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ADAMS v. TOWERS

May 22, 1992

W. RANDOLPH ADAMS, Plaintiff,
v.
TOWERS, PERRIN, FORSTER & CROSBY, INC., Defendant.



The opinion of the court was delivered by: CHARLES ROLAND NORGLE, SR.

 ORDER

 Before the court is plaintiff W. Randolph Adams's ("Adams") motion for summary judgment on Count III of his first amended complaint. For reasons that follow, the motion is denied.

 FACTS

 Adams worked for Cresap, McCormick and Paget, Inc., a Chicago-based management consulting firm, between 1974 and 1990. *fn1" That firm became an operating division of defendant Towers, Perrin, Forster & Crosby, Inc. ("Towers, Perrin"), an international consulting firm based in New York City, in 1983. At that time Adams became a vice-president, a principal and a shareholder of Towers, Perrin. Following a 1990 Towers, Perrin management reorganization, Adams decided to resign and discussions began concerning a severance package. In late October 1990, however, Towers, Perrin notified Adams that he would be terminated effective on October 31, 1990.

 Around that time, Adams retained attorney Paul E. Slater ("Slater") to handle the severance matter, and Adams so advised Towers, Perrin's chief administrative officer, Ronald Giesinger ("Giesinger"). Giesinger then informed Adams that Slater should contact Towers, Perrin's general counsel and secretary, Karl Lohwater ("Lohwater"), to continue negotiations. Both Giesinger and Lohwater averred in affidavits that Giesinger retained final approval authority over any severance package for Adams. In the fall of 1990, the executive committee of the Towers, Perrin board of directors had authorized Giesinger to negotiate severance agreements with departing senior executives of the company, including Adams. Giesinger expected reports from Lohwater on the progress of the negotiations with Slater, and expected that Lohwater would seek approval before agreeing to any severance package worth more than the $ 159,000 offer that Giesinger made to Adams in November 1990.

 By later March or early April 1991, Slater and Lohwater reached agreement over the telephone on a severance package for Adams based on a formula used in a staff reduction program for another Towers, Perrin division. The package included a $ 206,030 payment, immediate repurchase of Adams's Towers, Perrin stock, a $ 6,000 dividend on Adams's preferred stock, and $ 5,000 for legal fees, among other benefits. Lohwater, according to his affidavit, told Slater that the terms were subject to approval by the Human Resources Department of Towers, Perrin. Slater, however, asserts in his affidavit that Lohwater said nothing about confirmation of the figures and placed no conditions on the agreement.

 Giesinger, upon being informed of the agreed package, promptly notified Lohwater that the terms were unacceptable because the package exceeded $ 159,000 and an inapplicable formula had been applied. Additionally, the Towers, Perrin Human Resources Department found that Lohwater had miscalculated under the formula he used; the base payment was over $ 30,000 more than it should have been under that formula. Lohwater advised Slater on April 19, 1991 of Giesinger's opposition to the package, but Lohwater also said he would continue to press for its approval. On April 25, 1991, a $ 134,731.81 Towers, Perrin check was mailed to Adams at Lohwater's direction in accordance with the stock repurchase provisions in the severance package.

 There were several communications between Lohwater and Slater in the following months in an unsuccessful effort by both men to fully implement the severance package. Giesinger's approval, however, was never obtained, the package was never reduced to a written agreement, and Adams never executed a release of his potential claims against Towers, Perrin.

 Adams filed his initial complaint in this case on October 7, 1991, and an amended complaint on November 1, 1991. Counts I and II of the amended complaint raise alternative breach of contract claims involving Adams's departure from Towers, Perrin. Count III, the only count at issue in Adams's motion for summary judgment, alleges that Towers, Perrin breached an alleged settlement agreement -- the severance package.

 DISCUSSION

 Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A dispute about a material fact is "genuine" if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence in support. Id. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986). Accordingly, the non-moving party must go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id. at 324. A "scintilla of evidence" is insufficient; the non-movant must offer evidence on which a jury could reasonably find for him. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Nevertheless, in deciding whether any genuine issues of material fact exist, the court must draw all reasonable inferences in the light most favorable to the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 Adams contends that the agreement negotiated between Slater and Lohwater was complete and enforceable. Towers, Perrin responds that there was never a meeting of the minds between Slater and Lohwater because Towers, Perrin's Human Resources Department never confirmed Lohwater's figures. Additionally, Towers, Perrin claims that Lohwater lacked authority to enter into a settlement or severance agreement on Towers, Perrin's behalf; even if Lohwater reached an agreement with Adams's attorney, it is unenforceable.

 Initially, the court notes that neither party has addressed what state's substantive law applies to this diversity suit. Both parties, however, primarily cite Illinois cases, which is appropriate because Adams worked for an Illinois-based Towers, Perrin division and a substantial part of the negotiations at issue occurred in Illinois. See Hartford Ins. Co. v. Occidental Fire & Cas. Co., 908 F.2d 235, 237 n.5 (7th Cir. 1990) (when federal jurisdiction is based on diversity of citizenship under 28 U.S.C. ยง 1332, forum state's choice of law rules apply); Anderson ex rel. Anderson v. Boy Scouts of Am., Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 1992 Ill. App. LEXIS 320, at *6, 168 Ill. Dec. 492 (Ill. ...


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