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Bauer v. Qwest Communs. Co., LLC

United States Court of Appeals, Seventh Circuit

February 14, 2014

BRENT BAUER, et al., Plaintiffs-Appellees,
v.
QWEST COMMUNICATIONS COMPANY, LLC, et al., Defendants-Appellees. APPEAL OF: THE SUSMAN GROUP, et al., Appellants

Argued February 25, 2013.

Page 222

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 1008 -- Rebecca R. Pallmeyer, Judge.

For BRENT BAUER, JAMES BECHERER, JUDY BOREN, WAYNE SMITH, TRI-COUNTY FEED MILL, INCORPORATED, WILAREDT ACRES, INCORPORATED, Plaintiffs - Appellees: Kathleen Clubb Kauffman, Attorney, ACKERSON KAUFFMAN FEX, PC, Washington, DC.

For SUSMAN GROUP, Appellant: Arthur T. Susman, Attorney, SUSMAN, HEFFNER & HURST, Chicago, IL.

For QWEST COMMUNICATIONS CORPORATION, Defendant - Appellee: Michael B. Carroll, Attorney, Christopher J. Koenigs, Attorney, SHERMAN & HOWARD LLC, Denver, CO; John F. Daum, Attorney, O'MELVENY & MYERS LLP, Los Angeles, CA; Kevin B. Duff, Attorney, RACHLIS, DUFF, ADLER & PEEL LLC, Chicago, IL.

For SPRINT COMMUNICATIONS COMPANY, LP, Defendant - Appellee: J. Emmett Logan, Attorney, STINSON LEONARD STREET LLP, Kansas City, MO; Richard M. Waris, Attorney, PRETZEL & STOUFFER, Chicago, IL.

For LEVEL 3 COMMUNICATIONS, INCORPORATED, Defendant - Appellee: Joseph E. Jones, Attorney, FRASER STRYKER, Omaha, NE; Kevin B. Duff, Attorney, RACHLIS, DUFF, ADLER & PEEL LLC, Chicago, IL.

For WILLIAMS COMMUNICATIONS LLC, Defendant - Appellee: Kevin B. Duff, Attorney, RACHLIS, DUFF, ADLER & PEEL LLC, Chicago, IL.

For QWEST COMMUNICATIONS COMPANY, LLC, Defendant - Appellee: Michael B. Carroll, Attorney, Christopher J. Koenigs, Attorney, SHERMAN & HOWARD LLC, Denver, CO; Kevin B. Duff, Attorney, RACHLIS, DUFF, ADLER & PEEL LLC, Chicago, IL.

For WILLIAM T. GOTFRYD, Appellee: William T. Gotfryd, Esq., Attorney, Barrington, IL.

Before BAUER, POSNER, and SYKES, Circuit Judges.

OPINION

Page 223

SYKES, Circuit Judge.

More than 13 years ago, trial lawyers around the country began challenging the installation of fiber-optic cable on landowners' property without consent. After protracted class-action litigation in many states, these challenges began to settle on a state-by-state basis, leaving a platoon of lawyers to sort out the allocation of awarded and expected attorney's fees between themselves.

The lawyers have informally grouped themselves into three factions for purposes of the present fee-allocation dispute; the groupings are based on the lawyers' negotiation and litigation positions. This appeal requires us to determine whether the lawyers have successfully reached a global settlement of the fee-division dispute through mediation--more specifically, whether the faction consisting of Arthur Susman on behalf of himself and his colleagues (a/k/a The Susman Group, hereinafter " Susman" ) is bound by a written agreement memorializing the mediated final fee allocation that all the lawyers had previously approved. The catch: Although Susman had agreed to the fee division, he balked at signing the written agreement, ostensibly because he disliked its enforcement terms. The district court held that Susman is bound by the agreement despite his failure to sign, and Susman appealed.

We affirm. Based on the parties' lengthy course of dealing, the district court found that Susman's failure to promptly object to the written agreement can objectively be construed as assent. The court also found that Susman's eventual refusal to sign was a case of " buyer's remorse" rather than a genuine objection to the enforcement terms in the agreement. These findings are supported by the record; we find no factual or legal error.

I. Background

This litigation has a very long history, but the story for our purposes begins on August 29, 2011, when the district court approved an Illinois class settlement in the underlying fiber-optics cable litigation and awarded attorney's fees and expenses. The award was deposited into an escrow account, and the attorneys agreed to pursue mediation--with the assistance of a court-appointed special master if necessary--to reach a division of the fees for the Illinois settlement and for other settlements nationwide. Once the fee-division question was resolved, the court would order the disbursement of the funds held in escrow.

The plaintiffs' lawyers had coalesced into three main groups for purposes of the fee dispute: Susman (the appellant here); the " 48-Firm Group" (the appellees here, consisting of a coalition of 48 law firms); and William Gotfryd (a former collaborator with Susman who later asked to be treated separately in the fee-division process, also an appellee here). The first attempt to resolve the fee-division issue occurred back in 2006 when all the lawyers except Susman and Gotfryd agreed to submit the issue of attorney's fees to binding arbitration at a future time. This resulted in a 2011 proposal binding on the 48-Firm Group as to the fee allocation within that group, but this proposal did not address Gotfryd and Susman and did ...


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