United States District Court, D. Massachusetts
RICHARD L. TERRY, Plaintiff,
VINFEN and DAN W. GRAY, individually, Defendants.
ORDER ON MOTION TO ENFORCE (DOC. NO. 22) AND MOTION
TO DISMISS (DOC. NO. 23
Sorokin United States District Judge
October 10, 2019, the parties participated in a mediation
before Magistrate Judge Dein. Doc. No. 15. At the conclusion
of the mediation, the following statements were made on the
THE COURT: All right. Have you [Mr. Terry] had an opportunity
to review the agreement before you signed it?
MR. TERRY: Yes, Your Honor.
THE COURT: And are you signing it voluntarily?
MR. TERRY: Yes, Your Honor.
THE COURT: And do you understand that this ends this matter?
MR. TERRY: Yes, Your Honor.
Doc. No. 27-9 at 4-5. The written agreement, executed by the
parties on October 10, 2019 before Magistrate Judge Dein,
provided for a seven-day period during which Plaintiff Terry
could revoke the settlement agreement, as required by the
Older Workers Benefit Protection Act, 29 U.S.C. § 626.
Doc. No. 27-10 ⁋ 19. Specifically, the agreement
provided that Terry “may revoke [the Settlement]
Agreement within seven (7) days after he signs it, by
delivering a letter in hand or first class mail (postage
prepaid), to Jaclyn Kugell, Morgan, Brown & Joy, LLP, 200
State Street, Boston, MA 02109.” Id. The next
sentence of the agreement provides that “[t]his
[agreement] shall be of no force and effect unless Mr. Terry
. . . does not revoke this [agreement] within the seven (7)
day period outlined [in the previous sentence].”
Id. ⁋ 20.
seven-day revocation period expired on October 17, 2019.
Terry never delivered a revocation letter by hand or first
class mail to Defendants. He did, however, email Ms.
Kugell on October 13, 2019, stating: “Kindly accept
this notice as my revocation of the confidential settlement
agreement and release in Terry v Vinfen et. al. signed on
October 10, 2019.” Doc. No. 27-5. By the plain terms of
the parties' settlement agreement, this email is
insufficient to revoke the agreement. As the parties
recognized in their signed agreement, letters often possess a
greater solemnity than emails. Cf. Campbell v. Gen.
Dynamics Gov't Sys. Corp., 407 F.3d 546, 557 (1st
Cir. 2005) (“[W]ithin the context of this case, [an]
e-mail communication, in and of itself, was not enough”
to effect revocation.). The parties specifically eschewed
permitting revocation by email and the Court enforces that
choice. See Univ. Emergency Med. Found. v. Rapier
Investments, Ltd., 197 F.3d 18, 20 (1st Cir. 1999)
(“Where, as here, such ‘a condition is required
by the agreement of the parties . . . a rule of strict
compliance traditionally applies.'”) (quoting
Farnsworth, Contracts § 8.3, at 571 (1990)).
October 18, 2019, a day after the close of the revocation
period, defense counsel received a priority mailing from
Terry that merely contained a printed copy of his October 13,
2019 email. Doc. No. 27-6. This too failed to revoke the
agreement. The agreement provides that Terry “may
revoke [the Settlement] Agreement within seven (7) days after
he signs it.” Doc. No. 27-10 ⁋ 19; see also
id. ⁋ 20 (providing that the settlement
“shall be of no force and effect unless Terry . . .
does not revoke [the agreement] within the seven (7) day
period outlined in paragraph 19.”). In light of the
language agreed to by the parties that the agreement is not
effective until the “seven day” period passes
“without revocation, ” the Court concludes that
the agreement required receipt by the Defendants of
the revocation notice within the seven-day period. This did
not occur; thus, the mailing was insufficient to effect
revocation. Cf. Rapier Investments, Ltd., 197 F.3d
at 21 (noting that “[a]t common law, the default rule .
. . makes notice effective only upon receipt, not
mailing.”); Rice v. New England Coll., 676
F.2d 9, 10 (1st Cir. 1982) (holding that notice was not
timely when it was received one day after the relevant time
without deciding that equity would permit setting aside the
settlement, the equitable considerations here support
enforcement. First, Terry is an experienced lawyer, a member
of the Massachusetts Bar since 1976, and a former law clerk
for a Superior Court of the Commonwealth. Doc. No. 30 at 1.
He understood the terms of the settlement agreement, knew how
to comply, and did not do so. Cf. Sheridan v. McGraw-Hill
Companies, Inc., 129 F.Supp.2d 633, 637 (S.D.N.Y.),
aff'd, 24 Fed.Appx. 64 (2d Cir. 2001) (enforcing
an agreement when the objecting party was college-educated,
had a “sophisticated understanding of [relevant]
transactions, and the capacity to read and comprehend a
document such as the [settlement] agreement”). Second,
notwithstanding the fact that Magistrate Judge Dein and
Defendants repeatedly reached out to Terry prior to the
revocation deadline in response to his October 13, 2019
email, Terry failed to respond to any of their inquiries.
Doc. No. 27 at 3-4. Third, Terry's opposition contends
that he was “pressured by [Magistrate Judge Dein] to
take the [settlement] offer” during the course of
mediation. Doc. No. 30 at 3. These factual assertions are
unsupported by an affidavit, as required by Local Rule 7.1;
thus, they are disregarded by the Court, especially in light
of the fact that Plaintiff Terry is an experienced trial
lawyer who is aware of the proper procedure for putting facts
before the Court. In any event, the Court rejects these
assertions as contradicted by Terry's on-the-record,
formal representations that his assent to the settlement
agreement was made freely and voluntarily. Doc. No. 27-9 at
the Motion to Enforce is ALLOWED. Furthermore, the action is
DISMISSED WITH PREJUDICE. Counsel shall disburse the
settlement funds held in escrow to Attorney Terry pursuant to
the settlement agreement. The request for mediation fees is
DENIED; however, the request for fees to enforce is ALLOWED.
There was no reasonable basis to resist the motion advanced
by Defendants. And Terry has previously engaged in similar
behavior. Doc. No. 27 at 2. The Court concludes that Terry
proceeded as he did intentionally to make matters difficult
and expensive for Defendants. See Mullane v.
Chambers, 333 F.3d 322, 337-38 (1st Cir. 2003) (holding
that “a court possesses inherent equitable powers to
award attorneys' fees against a party that has acted in
bad faith, vexatiously, wantonly, or for oppressive
reasons.”) (internal ...