NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0184n.06 No. 12-3215 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT CUYAHOG A VALLEY RAILWAY COMP ANY; RIVER TERMINAL RAILWAY COM P ANY; ALIQUIPP A & SOUTHERN RAILROAD COMP ANY; CHICAG O SHO RTLINE RAILWAY COMP ANY; MONONG AHELA CONNECTING RA ILROAD COMP ANY, P laintif fs-App ellees, ON AP P EAL FR OM THE v. UNITED STAT ES DIS TRICT COURT F OR THE NORT HERN DISTRICT OF OHIO U.S. BANK TRUST NATIONAL ASSOCIATI ON, Defendan t-Appellant, and UNITED MINE WORKERS OF AM ERICA COMBINED BENEFIT F UND TRUSTEES ; P ENSION B ENEFIT G UARAN TY CORP ORATION; NATIONAL UNION F IRE INSURANCE COMP ANY OF P ITTS BURG H P A; HSBC BANK U SA, NATIONAL ASSO CIATION, AS INDENTURE TRUST EE, Defendan ts. BEFORE: M OORE an d COOK, Circ uit Jud ges; BERTELS MAN, D istrictJudge. * OP INION BERTEL SMAN, District J udg e:

The Honora

ble Wil liam O. Be rtelsman, United States District J udg e fo r t h e Easter n District of * Kentucky , sitti ng by

desig nation.No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank De fendant-Appellant, U.S. Ba nk Trust (“U .S. Ba

nk”), appea ls the District Court’s ord er enfor cing a settlement a g ree ment. Be cause th e Dist rict C ourt failed to conduct an evidentiar y hear ing on the factual di sputes surrounding the purported settlement ag ree ment, the District Court’s order enfor cing the settlement is VACATED , and the c ase is REMAND ED

. I

. Plaintiffs-Appelle es are corpor ations that former ly operated as railroa ds in Ohio, Pennsy lvania, or I llinois

. R. 47 at p. 1. Eac h was wholly -owne d b y L TV Steel Company , I nc. (“L TV”)

. Id

. On Dec ember 29, 2000, L TV and 48 of its affiliates (not includingAppellee s) filed Chapter 11 bankruptc y

petitions. Id . I n the cour se of its bankruptc y , L TV aba ndoned its intere sts in Appellee s. Id

. I n its Abandonment Motion filed in the United States Ba nkruptcy Court for the Norther n District of Ohio, L TV represe nted t hat App el l ee s only held assets of approx imately $12 milli on in cash (“L iquidation Procee ds”). See R. 45-2 at ¶ 16. Appellee s are no longe r operating railroa ds and ar e in the proc ess of windingup their af fairs. R. 47 at 1. Def endant- Appellant U.S. Ba nk is the indenture trustee for the holders of the 11.75% Senior Notes Due 2009 issued by L TV. Id

. at 2. As a result of L TV’s bankruptc y , U.S. B ank has alleg ed a cla im ag ainst Appellee s in the approximate amount of $516,820,153.30. Id . I n addition to U.S. Ba nk, the other defe ndants/claimants include the United Mine Workers of Americ a Combined Be nefit Fund Trustee s (“U MWA”), Pension Be nefit Guar ant y C o rporation (“PB GC”), National

2No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank Union Fire Insuranc e Company of Pit t s b urg h PA (“N ational Union”), and HSBC Ba nk USA, National Association, as I ndenture Trustee (“H SBC”). Id . at 2-3. 1 Appellee s curr ently possess approximately $11 milli on in cash. See Appellee s’ Br ief at 11. Recog nizi ng the relatively small amount available to satisfy the unpaid claims, all parties (excluding National Union which intervene d in mid-2010) eng ag ed i n p rot rac ted, detailed settlement discussions beg inning in 2005. Id

. I n November of 2008, afte r extensive neg otiations, the parties ag ree d upon the allocation of, at that time, $12.3 milli on in L iquidation Procee ds, and they reduc ed that ag ree ment to writing

. R. 47 at 2-3. Appellee s wer e then to file an interplea der complain t , af t er which the parties would prese nt a finalized settlement ag ree ment to the District Court. R. 47 at 7; R. 44-3. The recor d is devoid of evidenc e, however, of any further prog ress unti l May of 2010. At that time, the November 2008 ag ree ment was m o d i fi ed to ref lect National Union’s claim for the L iquidation Procee ds, to reduc e the amount of L iquidation Procee ds available for distribution to $12 milli on, and to include other non-mater ial alterations. See R. 46-1.

The UMWA, an e mploy ee be nefit plan, alleg ed that the Appe llees ar e jointly and seve rally

liable 1 to it for unpaid premi u m s an d deductible amounts paid out under the policies in the ag g reg ate amount of $37,000,000.00. R. 47 at p. 2. The PBGC, the fede ral ag ency cre ated to protec t pension benef its in private sector pe nsion plans known as def ined benef

it plans, alleg ed that the Appellee s have pension liabiliti es in the amount of $2,832,600,000. Id

. at p. 1. HSBC, as the indenture trustee for the holder s o f the 8.20% Senior Notes Due 2007 issued by L TV, alleg ed a claim ag ainst Appellee s in the approximate amount of $471,558,447.59. Id . at p. 2. National Union, a n insurer that provided cover ag e to L TV and its subsidiaries and associate s, claimed that Appellee s are jointly and sever ally liable for unpaid p remiums and deductible amounts in the ag g reg ate amount of $7,758,832.00. Id

. 3No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank Additionally , U.S. Ba

nk circ ulated for

revie w and comment a dra ft motion that it intended to file in the Ba

nkruptcy C o u rt

. S

ee R. 44-4. This motion ref ere nced the parties’ proposed distribution of the L iquidation Proceeds. Id

. On J uly 5, 2010, counsel for UMWA sent an email to all counsel involved in the matter and, in part, stated, “ Ineed to know f rom eac h of y ou point blank whether you contemplate some other action than what we have discussed, prese ntation of the signe d settlement ag ree ment within a short time after filing the interplea der c omplaint.” See R. 44-3. 2 The followingday , counsel for U.S. Ba nk stated, “.

. . as of the present date, my client has expressed no chang e (sic) its orig inal intention to settle this matter on the terms ag ree d to a number of y ear s ag o.” Id

. Three day s later, on J uly 9, 20 1 0, U.S. Ba nk filed a status repor

t in the Ba

nkruptcy Court stating, in pa

rt, that: [O] nce the respe ctive rig ht and priorities of the unsecur ed cre ditors in and to the . .

. liquidation proce eds have been established and the terms of a proposed settlement and rele ase (the “Settlement Ag ree ment”) ag ree d upon, the Di stribution Trust will apply to the Ba

nkruptcy Court for approva l of the Settlement Ag ree ment and the pro rata distribution t here under of the . . . liquidation procee ds. R. 45-3. One we ek later, Appellee s filed t heir int erple ader complaint in the Dis trict Court. R. 1. On October 28, 2010, U.S. Ba nk filed an Amended Answer and Counterclaim, containing a demand for a full acc ounting f

rom the Appe llees of the L iquidation Proceeds. R. 27.

There is no indication in the rec ord as to why coun s el for UMWA was appar ently suddenly 2 conce rned about the potential actions of the other parties in reg ard to the ag ree ment which had been previously

neg otiated. 4No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank Whil e the rema ining parties wer e filing their responsive pleading s, counsel for the p ar ties

wer e also exchang ing emails about how best to proce ed to the resolution of this matter. See R. 45-8. On November 19, 2010, counsel for Appellee s emailed all the parties stating: “I t is my understanding that we wa

nt to prese nt the settlement ag ree ment to the court at the case manag ement confe renc e. Are we prese nting it as a co n s en t j u d g ment? ” Id

. On Dec ember 1, 2010, counsel for HSBC responde d, “I believe the intention was to prese nt the settlement ag ree ment[,]

. . .[but ] it would be desirable that the acc ounting piece be resolved so that it will not have to b e ra i s ed at t he status confe renc e.” Id

. Additionally , counsel for PBGC sent an email to Appellee s’ counsel on Dec ember 21, 2010, ag ree ing that the acc ounting should be considere d when scheduling a case manag ement confe renc e with the District Court. Id . On Dec ember 28, 2010, co-c ounsel for HSBC sent a follow-up e mail to Ap p el lees’ counsel requesting a st atus update on the “accounting reque sted by a number of t he parties.” Id

. Shortly there afte r, Appellee s’ counsel re sponded that he “expect[ed] to be able to provide doc umentation by the end of

next week or be g inning of the followingwee k.” Id

. On J anuar

y 17, 2011, Appellee s’ counsel sent acc ount statements fo r 2 007-2010 to all

co unsel. Id

. I n response , counsel for HSBC stated that HSBC would need a specific ce rt i fi ca t e “bef ore we can ag ree the acc ounting reque st is satisfied.” Id

. Additionally , counsel stated, “[u] ntil

we have such a cer

tificate, we are reluc tant to sign on to the motion for a status confe renc e since we

wo uld not want the court to have the confe renc e befor e we are all comforta ble on the ac co u n t i n g issue.” Id

.

5No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank On Fe bruar

y 4, 2011, counsel for U.S. B ank sent an email to counsel for HSBC expressing that he did not favor

a status confe renc e until he had “ full possession of the fa cts.” See R. 45-10. On April 25, 2011, Appellee s’ counsel sent an email to all parties forwa rding “the latest version of the Settlement Ag ree ment and Release ” in anticipation of the case manag ement confe renc e with the District Court. See R. 45-11. I n response , U.S. Ba nk’s counse l stated: Whil e U.S. Ba

nk is in full ag ree ment with the proposed division of [] proce eds held in trust for the benef

it of the respe ctive parties defe ndant, U.S. Ba nk cannot ag ree at this time to the rele ase of the [Appellees], their office rs, direc tors, attorney s, ag ents, and re prese ntatives, et al. until further discovery

is undertake n. Id

. The following day , the District Court conducte d a telephonic Case Manag ement Confere nce wher ein eac h of the parties was repr esente d. R. Minutes of P ro ceeding s (April 27, 2011). The District Court continued the Case Manag ement C onfer ence until May 3, 2011 in order to give the parties time to discuss how to proce ed. Id

. At the May 3, 2011 confe renc e, U.S. Ba nk reiter ated its d esi re to conduct discovery , but the ot her parties i ndicated their desire for an ear ly resolut i o n . R

. Minutes of Procee dings (May 3, 2011). Appellee s indicated that they wo u l d not resolve the case without all parties involved, but, rathe r, indicated their pref ere nce to file a motion to enfor ce settlement. Id

. On J une 6, 2011, Appellee s filed a motion to enfor ce the settlement ag ree ment. R. 44. U.S. Ba nk filed a response in opposition on J uly 5, 2011, and Appellee s filed a reply in suppor t of their motion shortly there afte r. See R. 45, 46. On Fe bruar y 8, 2012, the District Court, without holding an evide ntiary

hear ing, e ntere d an orde r enf orcingthe settlement ag ree ment. See R. 47.

6No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank U.S. Ba nk timely appea led t he Di s t ri ct C ourt’s order enforcing the s ettlement agr eeme nt. R. 49. The rema ining defe ndants/claimants did not oppose Appellee s ’ m o t i o n to enfor ce the settlement, and, thus, they are not before this Court.

I I

. “This Court r eviews for clea r err or the district c ourt' s fac tual deter mination that the par

ties had agr eed to settlement terms; howeve r, we revie w t he dis trict cour t 's decision t o g rant a motion to enfor ce the settlement based on its preliminary fac tual finding for an ab u s e of discretion.” RE/MAX Int'l, Inc. v. Realty One, Inc. , 271 F.3d 633, 645 (6th Cir. 2001) (citing Therma-Scan, Inc. v. Thermoscan, I

nc., 217 F.3d 414, 418 ( 6th Cir. 2000)). No evidentiar

y hear ing is r e q

u ir e d wh ere an ag ree ment is clea r and unambig uous and no issue of fac t is prese nt. Id

. at 646. Howeve r, the District Court must conduct an evidentiar y hear ing when the situation prese nts substantial fac tual issues related either to the formation or the consummation

o f t h e co ntrac t. Bobonik v. Medina Gen. Hosp. , 126 F. App' x 270, 274 (6th Cir. 2005) (citin g RE/MAX, 271 F.3d at 646). “B eca use settlement ag ree ments are a ty pe of contrac t, the formation and e nforc eability of

a purported settlement agree ment are g overne d by state contra ct law.” Smith v. ABN Amro Mortg. Grp. Inc. , 434 F. App’x 454, 460 (6th Cir. 2011) (citing Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6t h C i r. 1992)). “Unde r Ohio law, ‘a valid settlement agree ment

. . . requir[es] a meeting of the minds as well as an offe r and acc eptanc e.’” Id

. (quoting Rulli v. Fan Co. , 683 N.E.2d 337, 338 (Ohio 1997))

.

7No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank I I I

. U.S. Ba nk asser ts that the District Court err ed in holding that the ag ree ment did not need to be executed to be enfor cea ble. See Appellant’s Br ief at p. 35. The fac t that a settlement ag ree ment has not been formally executed does not render the ag ree ment unenfor cea ble. RE/MAX, 271 F.3d at 646. Additionally , “[s] ignature spaces in the form contra ct do not in and of themselves require that the signatures of the parties are a condition prec edent to the ag ree ment' s enfor cea bility .” Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 375 N.E.2d 410, 413 (Ohio 1978). Howeve r, if parties have ag ree d that a co n trac t shall not be binding until signe d, courts should g ive eff ect to that ag ree ment, and, thus, should not enfor ce the contra ct without the requisite signatures. See Allen v. Ford Motor Co. , 8 F. Supp. 2d 702, 705 (N.D . Ohio 1998) (c itation omit ted). U.S. Ba nk argues t hat t here is a ma t eria l fac tual dispute as t o whether the parties intended to be bound until the ag ree ment was executed by all parties, and, thus, the District Court was require d to conduct an evidentiar y hear ing. O n this point, U.S. Ba nk direc ts the C ourt’s attention to the J uly 5, 2010 email from counsel for UMWA, which states, in rele vant part: “I need to know from each o f y o u point blank whether y ou contemplate some other action than what we have discussed, prese ntation of the signe d set t l em en t ag ree ment within a short time afte r filing the interplea der c omplaint.” R. 44-3. The District Court asser

ted t hat t his email di d not evidence an int ent not to be bound until the ag ree ment was signe d. Instead, th e Di strict Court held that the “intent of this lawsuit was to presen t a signe d ag ree ment to this Court for approva l,” and U.S. Ba nk’s ref usal to execute the ag ree ment was the r eason the ag ree ment was not sig ned. 8No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank Ho we v er, that finding is belied by the fac t that there is no evidenc e that any of th e o t h er claimants had signe d the ag ree ment. Whil e the signa ture space s on the ag ree ment “do not in and of themselves require that the signa tures of the p ar ties are a condition prec edent to the agree ment’s enfor cea bility ,” Berjian , 375 N.E.2d at 413, that does not imply that these signa ture space s car

ry no evidentiar y weig ht whatsoeve r. I n fac t, of particula r rele vance would be whether the other claimants anticipated that the ag ree ment require d a signature befor e it was binding. Unfortunately , there is littl e in the re cord indicating those pa rties’ positions on this i ssue. 3 Additionally , to the extent that the District Court relied on the J uly 6, 2010, email from U.S. Ba nk’s counsel as assent to be bound by the ag ree ment, the District Court did so in err or. U.S. Ba nk admits that it ag ree d to the distribution of the L iquidation Procee ds. See Fr anklin Ciaccio Affidavit at ¶ 10. Howeve r, U.S. Ba nk disputes that it ever agree d to enter into the ag ree ment without an

acc ounting of those Procee ds. Id

. at ¶ 11. Wit hout more information about UMWA’s purpose for initiating this email, this Court cannot find that U.S

. Ba n k ’s J uly 6, 2010 response evidenc es its assent to be bound by

the ag ree ment.

I ntere stingly , the only indication of the position taken by the other claimants is seen in the District 3 Court’s minutes of proce eding s enter ed on April 27, 2011 and May 3, 2011. The District Court, in the minutes of that confe renc e, stated that there had been “discussion reg arding possible distribution of the funds acc ording to a settlement ag ree ment which has bee n rea ched in principle but not y et executed.” R. Minutes of Procee dings (April 27, 2011). I f any thing, this statement implies that the ag ree ment was not y et finalized beca use it had not been signe d by all the parties. Additionally , the District Court’s minutes entere d on May 3, 2011 indicate that “ four of the five de fenda

nts wish to proce ed to an ear ly resolution of the case .” R. Minutes of Procee dings (May 3, 2011). Whil e these claimants may have wanted to rec eive their s m al l p ercentag e of the proce eds as expeditious ly as possible, that does not nece ssarily indicate that a signature on the ag ree ment was not a prer equisite to enforc eability

. 9No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank I n fac t, this email exchang e could rea sonably be construed to support U.S. Ba nk’s position: that it had not chang ed its stance in reg ard to the distribution of the L iquidation Procee ds, but at no time did it a ssent to be ing bound by the ag ree ment. More specific ally , counsel’s use of the phrase “as of the present date” could reasonably be read to show that, while U.S . Ba nk still ag ree d to the terms reg arding the distribution of the L iquidation Procee ds, it had not y et ag ree d to be bound by the contra ct and it re serve d the rig ht to chang e its position. Fur thermore , three day s afte r this email, U.S

. Ba nk filed a status repor

t in the Ba

nkruptcy Court in which it indicates that it ha s not yet assented to the terms of the settlement. See R. 45-3. Ag ain, without more evidenc e about the cir cu m s t an ces surrounding this email, this Court cannot ag ree that this email confirms U.S. Ba nk’s intent to be bound by the ag ree ment. 4 There fore , the evidenc e produce d by U.S. Ba nk was sufficie nt to cre ate a mat er i al fa ctual dispute as to whether the ag ree ment was meant to be enfor cea ble without the requisite signatures. As s u ch, the Dis trict Court err ed in failing to conduct an evidentiar y hear ing. RE/MAX, 271 F.3d at 646. Additionally , the J uly 6, 2010 email d o es not unambiguously confirm U.S. Ba nk’s assent

Appellee s also cite to the May 2, 2010, draf t motion circ ulated by U.S. Ba nk as evidenc e that U.S. 4 Ba nk had confirme d the terms of the settlement ag ree m en t

. Howeve r, the District Court “c o n cl u de[d] that the draft motion probably does not stand as evidence of US Ba nk’s approval of t h e Settlement Ag ree ment.” R. 47 at p. 6. Although the District Court did not rule out t h i s d ra ft motion as evidenc e of assent to the settlement ag ree ment, it also expressly did not consider this draf t motion in finding there to be a binding settlement agree ment. Id

. Moreove r, U.S. Ba nk asser ts that the rea son this draf

t motion was never final or finalized wa s , i n part, beca use the settlement ag ree ment had never been finalized. Although Appellee s dispute this contention, a rea sonable fac tfinder could ag ree that this draf t motion was not evidenc e of assent to the s et tlement ag ree ment beca use the settlement agree ment, in fac t, had not been finalized. Once ag ain, an evidentiar y hear ing would assist in clarify

ing the ambig uities surrounding this draft motion. 10No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank to be bound by

the ag ree ment. Simi larly , an evide ntiary hear ing would assist in the i nterpre tation of this email. I V. U.S. Ba nk, throug h counsel, admits that it did ag ree to the dist ri b u t i o n of the L iquidation Procee ds, but states t hat i t would not ag ree to the s ettlement agr eeme nt until it was provided with information and documentation reg arding how Appelle es ’ as s ets wer e sol d and how the proceeds

wer e invested a fter the assets we re sold. U.S. Ba nk further states that befor e, during , and subsequent to the time when the parties wer e neg o tiating how the L iquidation Procee ds would be distributed, it advised Appellee s that a full

acc ounting of the L iquidation Procee ds would be require d befor e it could ag ree to a final settlement ag ree ment. Thus, U.S. Ba nk asser ts that it had no intent to be bound by the settlement until it

rec eived a

full, satisfactor

y acc ounting of

the Proce eds. I n its order en forcing the settlement, the District Court acknow ledg ed that U.S. Ba nk had

as s er t ed t h at Appellee s wer e awa re that they had to provide a full acc ounting befor e U.S. Ba n k would ag ree to be bound by the settlement ag ree ment. See R. 47 at p. 7. Howeve r, the District Court reje cted that asser

tion beca use U.S. Ba

nk failed to provide evidenc e of any written communication that an acc ounting was require d befor e it would ag ree to the settlement. Id

. at pp. 7-8. Additionally , in reje cting U.S. Ba

nk’s asser tion, the District Court cited to the fac t that the settlement ag ree ment itself contained no a ccounting require ment. Id . at p. 8. The District Court clea

rly err ed, howeve r, by disreg arding the aff idavit of Fr anklin Ciaccio, U.S. Ba nk’s counsel, in which he aver s that U.S. Ba nk h ad ad v i s ed Appellee s that an acc ounting 11No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank would be require d befor e they woul d en t er into the settlement agree ment. See Fr anklin Ciaccio Affida vit at ¶ 11. Appellee s, not surprising ly , ref ute this contention, arguing that, “[h] ad US Ba nk made the repe ated demands for an acc ounting as sug g ested

. . ., surely there would be written communications ref

ere ncing those reque sts.” Appellee s’ B rief a t p. 24. Appellee s acknow ledg e that there wer e extensive communications conce rning the reque st for an acc ounting, but they asser t that these reque sts wer e made afte r U.S. Ba nk had alre ady ag ree d to the settlement. Id

. at pp. 24-25. More specific ally , Appellee s asser t that U.S. Ba

nk confirme d the ag ree ment in its counsel’s J u l y 6 , 2 010 email, and any evidenc e of U.S. Ba nk’s reque st for an

acc ounting a fter this ema il is i rre levant. Id . at p. 24. Howeve r, as state d previously , this Court cannot f ind, on the rec ord bef

ore it, that the July 6, 2010 email constituted U.S. Ba nk’s assent to be bound by the ag ree ment. Thus, the evidenc e cited by U.S. Ba

nk subsequent to the J uly 6, 201 0 em ai l is rele vant as to whether an acc ounting was require d befor e U.S. Ba

nk would enter into th e agr eement. The District Court clea rly err ed in 5 disreg ardingthis evidence and summarily g ranting Appellee s’ motion to enforce the settlement. 6 I n addition to U.S. B ank’s counter claim for an acc ounting, see R. 27, the parties sent a number of 5 emails to eac h other be g inning on Nove mber 19, 2010 ref ere ncing an ac counting as a pr ere quisite to presentingthe District Court with the settlement ag ree ment. See R. 45-8; R. 45-10; R. 45-11. Whil e ther e ar e similarities betwee n this Court’s rec ent decision in Remark , LLC v. Adell Broad. 6 Corp. , 702 F.3d 2 80 (6th Cir. 2012), and the case at bar, the case s are ultimately distinguishable. I n Remark, this Court found that the defe nd an t-appe llant had unambig uously assented to the settlement ag ree ment, notwithstanding the fac t that it had not signe d the ag ree ment. Id

. at 284-85. Her e, this Court cannot find, on the rec ord befor e it, that U.S. Ba nk unambig uously assented to the s et t l em ent ag ree ment. Additionally , U.S. Ba nk has provided evidenc e of a fac tual dispute as t o whether the parties’ signa

tures wer e a prer equisite to the enfor cea bility of the ag ree ment. Moreove r, the par ties’ re curr ing discussion of the a ccountingrequire ment supports U.S. Bank’ s position t hat an acc ounting was a prer equisite to the enfor eability of the ag ree ment. Thus, Rem a rk is distinguishable f

rom the ca se at ba

r. 12No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank There fore , t h ere is also a materia l fac tual dispute as to whether U.S. Ba nk was willing to enter into the settlement ag ree ment without a full and satisfac tory acc ounting. As such, “the District Court err ed in failing to conduct an ev identiary hear ing which would have at least aff orded an opportunity for the Court to proper ly judge the cre dibilit y of the aff iants and an opportunity for their

cross-e x amination.” See Kuk la v. Nat’l Distil lers Prods. Co. , 483 F.2d 619, 622 (6th Cir. 1973)

.

V. For the fore g oing rea sons, the District Court’s order enfor cing settlement is V A C A TED , and the case is REMAND ED for an evidentiar y hear ing on the fac tual dispute s surrounding the purported se ttlement ag ree ment.

13No. 12-3215

Cuyahoga Valley Railway, et al. v. U .S. Bank COOK, Circuit J udg e, dissenting. I would aff irm the judgme nt of the district court enfor cing the settlement consistent with the re asoning of its Febr uary 8, 2012 opinion that meets eac h of the arguments of the appe llant for re versa l.

14