beverly against abbott laboratories my name's rebecca kaiser i'm one of the attorneys for martina beverley in her case against her former employer abbott laboratories were here this morning appealing the district court's order granting abbott laboratories motion to enforce a purported settlement agreement we respectfully contend that the order was under reasonable for two main reasons first there was a lack of meeting of the minds on essential material terms to the purported settlement agreement and other words this purported settlement agreement leaves out too many essential provisions to enforceable second there's objective evidence that the settlement agreement was not intended to be the final binding agreement between the parties a first address the material terms that were not so i'm i'm interested in what you accept and your lawyer sends the e mail saying oh terrific you're some wonderful and do you think after all of that it would have been fine for abbott then to send a tract in which abbott unilaterally declared fifty percent of the proceeds represented backpay fifty percent represented damages we have withheld taxes accordingly here's a check for the balance i think that would have been proper you know i'm going to ask abot the same thing but you might i don't think so your honor and one of the reasons why the settlement amounts which i will refer to do the confidentiality reasons as the purported settlement amount and the settlement amount is not confidential abbott filed a motion to keep these documents under seal and we yannick well you know there are other material terms aside from allocation allocation is a big part of it that would directly affect the amount of money that on the spot really would get i'm not interested in the other terms right i'm i'm just trying to pin down what the tax consequences were because the parties would talk back and forth about tax cuts that it's you know lead to praised this in terms of standard contract law if beverly thought the settlement was for two hundred and ten thousand dollars net and abbott thought the settlement was for two hundred ten thousand dollars gross then there's no agreement it's like your classic case of the two ships peerless where the parties didn't agree on which peerless was carrying about but if the parties agreed that it was going to be two hundred ten thousand net of taxes then perhaps there was enough for a say here's our guess about taxes we've paid the i r s and if you disagree with us you can work this out with the tax authorities and try to figure out which kind of agreement we have here or allegedly had here and our point is that there was no agreement as to that your honor obviously based on what happened after the district court enforced settlement agreement abbott thought that was supposed to be less taxes so the amount that miss beverly received was seventy five percent of that two hundred ten thousand dollars could she have gone back and said i wanted the whole thing maybe perhaps but at that point again because there is no other agreement on other things which you do directly affect that amount of money for example the timing and method of payment was not agreed upon mr really didn't know if you get two hundred ten thousand dollars in a lump sum the day after the mediation if you don't know if you get it over the course of ten years there is no agreement as to that and of course the check in hand the next day is worth a lot more than several smaller checks over the course of a period of time and the evidence again showing what abbott did give to this by really does show that there was no agreement as to the lump sum versus the taxable amount another material term that wasn't agreed upon that directly affects whether or not that settlement amount was acceptable to either party was the fact that there was no agreement as to missed by really job status after an alleged agreement on this employment discrimination case a check for two hundred ten thousand dollars plus someone's job back is worth a lot more than a check for two hundred ten thousand dollars plus no job which is worth even more than a check for two hundred ten thousand dollars plus being barred from ever being employed by abbott ever again another material term that was missing was any sort of waiver or release this court has noted in him be that especially from the defendant's perspective a waiver or earliest is one of the most important if not the most important material term to a settlement agreement  in this case this document that abbott is seeking to enforce reads that beverly offers her beverly demands two hundred ten dollars to resolve quote this matter well what is this matter mr beverly had several claims against abbott disparagement provisions in the draft settlement we're going to that came later that were not discussed or agreed upon at the mediation secondly there's no objective manifestation of an intent to be bound by this no as a formal binding final agreement and that's evidenced by the purported the draft settlement agreement that came later that  evidence that the first a document was not intended to be the binding final agreement again because there are additional material terms listed including the way of earth that abbott deemed so important as to their not have been an agreement without it email that was was before the client knew me cry it wasn't aware and had been advised right before the email was sent that is correct and that twenty one day consideration period and seven day revocation period in the draft agreement also show that the original i'll call it the note wasn't intended to be the final document now abbott tried to analogize this case to pompei a which is a district court decision that's not binding on this pompei was very different from this case and pump a o the parties came on the record and said we have agreed to the final material terms we understand that this is a valid settlement agreement we've entered into  the plaintiffs argued that because the final draft agreement which he did not sign contained a revocation period in the consideration period that he was entitled to those periods and amy st eve a judge a missing you've ruled that because he never signed the final agreement from supposedly if you want to argue the amount the two hundred ten thousand dollars nothing was ever agreed upon at the mediation and in his hand written notices for both parties commit that they're all from the man will remain open until july twenty second that's correct i believe that was four or five days after the mediation and i would argue that the offer and demand are simply the starting points illinois courts have held that agreement can be reached in stages and this is this is starting point for further negotiations to demand i believe that missed by really capture demand opened so as not to raise the demand but that was not meant for her to be bound by that to accept that two hundred ten thousand dollars under any and all condition by really is not arguing that she is entitled to revocation period or consideration period but simply that it's evidence that the first document was not intended to be final and binding although it is counterintuitive if you really think about in the practical sense that if mr foley had signed the final draft agreement that she had not agreed to that she could get out of it seven days later and said she was up front she acted in good faith by saying the day after the mediation no i do not want to settle this may please the court my name is john klinghoffer and i together with my colleague in the independent dad are here representing at the laboratories happily in this manner the answer to the panel's question with respect to whether it would have been alright for why why are you confident that the parties can agreeing on a number agreed that it was a post tax number a pretax number story rather than a postcard number but i think the answer why i'm confident that i think a better answer is why the judge was reasonable in ruling nat way because we're dealing with an abuse of discretion standard here and the answers are right whether we got it right or whether he got it wrong it's whether or not his ruling was whether there's two hundred ten thousand number was before or after tax but i think based on the documents in front of them the judge reasonably concluded that it was a before tax number well and how is that that's what we're trying to get to what is it that he actually says that addresses that because we understand you want to do use a reasonable the standard that's the standard we need to use but we have to not a wreath so you just you know what i mean what is the what is the basis for saying it's pretense nothing clear there's nothing clear in the order itself which articulate his reasoning why i came to that conclusion however how can we judge whether or not it was an abuse of discretion if we can't discern what the basis for the reason is i think the reason would be is we're dealing with we're dealing with an employment discrimination suit in which wages were claimed and emotional distress damage your claim to nat's the only damages that were claimed in this case and the judge undoubtedly was aware of that we have a situation where the parties agree in writing to resolve the dispute for payment of two hundred ten thousand dollars again the only dispute is alleged loss of wages and loss and that just leaves ambiguous the question whether that means two hundred ten thousand in an end to the  point or two hundred ten thousand leaving abbott's coffers and those are different numbers i don't think it was one reason for the judge to rule that they weren't the judge would you like an reasonableness who's not in the abstract this judge william says has to be based on record evidence was there record evidence this question groceries was next question had been discussed by the parties and resolved there was in the record yes in our opening in our opening paper our motion to enforce in the memorandum in support there was a footnote indicating that the parties had discussed allocation and that was that right we intended to sell it to george then proceed to get evidence in the record about that since footnotes in briefs are not evidence in the record the judge did not and did not articulate why right and there was no in the response there was no reference to the right yes in the risk but they never argued that allocation was even a material term to the agreement there was never an argument before the lower court that the taxability whether or not it was going to be allocated was a material term that was missing from the agreement a judge never considered that argument because it was never made to his material and what do you typically do in these cases when you settle cases ever this isn't the first case that abstemious that's correct usually the always you always then withhold right we withhold when there's a claim for wages we do every time didn't happen that's not unlike than the number of cases cited in the judge's opinion where a formal agreement isn't reached after their agreement was here so i just want to get so you do the footnote that you're saying that the plan you never responded to the no that's  say since there was no counter position the court assume that this would be taxable that's exactly right that's right in a matter of fact in the judge in a minute order later in the late later in the docket that the judge articulate that in a motion to amend his order modify his order to have us hold the settlement amount rather than plaintiff's counsel notes in the record that as far as the record can see plaintiff is never to curated that they wanted allocated in any different manner and that was the first time the judge talked about that's a different question whether the tree be allocated in a different manner is a question different from whether the settlement was for gross or net and i understand your  then i think it's it's clear with the judge's intentions were based on the case that we're dealing with and i think from that perspective there clearly was under illinois law and offer and acceptance a meeting of the minds for that reason i think the judge clearly didn't abuse its discretion in finding and so let me just ask you just is this so this particular plaintiffs counsel had you ever had agreements with them before settlement agreements in employment cases there were three sets of counsel in this case and we have an i think we may have had an agreement with the first one but not the one who engaged in the said oh no i'm just mediation generally speaking these counsel because you're saying that of course you knew that the income would be taxable because that's your practice a the same knowledge that people have and in terms of advising their client no i might not i don't think that's the case i think mr erlich mr hubbard all were experienced labor council when you say to two hundred ten and t i'm running out of time but i'll quickly say again even if allocation had been raised by the plane of his material term that was missing for the low court that the court would have been reasonable in not finding that it was a material term it's an issue of implementation from our and as far as as the reliance on this this this draft agreement was one sent before the mediation it was a draft agreement sent after the mediation all containing the terms the fact that again we didn't enter into it a formal agreement like all of the other cases cited in the opinion isn't evidence that there wasn't an agreement the point of did articulate a number of with they contend were material terms but all the terms that were articulated both in the briefing to the lower court and here they are to abbott's benefit if abbott doesn't believe the material no one should believe the material abbott wanted to do was in the case and when it sent the email the day following the mediation saying we accept your client's offer to pay two hundred ten thousand dollars plus the cost of mediation in return for you resolving the case which the judge regionally concluded was dismissing the  case that's what we had all that's all that's here the only reason for this this appeal is that miss beverly wants not to comply with her offer that she agreed to remain open and wishes to get out of it and respect to the allocation argument judge saying did consider allocation in his ruling it was listed in the draft agreement which is part of the record and as mr kling hoffer noted it was mentioned in descendant in the motion to enforce it mr kling hoffer and i have it does say that the parties discussed allocation missed by very staunchly disagrees and there's no supported evidence saying that that was this well there's no evidence but you know maybe the reason there is no allocation was obviously something that judge can consider because it was in the documents but even if we do say that the parties did agree to a certain allocation that abbott asserts they agreed to that wasn't the allocation that abbott used when they wrote the final case of the day is united states