In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4034

JOSEPH BAPTIST, RICHARD BROOKS,

PRICE DUMAS, WILLIE HUNT, and

LAMONT UPTON,

Plaintiffs-Appellants,

v.

CITY OF KANKAKEE and MIKE KINKADE,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03 C 2115—Michael P. McCuskey, Chief Judge.

____________

ARGUED SEPTEMBER 15, 2006—DECIDED MARCH 19, 2007

____________

Before FLAUM, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. The plaintiffs in this Title VII

race discrimination case agreed in open court to settle

their claims against the defendants in exchange for

changes to hiring and promotional policies and $67,000

in attorney’s fees. Shortly thereafter, they had a change of

heart and sought to rescind their agreement on the ground

that it was more beneficial to their counsel than to themselves. The district court denied their motion to vacate

the agreed judgment order. On appeal, the plaintiffs
2 No. 05-4034

contend their agreement was not knowing and voluntary

because their counsel failed to adequately advise them on

the merits of the settlement in an effort to ensure payment of his fees. They also assert the agreement is unenforceable.

We reject these arguments and affirm. A plaintiff who

enters into a Title VII settlement on the advice of independent counsel is presumed to have done so knowingly

and voluntarily absent a claim of fraud or duress. Collateral arguments regarding the adequacy of counsel’s

advice cannot rebut this presumption. Apart from the

force of this presumption, the district court did not abuse

its discretion in evaluating the circumstances surrounding the settlement and denying the plaintiffs’ motion to

vacate the judgment. Finally, because an oral settlement

agreement is binding if supported by consideration and

there was consideration given here, the agreement is

enforceable.

I. Background

The plaintiffs in this case are five African-American

employees of the Kankakee Police Department. In July

2003 they sued the City of Kankakee and Police Chief

Mike Kinkade alleging that the police department’s

promotional policies had discriminated against them on

the basis of their race in violation of 42 U.S.C. § 1983 and

42 U.S.C. §§ 2000e et seq. (Title VII). Plaintiffs’ disparate

treatment and disparate impact claims were bifurcated

for trial, and a jury returned a verdict in favor of the

defendants on the § 1983 and Title VII disparate treatment claims. Plaintiffs appealed that judgment. In the

meantime, the district court scheduled the disparate

impact claim for a bench trial to commence on September

12, 2005.
No. 05-4034 3

The parties appeared in court on the morning of September 12 and told the judge they were close to settlement.

The court postponed the trial for a few hours so the parties

could attempt to finalize negotiations. They returned later

that morning and notified the court that they had reached

a settlement, the terms of which were then read into the

record by the defendants’ counsel. Those terms included

agreement by the City to engage in a number of practices

to safeguard against discrimination, including establishing

a “Blue Ribbon Committee” to review recruiting, testing,

and promotional policies; employing an independent

testing company for any hiring and promotional testing;

and conducting annual cultural diversity training. The

City also agreed to pay $67,000 in attorney’s fees to the

plaintiffs’ attorney, Christopher Bent. In exchange, the

plaintiffs agreed to dismiss with prejudice the disparate

impact claims and their pending appeal of the § 1983 and

disparate treatment verdict. They also agreed to execute a

covenant not to sue regarding a 2005 promotional test and

to dismiss a pending EEOC complaint regarding the test.

After the terms of the agreement were read in open

court, defense counsel stated that he would put the

agreement into writing. The following exchange then

occurred:

THE COURT: Okay. One of the things I do want to

make certain on the record, Mr. Bent, this is an

agreement that has been reached and agreed upon by

all five plaintiffs, is that correct?

MR. BENT: That’s correct, Your Honor.

THE COURT: And since I’m looking at all five and

they’re all looking at me, is anyone in disagreement

with the statement that Mr. Bent said? That all of

you are in support of this agreement, is that correct?

They’re all five nodding their head yes. So I won’t go

through the names like we’re taking attendance.
4 No. 05-4034

Defense counsel then stated that the agreement was

subject to approval by the City Council at its meeting in

one week. The parties agreed on the record to execute the

written agreement prior to the City Council meeting so

it could be presented to the Council as a final document.

The next day, September 13, plaintiff Richard Brooks

called Bent and expressed concerns about the agreement.

On September 14 Brooks told Bent that he no longer

agreed to the settlement and planned to hire new counsel. On September 22 Bent and the attorney for the

defendants signed and submitted to the court an “Agreed

Judgment Order” encompassing all the terms announced

and agreed to in court on September 12. The district court

entered the order that same day. On September 23 Bent

filed a motion to withdraw as Brooks’s counsel.

On September 30 the other plaintiffs told Bent that they

did not intend to comply with the settlement, and they

joined Brooks in obtaining new counsel. On October 2 the

plaintiffs, now represented by new counsel, moved to

alter or amend the judgment pursuant to Federal Rule of

Civil Procedure 59(e), arguing that the settlement was

manifestly unfair and unjustly enriched Bent. Each

plaintiff filed an affidavit stating that he “did not [on

September 12] understand that the settlement was onesided and did not provide any remedy for past discrimination.” Bent then immediately filed a motion to withdraw

as counsel for all plaintiffs. In that motion he asserted that

he had discussed the settlement terms with the plaintiffs

in “excruciating detail” for two days and maintained “there

was no ambiguity as to what rights the parties were being

asked to waive” when they agreed to the settlement.

The district court granted Bent’s motions to withdraw

and denied the plaintiffs’ motion to alter or amend the

judgment. The court held that “[t]he record is crystal clear

that Plaintiffs were advised of all of the terms of the
No. 05-4034 5

agreement in open court and expressed to this court their

agreement with the terms.” The court also stated that

the agreement was “a good settlement for the Plaintiffs”

and concluded that “second thoughts about the terms of

the agreement . . . [are not] a valid basis for vacating.” The

plaintiffs appealed, arguing that (1) the district court

failed to apply the correct legal standard to determine

whether the agreement was entered into knowingly and

voluntarily, (2) Bent engaged in misconduct, (3) the

September 12 agreement was not enforceable, and (4) the

September 22 agreement constituted a fraud on the court.

II. Discussion

We review the district court’s denial of a Rule 59 motion

to alter or amend a judgment for abuse of discretion.

Britton v. Swift Transp. Co., 127 F.3d 616, 618-19 (7th Cir.

1997). Whether the court applied the correct legal standard is a question of law that we review de novo. The

district court’s determination that the plaintiffs knowingly and voluntarily settled their claims is a finding of

fact that we will not set aside unless clearly erroneous.

Glass v. Rock Island Ref. Corp., 788 F.2d 450, 455 (7th Cir.

1986).

A. Knowing and Voluntary Settlement

We begin with plaintiffs’ contention that the district

court failed to properly analyze the totality of circumstances to determine whether they knowingly and voluntarily entered into the settlement. An employee’s settlement of a Title VII claim must be knowing and voluntary.

See, e.g, Alexander v. Gardner-Denver Co., 415 U.S. 36, 52

n.15 (1974); Taylor v. Gordon Flesch Co., 793 F.2d 858, 862

(7th Cir. 1986). Whether a Title VII settlement is knowing and voluntary is a question of federal law. Pierce v.
6 No. 05-4034

Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 571 (7th

Cir. 1995). When an employee challenges whether

a settlement was knowing and voluntary, “a court must

examine the ‘totality of the circumstances’ surrounding

[its] execution.” Id. However, “where plaintiff is represented by chosen counsel throughout negotiations and

settlement[ ] . . . [the settlement agreement] is presumptively informed and willing, absent circumstances such as

fraud or duress.” Riley v. Am. Family Mut. Ins. Co.,

881 F.2d 368, 373 (7th Cir. 1989); see also Pierce, 65 F.3d

at 571 n.1 (reaffirming this holding).

The plaintiffs here were represented by independent

counsel when they agreed to settle their Title VII claims;

as such, the settlement agreement is presumed to be

knowing and voluntary. See Riley, 881 F.2d at 373-74. The

plaintiffs seek to overcome this presumption by claiming that their attorney engaged in misconduct, either

by failing to adequately explain the terms of the settlement or by persuading them to enter into a settlement

that was not in their best interests. But the adequacy or

propriety of counsel’s advice is irrelevant to the question

of whether a settlement was knowing and voluntary. Id.

at 374; Taylor, 793 F.2d at 863-64. “[I]f an attorney’s

conduct falls substantially below what is reasonable

under the circumstances, the client’s remedy is against

the attorney in a suit for malpractice. But keeping [a]

suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be

visiting the sins of plaintiff’s lawyer upon the defendant.”

Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962).

Riley and Taylor held that the adequacy of counsel’s

advice regarding settlement is an improper factor in

evaluating whether a settlement is knowing and voluntary,

see Riley, 881 F.2d at 374; Taylor, 793 F.2d at 864, and we

now reiterate that this holding extends to all claims based
No. 05-4034 7

1 We have recognized the possible relevance of a claim that

plaintiff’s counsel colluded with the defendant to fraudulently

induce settlement, or that the court denied a plaintiff adequate

time to consult with counsel. Riley v. Am. Family Mut. Ins. Co.,

881 F.2d, 368, 374 (7th Cir. 1989). The plaintiffs make no such

claims in this case.

2 Fraud in the inducement is a claim against the opposing

party; the plaintiffs have not claimed that the defendants

fraudulently induced them to enter into the settlement agreement. Duress, too, is a claim against the other party to the

contract, and it requires more than vexation, the stress of a

difficult bargaining position, or financial pressure; duress

requires “imposition, oppression, undue influence, or the taking

of undue advantage of the business or financial stress or extreme

necessities or weakness[es] of another.” Pierce v. Atchison,

Topeka & Santa Fe Ry. Co., 65 F.3d 562, 569 (7th Cir. 1995).

Furthermore, a party asserting duress cannot prevail if he had

an alternative to entering into the agreement. Id. The plaintiffs

have not claimed the defendants took undue advantage of them.

In any event, they had the option of taking their disparate

impact claim to trial, and any claim of duress would necessarily fail.

on the conduct or competence of plaintiff’s chosen counsel.1

Collateral attacks of this nature neither negate the

presumption created by representation by counsel nor

demonstrate the kind of fraud or duress capable of rebutting that presumption.2

Because the plaintiffs were represented by independent

counsel and claimed neither fraud nor duress, the settlement agreement is presumed to be knowing and voluntary

and the district court need not have evaluated the circumstances surrounding it. The district court examined all

of the circumstances anyway. The court noted that Bent

discussed the settlement in great detail with the plaintiffs

over the course of two days, that the plaintiffs gave Bent

their input on the terms, and that the parties were
8 No. 05-4034

3 In assessing the totality of the circumstances, we have stated

that relevant factors include but are not limited to: (1) the

employee’s education and business experience; (2) the employee’s

input in negotiating the terms of the settlement; (3) the clarity

of the agreement; (4) the amount of time the employee had for

deliberation before signing the agreement; (5) whether the

employee actually read the release before signing it; (6) whether

the employee was represented by counsel or consulted with an

attorney; (7) whether the consideration given in exchange for

the waiver exceeded the benefits to which the employee was

already entitled by contract or law; and (8) whether the employee’s release was induced by improper conduct on the defendant’s part. Pierce, 65 F.3d at 571.

given extra time to negotiate on the morning of trial. The

court also noted that the terms were unambiguously

presented to the plaintiffs during negotiations and discussed in open court, and that plaintiffs were given an

opportunity on the record to voice opposition and instead

indicated their assent. Finally, the court observed that

the settlement reached was a good one for the plaintiffs

given the burden they faced had they taken their case to

trial. We have previously endorsed this sort of analysis

for determining whether a settlement is knowing and

voluntary.3

B. Enforceability of the Settlement

The enforceability of a Title VII settlement is a question

of federal law, under which an oral settlement constitutes

a binding contract if there was an offer, an acceptance,

and consideration. Taylor, 793 F.2d at 862. Plaintiffs

maintain that they received no consideration because the

City only paid Bent’s fees and provided no remedy for past

discrimination.

“As long as the person receives something of value in

exchange for her own promise or detriment, the courts will
No. 05-4034 9

not inquire into the adequacy of the consideration.”

Wagner v. NutraSweet Co., 95 F.3d 527, 532 (7th Cir.

1996); see also Riley, 881 F.2d at 375 (holding that defendant’s agreement to refrain from seeking costs against

plaintiff was sufficient consideration to enforce plaintiff’s

release of all claims). The plaintiffs unquestionably

received value in exchange for the settlement of their

claims. The agreement required the City to comply with a

whole host of provisions regarding hiring and promotional

policies, including conducting a review of the department’s

recruitment and promotional policies, retaining an independent firm for hiring and promotional testing, and

implementing diversity training. The City also agreed

not to count the day in court against the plaintiffs’ vacation or sick leave and to pay $67,000 to cover the attorney’s

fees and expenses the plaintiffs had incurred in bringing

their claims. There is no merit to plaintiffs’ contention that

the agreement was not supported by consideration merely

because it did not provide them with every remedy to

which they believe they were entitled. See, e.g., Taylor, 793

F.2d at 863 (“[A] party to a settlement cannot avoid the

agreement merely because he subsequently believes the

settlement is insufficient.”).

The plaintiffs raise two other arguments challenging

the validity of the September 12 settlement: that it

lacked mutuality of obligation because it was subject to

approval by the Kankakee City Council, and that it was

not final until reduced to writing on September 22. These

arguments, however, were not explicitly raised before the

district court. Arguments not raised in the district court

are waived on appeal. See, e.g., Belom v. Nat’l Futures

Ass’n, 284 F.3d 795, 799 (7th Cir. 2002).

Finally, the plaintiffs contend that the Agreed Judgment

Order of September 22 constituted a fraud on the court

because Brooks had notified Bent in the interim that he

intended to employ new counsel. This argument also
10 No. 05-4034

was not raised in the district court and is waived. In any

event, the argument is irrelevant given our conclusion

that the September 12 on-the-record oral settlement

was binding and enforceable.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-19-07