Martina Beverly v. Abbott Laboratories, Incorpora

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1098

MARTINA BEVERLY,

Plaintiff-Appellant,

v.

ABBOTT LABORATORIES,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CV 3216 — Edmond E. Chang, Judge.

____________________

ARGUED SEPTEMBER 9, 2015 — DECIDED MARCH 16, 2016

____________________

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judg-

es.

WILLIAMS, Circuit Judge. Martina Beverly sued her former

employer, Abbott Laboratories (Abbott), for employment

discrimination and retaliation. During a private mediation,

the parties signed a handwritten agreement stating that Bev-

erly demanded $210,000 and mediation costs in exchange for

dismissing the lawsuit. Abbott later accepted Beverly’s de-

2 No. 15-1098

mand and circulated a more formal settlement proposal. Af-

ter Beverly refused to execute this draft proposal, Abbott

moved to enforce the original handwritten agreement.

The district court found that the parties entered into a

binding settlement agreement and granted Abbott’s motion

to enforce. Beverly appeals this decision, arguing that Abbott

intended to be bound only by the terms of the typewritten

proposal and that the handwritten agreement omits certain

material terms.

However, we find that the handwritten agreement was

valid and enforceable, since the agreement’s material terms

were clearly conveyed and consented to by both parties, and

the existence and content of the draft proposal do not affect

enforceability. Therefore, we affirm the district court’s grant

of Abbott’s motion to enforce.

I. BACKGROUND

Beverly is a former Abbott employee whose employment

was terminated on October 20, 2010. A year and a half later,

she filed suit against Abbott. She alleged that during her

employment with the company, Abbott had discriminated

and retaliated against her on the basis of her German nation-

ality in violation of Title VII of the Civil Rights Act, as well

as on the basis of her disabilities in violation of the Ameri-

cans with Disabilities Act. The district court denied Abbott’s

motion for summary judgment as to Beverly’s national

origin claims and certain of her disability claims, and the

parties engaged in a private mediation. 1

1 Beverly’s husband, Henry, is also a named plaintiff in the lawsuit

against Abbott. The district court granted Abbott’s motion for summary

No. 15-1098 3

A day before the mediation took place, Abbott’s counsel

sent Beverly’s counsel a “template settlement agreement” in

order to avoid “any surprises in the event that [the parties]

are able to resolve the matter.” This template included six

typewritten pages and provided, among other things, that

Beverly had twenty-one days to review the document and

seven days to revoke her acceptance; that Beverly would re-

lease and waive any and all claims against Abbott and its

affiliates; that Abbott would send two separate checks to

Beverly and a third check to Beverly’s attorneys for unspeci-

fied amounts; and that Abbott would pay all mediation

costs.

The mediation session lasted approximately fourteen

hours and both parties were represented by counsel the en-

tire time. Near the end of the session, both parties and their

counsel signed a handwritten agreement that stated:

I Jon Klinghoffer will commit that my client will com-

municate to its internal business client the fact that Ab-

bott/AbbVie has offered $200,000 + Abbott/AbbVie pays

cost of mediation to resolve this matter and that Martina

Beverly has demanded $210,000 + Abbott/AbbVie pays

cost of mediation to resolve this matter. Both parties

committ [sic] that their offer and demand will remain

open until Tuesday, July 22, 2014, 3:00 PM central.

On the following day, Abbott’s counsel emailed Beverly’s

counsel and stated, “My client has accepted Martina Bever-

ly’s demand to resolve her claims in the above referenced

matter for $210,000 plus the costs of yesterday’s mediation. I

judgment as to all of Henry’s claims; however, this appeal does not con-

cern that decision or any of Henry’s claims. Unless otherwise specified,

all references to “Beverly” in this opinion concern Martina.

4 No. 15-1098

have attached a draft settlement agreement for your re-

view.” This draft was largely identical to the template set-

tlement agreement sent two days earlier, with three excep-

tions: (1) the replacement of “Abbott” with “AbbVie” 2; (2)

the inclusion of the precise dollar amounts to be paid to Bev-

erly ($23,000 for damages, $23,000 for backpay) and to her

attorneys ($164,000); and (3) the exclusion of a provision

preventing Beverly from disparaging Abbott or AbbVie.

Approximately five minutes after receiving the email

from Abbott’s counsel, Beverly’s counsel responded via

email and stated, “Oh happy days! Best $10,000 Abbott has

ever spent. You are a gem.” Several minutes later, Beverly’s

counsel forwarded the Abbott counsel’s email and draft

proposal to Beverly for review. Beverly ultimately declined

to sign the proposal.

Abbott filed a motion to enforce the handwritten agree-

ment. In the motion, Abbott argued that the agreement was

enforceable because an offer, acceptance, and meeting of the

minds had occurred, and that the parties’ subsequent inabil-

ity to execute the typewritten proposal was irrelevant. In re-

sponse, Beverly argued that the handwritten agreement was

merely a preliminary document that captured the parties’

intention to execute a binding settlement agreement in the

future. She also contended that the omission of multiple ma-

2 In January 2013, Abbott split into two separate publicly traded

companies. One company (the “new” Abbott) primarily focuses on the

production of medical devices, diagnostic products, and infant formula,

while the other company (AbbVie) primarily focuses on the research and

development of certain pharmaceutical products. The parties do not call

attention to this corporate distinction, and it does not appear to be rele-

vant for purposes of this dispute.

No. 15-1098 5

terial terms from the handwritten agreement illustrated its

non-binding nature.

The district court granted Abbott’s motion, finding that

the parties had entered into a binding settlement agreement

that included all material terms—specifically, the dismissal

of the case in exchange for $210,000 and mediation costs.

Beverly appeals this decision.

II. ANALYSIS

On appeal, Beverly argues that the district court erred by

granting Abbott’s motion to enforce the handwritten settle-

ment agreement. We disagree. We review the district court’s

decision to enforce the settlement agreement for abuse of

discretion. Hakim v. Payco-Gen. Am. Credits, Inc., 272 F.3d 932,

953 (7th Cir. 2001). However, the question of whether a set-

tlement agreement exists is a question of law that we review

de novo. Newkirk v. Village of Steger, 536 F.3d 771, 774 (7th

Cir. 2008).

A. Handwritten Agreement Enforceable

State contract law governs issues concerning the for-

mation, construction, and enforcement of settlement agree-

ments. Sims-Madison v. Inland Paperboard & Packaging, Inc.,

379 F.3d 445, 448 (7th Cir. 2004) (citing Pohl v. United Airlines,

Inc., 213 F.3d 336, 338 (7th Cir. 2000)). Both parties rely on

Illinois law to support their arguments, so we too will look

to that body of substantive law. Under Illinois law, the exist-

ence of a valid and enforceable contract is a question of law

when the basic facts are not in dispute. Echo, Inc. v. Whitson

Co., 121 F.3d 1099, 1102 (7th Cir. 1997). A settlement agree-

ment is enforceable if there was a meeting of the minds or

mutual assent to all material terms. Abbott Labs. v. Alpha

6 No. 15-1098

Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999) (citing SBL

Assoc. v. Village of Elk Grove, 617 N.E.2d 178, 182 (Ill. 1993)).

Material terms are sufficiently definite and certain when

they enable a court to ascertain what the parties agreed to

do. K4 Enters., Inc. v. Grater, Inc., 914 N.E.2d 617, 624 (Ill.

App. Ct. 2009) (citing Midland Hotel Corp. v. Reuben H. Don-

nelly Corp., 515 N.E.2d 61, 65 (Ill. 1987)).

Illinois follows the objective theory of intent whereby the

written records of the parties’ actions—rather than their sub-

jective mental processes—drive the inquiry. Newkirk, 536

F.3d at 774; see also Int’l Minerals & Chem. Corp. v. Liberty

Mut. Ins. Co., 522 N.E.2d 758, 764 (Ill. App. Ct. 1988) (“The

paramount objective is to give effect to the intent of the par-

ties as expressed by the terms of the agreement.”).

When a settlement agreement concerns federal claims in

the employment discrimination context, we typically inquire

whether the agreement was knowingly and voluntarily exe-

cuted based on the totality of the circumstances. Dillard v.

Starcon Int’l, Inc., 483 F.3d 502, 507 (7th Cir. 2007). This in-

quiry is unnecessary here, however, since Beverly did not

contend during the district court proceedings, and does not

contend on appeal, that she executed the handwritten

agreement involuntarily or unknowingly. See Milligan v. Bd.

of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir. 2012) (“Milli-

gan did not make that argument, either here or in the district

court. His failure to do so forfeits the argument.”).

We find that the district court correctly concluded that

the handwritten agreement was enforceable because the

agreement sufficiently defines the parties’ intentions and ob-

ligations. The material terms in the agreement clearly pro-

vide that Beverly offered to “resolve this matter”—i.e., vol-

No. 15-1098 7

untarily dismiss her alienage and disability claims—if Ab-

bott paid $210,000 and mediation costs. See Elustra v. Mineo,

595 F.3d 699, 709 (7th Cir. 2010) (“We find that the material

terms were definite and certain: defendants would pay

$6,000 to the Elustras in exchange for their dismissal of the

lawsuit.”). It also states that Abbott had five days within

which to accept Beverly’s offer, which it did the following

day. Both parties and their respective attorneys signed the

agreement, further demonstrating their intent to be bound

by the terms of the document. And the elated response of

Beverly’s counsel to Abbott’s acceptance further underscores

the parties’ understanding that the handwritten agreement

would settle Beverly’s claims.

Beverly contends that the district court erred in relying

on cases such as Elustra v. Mineo that involve oral agree-

ments because the agreement at issue here was handwritten,

not oral. But Beverly fails to cite a single case to support this

contention, much less explain why the oral-versus-written

distinction is relevant here. This failure amounts to forfei-

ture. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th

Cir. 1991) (holding that “perfunctory and undeveloped ar-

guments, and arguments that are unsupported by pertinent

authority,” are forfeited on appeal). Forfeiture aside, our cas-

es counsel that the relevant inquiry is whether the agreement

at issue is sufficiently clear regarding its material terms, not

whether the agreement was captured in writing. Compare

Abbott Labs., 164 F.3d at 388 (involving preliminary written

agreement), and Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547,

564 (7th Cir. 2012) (same), with Elustra, 595 F.3d at 708–09

(involving preliminary oral agreement), and Dillard, 483 F.3d

at 507–08 (same).

8 No. 15-1098

B. Typewritten Proposal Does Not Affect Enforceabil-

ity

Beverly argues that the twenty-one-day consideration pe-

riod and the seven-day revocation period in the typewritten

proposal demonstrate that Abbott intended to be bound on-

ly if the typewritten proposal was executed. But this argu-

ment ignores the fact that the “anticipation of a more formal

future writing does not nullify an otherwise binding agree-

ment.” Abbott Labs., 164 F.3d at 388 (citing Dawson v. Gen.

Motors Corp., 977 F.2d 369, 374 (7th Cir. 1992)). Indeed, we

have observed that “Illinois courts have not been shy about

enforcing promises made in the context of ongoing negotia-

tions and often involving preliminary or ‘incomplete’

agreements.” Dawson, 977 F.2d at 374 (collecting cases). We

agree with the district court that the parties’ failure to exe-

cute the typewritten proposal simply left the handwritten

agreement’s enforceability undisturbed.

Beverly’s reliance on Ocean Atlantic Development Corp. v.

Aurora Christian Schools, 322 F.3d 983 (7th Cir. 2003), is mis-

placed. Ocean Atlantic involved two offer letters that, instead

of triggering certain key obligations and events themselves,

merely anticipated the triggering of these obligations and

events by the future execution of an anticipated contract. Id.

at 997–99 (observing that both offer letters stated they “will

serve to set forth some of the parameters for an offer,” and

that inspection, default, and refundability of the earnest

money deposit all depended on the future execution of a

contract and not of the offer letters). Here, however, neither

the text of the handwritten agreement nor the parties’ prior

dealings demonstrate that the parties believed their mutual

No. 15-1098 9

obligations were dependent upon the future execution of a

final contract with additional terms.

Beverly also argues that the handwritten agreement is

not enforceable because it omits certain purportedly material

terms that appear in the subsequent draft proposal. We dis-

agree.

A settlement agreement may be enforceable despite the

omission of certain terms so long as those terms are not ma-

terial. See Wigod, 673 F.3d 547, 564 (7th Cir. 2012) (observing

that “[a] contract may be enforced even though some con-

tract terms may be missing or left to be agreed upon” (citing

Acad. Chi. Publishers v. Cheever, 578 N.E.2d 981, 983–84 (Ill.

1991))); Pritchett v. Asbestos Claims Mgmt. Corp., 773 N.E.2d

1277, 1282 (Ill. App. Ct. 2002) (“Every feasible contingency

that might arise in the future need not be provided for in a

contract for the agreement to be enforceable…. Ambiguity

will prevent the enforcement of a contract only where the

ambiguity affects the material terms of the contract.”).

Beverly appears to concede—as she must—that the pay-

ment of $210,000 and mediation fees and the dismissal of the

case are material terms. But she argues that additional terms

were required to communicate the parties’ fundamental ob-

ligations—specifically, provisions relating to indemnifica-

tion, future cooperation between the parties, Beverly’s future

employment options with Abbott, the precise allocation of

settlement funds, and express language concerning release

and waiver. However, these various provisions, taken to-

gether, constitute nearly the entire six-page typewritten pro-

posal; certainly they are not all equally essential. See Rose v.

Mavrakis, 799 N.E.2d 469, 473–74 (Ill. App. Ct. 2003) (stating

that “[t]he lack of nonessential details … will not render a

10 No. 15-1098

contract unenforceable”); Dillard, 483 F.3d at 508 (“The mate-

riality of additional written terms introduced after an oral

agreement is reached is not established simply by one par-

ty’s intransigence or ‘refusal to budge’ on the new terms.”).

Beverly implicitly acknowledges this when she refers to in-

demnification, cooperation, and future employment in cur-

sory fashion, with no attempt to explain how any of these

issues are so vital that the parties would not have settled the

dispute without them. We therefore reject Beverly’s sugges-

tion that the handwritten agreement is unenforceable due to

its silence regarding indemnification, cooperation, and fu-

ture employment. See Berkowitz, 927 F.2d at 1384.

It bears mentioning that a transcript (or some other re-

cording) of the private mediation session here may have

provided important clarity regarding the parties’ beliefs and

intentions relating to the handwritten agreement and the

draft proposal. We encourage future litigants to record any

communications that directly relate to final settlement

agreements.

We now turn to the remaining provisions concerning

waiver and allocation that Beverly contends are material.

Beverly argues that the handwritten agreement was not in-

tended to be final because it lacked the waiver-and-release

language that the typewritten proposal describes as “an es-

sential and material term of this Agreement and that, with-

out this provision, no agreement would have been reached

by the parties.” But the handwritten agreement states that

Beverly demanded $210,000 and mediation costs “to resolve

this matter.” Though perhaps inartful, this phrase adequate-

ly conveys Beverly’s offer to abandon her claims against Ab-

bott; the use of formal terms such as “waiver,” “release,”

No. 15-1098 11

and “covenant not to sue” was unnecessary—at least regard-

ing the claims Beverly alleged in her complaint. See Wilson v.

Wilson, 46 F.3d 660, 667 (7th Cir. 1995) (holding that a set-

tlement agreement in which the plaintiff agreed to drop all

claims against the defendants in exchange for a specific sum

of money was enforceable, despite the fact that the agree-

ment did not specify whether the plaintiff’s promise would

take the legal form of a release or a covenant not to sue).

The other purportedly material term that Beverly focuses

on is allocation. Specifically, she contends that the allocation

of the $210,000 between backpay (which is taxable) and

damages (which are not taxable) is a material term, and that

the handwritten agreement’s silence on this issue renders it

unenforceable. We conclude, however, that Beverly forfeited

this argument by failing to raise it with the district court. In

its motion to enforce the settlement agreement, Abbott stat-

ed that at the mediation, the parties agreed that a portion of

the settlement amount would be paid directly to Beverly’s

attorneys, and that the remaining amount would be split

equally between backpay and damages. In her opposition

brief, Beverly failed to rebut this statement or otherwise ref-

erence allocation, and the only purportedly “material” terms

she identified were, by her own admission, non-financial in

nature. This failure amounts to forfeiture for purposes of this

appeal. See Milligan, 686 F.3d at 386.

Beverly proffers several arguments for why forfeiture has

not occurred, but none are availing. Beverly suggests that

the district court considered and ruled on the allocation is-

sue because the typewritten proposal, which contains an al-

location provision, was included as an exhibit in Beverly’s

opposition brief. But neither party expressly referenced this

12 No. 15-1098

provision in its briefs, and the district court was under no

obligation to identify and analyze every possible way in

which the provision could be employed to either party’s

benefit. See Williams v. Dieball, 724 F.3d 957, 963 (7th Cir.

2013) (“Judges are not clairvoyant, and if they were required

to go out of their way to analyze every conceivable argu-

ment not meaningfully raised, their work would never

end.”). Nor was the allocation issue preserved simply be-

cause Abbott briefly raised the issue. See id at 962 (reasoning

that “to find that one party’s argument was preserved be-

cause his opponent defended against it out of an abundance

of caution would be to punish the opponent for being more

thorough”). In addition, Beverly invites us to interpret the

list of purportedly material provisions she identified in her

opposition brief as non-exhaustive, and to read allocation

into that list. We decline to do so. See Fednav Int’l Ltd. v.

Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (emphasizing

that “a party has waived the ability to make a specific argu-

ment for the first time on appeal when the party failed to

present that specific argument to the district court, even

though the issue may have been before the district court in

more general terms”).

Beverly suggests that, despite her failure to raise the allo-

cation issue with the district court, we may nevertheless

reach the issue by exercising our discretion. “We may con-

sider a forfeited argument if the interests of justice require it,

but it will be a ‘rare case in which failure to present a ground

to the district court has caused no one—not the district

judge, not us, not the appellee—any harm of which the law

ought to take note.’” Russian Media Grp., LLC v. Cable Am.,

Inc., 598 F.3d 302, 308 (7th Cir. 2010) (quoting Amcast Indus.

Corp. v. Detrex Corp., 2 F.3d 746, 749–50 (7th Cir. 1993)). Here,

No. 15-1098 13

Beverly’s failure to raise the allocation issue with the district

court precluded the parties from further developing the rec-

ord on the issue, and reasonably permitted the district court

to infer that the issue was not so important to the parties as

to constitute a material term. Beverly does not offer any rea-

son on appeal that warrants the exercise of discretion here,

and we decline to invent one. See S.E.C. v. Yang, 795 F.3d 674,

679 (7th Cir. 2015) (holding that discretionary review was

improper, in part, because the party “made no attempt to

demonstrate why his case qualifies as one of these” rare cas-

es).

III. CONCLUSION

The judgment of the district court is AFFIRMED.