for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
I. FINDINGS OF FACT
A. Proceedings to Date in the Litigation
1. This lawsuit is brought by certain former management
employees of Defendant Caterpillar, Inc. Plaintiffs are persons
who retired or were separated from Caterpillar at various times
between July 1985 and May 1987. The Plaintiffs allege that
Caterpillar engaged in a pattern or practice of coercing older
management employees into retiring or separating from
employment on account of their age, in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
("ADEA"). The Defendant denies any wrongdoing. The complaint
discloses that each Plaintiff, at the time of retirement or
separation, signed a "Statement" that listed certain benefits
to be paid to the Plaintiffs and including, among other
provisions, language purporting to be a release. The complaint
affirmatively alleges a number of legal and factual grounds why
these "Statements" were insufficient to act as a release of
Plaintiffs' ADEA claims.
2. The lawsuit was filed May 9, 1988, by 32 Plaintiffs. Over
Caterpillar's objection, Plaintiffs sent a Court-approved
notice to the class defined in the complaint, informing class
members of the lawsuit and their right to join in by filing
consents pursuant to the opt-in mechanism of ADEA class
actions. In response to this notice, a number of additional
Plaintiffs joined this suit. Two such Plaintiffs subsequently
voluntarily dismissed their claims. The present total of
Plaintiffs in the case is 70.
3. On May 31, 1988, Caterpillar filed its answer and
counterclaim. The counterclaim, asserted against all
Plaintiffs, asserted that the release language in the
"Statements" constituted a contract not to file an ADEA lawsuit
challenging those terminations. The counterclaim asserted that
the filing of this lawsuit constituted a breach of that
contract. As damages for this alleged breach, this counterclaim
sought (a) the return of the benefits listed in the
"Statements," (b) a declaration that Caterpillar was not
required to make further payments called for by the
"Statements," and (c) the attorney's fees and costs spent by
Caterpillar to defend against this litigation.
4. On motion by the Plaintiffs, this Court dismissed the
counterclaims on September 3, 1988 for failure to state a claim
on which relief could be granted. Isaacs v. Caterpillar,
702 F. Supp. 711 (C.D.Ill. 1988).
5. Following the dismissal of the counterclaims, and upon
completion of the process of allowing class members to join the
lawsuit, the parties engaged in intensive discovery.
6. In September of 1989, Plaintiffs moved the Court to hold a
"test case" trial. This motion contemplated trial of a selected
group of Plaintiffs' cases as a means to promote the
expeditious resolution of the entire litigation. The Court
granted this motion and held further proceedings to determine
the number and identities of the "test case" Plaintiffs. The
Court determined that the test case would consist of trying
twelve Plaintiffs' claims. The Court designated the
organizational areas from which the Plaintiffs would be chosen,
and ordered the parties to make alternating selections. The
parties chose the test-case Plaintiffs on May 31, 1990, and the
Court set a trial date of January 14, 1991.
7. On August 27, 1990, the Equal Employment Opportunity
Commission (EEOC) was granted leave to intervene as an
additional party Plaintiff. Caterpillar answered the EEOC's
complaint on September 10, 1990.
8. A series of discovery disputes during the summer of 1990,
including the production by Caterpillar in August 1990 of a
large number of important documents that should have been
produced at the start of the lawsuit, led to a motion by
Plaintiffs for sanctions and to continue the trial date. The
Court granted Plaintiffs' motion on October 1, 1990. The Court
continued generally the proceedings to quantify the sanctions
award, and reset the trial date to May 6, 1991.
9. Following this ruling of October 1, 1990, the parties
prepared intensively for trial. Document production continued,
and more than 60 depositions were taken, including several
depositions in Florida, Mississippi, and Missouri. The parties
prepared a voluminous pretrial order, and a final pretrial
conference was held on April 24, 1991.
10. On April 23, 1991, one day before the scheduled final
pretrial conference and 13 days before the scheduled trial
date, Caterpillar filed a motion for summary judgment. The
motion asserted that Plaintiffs' claims are barred as a matter
of law because they had "ratified" the release language
contained in the "Statements" they had signed by failing to
tender to Caterpillar, at the outset of this litigation, the
consideration listed in the "Statements." This matter will be
henceforth referred to as the "tender/ratification argument."
11. Until it filed this motion for summary judgment,
Caterpillar had never specifically raised the
tender/ratification argument, whether formally or informally,
in any motion, Court hearing, or other paper filed with the
12. Caterpillar's answers in this litigation contain
affirmative defenses based on the release language in the
"Statements." In its answer of May 31, 1988, to the private
Plaintiffs' complaint, Caterpillar's third affirmative defense
reads, in its entirety:
The claims of each of the Plaintiffs are barred by full and
complete releases knowingly and voluntarily executed by each
Plaintiff in exchange for valid consideration.
Caterpillar's answer to the EEOC's complaint contains a first
affirmative defense reading, in its entirety:
Defendant states that Plaintiffs have released and forever
waived the claims which are raised in the Complaint.
13. Caterpillar bases its summary judgment motion on two very
recent decisions from the Fourth and Fifth Circuit Courts of
Appeal, O'Shea v. Commercial Credit Corp.,