Brent Bauer v. Qwest Communications Corporat

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3036
BRENT BAUER, et al.,
Plaintiffs-Appellees,
v.
QWEST COMMUNICATIONS COMPANY,
LLC, et al.,
Defendants-Appellees.
APPEAL OF: THE SUSMAN GROUP, et al.,
Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 1008 — Rebecca R. Pallmeyer, Judge.
ARGUED FEBRUARY 25, 2013 — DECIDED FEBRUARY 14, 2014
Before BAUER, POSNER, and SYKES, Circuit Judges.
2 No. 12-3036
SYKES, Circuit Judge. More than 13 years ago, trial lawyers
around the country began challenging the installation of fiber-
optic cable on landowners’ property without consent. After
protracted class-action litigation in many states, these chal-
lenges began to settle on a state-by-state basis, leaving a
platoon of lawyers to sort out the allocation of awarded and
expected attorney’s fees between themselves.
The lawyers have informally grouped themselves into three
factions for purposes of the present fee-allocation dispute; the
groupings are based on the lawyers’ negotiation and litigation
positions. This appeal requires us to determine whether the
lawyers have successfully reached a global settlement of the
fee-division dispute through mediation—more specifically,
whether the faction consisting of Arthur Susman on behalf of
himself and his colleagues (a/k/a The Susman Group, hereinaf-
ter “Susman”) is bound by a written agreement memorializing
the mediated final fee allocation that all the lawyers had
previously approved. The catch: Although Susman had agreed
to the fee division, he balked at signing the written agreement,
ostensibly because he disliked its enforcement terms. The
district court held that Susman is bound by the agreement
despite his failure to sign, and Susman appealed.
We affirm. Based on the parties’ lengthy course of dealing,
the district court found that Susman’s failure to promptly
object to the written agreement can objectively be construed as
assent. The court also found that Susman’s eventual refusal to
sign was a case of “buyer’s remorse” rather than a genuine
objection to the enforcement terms in the agreement. These
No. 12-3036 3
findings are supported by the record; we find no factual or
legal error.
I. Background
This litigation has a very long history, but the story for our
purposes begins on August 29, 2011, when the district court
approved an Illinois class settlement in the underlying fiber-
optics cable litigation and awarded attorney’s fees and ex-
penses. The award was deposited into an escrow account, and
the attorneys agreed to pursue mediation—with the assistance
of a court-appointed special master if necessary—to reach a
division of the fees for the Illinois settlement and for other
settlements nationwide. Once the fee-division question was
resolved, the court would order the disbursement of the funds
held in escrow.
The plaintiffs’ lawyers had coalesced into three main
groups for purposes of the fee dispute: Susman (the appellant
here); the “48-Firm Group” (the appellees here, consisting of a
coalition of 48 law firms); and William Gotfryd (a former
collaborator with Susman who later asked to be treated
separately in the fee-division process, also an appellee here).
The first attempt to resolve the fee-division issue occurred back
in 2006 when all the lawyers except Susman and Gotfryd
agreed to submit the issue of attorney’s fees to binding
arbitration at a future time. This resulted in a 2011 proposal
binding on the 48-Firm Group as to the fee allocation within
that group, but this proposal did not address Gotfryd and
Susman and did not bind them. The parties continued to
attempt to resolve the situation through mediation after the
4 No. 12-3036
district court so ordered, but a global agreement was not
readily forthcoming.
On June 11, 2012, the mediators made one “final effort” to
resolve the dispute and have the “entire fee fight settled.” They
offered a final “Mediators’ Proposal” awarding each lawyer or
group of lawyers a certain percentage of the national gross
fees.1 The proposal was “blind,” in the sense that each firm
received an email listing only the percentage of the fee alloca-
tion that it would receive. After a long history of disagreement,
the mediators recognized that the prospects for agreement
would likely be improved if the parties were only offered a
chance to think about their absolute—rather than rela-
tive—awards. The proposal was a take-it-or-leave-it offer,
meaning that each party could only respond “Accept” or
“Reject”—no more negotiation. As it turned out, the proposal
allocated 87% of the fees to the 48-Firm Group, 8.5% to
Gotfryd, and 4.5% to Susman. The proposal contained only the
fee-division percentages and a condition that the percentages
were subject to a pro rata reduction for an arbitrated award to
a fourth attorney, Seth Litman, to be determined after the
agreement was finalized.
Everyone accepted the proposal. When the present dispute
later arose, Gotfryd and various members of the 48-Firm
Group submitted declarations to the district court explaining
that they had accepted the mediators’ proposal despite having
1
“Gross fees” was later defined in the written agreement as encompassing
both attorney’s fees and expenses, and neither party has challenged that
definition. We therefore assume that the mediators’ proposal was to cover
both fees and expenses.
No. 12-3036 5
misgivings about it because they valued the peace and finality
it would bring. One member of the 48-Firm Group stated that
he
agreed to accept the mediators’ proposal for the
sole reason that it was the only way to prevent
what would have been even more wasted time
and additional cost to undertake fee litigation.
The elimination of the threat of any such litiga-
tion was always presumed to be part of the
mediators’ proposal.
Another lawyer—the one who drafted the written agree-
ment—told the court that
[e]limination of all future litigation was the
controlling reason that the 48-Firm Group agreed
to surrender several percentage points (more
than two million dollars in value) from the
allocation that we believe we would have re-
ceived had we litigated the allocation. Based on
the allocations in the original arbitration award,
the nationwide scope of the [m]ediators’ pro-
posal, and the level of sophistication of the
parties to the [agreement], it could not have been
reasonable for any party to think that allocation
issues between the 48-Firm Group and the other
parties were not final and fully resolved.
A third lawyer wrote: “[I]n the end, I voted for peace, even
at an unjustified premium. … The whole point of paying a
premium was to get rid of the threat of litigating fees with
Mr. Gotfryd or Mr. Susman — or anyone else from their
6 No. 12-3036
camp.” Finally, Gotfryd said that the percentage award he was
offered “was not completely unreasonable if it eliminated risk
and achieved a final peace among all the counsel. It was with
the promise of finality and peace that I accepted the mediators’
proposal for my individual award.”
After each party accepted the proposal, the mediators
notified everyone that an agreement had been reached and
scheduled a follow-up conference call. During that call, the
parties recognized the need to memorialize the agreement in
a formal writing, and a representative of the 48-Firm Group
was tasked with drafting the document. The parties contem-
plated a quick drafting and approval process, apparently
expecting that the written agreement would not generate major
objections given that the heart of the dispute and the most
divisive issue—the fee allocation—was now settled.
On July 2 a draft written agreement was circulated via
email. It included the approved fee-division terms and several
additional enforcement-related provisions. As relevant here,
the written agreement provided that the mediators, now
working in the capacity of arbitrators, were authorized to
(1) arbitrate any disputes arising out of or relating to the
agreement; (2) deem any lawyer’s fees “forfeit[ed]” if the
lawyer failed to cooperate in implementing the agreement in
the state-specific settlements; and (3) adjust normal arbitration
rules to further the goal of expediency.
The process of revising and approving the agreement
moved quickly and, for the most part, uncontroversially. One
of the mediators responded right away urging the lawyers to
“get it all signed up today” if possible. Within two hours of the
No. 12-3036 7
initial circulation, Susman responded with a suggestion that
two minor points be clarified; the changes were made immedi-
ately. Other adjustments were made pursuant to comments
from the other parties. For example, one lawyer suggested the
addition of a provision stating that the parties would hold one
another harmless for any claim for fees or expenses by any
other attorneys. A hold-harmless provision was added in a
revised draft circulated on July 2.
The July 4th holiday then intervened. On July 5 the 48-Firm
Group circulated a “final” revised draft with the following note
(emphasis in original):
I hope the attached draft represents our final
agreement and is appropriate for signatures.
….
I don’t presume that silence since early afternoon
Tuesday through the July 4th holiday and today
means that each of you assents to the attached
draft, but I hope so. We need to get this done,
and I would like to circulate a draft for signa-
tures. Please let me know if you disagree.
Otherwise, please consider the attached draft as
the final draft for signature, and return your
signed, signature page. If additional changes are
suggested, I will circulate them and, if necessary,
we will work on another draft.
Susman did not respond with any further suggestions or
disagreements. Comments from other lawyers produced a few
more minor revisions, and another “final” draft was circulated
8 No. 12-3036
on July 6. After that point no further objections or suggestions
were forthcoming, and the lawyers began to sign the agree-
ment. Most signed and returned the July 6 draft immediately.
A few others signed on July 9 and 10. The last (except for
Susman) signed on July 12.
On July 11 the lawyer in charge of the drafting process
emailed Susman reminding him to sign. Susman emailed back
on the 12th saying that he was “not now in position to sign up”
and needed to deal with “some loose ends on our part.” The
lawyers and mediators later learned that the “loose ends”
referred to an expense dispute between Susman and Gotfryd.
Susman cryptically told the drafting lawyer that the timing of
his signature was “not in my hands,” and the drafter passed
that information along to the mediators.
On July 13 one of the mediators then emailed Susman
asking him to “help us dot all the ‘i’s’ and cross all the ‘t’s’ by
signing this last agreement” and suggesting that he defer
resolution of any remaining issues he had “on the side.” He
reminded Susman that the Litman fee issue was deferred for
future arbitration and also noted that the agreement could be
finalized with or without Susman’s signature.
July 13 was a Friday. Susman waited until Tuesday, July 17,
to respond to the mediator’s email. He acknowledged his prior
approval of the fee-allocation proposal but said he could not
approve the written agreement because of an ongoing dis-
agreement with Gotfryd and because “there are obligations in
the proposed Agreement which were really not a part of the
original mediators’ proposal and which were not part of our
understanding of our acceptance” of that proposal. He
No. 12-3036 9
repeated this position in a phone call with the court-appointed
special master on July 19.
The Litman arbitration was completed on July 19. On
July 20 the lawyers filed a motion asking the district court to
hold that Susman is bound by the written agreement notwith-
standing his failure to sign and to order the distribution of their
agreed-upon percentages from the settlement escrow. They
submitted evidence about the unanimous approval of the
mediators’ fee-division proposal and the circumstances
surrounding the drafting and approval process that had
produced the final written agreement. After hearing argument,
the district court granted the motion.
First, the judge identified several objective circumstances
that supported a finding of Susman’s assent to be bound:
(1) Susman agreed to the mediators’ fee-allocation proposal;
(2) every lawyer knew that the agreement would need to be
reduced to writing; (3) Susman had no objections to the initial
draft aside from two minor suggestions that were immediately
addressed and were unrelated to his current objections; and
(4) Susman lodged no objection to the subsequent drafts, which
came in quick succession until the final version of the agree-
ment was circulated on July 6. The judge also noted that the
other lawyers had signed the final agreement in reliance on
Susman’s silence, which they could reasonably interpret as a
lack of objection. Importantly, the judge found that Susman’s
conduct and his comments at oral argument suggested that he
had a case of “buyer’s remorse.” Apparently dissatisfied that
Godfryd was getting a larger fee allocation, Susman objected
10 No. 12-3036
to the enforcement provisions in a last-ditch attempt to “escape
from a fee distribution to which he is admittedly bound.”
Based on these findings, the judge held that Susman is
bound by the final written agreement and entered an order
disbursing the escrow funds to the various attorney groups
according to the percentages in the agreement. Susman
appealed, and while his appeal has been pending, fee-
allocation orders have been entered and fees distributed in
several other state settlements in accordance with the agree-
ment. Susman has not objected to the distributions but contin-
ues to maintain that he is not bound by the written agreement.
II. Analysis
On appeal Susman acknowledges that he approved the
mediators’ fee-allocation proposal but insists that he never
agreed to the additional terms that appeared in the final
written agreement. More specifically, he objects to the hold-
harmless clause and the enforcement provisions empowering
the mediators to arbitrate future disputes and “forfeit” the fees
of attorneys who do not cooperate in implementing the
agreement in state-by-state settlements. Susman relies heavily
on the fact that he did not sign the agreement.2 Illinois contract
law applies. Abbott Labs. v. Alpha Therapeutic Corp., 164 F.3d 385,
2
Relatedly, Susman also invokes the statute of frauds, but this argument
was not raised in the district court and is therefore waived. See Fednav Int’l
Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010).
No. 12-3036 11
387 (7th Cir. 1999); Gibson v. Neighborhood Health Clinics, Inc.,
121 F.3d 1126, 1130 (7th Cir. 1997).
“Under Illinois contract law, a binding agreement requires
a meeting of the minds or mutual assent as to all material
terms.” Abbott Labs., 164 F.3d at 387; see also Schafer v.
UnionBank/Cent., 973 N.E.2d 449, 457 (Ill. App. Ct. 2012).
“Whether the parties had a ‘meeting of the minds’ is deter-
mined not by their actual subjective intent,” Abbott Labs.,
164 F.3d at 387, but rather based an “objective theory of
intent,” Newkirk v. Village of Steger, 536 F.3d 771, 774 (7th Cir.
2008). See also Urban Sites of Chi., LLC v. Crown Castle USA,
979 N.E.2d 480, 496 (Ill. App. Ct. 2012) (“[A]n enforceable
contract must include a meeting of the minds or mutual assent
as to the terms of the contract. … Generally, it is the objective
manifestation of intent that controls whether a contract has
been formed. … The subjective understanding of the parties is
not required in order for there to be a meeting of the minds.”).
To determine whether a party assented, the court “look[s] first
to the written records, not to mental processes.” Newkirk,
536 F.3d at 774.
Whether a contract was formed is a question of law subject
to plenary review, but we review the district court’s subsidiary
factual findings deferentially for clear error. See, e.g., Cont’l Cas.
Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005)
(explaining that review of the district court’s conclusion that
the parties had agreed to arbitrate was “plenary,” but “insofar
as the district court’s decision rests on findings of fact, … we
use the clearly erroneous standard” (alterations and internal
quotation marks omitted)); Thomas v. Gen. Motors Acceptance
12 No. 12-3036
Corp., 288 F.3d 305, 307 (7th Cir. 2002) (explaining that the
clear-error standard governs mixed questions of law and fact).
The district court is in a superior position to sift and weigh the
evidence and as the factfinder is entitled to draw all reasonable
inferences that are supported by the record. See Coplay Cement
Co. v. Willis & Paul Grp., 983 F.2d 1435, 1438–39 (7th Cir. 1993)
(“When the judicial task is to infer meaning from disparate bits
of evidence, some textual, some testimonial, none contested in
themselves but the aggregate forming a confused mosaic, it is
a task more appropriate for a trier of fact than for a declarer of
legal rules.”). The critical question here is a factual one: Did
Susman objectively manifest assent to be bound even though
he did not sign the agreement? The district court answered that
question “yes,” and we review that determination deferen-
tially.
“Generally, one of the acts forming the execution of a
written contract is its signing. Nevertheless, ‘a party named in
a contract may, by his acts and conduct, indicate his assent to
its terms and become bound by its provisions even though he
has not signed it.’ ” Carlton at the Lake, Inc. v. Barber, 928 N.E.2d
1266, 1270 (Ill. Ct. App. 2010) (citation omitted) (quoting
Landmark Props., Inc. v. Architects Int’l–Chi., 526 N.E.2d 603, 606
(Ill. 1988)). Silence reasonably may be interpreted as acceptance
of a contract in certain limited circumstances. RESTATEMENT
(SECOND ) OF CONTRACTS § 69 cmt. a (1981); see also First Nat’l
Bank of Chi. v. Atl. Tele-Network Co., 946 F.2d 516, 519 (7th Cir.
1991) (“The law ordinarily treats silence as rejection, not
acceptance, of an offer … . But that is in general, not in every
case. If circumstances make it reasonable (ordinarily on the
No. 12-3036 13
basis of previous dealings with the offeree) for the offeror to
construe silence as acceptance, he may do so.”).
Silence may be construed as acceptance where “because of
previous dealings or otherwise, it is reasonable that the offeree
should notify the offeror if he does not intend to accept.”
RESTATEMENT (SECOND ) OF CONTRACTS § 69(1)(c) (1981); see also
Ragan v. AT&T Corp., 824 N.E.2d 1183, 1188 (Ill. Ct. App. 2005).
In this situation, “the offeree’s silence is acceptance, regardless
of his actual intent, unless both parties understand that no
acceptance is intended.” RESTATEMENT (SECOND) OF CONTRACTS
§ 69 cmt. d (1981).
The district court found that under the circumstances here,
Susman’s silence should be interpreted as assent to the written
agreement. That was a reasonable determination. The parties
had worked on the fiber-optic-cable class actions for more than
a decade, whether as cocounsel or in clear awareness of the
parallel litigation activity in multiple states. They had recently
worked out a system for settling the litigation on a state-by-
state basis, and they were close to the end of a long and
contentious fight over fees. Susman in particular had been a
holdout on that front, having rejected the 2006 fee-arbitration
agreement; he admits that he had a history of promptly
speaking up when he found something objectionable. True to
form, in this case Susman raised two minor points to the initial
draft of the agreement within hours of its circulation. His
suggestions were immediately addressed and incorporated
into a subsequent draft. Tellingly, he did not object to any of
the terms he now complains of; the arbitration provisions were
present in the initial draft, and the hold-harmless clause was
14 No. 12-3036
added the very next day. As to these terms, he remained silent
for two weeks.
By this time the lawyers were a sort of community of
interest, working together toward a final resolution of the fee
dispute and an end to the litigation. They accepted the
mediators’ fee-division proposal with the understanding that
it was a final effort to get “the entire fee fight settled” once and
for all—to achieve “global peace,” as Gotfryd put it at oral
argument. The declarations submitted to the district court by
Gotfryd and various members of the 48-Firm Group indicate
that they accepted the mediators’ proposal largely because
they understood it to put an end to uncertainty and bring
about an expeditious distribution of attorney’s fees with no
further threat of litigation. Indeed, it’s hard to imagine that
their acceptance of the fee-allocation proposal could be
understood in any other way. The unanimous approval of the
mediators’ proposal included the agreed-upon division of fees
but also plainly contemplated an enforcement mechanism that
would foreclose future litigation.
Consistent with this understanding, the written agreement
provided for enforcement by arbitration if necessary. Needless
to say, alternative dispute resolution is commonplace in this
context, and under the particular circumstances here, the
arbitration provisions could not have been unexpected. As the
district court noted, it would be “remarkable … that you
would work out this kind of arrangement and it wouldn’t
include some kind of arbitration or other dispute resolution
mechanism in light of the fact that there are several other states
that are out there.” Again, the whole point was to secure
No. 12-3036 15
“global peace” in the fight over fees. Cf. First Nat’l Bank of Chi.,
946 F.2d at 519 (explaining that a condition was “so plainly
reasonable given its essentiality” to the appellee’s security that
“we have trouble understanding how [the appellant] could
have defended a refusal to accept it” and that “[t]his would be
an additional reason why the [appellee] could presume that it
had been accepted in the absence of an explicit rejection”).
Susman’s past hostility toward arbitration isn’t incongruous
with construing his silence as a lack of objection rather than a
lack of assent. His previous rejection of arbitration pertained to
the substantive fee-division issue, but that issue was now
resolved. The arbitration provisions he now finds objectionable
cover future disagreements that may arise in the implementa-
tion of the fee-allocation agreement. Susman cannot rely on his
past objection to arbitration to explain his two-week silence in
the face of a sense of urgency and a need for repose that was
known to all. The parties had settled their substantive dispute,
and the written agreement memorializing that settlement
unsurprisingly contained an enforcement mechanism ensuring
that the implementation would proceed without the threat of
litigation. In short, it was reasonable for the other lawyers to
expect Susman to promptly raise his objections to the written
agreement and to construe his two-week silence as assent.
If more evidence were needed, the July 5 email put Susman
on notice that he was expected to speak up—and soon—if he
had any objections to the draft agreement. Yet despite the
boldface exhortation to “[p]lease let me know if you disagree”
and “[o]therwise, please consider the attached draft as the
final draft for signature,” Susman still maintained his silence.
16 No. 12-3036
Thereafter everyone but Susman signed quickly, in the
reasonable assumption that no further objections were forth-
coming and the written agreement was now in its final form.
We cannot ignore the fact that the parties’ communications
indicate an intention to require signatures (and indeed every
other lawyer signed the agreement) and that Susman eventu-
ally did lodge an objection and explicitly refuse to sign. But the
district court interpreted Susman’s belated expression of
disagreement not as a genuine objection to the additional terms
but rather as an attempt to escape or reopen the substantive
fee-division percentages, a tricky maneuver given his acknowl-
edged acceptance of the mediators’ proposal. The district
court’s inference is entirely reasonable and is adequately
supported by the record; at the very least, it is not clearly
erroneous.
Indeed, when pressed at oral argument, Susman identified
the expense dispute with Gotfryd as the reason he objected to
the written agreement. He also acknowledges on appeal that
he considers himself bound by the fee-allocation percentages,
and indeed he has been accepting distributions pursuant to the
agreement. If his real complaint is the size of his share—
whether in relative terms, once he saw all the numbers, or
because the expense dispute with Gotfryd made him change
his mind about the allocation’s fairness—then his reliance on
a tardy objection to the arbitration and hold-harmless provi-
sions in the written agreement is hard to explain as anything
other than a sham. He can’t reopen the fee division now, and
he claims he’s not trying to; but neither can he get out of the
other terms in the written agreement by way of a late objection
No. 12-3036 17
when the circumstances reasonably suggest that he manifested
an assent to be bound.
The district court was intimately familiar with the parties’
course of conduct during the fee dispute and carefully
reviewed the evidence before finding that Susman is bound by
the written agreement despite his failure to sign. Given the
parties’ lengthy relationship and course of dealings, the district
court reasonably construed Susman’s silence as an assent to be
bound.
AFFIRMED .