Baron

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHMUEL BARON, :

:

Plaintiff, : REPORT AND

: RECOMMENDATION

-versus- :

: 24-CV-8664 (NCM) (CHK)

DELTA AIR LINES, INC., :

:

Defendant. :

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CLAY H. KAMINSKY, United States Magistrate Judge:

Defendant Delta Air Lines, Inc. (“Delta”) moves to enforce an informal

settlement agreement that it reached with plaintiff Shmuel Baron’s counsel. ECF

No. 34. Baron, now proceeding pro se after dismissing the attorney he claims did not

have his permission to settle his case, opposes Delta’s Motion. The Honorable

Natasha C. Merle has referred the Motion to me for a Report and Recommendation.

For the reasons that follow, I recommend that the Motion be denied.

BACKGROUND

Baron commenced this action in December 2024, alleging that he was the

target of an antisemitic incident on board a Delta-operated flight from New York City

to Tel Aviv, Israel in June 2023 and that defendant failed to adequately provide

protection or address the incident post hoc. See generally Compl., ECF No. 1. Initially

proceeding pro se, Baron alleged that he and a group of “visibly identifiable” Jewish

passengers on the flight were “physically and verbally assaulted” by an unidentified

female passenger while engaged in silent prayer, that the assault “included shoving,

elbowing, and verbal[] harass[ment],” and that he immediately reported the incident

to the Delta flight crew. Id. ¶¶ 1–4. He further alleged that, despite his report, Delta

neither notified local law enforcement in Tel Aviv upon landing nor engaged with his

attempts to gather information and seek redress following the incident. Id. ¶¶ 5–6.

Baron sued Delta for negligent breach of its heightened duty of care as a common

carrier under 49 U.S.C. § 44701, for violating his civil rights under 42 U.S.C. § 1981,

and for emotional distress for Delta’s failure to report “in-flight criminal activity”

pursuant to federal law, seeking, inter alia, compensatory damages in excess of

$75,000, punitive damages, and a court order compelling Delta to disclose the identity

of the aggressor in the relevant incident. Id. ¶¶ 8–11.

Attorney Vivian Sobers appeared on behalf of Baron in March 2025. ECF

No. 10. Discovery proceeded for several months with this representation

arrangement, the parties reporting productive informal settlement discussions in

their status reports. ECF Nos. 25, 27, 28.

On September 15, 2025, in advance of a discovery conference scheduled for the

next day, Delta’s attorney, Allison Surcouf, sent an email to Sobers, stating: “Delta

agrees to settle this case for [a stated payment amount] against a General Release.

Please confirm ASAP, and we will notify the Court so that tomorrow’s conference is

cancelled.” ECF No. 34-3.1 Sobers replied early the next morning: “Confirmed, we[’]re

1 In support of Delta’s motion to enforce settlement, Surcouf submitted a declaration (ECF No 34-2)

attaching two email chains between counsel (ECF Nos. 34-3 & 34-4) and the proposed general

release (ECF No. 34-5). Delta has also submitted a Memorandum of Law (“Def. Mem.”) (ECF No.

settled, please send the paperwork.” Id. Defense counsel thereafter submitted a

motion on behalf of both parties requesting to adjourn the conference because, she

wrote, “the parties have reached a settlement in principle.” ECF No. 30. The Court

granted the motion, adjourned all hearings and deadlines, and directed the parties to

file a stipulation of dismissal or joint status report by October 20, 2025. 09/16/2025

Order. Less than a week later, defense counsel sent Sobers, by email, “a general

release for your client’s execution, as well as a stipulation of dismissal” and a

Medicare eligibility form. ECF No. 34-4 at 11; see also ECF No. 34-5 (proposed general

release).

Baron did not execute the general release or the stipulation of dismissal. See

ECF No. 31 (Oct. 20, 2026 letter requesting an extension of time because “Plaintiff

has not executed the General Release”). He insists in his opposition to the present

Motion that that is because he never approved the settlement. Baron asserts that

when Sobers conveyed Delta’s settlement offer to him, he did not accept the offer but

rather asked his counsel for more time to consider it. Plaintiff’s Memorandum of Law

in Opposition to Defendant’s Mot. to Enforce (“Pl. Opp’n”), ECF No. 36, at 4.2 He

34-1), and a Reply memorandum (“Def. Reply”) (ECF 37). Delta’s motion redacts the proposed

settlement payment amount; Baron’s opposition states that it was $3,000.

2 Baron’s opposition memorandum cites its assertions of fact to “the Declaration of Shmuel Baron,

sworn under penalty of perjury pursuant to 28 U.S.C. § 1746.” Pl. Opp’n at 4. This declaration has

not been filed with the Court. The Court, in its discretion and as permitted by Local Civil Rule 1.9,

will consider the factual assertions in Baron’s signed opposition memorandum. See, e.g., Berry v.

Marchinkowski, 137 F. Supp. 3d 495, 530 (S.D.N.Y. 2015) (considering unsworn assertion in pro se

Plaintiff’s memorandum of law “because it is based on Plaintiff’s personal knowledge, and in light of

the special solicitude due to pro se parties in opposing summary judgment. ”); Bullion Shark, LLC v.

Flip a Coin LLC, 2:23-cv-6529, 2024 WL 87763, at *2 (E.D.N.Y. Jan. 5, 2024) (“[C]ourts in this circuit

routinely consider [unsworn] statements . . .where the proponent of the statements is a pro se

litigant, mindful of the duty to extend special solicitude to those individuals.”).

asserts that he never gave his attorney authorization or authority to settle his case.

Id. He further asserts that “[w]hen Baron learned what Sobers had done, he acted

immediately: he objected, and he terminated her.” Id. at 5.

Sobers wrote to the Court on October 31, 2025, that Baron “is seeking other

counsel and does not want to proceed with settlement.” ECF No. 32. The Court held

a telephone conference with counselors Sobers and Surcouf—as well as Baron

himself—on January 7, 2026. During that conference the Court granted Sobers’

application to withdraw as counsel for Baron and defendant stated that it intended

to bring a motion to enforce the terms of the settlement agreement. 01/07/2026

Minute Entry. This Motion followed.

DISCUSSION

Defendant argues the attorney Sobers’ acceptance of Delta’s proposal to settle

the case for a stated amount against a general release is an enforceable contract

notwithstanding the lack of a signed writing. Baron argues that the purported

settlement agreement cannot be enforced because he never accepted Delta’s

settlement offer or authorized his attorney to do so. For the reasons explained below,

I find that Baron has the better of the argument and recommended that Delta’s

motion be denied.

1. The Attorney’s Authority to Bind Client to Settlement

Because the decision to settle a case belongs to the client, not the attorney, a

client cannot be bound to a settlement made by counsel unless counsel had actual or

apparent authority to settle the case. Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d

Cir. 1989). “A client does not create apparent authority for his attorney to settle a

case merely by retaining the attorney,” id. at 502, but because of the unique nature

of the attorney-client relationship, courts “presume that an attorney-of-record who

enters into a settlement agreement, purportedly on behalf of a client, had authority

to do so.” In re Artha Mgmt., Inc., 91 F.3d 326, 329 (2d Cir. 1996). The party

challenging the attorney’s authority bears the burden of proving that the attorney

lacked authority. Id. That burden is “not insubstantial.” United States v. Int’l Bhd. of

Teamsters, 986 F.2d 15, 20 (2d Cir. 1993). It will not be met when the client fails to

deny giving the attorney such authority. See In re Artha Mgmt., Inc., 91 F.3d at 329;

Conway v. Brooklyn Union Gas Co., 236 F. Supp. 2d 241, 248 (E.D.N.Y. 2002).

Similarly, a client’s delay in objecting to a settlement agreement made by counsel

weighs against a finding that the attorney lacked settlement authority. See Int’l Bhd.

of Teamsters, 986 F.2d at 20–21; United States v. Manning, 107 F.3d 5, 1997 WL

62973, at *1 (2d Cir. Feb. 12, 1997).

I find that Baron has carried his burden of demonstrating that Sobers lacked

authority to settle his case. While Delta casts this as a case of “buyer’s remorse,” Def.

Mem. at 1, Baron denies that he ever gave Sobers authority to settle his case. He

made no manifestations to Delta’s counsel that would support a finding of apparent

authority. He timely objected by declining to sign the proposed general release and

ultimately terminating Sobers’ engagement. Pl. Opp’n at 4–5.

The facts of this case are analogous to Fennell, upon which Baron relies. In

that case, plaintiff Fennell’s attorney had negotiated a sum certain settlement

without Fennell’s approval (but in the absence of express limitations from Fennell)

and reported it to the court. Fennell, 865 F.2d at 500–02. Fennell terminated his

counsel and notified the district court that he objected to the settlement because he

was not satisfied with the settlement amount. The district court held that the

attorney had apparent authority to settle the case, approved the settlement over

Fennell’s objections, and dismissed the action. On appeal, the Second Circuit

reversed, holding that because Fennell had “made no manifestations to defendants’

counsel that [his attorney was] authorized to settle the case,” his attorneys had no

apparent authority to settle the case on those terms without his consent. Id. at 502.

It was immaterial “that Fennell knew settlement was being discussed, did not ask

his attorneys not to discuss settlement, would have accepted a higher settlement

figure, and did not tell defendant’s counsel that the authority of plaintiff’s counsel

was limited in any way.” Id.

Delta’s reliance on Conway is misplaced. See Def. Reply at 3–4. There it was

“clear” that the attorney had apparent authority, “as he stated such in Conway’s

presence in open court at the settlement conference” and “Conway did not deny that

she gave her attorney authority to settle.” Conway, 236 F. Supp. 2d at 248. In fact,

Conway “never, to this day, contested the fact that her attorney had authority to enter

into the settlement on her behalf.” Id. Here, by contrast, there was no such

representation in Baron’s presence, and Baron emphatically denies that he gave his

attorney authority to settle.

I also reject Delta’s half-hearted alternative argument that Baron ratified

Sobers’ agreement. See Def. Reply at 6. The cases that Delta cites, Conway and

Willgerodt v. Hori, 953 F. Supp. 557 (S.D.N.Y. 1997), do not stand for the propositions

for which they are cited, and Baron’s refusal to sign the general release and

termination of Sobers belie ratification.

2. The Parties’ Intent to Be Bound

It is also significant, of course, that neither Baron nor even Sobers executed a

settlement agreement. That further distinguishes this case from those in which an

attorney signed a fully drafted settlement agreement on behalf of a client who later

sought to avoid it. Cf. In re Artha Mgmt., Inc., 91 F.3d at 328; Manning, 1997 WL

62973, at *1. Here, Delta seeks to enforce an understanding with Baron’s counsel that

Delta itself described to the Court as a “settlement in principle.” ECF No. 30.

The Second Circuit has laid out a four-factor inquiry for courts to use in

determining whether parties intended to be bound to an enforceable settlement in

the absence of an executed settlement agreement:

The court is to consider (1) whether there has been an express

reservation of the right not to be bound in the absence of a writing; (2)

whether there has been partial performance of the contract; (3) whether

all of the terms of the alleged contract have been agreed upon; and (4)

whether the agreement at issue is the type of contract that is usually

committed to writing.

Winston v. Mediafare Ent. Corp., 777 F.2d 78, 80 (2d Cir. 1985). Courts in this District

have sometimes supplemented this test with a fifth factor, “fundamental fairness.”

Delyanis v. Dyna-Empire, Inc., 465 F. Supp. 2d 170, 175 (E.D.N.Y. 2006); see Conway,

236 F.Supp.2d at 252. No single factor controls the analysis; courts use the Winston

test to discern whether the parties’ objectively intended to manifest an enforceable

agreement. Winston, 777 F.2d at 80; Delyanis, 465 F. Supp. 2d at 175.

Having considered these factors, I conclude that the parties did not share an

intent to be bound in the absence of an executed settlement agreement.

The first Winston factor asks whether there was an express reservation of the

right not to be bound absent a written agreement. Winston, 777 F.2d at 80. Although

Winston used the phrase “express reservation,” courts in this district recognize that

“[w]here there is no express reservation, the language and conduct of the parties can

nevertheless reveal such an intent.” Patel v. Long Island Univ., No. 17-CV-2170, 2023

WL 6211769, at *2 (E.D.N.Y. Sept. 25, 2023) (quoting Sprint Commc’ns Co. L.P. v.

Jasco Trading, Inc., 5 F. Supp. 3d 323, 332 (E.D.N.Y. 2014). If Sobers had authority

to bind Baron, this factor would weigh in favor of shared intent to be bound, since the

correspondence between counsel reveals no reservation of the right not to be bound.

The second Winston factor asks whether there has been partial performance of

the contract. Winston, 777 F.2d at 80. Delta asserts that “partial performance leans

in favor of enforcing the agreement because the parties exchanged the General

Release and the Stipulation of Dismissal.” Def. Mem. at 6. But exchanging emails

which attached and discussed the document at issue simply does not constitute

performance, partial or otherwise. Baron, for his part, points out that he has not

received money from Delta, has not signed a release or other settlement document,

and has generally done nothing consistent with acceptance or performance of a

contract. Pl. Opp’n at 5. What is more, he has dismissed the attorney who made the

agreement and vigorously opposes the instant Motion on a pro se basis. This factor

thus weighs against a shared intent to be bound.

The third Winston factor asks whether all of the terms of the alleged contract

have been agreed. Winston, 777 F.2d at 80. Delta argues that the parties “reached an

agreement on all material terms,” listing not only the settlement amount but also

“the scope of confidentiality” and “payment terms.” Def. Mem. at 8. But the

confidentiality and payment terms—which Delta admits were material terms—were

never confirmed by Sobers; they appear only in the general release that defense

counsel sent to her following the agreement in principle between counsel to settle the

case for a sum certain against a general release. See ECF Nos. 34-3, 34-4, & 34-5

(proposed general release). Accordingly, this factor also weighs against a shared

intent to be bound.

The fourth Winston factor asks whether the agreement at issue, in this case a

settlement agreement and general release, is the type of contract that is usually

committed to writing. Winston, 777 F.2d at 80. It is. Out-of-court settlement

agreements are normally committed to writing. Ciaramella v. Reader’s Digest Ass’n,

Inc., 131 F.3d 320, 326 (2d Cir. 1997). This factor too weighs against a shared intent

to be bound.

Finally, considerations of fundamental fairness also weigh against

enforcement of the asserted settlement agreement. As discussed above, I find that

Sobers lacked both actual and apparent authority to bind Baron. To the extent there

is doubt about whether Baron has overcome the presumption that an attorney of

record who enters into a settlement agreement had authority to do so, Baron’s denial

that he gave that authority still weighs in fairness against finding an intent to be

bound. In the circumstances presented, I cannot find that it would be fundamentally

fair to bind Baron to a broad release drafted by Delta that neither Baron nor his

attorney signed and to which Baron insists he never agreed.

RECOMMENDATION

For the foregoing reasons, I recommend that defendant Delta’s Motion to

Enforce be denied.

OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Any objections to this Report and Recommendation must be filed within

fourteen (14) days of service of this report. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.

P. 72. Failure to file objections within the specified time waives the right to appeal

the District Court’s Order. Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).

SO RECOMMENDED.

_/s_/_ C__la_y_ _H_._ _K_a_m__in_s_k_y________________

Clay H. Kaminsky

United States Magistrate Judge

Dated: Brooklyn, New York

July 16, 2026