PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NIKE, INC.,

Plaintiff,

v.

ENTER PLAY SPORTS, INC.,

Defendant.

Case No. 3:14-cv-1104-SI

OPINION AND ORDER

Jon P. Stride, TONKON TORP LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue

Portland, OR 97204; Christopher J. Renk, Michael J. Harris, and Aaron Bowling, BANNER &

WITCOFF, LTD., 10 South Wacker Drive, Suite 3000, Chicago, IL 60606. Of Attorneys for 

Plaintiff.

Stephen J. Joncus, JONCUS LAW LLC, P.O. Box 838, Clackamas, OR 97015. Of Attorneys for 

Defendant.

Michael H. Simon, District Judge.

Plaintiff, NIKE, Inc. (“NIKE”), asserts that it reached a final, binding, and enforceable 

settlement agreement in this case with Defendant, Enter Play Sports, Inc. (“Enter Play”), during a 

judicial settlement conference conducted by U.S. Magistrate Judge John V. Acosta. Enter Play 

disagrees and refuses to sign the settlement agreement and related declaration that NIKE 

contends Enter Play agreed to sign. NIKE has moved to enforce the parties’ settlement 

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agreement and for sanctions. Dkt. 64. For the reasons stated below, NIKE’s motion is 

GRANTED IN PART AND DENIED IN PART.

BACKGROUND

NIKE designs, markets, and distributes athletic footwear, apparel, equipment, and 

accessories for a wide variety of sports and fitness activities. Enter Play is owned by Brad and 

Terri Jamison. Mr. Jamison initially acquired a lace braiding machine for manufacturing athletic 

equipment. He later became an inventor, practicing the art of lace braiding. 

In its Complaint, NIKE asserts two claims against Enter Play. NIKE’s first claim alleges

breach of contract, claiming that Enter Play breached a Non-Disclosure Agreement (“NDA”) 

between NIKE and Enter Play. NIKE’s second claim alleges a violation of the Oregon Trade 

Secrets Act, Or. Rev. Stat. § 646.461, et seq. Enter Play denies NIKE’s claims and asserts two 

counterclaims. Enter Play’s first counterclaim seeks a declaration that its pending patent 

applications either do not contain any confidential information subject to the parties’ NDA or 

that any such confidential information is not subject to the NDA based on the NDA’s express 

exclusions. Enter Play’s second counterclaim seeks attorney’s fees and costs under the NDA.

NIKE and Enter Play litigated this case for approximately one year before voluntarily 

participating in a judicial settlement conference with Judge Acosta on July 16, 2015. Both NIKE 

and Enter Play were represented by their litigation counsel at the judicial settlement conference. 

A decision-maker from NIKE attended the conference, and Mr. and Mrs. Jamison attended on 

behalf of Enter Play. At the conclusion of that settlement conference, the parties stated that they 

had reached a settlement agreement. 

In the presence of the parties and their counsel, Judge Acosta placed the essential 

settlement terms on the record. See Dkt. 58-2. Judge Acosta noted that Mr. Jamison agreed to 

sign a declaration in the form previously submitted by NIKE with the addition of a sentence in 

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which Mr. Jamison declares that if there is any overlap between NIKE and Enter Play’s 

footwear-related inventions, Mr. Jamison obtained the information related to that overlap from 

NIKE. Judge Acosta also noted the confidential monetary terms of the settlement. Judge Acosta 

also stated that Enter Play would retain its patent applications and any patents that may issue and 

NIKE would retain its patent applications and any patents that may issue. Judge Acosta further 

stated that the NDA would be terminated and that the parties would sign mutual releases for all 

claims arising out of the NDA. Judge Acosta also noted that the parties agree to prepare mutually 

acceptable public statements regarding what they may say about their relationship, the lawsuit, 

and the settlement. In addition, and most relevant to the pending dispute, Judge Acosta recited 

the “covenants not to sue” that the parties purported to agree upon. As Judge Acosta explained:

Nike will not . . . sue Enter Play Sports regarding its patent. And

Enter Play Sports will not use its patent to sue or as the basis of 

suit against Nike.

Dkt. 58-2 at 5.

After explaining his understanding of the settlement terms, Judge Acosta asked counsel 

for each party to state any corrections, amendments, or clarifications on the record. NIKE’s 

counsel sought clarification regarding the declaration that Mr. Jamison would sign, ultimately 

confirming the additional sentence recited by Judge Acosta. After this issue was clarified, 

NIKE’s counsel began to reiterate the parties’ understanding with respect to the mutual 

covenants not to sue, but the audio recording equipment failed at this point, and there is no 

record of counsel’s discussion regarding the covenants not to sue or any other issues.

After the conclusion of the settlement conference with Judge Acosta, the parties 

attempted to document their purported settlement agreement. NIKE drafted a written agreement 

consistent with its understanding of the settlement terms. Enter Play, however, refused to sign 

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the proposed written agreement, stating that NIKE’s draft settlement agreement did not correctly 

recite the agreed-upon mutual covenants not to sue.

The parties could not resolve this issue among themselves, so they approached Judge 

Acosta for further assistance. On August 26, 2015, Judge Acosta held a telephone conference on 

the record with counsel for both parties. Dkt. 58-4 at 37-60 (transcript). Judge Acosta confirmed 

that both sides continued to believe that they had reached a settlement agreement on July 16, 

2015, and only disputed the precise wording of the agreed-upon mutual covenants not to sue. 

Both sides agreed with that characterization. Enter-Play’s then-counsel1stated: “I would agree, 

Your Honor. It is the scope of the covenant and not whether—whether there was an underlying 

settlement.” Dkt. 58-4 at 46-47. Judge Acosta then offered the parties four options. Without 

placing any pressure on the parties to select any particular option, Judge Acosta suggested that: 

(1) the parties could walk away from the purported settlement and the case would be reinstated; 

(2) the parties could submit to Judge Acosta for resolution by him their dispute over the scope of 

the covenants not to sue; (3) one or both of the parties could file a motion or a separate action to 

enforce the purported settlement agreement; or (4) the parties could continue to negotiate the 

terms of the covenant not to sue. Id. at 47-48. Judge Acosta added that if the parties elected to 

continue to negotiate, that would not preclude any party from pursuing any of the other options

at a later time.

 

1 When NIKE filed its original motion to enforce settlement and for sanctions, NIKE 

sought sanctions against both Enter Play and its original litigation counsel, Judson M. Carusone. 

Dkt. 58. That prompted Mr. Carusone to move to withdraw. Dkt. 60. Although NIKE then 

agreed to amend its motion and seek sanctions only against Enter Play, Dkt. 64, Enter Play 

substituted its current counsel, Stephen J. Joncus, for Mr. Carusone. Dkt. 66.

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The parties, through their counsel, agreed to submit their dispute to Judge Acosta for his 

final and binding resolution.

2

See Dkts. 58-6 and 58-7. In an email dated September 3, 2015, 

Judge Acosta acknowledged the parties’ agreement to submit their disputes to him, and he 

informed the parties that:

When I retain jurisdiction over a settlement agreement that 

function includes resolving disputes over the language of the final 

agreement. Thus, if there are additional issues about the language 

of the settlement agreement, then all such issues should be 

submitted during the briefing phase. Once I decide the final 

language of the settlement agreement the parties will be finally 

bound by my decision.

Dkt. 58-6 at 4.3 Both NIKE and Enter Play, through their respective counsel, replied to this 

email, and neither party questioned or disputed Judge Acosta’s representation about the binding 

nature of the parties’ agreement to have Judge Acosta finally resolve any remaining disputed 

issues relating to the scope of the settlement agreement.

On September 28, 2015, counsel for NIKE reported to Judge Acosta that there were three 

remaining disputes relating to the settlement agreement and that: “The parties agree to have Your 

Honor decide the three remaining disputes.” Dkt. 58-6 at 1. These three disputes related to the 

covenants not to sue, the termination of the NDA, and the confidentiality requirement regarding 

what the parties will be permitted to say about their relationship, the lawsuit, and the settlement.

The Parties submitted to Judge Acosta simultaneous opening submissions relating to these three

 

2

Enter Play does not deny that this agreement to submit the remaining dispute to Judge 

Acosta for his final and binding determination was made by Enter-Play’s then-counsel with 

authority by Enter Play.

3

This is consistent with Judge Acosta’s publicly-available standing Order and 

Instructions and Information for Settlement Conferences, where Judge Acosta states at page 6:

“If the parties wish, I will retain jurisdiction over the settlement for purposes of resolving any 

disagreements about the settlement terms.” See https://www.ord.uscourts.gov/index.php/courtinfo/judges/judge-acosta (last visited May 28, 2016).

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disputes regarding the terms of the settlement agreement and later submitted simultaneous 

responses. See Dkts. 58-4, 58-5, 58-8, 58-9. Enter Play began its opening submission to Judge 

Acosta by stating:

The parties agreed to have your Honor resolve the dispute as to the 

form of the final written settlement document.

Dkt. 58-5 at 1 (emphasis added).

On January 28, 2016, Judge Acosta issued a detailed letter opinion resolving all of the 

disputes that the parties had raised relating to the settlement agreement. Dkt. 58-3. Shortly 

thereafter, NIKE provided Enter Play, through counsel, with a revised written settlement 

agreement that incorporated Judge Acosta’s rulings. Enter Play, however, refuses to sign this

document. Dkt. 58-12. NIKE’s motion to enforce followed.

DISCUSSION

Enter Play’s primary argument for why it need not sign the settlement agreement and 

related declaration of Mr. Jamison is that the parties did not achieve a “meeting of the minds” at 

the settlement conference held on July 16, 2015, because they had different understandings of the 

scope of the covenant not to sue. Thus, argues Enter Play, there was no binding settlement 

agreement ever reached. Enter Play argues that it believed that each party would “retain” its own 

patents resulting from the pending applications and that the covenants not to sue were 

“reciprocal,” meaning to Enter Play that NIKE would not assert any ownership interest in any 

patents that may be issued to Enter Play and Enter Play would not assert any ownership interest 

in any patents that may be issued to NIKE. Mr. Jamison states that at no point did he (or his 

wife) ever understand that Enter Play was agreeing not to sue NIKE for any potential 

infringement of any patents that may be issued to Enter Play from the pending applications. 

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NIKE responds that the terms of the covenant not to sue were clear, unambiguous, and placed on 

the record and that Enter Play is bound by its agreement to those terms.

The Court, however, need not reach the issue of whether the parties reached a “meeting 

of the minds” during the settlement conference held on July 16, 2015. What is clear and 

undisputed from the record in this case is that, after this disagreement arose and the purported 

“misunderstanding” came to light, both parties unambiguously and expressly agreed to have 

Judge Acosta fully and finally resolve all remaining disputes among the parties relating to this 

matter. Judge Acosta did so with full authority from the parties, and the parties are bound by 

Judge Acosta’s final determination.

Enter Play does not dispute that it expressly agreed to have Judge Acosta fully and finally 

resolve all remaining disputes relating to the settlement agreement. Enter Play argues instead that 

Judge Acosta acted outside of his official authority in purporting to conduct a “binding 

mediation” and that a “mediator” cannot make a “binding determination” because mediation is 

different from arbitration.

Enter Play cites to the District of Oregon’s Local Rule (“LR”) 16-4(f) relating to 

court-sponsored mediations as supporting Enter Play’s assertion that Judge Acosta could not 

hold a “binding mediation.” Enter Play also cites to a California case, Lindsay v. Lewandowski,

139 Cal. App. 4th 1618 (2006), in support of Enter Play’s position that mediator cannot offer a 

binding resolution.

Under LR 16-4(e), “Court-Sponsored Mediation” (LR 16-4(e)(2)) is distinct from a 

“Request for a Settlement Judge” (LR 16-4(e)(3)). Further, LR 16-4(f) (“Court-Sponsored 

Mediation Procedures”) applies only to court-sponsored mediation, and not to judicial settlement 

conferences. Judge Acosta was acting as a settlement judge pursuant to LR 16-4(e)(3). See 

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Dkt. 45 (setting “Settlement Conference” with Judge Acosta) and Dkt. 48 (minutes of the 

“Settlement Conference”). Thus, Enter Play’s argument based on Rule 16-4(f) is misplaced.

Enter Play also misunderstands the proceedings that were held with Judge Acosta. Judge 

Acosta did not hold a “binding mediation” on July 16, 2015. He held a judicial settlement 

conference under which no party was obligated to settle the case—or even obligated to attend.

The parties requested a judicial settlement conference; they were not ordered to one. The parties 

did, however, state at the settlement conference that they believed that they had reached a 

binding agreement and even put the terms of the purported settlement on the record.

Several weeks later, however, the parties were unable to reach agreement on how to 

document certain terms as they were attempting to prepare a written settlement agreement. The 

parties then both requested additional assistance from Judge Acosta. As recited above, Judge 

Acosta, without pressuring any party to accept any particular option, suggested to the parties that 

they could choose from among several options, including, among others: (1) walking away from 

the purported settlement, reinstating the case, and continuing to litigate; (2) continuing to 

negotiate; or (3) submitting their remaining disputes to Judge Acosta to resolve. Both parties 

then expressly agreed to have Judge Acosta issue a final and binding resolution of their 

remaining disputes.

The parties’ telephone conference with Judge Acosta on August 26, 2015, the parties’

subsequent email communications with each other and with Judge Acosta, and the parties’

written submissions to Judge Acosta all conclusively demonstrate that Enter Play and NIKE 

reached a “meeting of the minds” on all material terms necessary to establish an enforceable 

agreement to have Judge Acosta fully and finally resolve their remaining disputes. See generally 

In re Marriage of Baldwin, 215 Or. App. 203, 207 (2007) (“The exchange of e-mails between the 

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attorneys for the parties demonstrated the requisite agreement on the same essential terms of the 

settlement.”).

Thus, it does not matter whether the parties reached a “meeting of the minds” at the 

July 16, 2015 settlement conference. Even if they did not, approximately one month later they 

entered into a binding agreement to have Judge Acosta fully and finally resolve their remaining 

disputes so that they could move on with their respective businesses without the continuing 

expenses, burdens, and risks of continuing litigation. This is a binding and enforceable 

agreement.

Indeed, at oral argument, Enter Play conceded that if Judge Acosta were a private 

mediator privately engaged by the parties, rather than a federal judge at a judicial settlement 

conference, the parties’ agreement to be bound by the final decision of the neutral would be 

perfectly enforceable. Enter Play’s concession is correct. See Nat’l Ass’n of Bus. Representatives 

v. TeamstersLocal Union No. 948, 2007 WL 2904221, at *11 (E.D. Cal. Oct. 3, 2007) (finding 

that the parties were bound by their contractual agreement that the decision of the mediator 

would be final and binding and noting that “[t]here is no law of which the Court is aware that the 

parties cannot contractually agree in advance to be bound by the [mediator’s] decision”).

Enter Play, however, argues that this situation is different because Judge Acosta is a 

federal judicial officer and not a private mediator. In support, Enter Play cites to Canon 4(A)(4) 

of the CODE OF CONDUCT FOR UNITED STATES JUDGES, which states: “A judge should not act as 

an arbitrator or mediator or otherwise perform judicial functions apart from the judge’s official 

duties unless expressly authorized by law.” CODE OF CONDUCT FOR UNITED STATES JUDGES, 

Administrative Office of the U.S. Courts (available at http://www.uscourts.gov/judgesCase 3:14-cv-01104-SI Document 72 Filed 05/31/16 Page 9 of 16
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judgeships/code-conduct-united-states-judges#c) (last visited May 28, 2016) (emphasis added). 

Enter Play’s argument is unavailing.

In this case, Judge Acosta did not act as an arbitrator or mediator “apart” from his official 

duties. The assignment of Judge Acosta to serve as the settlement judge in the settlement 

conference in this case was done as an official act in this matter and recorded in the official 

docket for the case. See Dkts. 45 and 48. Judge Acosta’s official service in this role also is 

entirely consistent with the local rules of this district. See LR 16-4(e)(2) (“The assigned judge, 

on his/her own motion or at the request of a party, may schedule a settlement conference before a 

judicial officer of this Court.”) Further, Judge Acosta’s service was done pursuant to statutory 

authority. See 28 U.S.C. § 636(b)(3)(“A magistrate judge may be assigned such additional duties 

as are not inconsistent with the Constitution and laws of the United States.”). Thus, contrary to 

Enter Play’s assertion, Canon 4 does not prohibit a federal magistrate judge from being assigned 

to serve as a settlement judge in a judicial settlement conference in a case pending in federal 

court.

Indeed, federal magistrate judges, and some district judges, both in this district and 

elsewhere, not infrequently conduct judicial settlement conferences as part of their official 

duties. See generally Hon. Morton Denlow, Magistrate Judges’ Important Role in Settling Cases, 

May/June 2014 THE FEDERAL LAWYER 101 (“I spent 16 and a half years as a federal Magistrate 

Judge in Chicago before leaving the bench in October 2012. During that time, one of the 

principal duties of the Magistrate Judges in our court was to conduct settlement conferences. 

Each judge would conduct more than 100 settlement conferences a year and would settle the 

large majority of those cases.”) (available at http://www.jamsadr.com/files/Uploads/Documents/

Articles/Denlow-Magistrate-Judges-FedLawyer-2014-May-Jun.pdf) (last visited May 28, 2016); 

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see also Hon. John V. Acosta, Tips from the Bench: Effective Judicial Settlement Conferences in 

Federal Court, Winter 2009 QUARTERLY NEWSLETTER OF THE OREGON CHAPTER OF THE 

FEDERAL BAR ASSOCIATION 1 (available at https://www.lanecountybar.org/pdfdocs/CLE/

9%2026%2013/Settlement%20-%20AC%20FBA%20Article.pdf) (last visited May 28, 2016).

Similarly, Enter Play’s reliance on Lindsay also is unavailing. In Lindsay, the parties 

signed a stipulated settlement agreement after a private mediation. 139 Cal. App. 4th at 1620. 

Most but not all of the parties signed a version stating that they agreed to resolve any disputes 

regarding the terms of the agreement by binding arbitration, but some of the parties signed a 

version requiring a return to the mediator to resolve any disputes that may arise later. Id. at 1620, 

1623. Further complicating the agreement, one provision of the agreement provided for some of 

the parties to resolve any later disputes by “binding mediation,” but the word “mediation” had a 

line drawn through it and the word “arbitration” was typed directly above it, and yet another 

provision required the parties either to mutually agree to the monetary payment amount or it 

would be determined by “binding mediation.” Id. at 1620. Over the payor’s objection, the parties 

participated in a “binding mediation” to determine the monetary payment amount and the trial 

court then enforced the mediator’s award. Id. at 1622.

On appeal, the objecting party argued that the stipulated settlement agreement was 

unenforceable because, among other things, the parties had no meeting of the minds on a specific 

procedure to be used to resolve the payment terms. Id. The appellate court agreed, concluding 

that in light of the provision striking out mediation and replacing it with arbitration, the parties 

believed binding mediation and binding arbitration were different things and that because some 

versions required “binding arbitration” of any disputes of settlement terms, this clause conflicted 

with the version requiring “binding mediation” of the disputed payment terms. Id. at 1623. 

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Ultimately, the appellate court concluded that because of the many discrepancies, the court could 

not ascertain what the parties actually meant when they used the term “binding mediation.” Id. In 

short, the court found the parties’ agreement too uncertain to be enforceable. That is not the case 

here, so Lindsay does not help Enter Play.

A later state appellate decision from California further undermines Enter Play’s 

argument. In Bowers v. Raymond J. Lucia Companies, Inc., 206 Cal. App. 4th 724 (2012), the 

parties reached a “settlement agreement” in which they agreed to attend a full-day mediation and 

if the mediation were unsuccessful, the parties further agreed that they would be bound by the 

mediator’s determination of how much money, between $100,000 and $5 million, would be paid. 

Id. at 733. The mediator was authorized to choose between the plaintiff’s final demand and the 

defendant’s final offer. Id. The court found that the parties mutually and expressly consented to 

this form of “binding mediation.”

After the mediator’s decision, the defendant in Bowers relied on Lindsay to argue that the 

agreement to be bound by the mediator’s decision was inherently uncertain and unenforceable. 

Id. at 735. The court in Bowers disagreed, distinguishing Lindsay on two grounds. First, the court 

found that, unlike the appellants in Lindsay who demonstrated the absence of a meeting of the 

minds by objecting to “binding mediation” at the outset, the defendant in Bowers never objected 

to the agreed-upon procedures until after the mediator made an award in the plaintiffs’ favor. Id. 

at 736.

Second, the court in Bowers found that, unlike the parties in Lindsay, the parties in 

Bowers clearly described and agreed to the procedure they intended to implement to resolve their 

dispute—a full-day mediation at the end of which, if unsuccessful, the mediator would issue a 

binding award to the plaintiffs in an amount equal to either the last demand or the last offer. Id.

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at 736. Thus, the court in Bowers concluded, the agreement to these procedures was both 

sufficiently certain and enforceable. Id.

The present dispute is most analogous to the facts in Bowers. First, Enter Play and NIKE 

freely chose the option of submitting their remaining and unresolved disputes regarding the 

terms of the settlement agreement to Judge Acosta for his final and binding determination, and 

neither party objected to Judge Acosta’s authority to issue such a binding determination before 

he issued his decision. It was only after Judge Acosta resolved the dispute in a manner 

unfavorable to Enter Play that Enter Play objected that Judge Acosta did not have the authority to 

do what he did here. 

Second, both Enter Play and NIKE were sufficiently clear and certain in the procedures 

to which they each agreed. Both parties established an agreed-upon briefing schedule with Judge 

Acosta, and both parties expressly agreed to be bound by his determination. As in Bowers, the 

agreement by Enter Play and NIKE to have Judge Acosta fully and finally determine the disputes 

relating to the terms of the settlement agreement is both certain and enforceable.

Enter Play’s final argument is that Mr. Jamison cannot be required to sign the declaration 

that is part of the agreed-upon settlement agreement because he would be committing perjury by 

doing so. First, this issue was never raised before Judge Acosta, even though he directed the 

parties to include in their submissions to him all unresolved disputes concerning the final form of 

the settlement agreement. Because Enter Play specifically agreed that it would raise all disputed 

issues relating to the settlement agreement with Judge Acosta who would then finally resolve 

those issues, Enter Play has waived its right to raise this specific issue.

Second, Enter Play’s argument is not persuasive on the merits. Enter Play specifically 

and expressly agreed that Mr. Jamison would sign the declaration in the form presented by 

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NIKE, with the additional sentence that was put on the record by Judge Acosta at the settlement 

conference. Mr. Jamison also had previously signed a declaration in this case that contains 

similar statements to some of those he now alleges would constitute perjury. Dkt. 58-13 at 1-13. 

Nearly two months after Judge Acosta issued his letter opinion resolving the parties’ disputes,

Mr. Jamison served on NIKE a “Declaration of Brad Jamison Retracting False Statements per 

ORS 162.055 et seq.” Dkt. 58-14.4In his “retraction,” Mr. Jamison purports to retract certain 

statements, clarifying that: (1) he cannot attest that the NIKE and Enter Play patent applications 

disclose different inventions because he is not qualified to make such a determination with 

certainty and it is for the United States Patent and Trademark Office (“USPTO”) to decide; 

(2) he cannot attest that there is no overlap in the inventions disclosed in the NIKE and Enter 

Play patent applications because he cannot know this with certainty and cannot know how the 

USPTO defines “overlap”; and (3) he cannot attest that to the extent there is any overlap, he 

obtained the subject matter from NIKE because to his knowledge there is no subject matter 

disclosed in the Enter Play patent application that he received from NIKE. 

Disregarding the self-serving nature of Mr. Jamison’s “retraction,” his concerns with his 

previous statements (and the similar statements contained in the declaration required as part of 

the settlement agreement) are without merit. Regarding his first and second retraction, he is not 

making a declaration on behalf of the USPTO. He is making a declaration based on his personal 

knowledge and lay-person’s belief and understanding. To the extent that he is concerned that this 

is not clear, a sentence may be added that clarifies that he makes this declaration based on his 

understanding and opinion as a lay person and does not purport to state what the USPTO may 

 

4 Oregon Revised Statute §§ 162.055 through 162.105 describe the crime of perjury and 

what may and may not constitute defenses to the crime of perjury. Or. Rev. Stat. § 162.105 

provides that, under certain circumstances, “retraction” may be a defense to the crime of perjury.

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ultimately conclude with respect to any of the relevant pending patent applications. With respect 

to his third retraction, he expressly agreed to the addition of the sentence that if there is any 

overlap in the relevant patent applications he obtained the “subject matter” from NIKE. This was 

an important part of the settlement agreement and was clarified on the record at the settlement 

conference several times. Accordingly, Enter Play is bound by its agreement that Mr. Jamison 

will sign the declaration, regardless of Mr. Jamison’s current subjective concerns or 

understanding of that agreement. See City of Canby v. Rinkes, 136 Or. App. 602, 611 (1995) 

(“Oregon subscribes to the objective theory of contracts. That means that whether the parties 

entered into an agreement does not depend on whether the parties had the same subjective 

understanding of their agreement, that is, on whether their “minds met” on the same 

understanding. Rather, it depends on whether the parties agreed to the same, express terms of the 

agreement, and on whether those terms constitute an enforceable agreement. Here, the parties 

agreed to the terms of their settlement in open court. Hence, the settlement agreement is valid 

even if the Rinkeses’ subjective understanding of it was different from the city’s and the court’s 

understanding.”); Newton/Boldt v. Newton, 192 Or. App. 386, 392, 86 P.3d 49 (2004) (internal 

citation omitted) (“[W]hether parties enter into a contract does not depend on their 

uncommunicated subjective understanding; rather, it depends on whether the parties manifest 

assent to the same express terms.”). The Court does not find credible or persuasive 

Mr. Jamison’s newly-discovered concern that such a statement by him may constitute perjury.

CONCLUSION

NIKE’s motion to enforce the settlement and for sanctions (Dkt. 64) is GRANTED IN 

PART AND DENIED IN PART. Because the parties entered into an enforceable contract 

authorizing Judge Acosta to make a final and binding determination concerning the terms and 

scope of the parties’ settlement, the settlement agreement as determined by Judge Acosta, acting 

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in his official capacity as a settlement judge, is hereby enforced. Enter Play is ORDERED to sign 

the relevant settlement documents, as determined by Judge Acosta, including Mr. Jamison’s 

declaration, on or before June 14, 2016. If Enter Play and Mr. Jamison fail to do so by that date, 

the Court DECLARES AND DEEMS TO BE SIGNED as a matter of law both documents as of 

June 15, 2016. NIKE’S request for sanctions is DENIED.

IT IS SO ORDERED.

DATED this 31st day of May, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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