resisting the Funds' motion for summary judgment.
Checks issued by Roman
were relied upon by Roman as indications that a settlement had already been reached. These prior checks were attached as Exhibit A to Roman's cross-motion. Those documents contain no notation that they were submitted as part of any settlement. They may well have reflected additional payments subsequently due, or payments of earlier obligations (conceded by Roman's answer to the complaint), made to reduce Roman's liability.
The nature of this ERISA fringe benefit collection case under 29 USC § 1132 suggests caution in granting credence to claims of a binding informal oral settlement of sums due to employee benefit funds.
For an employee welfare fund to make a commitment intended to be binding with an employer without memorialization in writing strains credulity; judicial enforcement of such a commitment would permit ready obstruction of collection of amounts due such funds and run counter to the implications of national labor policy. See Eastern Air Lines, Inc. v. Air Line Pilots, 861 F.2d 1546, 1552 (11th Cir. 1988).
Enforcement of settlements of litigation is customarily based upon client signature, stipulation so-ordered by the court,
or stipulations entered into between counsel on the record. Without one or more of these protections, unreliability of the kind leading to enactment of Statutes of Frauds
would frequently cause mischief, and tentative agreements would be transformed into binding oral settlement discussions with great harm to the legal process, including the objectives of Fed.R.Civ.P. 1, sentence 2 and of the Judicial Improvements Act of 1990, Public Law 101-650, 104 Stat. 5089, enacting 28 USC § 473. See Turner v. Burlington Northern RR, 771 F.2d 341, 345 (8th Cir. 1985); Surety Ins. Co. v. Williams,, 729 F.2d 581, 582-83 (8th Cir. 1984).
Vague conclusory statements in an affidavit of opposing counsel that an agreement to do something was reached, unless corroborated, are thin reeds with which to seek to hold an opposing party bound. See Berry v. Midtown Service Corp., 104 F.2d 107 (2d Cir. 1939); Licata & Co. v. Goldberg, 812 F. Supp. 403 (S.D.N.Y. 1993).
Judicial caution is necessary with respect to dubious claims of oral agreements without adequate support because "stability and predictability in contractual affairs is a highly desirable jurisprudential value." Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 213, 506 N.E.2d 919 (1987).
Enforcement of claimed attorney-to-attorney settlements, without written, on-the-record or court-approved agreement of the type involved in In re Anthony Sicari, 151 Bankr. 60 (S.D.N.Y. 1993), would engender risks that efforts would be made to translate tentative suggestions discussed between opposing counsel into binding commitments. This would chill the informal atmosphere necessary to realistic settlement efforts. Every word said would have to be judiciously considered in advance to weigh how it might be misconstrued or twisted thereafter. Careful notes would have to be taken of every comment by any party. Attorney testimony with accompanying risks of disqualification would likewise become more prevalent.
Litigation cannot be conducted effectively unless opposing counsel are empowered to attempt to work out contested matters by means of preliminary agreements, not to be deemed binding unless put in writing, recorded on the record, or so-ordered by the court. Attempts to transform informal discussions between counsel for adversary parties into binding commitments are destructive of this process. It is just as important that parties not be subjected to unintended commitments as that solemn agreements be honored. See Winston v. MediaFare Entertainment Corp, 777 F.2d 78 (2d Cir. 1985); RG Group, Inc. v. Horn & Hardart Co., 751 F.2d 69 (2d Cir. 1984); TIAA v. Tribune Co., 670 F. Supp. 491 (S.D.N.Y. 1987).
It is improper for counsel to disregard customary practices of the Bar which are vital to "the just, speedy, and inexpensive determination of every action" sought by Fed.R.Civ.P. 1, sentence 2. Among these time-honored and critical practices is the ability to discuss possible settlements informally without risking that the negotiations will be cited as proof of actual commitments. As stated in Roberts v. Lyons, 131 F.R.D. 75, 83 (E.D. Pa. 1990), quoting Canon 25 of the Canons of Professional Ethics: "a lawyer should not ignore known customs or practices of the Bar . . . without giving timely notice to opposing counsel."
Where, as here, a claim is "implausible" and no additional evidence to support it is provided, summary judgment dismissing it can be granted. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Increasing numbers of cases involving issues of importance to the parties but concerning relatively small amounts have been brought into the federal courts in recent years under several statutes, including ERISA (see 29 USC § 1132) and the general federal question jurisdictional provision (28 USC § 1331).
Despite their intrinsic significance to those affected, many of these cases cannot support the amount of time invested in them when counsel treats them in the same manner as disputes involving far larger monetary stakes.
The objectives set forth in Fed.R.Civ.P. 1 (the speedy, just and inexpensive determination of every action) require enhanced efforts in this context. In this instance, national labor policy speaks to the question in § 201 of the Labor-Management Relations Act of 1947 (Taft-Hartley Act), 29 USC § 171:
(a) sound and stable industrial peace and the advancement of the general welfare, health, and safety of the Nation and of the best interests of employers and employees can most satisfactorily be secured by the settlement of issues between employers and employees through the processes of conference and collective bargaining between employers and the representatives of their employees . . .