that it was “foreseeable” that the injunction would have a significant effect on Security
Finance’s business practices. However, based on the facts at the time of the agreement, it was
more than foreseeable that the injunction would have an effect on Security Finance’s business
practices and ability to compete because it was a matter of public record that at least three other
settlements of MDL cases had injunctions against charging for non-filing insurance that were to
last only six years.

                                                 12
Security Finance knew that, at least, some of its competitors would continue to

charge for non-filing insurance and that others would be able to charge for non-

filing insurance in the not-too-distant future. Thus, to now argue that

circumstances have changed and that it is at a competitive disadvantage because it

cannot charge non-filing insurance fees appears to be more a case of buyer’s

remorse than a case of truly changed circumstances.

      As previously stated, Rule 60(b)(5) was not intended to allow modification

simply because “it is no longer convenient to live with the terms of a consent

decree.” Rufo, 502 U.S. at 383. While it may be inconvenient for Security

Finance to live with its agreement, Security Finance has not met its burden of

establishing that changed factual conditions make compliance with the consent

decree substantially more onerous or that the decree is unworkable because of

unforeseen obstacles. Therefore, Security Finance has not met its burden to show

significantly changed factual circumstances.

IV. SECURITY FINANCE HAS NOT SHOWN THAT THERE HAS BEEN A
SIGNIFICANT CHANGE IN THE LAW

      Security Finance also asserts that Christ constitutes a significant change in

the law underlying the consent decree and, thus, this change warrants a

modification of the consent decree. Rufo describes a change in the law justifying a

modification of a consent decree as either a change such that “one or more of the

                                         13
obligations placed upon the parties has become impermissible under federal law”

or a change in the statutory or decisional law that “make[s] legal what the decree

was designed to prevent.” See Rufo, 502 U.S. at 388. Security Finance insists

that, given the Christ holding that TILA does not provide injunctive relief as a

remedy for private litigants, the district court lacked the authority to enter the

injunction and the obligations placed on it by the consent decree have become

impermissible under federal law. Security Finance rests its argument primarily on

System Federation No. 91, Railway Employees Department v. Wright, 364 U.S.

642 (1961). This reliance on Wright, however, is misplaced because Wright

involved a situation where the change in the statutory law made legal what the

consent decree was designed to prevent. Wright did not involve the situation

where the obligations placed on a party became impermissible, which Security

Finance asserts happened in this case.

      In Wright, the Supreme Court reversed a lower court decision denying a

motion to modify a consent decree. The Wright Court found that intervening

changes to the Railway Labor Act placed the consent decree in direct conflict with

the amended statute because the amendments made legal what the consent decree

was specifically designed to prevent. The consent decree in Wright prohibited a

union shop, something that the Railway Labor Act also prohibited at the time of


                                          14
the consent decree. Id. at 644, 645. Approximately five years later, Congress

amended the Railway Labor Act to explicitly permit union shops under certain

circumstances and the union sought to modify the consent decree to reflect this

change in the law. Id. at 645. The amendment substantively changed statutory

rights, making what was once clearly forbidden, a union shop, now permissible.

As a result, the Court held that a consent decree must be modified when a change

in the law brings the terms of the decree “in conflict with statutory objectives.”

Id. at 651. The Supreme Court added that the parties had “no power to require of

the court continuing enforcement of rights the statute no longer gives.” Id. at 652.

Moreover, to continue enforcing the terms of the consent decree that prohibited a

union shop would deny a statutory right that was not deniable to any other union

and would violate the objectives of the amended statute which, by permitting

union shops, no longer required employers to treat union and non-union

employees equally. Id. at 648.

      The effect of the Christ decision on TILA is significantly different in nature

than the change to the Railway Labor Act in Wright. Wright involved an 180

degree change in what the law allowed. The Wright consent decree directly

conflicted with the new law because the decree took away a right that the amended

law had expressly created. Thus, the Railway Labor Act amendment changed the


                                          15
rights created by the statute and one of the statute’s objectives; it made legal what

the decree, and the prior law, was designed to prevent – unequal treatment of

union and non-union employees. The Christ decision, however, did not make

legal what the consent decree was designed to prevent – allegedly fraudulent

lending practices. Nor did Christ change the objectives of TILA which are to

make consumers aware of the cost of credit, to assure meaningful disclosure of

credit terms, and to protect consumers against inaccurate and unfair credit billing.

See 15 U.S.C. § 1601(a). Thus, Wright is inapposite to the case before the Court.

      Also, contrary to Security Finance’s assertions, Christ did not make “one or

more of the obligations placed upon the parties . . . impermissible under federal

law.” Although the consent decree prevents Security Finance from charging its

customers fees for non-filing insurance premiums at any time in the future, such an

obligation is not in violation of federal law. While TILA does permit a lender to

charge customers fees for non-filing insurance premiums, by agreeing to the terms

of the consent decree, Security Finance made a conscious decision to give up its

right to charge non-filing insurance fees. Security Finance recognized this in the

language of the settlement agreement that stated that Security Finance entered into

the settlement “for business reasons, to avoid the risk of continuing expense of

litigation.” Furthermore, such a self-imposed obligation does not do violence to


                                          16
the purposes and objectives of TILA. Thus, the limitation does not place

obligations on Security Finance that are impermissible under federal law.

      The problem, if any, is the use of the injunction to implement the parties’

settlement agreement, not the limitations or obligations the settlement agreement

placed on Security Finance. Security Finance argues that based on Christ the

district court lacked the authority to enter the injunction at the time of the consent

decree. However, the Supreme Court has explicitly held that a court has the power

to enter a consent decree that grants a form of relief that a court could not have

granted had it entered a judgment on the merits. Local No. 93, Int’l Ass’n of

Firefighters v. City of Cleveland, 478 U.S. 501 (1986).

      In Local No. 93, the Supreme Court considered whether a court could enter

a consent decree that violated § 706(g) of Title VII. The party arguing that the

decree violated § 706(g) asserted that the section’s language prohibited a court

from entering an order granting relief to individuals who were not themselves

victims of discrimination.8 Id. at 518. The Supreme Court held that, regardless of


      8
          Section 706(g)(2)(A), 42 U.S.C. § 2000e-5(g)(2)(A), states:

      No order of the court shall require the admission or reinstatement of an individual
      as a member of a union, or the hiring, reinstatement, or promotion of an individual
      as an employee, or the payment to him of any back pay, if such individual was
      refused admission, suspended, or expelled, or was refused employment or
      advancement or was suspended or discharged for any reason other than
      discrimination on account of race, color, religion, sex, or national origin or in

                                                17
whether § 706(g) actually precludes certain post-trial relief, that provision of the

statute does not apply to relief fashioned pursuant to a consent decree. Id. at 515.

The Supreme Court reached this conclusion by examining the nature of consent

decrees and contrasting them with judgments entered by a court after a decision on

the merits.

      The Supreme Court recognized that consent decrees are not treated as

judicial decrees in all respects or for all purposes. Id. at 519. It is “the voluntary

nature of a consent decree [that] is its most fundamental characteristic” and “it is

the parties’ agreement that serves as the source of the court’s authority to enter any

judgment at all.” Id. at 521-22. The Local No. 93 Court also noted that consent

decrees are the result of careful negotiation between the parties. Id. at 522. Thus,

and most importantly, “it is the agreement of the parties, rather than the force of

the law upon which the complaint was originally based, that creates the

obligations embodied in a consent decree.” Id. at 522. As a result, a court is not

necessarily barred from entering a consent decree that provides broader relief than

a court could have awarded after a trial. Id. at 525. However, a court cannot enter




      violation of section 2000e-3(a) of this title.



                                                18
a consent decree that conflicts with or violates the substance or objectives of the

statute under which the parties brought suit. Id. at 526.

       Applying these principles to the consent decree at issue in Local No. 93, the

Supreme Court found that voluntary agreements which result in consent decrees

are not constrained by the limits placed on a court’s remedial authority, including

the “no order of the court” language in § 706. Id. Thus, the Court concluded that

“to the extent that the consent decree is not otherwise shown to be unlawful, the

court is not barred from entering a consent decree merely because it might lack the

authority under § 706(g) to do so after a trial.” Id. The Court went on to

distinguish its situation, where the consent decree included a remedy that a court

could not impose after a decision on the merits, from one where the terms of the

consent decree conflict with the substance of the underlying statute, such as

occurred in Wright and Firefighters Local Union No. 1784 v. Stotts.9 Id. at 526-

28. In distinguishing those cases, the Supreme Court also noted the difference

between entry of a consent decree to which all parties agree and entry of a decree


       9
         The Stotts Court reversed a lower court decision that modified a consent decree after a
change in factual circumstances not anticipated by the consent decree. 467 U.S. 561 (1984).
However, the modification to the decree, which overrode an existing seniority system, conflicted
with a section of Title VII, which permits the application of a seniority system absent proof of an
intent to discriminate. Id. at 577. Thus, the Stotts modifications directly conflicted with the
statutory objectives and substantive sections of Title VII. Id. at 578-81. Furthermore, the
modification, which conflicted with a substantive provision of Title VII, was made over the
objection of one of the parties to the consent decree. Id. at 578.

                                                19
or a modification to a decree when one or more of the parties objects. Local No.

93, 478 U.S. at 528.

      If the Supreme Court allowed the entry of the consent decree in Local No.

93, given the explicit language of section 706(g) of Title VII, which states that “no

order of the court” could require certain relief, clearly the district court in this case

had the authority to enter a negotiated injunction that did not conflict with the

objectives or substance of TILA. First, the injunction resulted from extensive

negotiations between the parties and was agreed to by all parties at the time of its

entry. Second, and most importantly, the consent decree does not conflict with the

objectives of TILA or violate the substantive provisions of TILA. Thus, while

Christ would preclude the district court from entertaining an injunction if it had

tried the case, under Local No. 93, the district court could enter the injunction as

part of a consent decree.

V. CHRIST IS A CLARIFICATION OF THE LAW

      As discussed above, the decision in Christ was not a substantive change in

the law, i.e., one which changed the rights, obligations, or objectives of the law.

Instead, the decision clarified what remedies were available to private litigants

under TILA. The Christ decision simply determined that the language of the

statute, while not expressly prohibiting an injunction, did not permit injunctive


                                           20
relief. Christ does not state that injunctive relief had once been available and now

is not. The issue of injunctive relief had never been addressed expressly by the

statute or this Court. Christ simply “made clear what the Court had not before

announced[.]” Rufo, 502 U.S. at 388. Consequently, Christ clarified the law. See

id. at 388-90 (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437-38

(1976)).

      Rufo cautions that not every clarification in the law justifies a modification

to a consent decree:

      To hold that a clarification in the law automatically opens the door for
      relitigation of the merits of every affected consent decree would
      undermine the finality of such agreements and could serve as a
      disincentive to negotiation of settlements in institutional reform
      litigation. . . . While a decision that clarifies the law will not, in and
      of itself, provide a basis for modifying a decree, it could constitute a
      change in circumstances that would support modification if the parties
      had based their agreement on a misunderstanding of the governing
      law.

502 U.S. at 389-90 (emphasis added). Thus, the Supreme Court recognized that

certain circumstances might justify a modification to a consent decree after a

clarification in the law. Before determining if such circumstances justify

modification, a court must first determine if the parties based their agreement on a

misunderstanding of the law. Id.




                                         21
      Here, the district court found that Security Finance, as the party seeking

modification, failed to meet its burden of showing that the parties had based their

agreement on a misunderstanding of the law. The only evidence Security Finance

submitted to support a claim that the parties misunderstood the law was the

cursory, self-serving Supplemental Biggs Affidavit, which contained no facts to

support the affiant’s conclusions and was only submitted in support of Security

Finance’s Rule 59 motion. Furthermore, the Supplemental Biggs Affidavit only

addressed Security Finance’s misunderstanding of the law; it was silent as to

Plaintiffs’ understanding of the law. Thus, Security Finance’s unilateral approach

fell short of its burden to show that the parties misunderstood the law at the time

the consent decree was entered.

      Security Finance had the burden to point to record evidence to establish that

the parties misunderstood the law at the time of their settlement and that such

misunderstanding was a factor in the settlement. Because Security Finance failed

to meet its burden, the district court was entitled to conclude that there was no

mutual misunderstanding of the governing law that could support a modification.

VI. CONCLUSION

      Security Finance, as the moving party, had the burden to establish that a

significant change in the law or the factual circumstances justifies modification of


                                         22
the consent decree. Security Finance has not shown that there has been any

change in factual circumstances that were not known at the time it agreed to the

entry of the consent decree. Nor has Security Finance established that there has

been a significant change in the law such that any of the obligations placed upon it

have become impermissible under federal law. While the Christ decision does

constitute a clarification of the law, Security Finance has not met its burden of

establishing that the parties entered into the consent decree based on a

misunderstanding of the law. Therefore, the district court did not abuse its

discretion when it denied Security Finance’s Rule 60(b)(5) and Rule 59 motions.

      AFFIRMED.




                                         23
