The failure of defendants to provide Kapco with purchase
orders can be cured by a motion to enforce settlement.
Similarly, C & O's failure to quit claim its rights in the
name DASH-GO can be cured by a motion to enforce settlement.
For all of these reasons, plaintiff's motions to reinstate the
case and for injunctive relief are denied.
B. Motion to Enforce Settlement
Although the Court declines to hold that plaintiff's
allegations of breach of the settlement justify reinstating
the merits of the case under Warner, plaintiff's allegations
are clearly not insubstantial. Plaintiff may be entitled to
substantial damages and possibly future injunctive relief based
upon the terms of the December 20, 1984 settlement agreement.
The Court rejects defendants' argument that the December 20
settlement agreement allowed C & O to "sell off" its remaining
inventory of Busch units before it ordered 16,000 Kapco units.
The terms of the December 20 settlement agreement
unambiguously provide that "defendant, C & O Enterprises,
Inc., will purchase 16,000 car starters . . . from the
plaintiff . . . then sell 30,000 . . . by the defendant, A.G.
Busch . . . and then . . . 50/50 from Busch and Kapco."
Transcript of Proceedings, December 20, 1984, at 3. If C & O
had desired to permit an undesignated number of Busch sales
before the 16,000 Kapco sales, such a provision should have
been made explicit. In the absence of such a statement, the
Court must interpret the settlement as it was reduced to
writing by the court reporter of December 20, 1984. The Court
interprets the agreement to mean that C & O was required to
fill the first 16,000 orders after December 20, 1984 with Kapco
In light of plaintiff's allegations of defendants' breach of
the December 20, 1984 settlement agreement, the following
schedule shall be maintained to ensure all parties' compliance
with their agreement:
(1) Plaintiff and defendants shall reduce to writing, within
30 days of entry of this order, the terms of the settlement
agreement entered on the record December 20, 1984. If the
parties are unable to agree upon the terms of the settlement
within 30 days, the Court will consider the December 20, 1984
transcript as the final settlement agreement between the
(2) Kapco and C & O shall, within 30 days of entry of this
order, submit the Consent Judgment provided by the December 20
settlement. The Consent Judgment should provide all terms of
the settlement between Kapco and C & O including, but not
limited to, use of the DASH-GO name, future purchasing
requirements, procedures for monitoring compliance with the
Consent Judgment and settlement agreement, appropriate
sanctions for either parties' noncompliance, and the
continuing jurisdiction of the Court to ensure the parties'
compliance. If Kapco and C & O fail to submit a Consent
Judgment within 30 days, the Court will enter an appropriate
judgment order to ensure future compliance with the December
20, 1984 settlement agreement.
(3) All defendants shall, within 30 days of entry of this
order, submit to Kapco a verified and detailed accounting of
all orders and sales of car starting cord sets from December
21, 1984 to the date the accounting is prepared. Plaintiff may
apply for further periodic accounting with leave of Court.
Plaintiff may submit a motion for summary judgment on damages,
if any, within 10 days of its receipt of the accounting.
(4) Any party may, with leave of Court, initiate appropriate
discovery under Ill.Rev.Stat., ch. 110, ¶ 2-1402 to ensure
compliance with the settlement agreement.
(5) C & O's motion for an order establishing escrow is
(6) All parties shall bear their own fees and costs on this
IT IS SO ORDERED.
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