NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-925

EMILY SOTOMAYOR

vs.

EIDOLON OPTICAL, LLC, & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants timely appeal from an order enforcing a 

settlement agreement and a final judgment ordering them to pay 

$9,999 to the plaintiff. On appeal, the defendants claim that 

the agreement never moved beyond the state of imperfect 

negotiations. We affirm.

Background. Following an unhappy ending to the parties' 

employment relationship, on January 17, 2020, Emily Sotomayor

filed a one-count complaint in the Superior Court alleging 

sexual harassment in violation of G. L. c. 151B. Eidolon 

Optical, LLC (Eidolon) and Victor Doherty (the defendants)

denied the allegations and raised counterclaims asserting that 

Sotomayor, the former director of technology, misappropriated or 

1 Victor Doherty.
2

destroyed the defendants' confidential and proprietary 

information and used it to solicit business from the defendants' 

customers.2 At the joint request of the parties, several 

continuances of the hearing on Sotomayor's motion to dismiss in 

part were granted while the parties engaged in settlement 

negotiations.

Sotomayor's attorney made the initial offer to settle the 

case for $10,000. On August 27, 2020, the defendants' attorney 

represented that his clients were "willing to settle all claims"

for $9,999. He indicated that any settlement agreement must 

contain "the standard provisions in settlement agreements in 

employment cases," and was contingent upon an agreement by 

Sotomayor "to return any Eidolon property she has in her 

possession (including any and all photographs, data, or other 

files that she created in the performance of her duties for 

Eidolon or that otherwise belong to Eidolon)." The next day,

the defendants' attorney asked Sotomayor's attorney to confirm 

they had "a deal before [he] put together a settlement 

agreement." Sotomayor's attorney quickly responded that he had 

heard back from Sotomayor and the parties had "an agreement in 

principle."

2 The counterclaim alleged common law conversion and trespass to 

chattels, and violations of the Computer Fraud and Abuse Act, 18 

U.S.C. § 1030.
3

When Sotomayor's attorney subsequently inquired about the 

"estimated time of arrival" of the settlement agreement, the 

defendants' attorney indicated he was "just waiting for approval 

from the client, and [he had] just followed up with [Doherty]"

and would "have it over to you as soon as possible."

Over the next two months, the parties negotiated in detail 

over exactly what materials Sotomayor was required to locate and 

return to the defendants. In connection with their October 28, 

2020 joint motion to continue the hearing, the attorneys

informed the court that they "have reached a settlement in 

principle and are hopeful to finalize a formal settlement

agreement within the next several weeks." Following Sotomayor's

agreement to one additional provision, her attorney requested, 

on three occasions, an "execution" copy of the settlement 

agreement. The defendants' attorney provided an agreement to 

Sotomayor's attorney on November 9, 2020. On November 13, 2020, 

Sotomayor signed and returned the "settlement agreement and 

release of claims" (November 13 agreement).3 According to 

Sotomayor's attorney, the defendants' attorney acknowledged 

3 The November 13 agreement required Sotomayor, among other 

things, to certify that the property listed in Exhibit A to the 

agreement constitutes all of Eidolon's property in her 

possession or control; to return all of it within five days of 

signing the agreement; and to promise not to retain or 

disseminate any copies of the property.
4

receipt and indicated he would work on obtaining settlement 

checks from the defendants.

On November 19, Sotomayor's attorney stated that his client 

had drafted an e-mail about certain photos, but was awaiting the

countersigned agreement. The defendants' attorney responded, 

"Checking in with Victor -- I'll get it to you ASAP." In 

response to another e-mail on December 2 asking simply, "What's 

going on[,]" the defendants' attorney indicated that Doherty had 

some medical issues and the defendants' attorney was still 

waiting on him. Asked for an update by Sotomayor's attorney on 

January 12, 2021, the defendants' attorney stated he had none,

he understood Doherty was "still dealing with medical issues[,]" 

and he planned to withdraw from the matter shortly.

On January 20, 2021, the defendants, for the first time,

took the position, through their successor counsel, that there 

was no binding settlement agreement because Doherty had not 

signed it.

Discussion. "An enforceable agreement requires (1) terms 

sufficiently complete and definite, and (2) a present intent of 

the parties at the time of formation to be bound by those 

terms." Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 

421, 428 (2010). "Where, as here, the negotiations were 

memorialized in a trail of uncontested e-mails, whether the 

parties agreed on all material terms is treated as a question of 
5

law that we review de novo." Duff v. McKay, 89 Mass. App. Ct. 

538, 544 (2016). Based on the attorneys' e-mail exchanges and

the language of the November 13 agreement, we conclude that a 

binding and enforceable contract formed on that date.

After months of negotiations (which included a request by 

the defendants' attorney that Sotomayor's attorney confirm her 

agreement to the terms before he began drafting an agreement), 

and an explanation -- in response to an inquiry about when he 

would send a draft agreement -- that he was waiting for his 

client's approval, the defendants' attorney drafted the November 

13 settlement agreement and sent it to Sotomayor's attorney.

The agreement was signed by Sotomayor, who immediately began to 

perform her duties thereunder. The agreement not only contained 

all of the material terms previously negotiated by the 

attorneys, including the amount of the consideration, the method 

of payment, and a provision governing the return of the property

held by Sotomayor, but also the standard terms one would expect 

to see in a settlement agreement of this type that had been 

referenced as a requirement by the defendants' attorney back in 

August 2020. The agreement was written in the present tense 

rather than the future, stating it "is being entered into 

between [the parties] to resolve . . . all of [Sotomayor's]

claims and potential claims [and] . . . all of Defendants' 

claims and potential claims." See Targus Group Int'l, Inc., 76 
6

Mass. App. Ct. at 433 (text was "telling"). The agreement 

warned Sotomayor about its gravitas, and required Sotomayor to 

acknowledge that she had been given ten days to "consider [its]

meaning and effect." The agreement further advised Sotomayor to 

consult with an attorney, and instructed her to read the 

agreement carefully, language inconsistent with an informal 

agreement to agree. Compare McCarthy v. Tobin, 429 Mass. 84, 

87-88 (1999) (inference that offer to purchase [OTP] was binding 

bolstered by notice on the form stating OTP created binding 

obligations). Moreover, the document, which contained a 

standard integration clause, neither referenced unresolved 

issues nor contained language that would have demonstrated the 

defendants' purported lack of intention to be bound "until and 

unless" Doherty signed a physical copy of the agreement. See 

id. at 88 n.3. Doherty's later statement of his intention in 

this regard -- first expressed in his affidavit supporting his 

opposition to Sotomayor's February 2021 motion to enforce the 

agreement -- did not create a genuine issue of material fact

regarding intent.

Nothing we have said in this decision affects the 

defendants' right to bring a breach of contract action against 

Sotomayor if she fails to fulfill her obligations under the
7

settlement agreement. See Targus Group Int'l, Inc., 76 Mass. 

App. Ct. at 434 n.12.

Order enforcing settlement 

agreement affirmed.

Judgment affirmed.

By the Court (Green, C.J., 

Shin & Hershfang, JJ.4),

Clerk

Entered: April 28, 2023.

4 The panelists are listed in order of seniority.