for interlocutory appeal pursuant to 28 U.S.C. § 1292
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
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 Court.
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
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
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.,