In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4007

MICHAEL G. POHL,

Plaintiff-Appellant,

v.

UNITED AIRLINES, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 97 C 1246--Sarah Evans Barker, Chief Judge.

Argued April 7, 2000--Decided May 10, 2000

 Before BAUER, EASTERBROOK, and ROVNER, Circuit

Judges.

 ROVNER, Circuit Judge. Some litigants in

pursuing settlement of their claims hold the

belief that they can change their mind at any

time before they actually sign the settlement

agreement. As this case illustrates, that

perception is often unfounded in the law.

 The genesis of this case was a lawsuit by

Michael Pohl, an aircraft inspector for United

Airlines, against United alleging violations of

the Uniformed Services Employment and

Reemployment Rights Act (USERRA). The complaint

included three counts, alleging discrimination

based on his military status (Count 1),

retaliation (Count 2), and failure to properly

credit Pohl’s employee stock ownership ("ESOP")

account for time spent fulfilling his duties in

the Reserves (Count 3). Eventually, the parties

began to discuss settlement, although there is a

wide divergence between Pohl’s perception of the

discussions and that portrayed by his attorney

and opposing counsel. What is undisputed is that

the attorneys engaged in a number of settlement

discussions by telephone between December 15,

1998, and March 8, 1999, and eventually informed

the court that they had reached a settlement of

the entire case. Shortly thereafter, Pohl called

the court himself, and expressed surprise when

informed of the news of a full settlement. The
judge convened a status conference, at which time

Pohl reviewed the written settlement proposal for

the first time and refused to sign it. United

then brought a motion to enforce the settlement,

which Pohl opposed on the ground that his

attorney did not have the authority to negotiate

the settlement. 

 After holding an evidentiary hearing on the

issue, the district court entered an opinion

which granted enforcement of the settlement.

Unfortunately, the court did not enter a separate

judgment in the case as is required under Fed. R.

Civ. P. 58. At oral argument, however, the

parties both agreed that the opinion by the

district court disposed of all issues, and that

a separate judgment would merely have reflected

the language in the opinion. Specifically, they

agreed that enforcement of the settlement

required dismissal of the case with prejudice,

and that the settlement agreement itself would

not have been incorporated into the judgment.

Accordingly, under Bankers Trust v. Mallis, 435

U.S. 381 (1978) we may proceed to consider the

appeal despite the technical violation of R. 58.

 Pohl asserts that his attorney lacked the

authority to negotiate a settlement of his case.

Issues regarding the formation, construction, and

enforceability of a settlement agreement are

governed by local contract law, Carr v. Runyan,

89 F.3d 327 (7th Cir. 1996), and therefore we

must look to the law of Indiana in deciding this

claim. As the Indiana Supreme Court held in Koval

v. Simon Telelect, 693 N.E.2d 1299, 1301 (Ind.

1998), in order to bind a client to a settlement,

an attorney must have either express, implied, or

apparent authority, or must act according to the

attorney’s inherent agency power. The Koval court

further held, however, that retention of an

attorney does not, in itself, confer implied or

apparent authority to settle. Id. The authority

to settle, therefore, derives from other actions

of the client with respect to the attorney or

third parties, including but not limited to

express grants of actual authority. For instance,

[t]he client may not intend for the attorney to

settle a claim but may nonetheless imply that

intention to the attorney. If so, the client is

bound by a resulting settlement. Further, both

apparent authority and inherent agency power may

be created by actions of the client in its

dealings with third parties even if the attorney

knows there is no actual authority. Under these

circumstances, the client is bound even if it is

a breach of the attorney’s professional

obligations to make the commitment. 

Id. at 1303 n.6. The district court determined
that Pohl’s attorney had actual authority to

settle, and we review that decision only for

abuse of discretion. Carr, 89 F.3d at 331; Wilson

v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995). The

court reached that conclusion after conducting an

evidentiary hearing, and the history of the

negotiations and of the communications between

Pohl and his attorney establishes that the

court’s determination is well-supported by the

record.

 The relevant history begins at a December 15,

1998, settlement conference with Magistrate Judge

Shields. The discussions turned to Count 3, and

United agreed to look into whether the ESOP

account had been properly credited. The other

counts were not discussed at any length. Pohl

claims that was because they could not reach a

consensus on those counts, but the attorneys

maintain that the talks centered on Count 3

because the other counts had turned out to have

little merit. It is of little import who is

right. The parties left the settlement conference

with the understanding that United would contact

Pohl’s attorney with the ESOP calculations.

United did so, and agreed that the ESOP account

had not been properly credited. The attorneys

then discussed language for a settlement

agreement. Among other provisions, the settlement

required United to: agree to credit Pohl’s ESOP

account and provide documentation regarding the

credits; promise not to retaliate against Pohl

for filing the litigation; and pay Pohl’s

reasonable attorneys’ fees. In return, Pohl would

dismiss the entire complaint, release United from

any liability for claims arising from the facts

in the complaint except to the extent that those

facts formed the basis for a claim under the

Americans With Disabilities Act, 42 U.S.C.

sec.sec. 12101 et seq., and maintain the

confidentiality of the agreement.

 The billing records from Pohl’s attorney

document ten phone calls between Pohl’s attorney

and either Pohl or his wife in the time period

from December 15, 1998, to March 8, 1999. The

records further reveal that before or after each

one of those calls, Pohl’s counsel was in contact

with opposing counsel. On March 8, 1999, Pohl’s

attorney sent Pohl a letter confirming "the

settlement of [Pohl’s] current federal court case

against United Airlines." It further discusses

the recovery of attorneys’ fees for the "military

discrimination suit," and mentions that it does

not include fees for a separate ADA claim that

was not part of that case. According to Pohl’s

testimony at the evidentiary hearing, his

reaction to the letter was "I thought, okay,

great, they settled it, but what exactly is the

settlement? Show me the settlement and show me
the proof. . . ." He claims that he still did not

think that the settlement included all of the

counts. Although he spoke with his attorney a

number of times after receipt of the letter,

including a meeting with him, Pohl never

expressed any concerns regarding the possibility

of a settlement, other than to request it in

writing and to request the documentation

concerning his ESOP account. As mentioned

earlier, Pohl eventually refused to sign the

settlement when it was presented to him at the

status conference. 

 Based on that history, the district court

rejected Pohl’s claim that the settlement was

reached without authority from him. The court

specifically relied on the objective evidence of

communications between Pohl and his counsel,

which supported the testimony of Pohl’s counsel

that Pohl was informed of each aspect of the

settlement and approved of each one. During the

negotiation period from December 15 until March

8, there is an absolute correlation between phone

calls by Pohl’s counsel to opposing counsel, and

calls by Pohl’s counsel to Pohl on the same day.

That supports the testimony of Pohl’s counsel

that he constantly communicated the proposed

settlement terms to Pohl. Moreover, Pohl failed

to register any objection with his counsel when

informed by letter that the "case" was settled,

even though he testified that when he first read

the March 8 letter confirming the settlement he

thought it might include the whole case. In fact,

his first reaction was "okay, great, they settled

it;" that is hardly the reaction one would expect

of someone who has not given his attorney the

authority to settle the case. Furthermore, as the

court in Koval recognized, Pohl may be bound by

the settlement if he implied an intention to

settle the claim to his attorney, regardless of

whether he actually intended to settle the claim.

Koval, 693 N.E.2d at 1303 n.6. The testimony of

Pohl’s attorney, which the court credited, would

have been enough to establish implied authority

to settle, even if express authority had not been

found. In light of the record, the district court

certainly did not abuse its discretion in holding

that the settlement was obtained with actual

authority from Pohl and that Pohl was bound by

it. 

 Pohl counters, however, that he believed that

he had the ultimate authority to approve or

disapprove the settlement, and that he was not

bound until he signed off on it. Pohl points to

a clause in the retainer agreement with his

counsel, which he altered ostensibly to retain

that authority. In Part X, the retainer agreement

granted the Firm the "Power of Attorney to

execute all documents connected with the claim .
. . including . . . settlement agreements . . .

." Pohl added the handwritten language "with my

authorization" in the margin next to that clause

because he and his wife "did not like the idea of

[the Firm] having total authority to settle this

matter without [their] intervention." That

provision, however, merely specifies that his

attorney may not settle the case without his

authority. It does not require written

authorization of a settlement. As we have already

noted, the district court did not err in holding

that Pohl authorized his attorney to settle the

case. That oral authorization satisfied the

handwritten clause, and provided his attorney

with the actual authority to settle the case.

Pohl’s misplaced belief that he could back out of

the settlement at any time prior to signing it

does not entitle him to legal relief from a

settlement negotiated with actual authority by

his attorney. 

 Finally, Pohl attempts to raise a new argument

on appeal, that the June 2 settlement agreement

cannot be enforced because even if there was a

meeting of the minds regarding settlement on

February 24, the June 2 agreement did not

properly memorialize that agreement. Pohl

concedes that he never raised this issue in the

district court, but argues that he was then

arguing that there was no authority to enter into

the February 24 agreement, and he had no reason

at that time to argue that the June 2 agreement

failed to reflect the terms agreed to on February

24. That argument is nonsensical. The issue

before the district court was whether it should

enforce the June 2 agreement. Pohl should have

raised at that time any claims that he had that

would affect the enforceability of that

settlement agreement. It certainly should have

been foreseeable to Pohl that he could lose on

his argument regarding lack of authority, and

that he should present any alternative arguments

at that time. This circuit has held numerous

times that arguments against the enforceability

of settlement agreements are waived if not raised

in the district court. Carr, 89 F.3d at 333;

Wilson, 46 F.3d at 667; Laserage Technology Corp.

v. Laserage Laboratories, Inc., 972 F.2d 799, 804

(7th Cir. 1992). In fact, even arguments raised

in the district court may be waived if not

presented in a timely manner, such as those

raised for the first time in a motion for

reconsideration. Wilson, 46 F.3d at 667. Pohl did

not raise this argument at any time in the

district court, and in fact expressly limited the

issue before the court, stating: "I think we all

understand that the only issue today is whether

or not attorneys for Mr. Pohl had the authority

to enter into this deal." Transcript of

Evidentiary Hearing at 105. There are no
extraordinary circumstances present to avoid

waiver. Laserage, 972 F.2d at 804. Accordingly,

that argument is waived. We note, however, that

the uncontradicted testimony of both attorneys

was that the written agreement simply

memorialized the terms agreed upon orally in

February, and thus his claim would have been

meritless even if properly raised.

 Accordingly, the decision of the district court

is

AFFIRMED.