AMY J. ST. EVE, District Judge.
The issue before the court is whether the parties have entered into an enforceable agreement to settle this putative class action. For the reasons explained below, the court holds that there is no enforceable settlement agreement.
Plaintiff, Craftwood Lumber Company ("Craftwood"), brought this putative class action alleging that Interline
On August 29, 2013, the court entered an order granting Craftwood's motion for discovery sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(ii) and precluding Interline from asserting and introducing evidence concerning "prior express invitation or permission" and "established business relationship" defenses. Pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), the court further ordered that Interline and its counsel pay the reasonable expenses, including reasonable attorneys' fees, incurred by Craftwood in filing and briefing the motion for sanctions.
The parties then attempted to settle the case through mediation. On October 11, 2013, the parties participated in a one-day session in California with a private mediator, Antonio Piazza. Before mediation began, the parties and counsel signed a written Confidentiality Agreement. At the end of the session, the parties and counsel signed a one-page document titled "Term Sheet," which is quoted below. In the weeks thereafter, the parties attempted to negotiate a written settlement agreement. Their efforts were unsuccessful.
On November 20, 2013, the court held a status hearing at which Interline's counsel stated that the parties had entered into a settlement agreement and attempted to show the court a copy of the Term Sheet. Craftwood's counsel objected on the ground that it would be a violation of the Confidentiality Agreement to show the court the Term Sheet. The court gave Craftwood leave to file, and took briefs on, a motion to bar Interline from introducing evidence in violation of the Confidentiality Agreement. In a memorandum opinion dated April 9, 2014, the court denied the motion. The parties then filed briefs on the issue currently before the court: whether there is sufficient evidence of an enforceable settlement agreement.
The parties have submitted a number of declarations describing what occurred during their mediation session. Craftwood has submitted the declarations of its outside counsel C. Darryl Cordero and Scott Z. Zimmermann. Interline has submitted the declarations of its outside counsel, Bart T. Murphy; its former outside counsel, David K. Callahan; and its Chairman and CEO, Michael J. Grebe. All of the declarants were present for the mediation.
The mediation began at about 9:00 a.m. on October 11, 2013 with a two-hour joint session, during which each side presented its view of liability and damages. After the joint session, the parties were divided into separate conference rooms, where each side alternatively met with the mediator. The parties' "teams" spent most of the remainder of the day in separate sessions with the mediator discussing the possible structure and terms of settlement. In one instance,
For most of the day, the parties made little progress. According to Mr. Callahan, shortly after 6:00 p.m., the mediator, Mr. Piazza, "made a mediator's proposal" to Interline "based on the parties' discussions to date, whereby the parties would resolve the case with a total potential class award of $60 million, but on a `claims-made' (rather than `common fund') basis." (Def.'s Resp., Ex. A, First Decl. of David K. Callahan ¶ 22.)
Mr. Callahan handwrote the initial version of the Term Sheet. The mediator did not write anything on the sheet at that time. (
The Term Sheet states as follows, with Craftwood's additions and modifications in bold:
(First Callahan Decl., Ex. 1.) The parties never directly discussed the Term Sheet that day. After they executed it, the "teams" reconvened to shake hands and left shortly thereafter. The parties did not discuss settlement any further before leaving.
In the course of negotiating a written settlement agreement, the parties' already-strained relationship soured. On October 17, 2013, Mr. Cordero e-mailed a draft settlement agreement to Mr. Callahan, stating:
(First Callahan Decl., Ex. 5.)
On October 18, 2013, the parties contacted chambers staff to jointly request a continuation of the October 23 status hearing, which the court granted. The parties did not inform chambers staff that they had reached a settlement at that point, so the court's minute order of October 21, 2013 states: "At the request of the parties, the status hearing set for October 23, 2013 is canceled and reset to November 20, 2013 at 10:30 a.m. to report on settlement efforts." (Docket No. 62.)
On October 23, 2013, a week after Craftwood sent its proposal to Interline, Mr. Callahan e-mailed Mr. Cordero a counterproposal, stating as follows:
(First Cordero Decl., Ex. B.) Interline's proposed agreement differed from Craftwood's in many respects, the most significant being the settlement amount per claim. Interline proposed a recovery of $72.53 for each fax transmission, about a tenth of the amount Craftwood had proposed.
The parties subsequently had numerous conversations and e-mail exchanges with each other and with the mediator. On November 15, Mr. Callahan e-mailed Craftwood to propose a structure whereby class members would receive $400 for the first fax sent, $200 for a second fax, and $100 for a third fax, with no additional compensation beyond a third fax. Mr. Callahan also stated that Interline was "open to any other combination along the same lines as long as it is consistent with the parties' written term sheet." (First Cordero Decl., Ex. C.) Craftwood rejected the proposal, and the parties ultimately were unable to reach a written agreement. At the November 20, 2013 status hearing, Mr. Callahan informed the court that the parties had a final settlement as embodied in the Term Sheet, while Mr. Cordero disagreed.
A district court has the power to enforce a settlement agreement in a case pending before it.
"A settlement agreement is a contract and as such, the construction and enforcement of settlement agreements are governed by principles of local law applicable to contracts generally."
"Illinois conditions the enforceability of a putative contract on two predicates: a sufficiently concrete expression of the essential terms of the agreement, as well as an intent to be bound by that agreement."
"Illinois follows the objective theory of intent, whereby the court looks first to the written agreement and not to the parties' subjective understandings."
First, the court examines whether the parties' writing included all material terms. The Term Sheet fails to include several terms that are material to a class action settlement. The most glaring omission is the amount per claim—what Interline would pay each fax recipient or for each fax transmission. The court cannot ascertain from the Term Sheet what Interline agreed to pay. The two decisions that Interline cites for the proposition that "a settlement need not identify the proportion of the total amount that would go to each plaintiff," Def.'s Br. at 9, are distinguishable. Neither case was a class action. Moreover, the total amount that defendants would be obligated to pay to settle each case was clear. In
Interline concedes that the parties did not reach agreement on the claim amount, but it contends that the omission does not render the Term Sheet unenforceable because there need only be a reasonable standard for determining that term, and the parties "explicitly agreed to other provisions that provide a reasonable basis for determining each class member's share." (Def.'s Br. at 9.) Those provisions, according to Interline, are the "claims made structure"; the $60 million "total class award"; the "blow-out provision at twenty percent of recipients";
The provisions upon which Interline relies are not true parameters because they are not specific enough to allow a court to reasonably imply the missing claim amount. The court cannot simply "derive [it] mathematically," as Interline submits. (Def.'s Resp. at 3.) The Term Sheet does not constitute a formula. Interline asserts that "the payment for each class member must be set at an amount such that if all of the approximately 100,000 members of the putative class file claims, then the total award will equal the $60 million total set forth in the Term Sheet," Def.'s Br. at 11, but Interline fails to present evidence that the parties so agreed. In addition, "while results vary from case to case depending on a number of factors, it is common that only a fraction of the class in class action settlements actually submit claims."
The parties disagree on what the term "claims made structure" means. Interline contends that it means that the total class award is not guaranteed, Interline's payout would depend on the number of claims made, and the unclaimed funds would revert to Interline. Craftwood, on the other hand, maintains that the term means "nothing more than [that] a class member must submit a timely proof of claim in order to participate in the distribution of settlement proceeds" and does not imply that any portion of the settlement funds revert to the defendant. (Pl.'s Resp. at 8.) In the court's view, the term is ambiguous as used in the Term Sheet. Craftwood relies on its literal meaning as a type of settlement structure, but Interline relies on the fact that the term is often used to include the concept that unclaimed funds revert to the defendant.
In any event, a hearing to ascertain the meaning of the term "claims made structure" is unnecessary because either way, the term still would not enable the court to derive the missing amount per claim. The total amount Interline would
The gulf that separates the parties, as well as Interline's shifting post-mediation proposals, belies Interline's argument that the amount per claim was neither "controversial" nor "omitted." The court rejects Interline's contention that Craftwood, in making its $750-per-fax proposal, attempted to "unilaterally re-write (and strip all meaning from)" the Term Sheet. (Def.'s Resp. at 5.) There was little "meaning" there to begin with regarding Interline's payment obligations.
The fact that the Term Sheet included the phrase "ordinary additional settlement terms; disputes resolved by mediator" does not help Interline. The amount for which Interline would be on the hook is by no means an "ordinary" settlement term, and Interline has not submitted any evidence that the parties agreed that this phrase would encompass the claim amount. The mediator would be unable to supply the missing term for the same reasons that the court is unable to do so. Interline argues that "ordinary does not mean unimportant. It means usual or likely." (Def.'s Reply at 10.) But what is a "usual" claim amount in a junk-fax class action settlement? There is none. What did the parties "likely" mean? Interline is unable to say, except by repeatedly invoking the Term Sheet's purported "parameters." The court cannot reach a conclusion based on this assertion.
The Term Sheet also left other material terms unresolved. It does not contain any release terms, which the Seventh Circuit has said are "inherently material" to a settlement agreement.
Craftwood argues that the Term Sheet also lacks a settlement class definition. Interline asserts that it does contain one—"all fax recipients within [the] statute of limitations." Because the parties omitted other material terms, the court need not decide whether the parties agreed to this class definition, but notes that post-mediation, Interline evidently did not believe that this was the agreed-upon class definition. In the October 23, 2013 draft settlement agreement it sent to Craftwood, Interline proposed a different, and narrower, definition—"all subscribers, as of May 10, 2007, of any telephone facsimile number to which Defendants or an entity acting on their behalf, successfully transmitted an Unsolicited Facsimile Advertisement during the period May 10, 2007
It is not clear whether the parties intended to be bound by the Term Sheet. The Term Sheet does not contain any language indicating whether the parties so intended or conditioning an agreement on the execution of a formal contract.
The parties' communications with court staff a week after the mediation session further suggest that neither side believed at the time that the parties had reached a binding settlement agreement. It is the court's experience that when parties have reached a settlement agreement, they will so notify chambers staff in short order, or they will represent that they have reached a settlement in principal, and either request a dismissal or some time to "finalize the papers" or "memorialize" the settlement. That is not what happened in October 2013. Instead, the parties requested additional time to reach a settlement.
Mr. Callahan states in one of his declarations that "Interline was only willing to agree to the contemplated settlement if it served as a final resolution of Craftwood's claims. To that end, I drafted a provision stating unambiguously that as to any terms of the settlement agreement not explicitly provided on the Term Sheet, `ordinary additional settlement terms' would apply and any `disputes' regarding the same would be `resolved by the mediator.'" (First Callahan Decl. ¶ 23.) The Term Sheet, however, does not state "unambiguously" or otherwise, or even imply, that it is a "final resolution." Its status as a "final resolution" is a classic example of a "secret hope and wish" that counts for nothing under Illinois law because it was not expressed by either party.
The Term Sheet is not an enforceable settlement agreement, and Interline has not submitted any evidence demonstrating that the parties had an oral settlement agreement or agreed on how to fill the Term Sheet's material gaps.
For the reasons explained above, the court holds that the parties did not enter into an enforceable settlement agreement. A status hearing is set for October 2, 2014 at 8:45 a.m.