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Attorney General’s office says plaintiffs can’t back out of Duckworth settlement

Thursday, Jul 28, 2016

* Here’s an e-mail exchange I’ve been having with Maura Possley at the attorney general’s office about whether the two women who settled their lawsuit with the state over alleged workplace retaliation by Tammy Duckworth can now withdraw from the settlement…

Me: was that settlement binding?

Maura Possley: Yes. We worked with a judge on June 24 and reached a final settlement.

Me: so, they can’t back out?

MP: It’s typical practice that after finalizing a settlement, the parties sign our standard form. If a plaintiff declines to sign the form, that does not change whether the agreement is final.

Me: did these plaintiffs sign the form?

MP: No, they haven’t signed it yet, but that happens occasionally. It’s just a form. We’ve seen the stories in the press, but that doesn’t change that we have a final settlement agreement.

Me: but can they back out of it?

MP: No.

* Meanwhile, this is from the Kirk campaign…

This seems to be a rather large discrepancy. Why would they say it only covered legal fees when clearly payment for damages were offered. Did McGrath and AG office discuss how to communicate the settlement? AG have a statement on this?

    The AG Said The Settlement Was Only To Cover Attorney Fees And Was Worth $26,000. After a trial judge initiated a settlement conference, the case on Friday was settled for $26,000 to cover attorney fees and all costs, according to the Illinois Attorney General’s office, which represents state officials sued in their official capacities. (Tina Sfondeles And Lynn Sweet, “Lawsuit against Duckworth settled—but Kirk not letting it go,” Chicago Sun-Times, 6/24/16)

    The Plaintiff’s Say The AG Failed To Mention The Settlement Covered Attorney’s Fees And $9,000 To Go To Each Plaintiff For A Total Of $40,000.The original settlement offer was reported to be around $26,000, with the attorney general’s office paying for the employees’ attorney fees and other court costs. But Butler and Goins said the offer really was more like $40,000, with $21,000 of that sum paying for attorney’s fees and another $9,000 provided to each plaintiff. (Kerry Lester, “Women reject settlement in Duckworth workplace retaliation lawsuit,” Daily Herald, 7/27/16)

The attorney general’s office reached out to me after I posted that initial settlement story to tell me that the settlement involved more than just attorney fees and costs. But, as I recall, it was late in the day and I was swamped with something or another and didn’t get around to posting it. My bad.

- Posted by Rich Miller        

39 Comments
  1. - Gooner - Thursday, Jul 28, 16 @ 12:25 pm:

    I’ve litigated this issue a few times (most recently on a death case where the plaintiffs had second thoughts).

    If the settlement is reached in front of the judge, it is binding even if the releases are not signed.

    The judge can order the parties to enforce the settlement.

    If plaintiffs said yes, to the judge, it is over.

    The question will be as to what the judge was told.


  2. - Wensicia - Thursday, Jul 28, 16 @ 12:32 pm:

    I thought all of this was rather strange, as I believe a settlement reached and agreed before a judge to be binding. I wonder how these plaintiffs were convinced it wasn’t. Hmm…just what did Kirk’s people say to them?


  3. - Anonymous - Thursday, Jul 28, 16 @ 12:34 pm:

    Maybe Kirk has the same kind of superstars Rauner has giving him legal advice.


  4. - Ghost - Thursday, Jul 28, 16 @ 12:36 pm:

    9k to the individual? looks like nuisance value payment.


  5. - Cubs in '16 - Thursday, Jul 28, 16 @ 12:43 pm:

    Does it really matter that the plaintiffs can’t back out of the settlement? The story a) called out the Duckworth campaign’s insensitive statement about the plaintiffs and b) reminds voters of the lawsuit itself. If it’s settled quietly and allowed to just fade from memory…


  6. - Ghost - Thursday, Jul 28, 16 @ 12:51 pm:

    Cubs it has also highlited the settlment amount, something usually kept under wraps…. this is almost nithing for a title VII case which if you win starts with an award of all attorney fees.

    This close to trial either the attorneys either did very little or they shaved some fees to make this go away.


  7. - Gooner - Thursday, Jul 28, 16 @ 12:55 pm:

    Cubs in 16, there is really not much that Duckworth or the AG can do.

    These settlement conferences usually last hours at least, and more typically you get a series of them over months.

    You finally reach a deal, you inform the judge, and then counsel takes a few days to draft it up.

    It is just how it works.


  8. - Anonymous - Thursday, Jul 28, 16 @ 12:56 pm:

    Under FOIA government bodies cannot keep settlement amounts confidential.


  9. - Illinois Bob - Thursday, Jul 28, 16 @ 12:59 pm:

    For a contract to be valid, I always believed there had to be a “meeting of the minds”. If the final number was not agreed to, or if the final agreement in writing disagreed with the understanding of the plaintiff determined in the meting before the judge, it would seem this may not be a done deal.

    Politically, it appears one can make the case that the AGs office bullied the plaintiffs into a settlement by being able to use virtually unlimited taxpayer funding to protect Ms Duckworth.

    So you’ve got the folks standing behind the veterans who were being abused and being punished for it going against the political vindictiveness of the Senatorial candidate and the highly political AGs office.

    Anyone know if the settlement meeting was transcribed by a court reporter and approved by both parties, or if it was just “talk”? That would seem to be a key point.


  10. - Chicago_Downstater - Thursday, Jul 28, 16 @ 1:02 pm:

    I tend to believe the professionals. However, even if there is no day in court this entire snafu is a gift to Kirk’s camp. This sort of thing tends not to endear you to the public.

    I’m still for Duckworth, but my Republican relatives are already trying to use this to change my mind. The question is whether it will work on enough people to matter.


  11. - Matt Belcher - Thursday, Jul 28, 16 @ 1:04 pm:

    Illinois Bob — may I respectfully suggest that it appears the attorneys for the plaintiffs have settled this case.

    If the plaintiffs now allege that their attorneys did NOT have the authority to settle for those terms, may I suggest that is a new legal malpractice lawsuit–it is not a basis to “reopen” the settled case.


  12. - Gooner - Thursday, Jul 28, 16 @ 1:07 pm:

    Illinois Bob,

    You don’t need transcripts. You need the recollection of the trial judge. In addition, most keep notes.

    From experience, they don’t take kindly to parties having second thoughts.

    If a judge gives you 1/2 day (as is typical), you come to an agreement in front of the judge, and you back out, the judge is going to get angry.


  13. - Randolph - Thursday, Jul 28, 16 @ 1:07 pm:

    so duckworth and taxpayers agreed to pay plaintiffs damages. that kinda changes things.


  14. - Cubs in '16 - Thursday, Jul 28, 16 @ 1:07 pm:

    ===even if there is no day in court this entire snafu is a gift to Kirk’s camp. This sort of thing tends not to endear you to the public.===

    That’s the point I was trying to make.


  15. - @MisterJayEm - Thursday, Jul 28, 16 @ 1:10 pm:

    “For a contract to be valid, I always believed…”

    The law regarding the settlement of a suit — summarized above by Gooner — is well-established and is not subject to mistaken beliefs.

    – MrJM


  16. - peets - Thursday, Jul 28, 16 @ 1:10 pm:

    in my experience, no agreement is reached until it is signed because the broad strokes reached in a meeting need to be detailed in writing. payment schedules, non-disparagement terms, etc. plus most allow for a 21 day period to back out.


  17. - Gooner - Thursday, Jul 28, 16 @ 1:12 pm:

    Randolph,

    The whole idea of a settlement is that there is no admission.

    Trials cost money. I’ve settled a death case where I had two paramedics as an eyewitnesses who confirmed who confirmed every word my client said (their ambulance was at the corner and saw the accident).

    Trial is expensive and there is always risk. That’s why about 95% of cases settle.

    The fact that there is a settlement says nothing about liability.


  18. - Susan B. Anthony - Thursday, Jul 28, 16 @ 1:13 pm:

    Kirk was a novice in this case - look at what Bill did for Hillary


  19. - Gooner - Thursday, Jul 28, 16 @ 1:13 pm:

    Peet,
    Where do you litigate?


  20. - atsuishin - Thursday, Jul 28, 16 @ 1:20 pm:

    Why are my tax dollars going to cover Duckworth’s behind? This is outrageous. Duckworth needs to pay these people out of her own pocket and the AG needs to be investigating corruption in illinois government rather than defending it.


  21. - Demoralized - Thursday, Jul 28, 16 @ 1:39 pm:

    Bob:

    You should also understand that cases the AG handles are handled mostly by lawyers that make squat and who have stacks of case files they are in charge of. As I said, more often than not they look for the easiest way out.


  22. - illini97 - Thursday, Jul 28, 16 @ 1:44 pm:

    =atsuishin=,

    Public servants/elected officials are represented by public attorneys. That is true across the board, not just for Duckworth.


  23. - Illinois Bob - Thursday, Jul 28, 16 @ 1:49 pm:

    @MisterJayEm

    =The law regarding the settlement of a suit — summarized above by Gooner — is well-established and is not subject to mistaken beliefs.=

    Although I’m no lawyer, Gooner’s statement presumes a meeting of the minds n the agreement.

    The reason I asked about the transcript is that I’ve seen too many judges who have terrible memories, and, to be quite honest, don’t know the law that well. I remember when I was on a jury once having the judge corrected by the IRS lawyer informing him that the burden of proof was on the defendant in the case.

    @Demoralized

    You’re right, of course. I’ve known many asst State Att. and lawyers working for the AG that were paid MickyD rates. Their payday comes when they either move into elective politics or go into private practice. Both paths require valuing politics over principle…


  24. - Responsa - Thursday, Jul 28, 16 @ 2:02 pm:

    == It’s just a form.==

    Any of us who in the past were forced by a judge to sign “a form” saying we understood and accepted a settlement in order to finalize it are surprised to hear that according to Maura it was totally not necessary.


  25. - burbanite - Thursday, Jul 28, 16 @ 2:11 pm:

    With some exceptions under the statute of frauds, which does not apply here, an oral contract is binding if it meets very simple criteria. Offer, Acceptance, Consideration and a Meeting of the Minds. Since it is my understanding it occurred in front of the judge it is totally binding.


  26. - pundent - Thursday, Jul 28, 16 @ 2:11 pm:

    =Although I’m no lawyer, Gooner’s statement presumes a meeting of the minds n the agreement.=

    A very valid point if the agreement wasn’t negotiated by attorneys in the presence of a judge.


  27. - Gooner - Thursday, Jul 28, 16 @ 2:11 pm:

    Responsa,

    The “form” she’s referencing is the settlement agreement, which can be from about two pages for the most simple agreement to ten pages or more for complex insurance or commercial disputes.

    Although the terms change and require counsel to make sure that the terms coincide with the oral agreement, it is just a form. A few weeks ago, I had a judge laugh at opposing counsel for including some non-standard provisions in the form. She ordered that party to remove them, and we finalized our deal.

    A court can compel a party to sign, or simply dismiss the case and have the plaintiff(s) walk away with nothing for refusal to sign (and in that case, defendants often will deposit the funds with the court pending further order the court).

    So yes, she’s right. It is just a form.


  28. - Sue - Thursday, Jul 28, 16 @ 2:20 pm:

    The out if there is one is that the AG and Duckworth mischaracterized the settlement in the media which might royally irritate the court. And not to be naieve- where the case is pending the Judge just might be a R and willing to accommodate Kirk on this. As they say don’t send me nobody nobody sent


  29. - Anonymous - Thursday, Jul 28, 16 @ 2:26 pm:

    $9,000 each is a pittance. If the plaintiffs thought they had a strong case they wouldn’t have settle for such a small amount after that many years. This was a small price for the state to pay to settle the issue once and for all.


  30. - burbanite - Thursday, Jul 28, 16 @ 2:37 pm:

    So Sue are you saying R judges are activists? Or, lack judicial temperament?


  31. - Louis G. Atsaves - Thursday, Jul 28, 16 @ 2:43 pm:

    “It’s just a form.”

    Really? I would get laughed out of court if I said this. I am assuming it is a written release of liability with certain terms and conditions. Now that it was initially stated that this “frivolous” lawsuit was settled for “$26,000.00″ the lion’s share of which were costs and expenses, we discover through a Daily Herald interview that the figure is closer to or around $40,000.00. The plaintiffs appear to be very upset that their reputations continue to be disparaged by the Duckworth campaign.

    Doesn’t sound like a meeting of the minds happened during this settlement conference. “Forcing” the Plaintiffs now to accept what was originally agreed to (assuming there is an actual figure) should lead to some more ugly headlines, mailings and TV ads.

    The overly chatty people in the Duckworth campaign should be fired. If the AG’s office misinformed the public about this, those involved in such conduct should also be fired.

    This all isn’t a game. It is a court of law.


  32. - Anonymous - Thursday, Jul 28, 16 @ 2:49 pm:

    Calling the suit frivolous is chatty? I assume that’s been her position all along. But hey, let’s fire a bunch of people because Louie prefers the other party.


  33. - walker - Thursday, Jul 28, 16 @ 3:02 pm:

    Actually it does sound as if a meeting of the minds was reached in front of a judge — but that these plaintiffs were subsequently angered by how the press and the Duckworth campaign reported it. Was confidentiality part of the deal? If a campaign breaks it, what then for the principal?


  34. - Anonymous - Thursday, Jul 28, 16 @ 3:12 pm:

    Under FOIA, settlement agreements involving government bodies should not have confidentiality provisions and to the extent they do they are nullities.


  35. - burbanite - Thursday, Jul 28, 16 @ 3:35 pm:

    Louis, did you see Rich’s last paragraph?


  36. - LessAnon? - Thursday, Jul 28, 16 @ 4:14 pm:

    Aside from the Kirk folks drooling at the prospect of an ongoing, open court case like this against Duckworth duing the campaign, regardless of the deal being binding, Kirk gets something very valuable out of this story. He now can say they were “paid off” without it being such a stretch as it was from the reported “settlement for court costs.” Huge difference politically, and in this election year’s environment, could make a difference in a tight race.


  37. - Louis G. Atsaves - Thursday, Jul 28, 16 @ 4:22 pm:

    ===”Louis, did you see Rich’s last paragraph?”===

    I did. I factored that in my original comments. Still begs the question, total settlement package came to $26,000.00 or did it come to nearly or $40,000.00?

    Straight question. What is the answer?


  38. - Juvenal - Thursday, Jul 28, 16 @ 4:51 pm:

    There is a lot of back-and-forth here, but this is looking less and less like an error by McGrath or serendipity and more like a set-up.

    Why did plaintiffs hide that they had spoken with Artl? Why did they decide to announce withdrawal from the settlement without consulting their attorney? How did they get connected with Kirk’s hometown paper?

    Occam’s Razor suggests that Kirk’s camp was in contact with them before and after the settlement was reached. And then went back to them after a deal was reached, got them all fired up, told them the way to stick it to Duckworth was to rain on her speech by withdrawing from the agreement, and then connected them to the Daily Herald.

    It sure fits the facts we have now.

    Artl may or may not be behind it, but it sure looks like his spycraft.


  39. - Anonymous - Thursday, Jul 28, 16 @ 4:56 pm:

    Duckworth has reminded us of the outright lies about his military record, but weren’t there similar doubts about his story re the boating accident in Lake Michigan?


Sorry, comments for this post are now closed.


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