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Saturday, March 19, 2016

Would You Settle a Case in Mediation with a Single Handwritten Paragraph?

Martina Beverly sued her former employer, Abbott Laboratories for employment discrimination and retaliation, raising ADA and national origin claims. The parties agreed to private mediation.

During a private mediation, the parties signed a handwritten agreement stating that Beverly demanded $210,000 and mediation costs in exchange for dismissing the lawsuit. Abbott later accepted Beverly's demand and circulated a more formal settlement proposal. After Beverly refused to execute this draft proposal, Abbott moved to enforce the original handwritten agreement.

Before the mediation, Abbott sent a 6 page typewritten template as a proposed basis for settlement.

The mediation lasted 14 hours. Both sides were represented by counsel. Near the end of the mediation, the parties and counsel signed a HANDWRITTEN agreement which stated:

I Jon Klinghoffer will commit that my client will communicate to its internal business client the fact that Abbott/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.

The next day, Abbott's counsel emailed Beverly's counsel stating, "My client has accepted Martina Beverly's demand to resolve her claims in the above referenced matter for $210,000 plus the costs of yesterday's mediation. I have attached a draft settlement agreement for your review."

Finished? No. Beverly declined to sign Abbott's document.

Abbott filed a motion to enforce the one paragraph handwritten agreement. The court 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.

Plaintiff Beverly appealed. The 7th Circuit Court of Appeals found that the handwritten agreement was sufficient to define the parties intentions. The absence of other terms from the typewritten proposal (e.g., specifically, provisions relating to indemnification, 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) did not undermine the conclusion that the single handwritten paragraph embodied all needed material terms.

So what should one do to avoid such post-mediation disputes? I note that a simple sentence ("This is a partial agreement, not effective until embodied in a final text") would have avoided the dispute. Perhaps the 14 hours of mediation had so tired the participants that they were happy they could agree at least on the dollar amount, and, for the moment, all the rest didn't matter.  Taking a few breaths before leaving the room might have permitted them to reread the handwritten paragraph to be sure it said what they meant.

The court suggests recording communications related to any final agreements.

It bears mentioning that a transcript (or some other recording) 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.

Beverly v. Abbott Labs., 2016 U.S. App. LEXIS 4799 (7th Cir., Mar. 16, 2016).

Are Two Meals a Day (and Soy!) Enough for a Prisoner? Is the ADA Violated? The Eighth Amendment?

Serving two meals a day -- a 10:00 AM brunch and a 4:00 PM dinner -- served to prisoners raises a triable Eighth Amendment claim. So holds an Illinois federal court. The court also found that the prison's Soy diet raises also raises an Eighth Amendment claim.

The plaintiff maintained that, not only is the meal policy nutritionally inadequate and that it causes health problems, but also that "the policy reflects a conspiracy on the part of the defendants to make a profit by forcing the inmates to buy more food from the prison commissary and to funnel money into the defendants' 'secret accounts.' " Owens v. Shah, 2016 U.S. Dist. LEXIS 35375 (S.D. IL, March 18, 2016). Prison conditions that deprive inmates of basic human needs, such as inadequate nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).

Is there a viable ADA claim? The plaintiff prisoner claimed that the policy caused him to suffer from severe headaches, hunger pains, low blood sugar, lethargy, and fatigue.  The court found that, although an ADA claim was asserted, there were no facts alleged which might support the prison defendants' liability under the ADA.

Questions for litigators, both pro se prisoners and attorneys.  If the symptoms caused by the bad food policy had been articulated within the ADA rubric, would an ADA violation have been made out?  If we have what appears to be a clear constitutional violation, is there any benefit to the litigant to also include the statutory ADA violation?

Owens v. Shah, 2016 U.S. Dist. LEXIS 35375 (S.D. IL, March 18, 2016).

Discovery of Federal Tax Returns in ADA Employment Case

Must Federal Tax Returns be Produced by ADA Plaintiff?

A federal court on March 18, 2016 ordered an ADA plaintiff to produce his tax returns in a case in which lost employment income is alleged. Plaintiff had injured his shoulder and sued for failure to accommodate under the ADA and state law.

Finding that tax returns are not privileged, the court held that the employer is entitled to the returns. “While this Court does not consider the merits of Defendant's claims that Plaintiff may have received income "under the table," Defendant has shown that there is some dispute as to the completeness of Plaintiff's wage information.”  Besco v. City of Longview, 2016 U.S. Dist. LEXIS 35465 (W.D. WA). The spouses’ and other irrelevant information may be redacted.

THE FUTURE OF DISABILITY LAW. My book, just published

Just published!
David Ferleger, Esq., Editor

This new volume is available from

Among the chapters are:

·      Pathways to Disability Justice
·      Civil Rights Movements and People with Disabilities
·      Access to Courts: A Model Future, Achieved Today
·      U.N. Convention on the Rights of People with Disabilities
·      Education: The School to Prison Pipeline
·      The Medical Decision Process
·      Accommodations, Technology & the Internet of Things
·      Aging and Disabilities
·      Offenders with Complex Communication Needs
·      Criminal Justice and Disability
·      What We Decide to Do as People with Disabilities
·      Disability, the Law of the Poor and the Future

            In celebration of the 25th anniversary of the enactment of the Americans with Disabilities Act, nationally recognized disability rights advocates look ahead to the next twenty-five years of disability law.

            From the introductory essay by David Ferleger, Esq.:

            Cultural change is the final pathway to which I commend attention. Many of the essays in this volume see culture change as an essential underpinning to advances for people with disabilities. In my view, seeking such change requires a significantly refined articulation of our goals.  Are we talking about accommodation?  Inclusion?  Assimilation?  Disability justice advocates will need to pay increased attention to defining our direction as the issues and competing solutions become more nuanced.

            The essays in this volume delve into the past, examine the present and anticipate various futures for achieving disability justice. Understandably, some authors are optimistic, and others question the scope or possibility of future progress. A number of authors present their own experiences in earlier civil rights movements as models and inspiration for the work they do now. Some speak to the issues from the perspective of their own experience as people with disabilities.

            One piece of the future appears clear, despite the unknowns, we know now that we are in the midst of changing a system which sent people with disabilities to separate places, to enter at the back door, to the end of the line.[1] As a distinguished jurist, who happens to be blind, has said, the demand today is for “front door justice.”

            What is the future of disability justice? We cannot count on the past, even past successes, as harbingers of the future. Those successes might block our visions of the future.  Only our imagination and creativity, and our actions, will unlock the future

[1] A cautionary note is appropriate regarding “deinstitutionalization” which ought to go hand in hand with development of “most integrated” (the phrase is from Olmstead) community homes for people. Sometimes, the community has replicated undesirable features of the institution.