Free Reply in Support of Motion - District Court of Arizona - Arizona

Exhibit 1
Case 2:02-cv-02026-JWS Document 58-2 Filed 03/19/2007 Page 1 of 14

12/11/2006 00:56 FAX

@02

LYNN M. LANEY, JR.
ATTORNEY AT LAW
934 WEST MCDOWELL ROAD PHOENIX. ARIZONA 65007-1730 TELEPHONE! (803) FACSIMILE! MOSt)!

December 11, 2006

R. Shawn Oiler, Attorney at Law LITTLER MENDELSON, P.C. 2425 E. Camdback Road Suite 900 Phoenix, AZ 85016 RE: Batoiy v. Sears, Roebuck and Co.

Dear Shawn: This will confirm that Ken Batory has authorized me to settle his entire claim against Sears for $40,000 please reply to this offer as soon as passible.

Very truly yours,

b^n,
Lynn M. Laney, Jr. Attorney at Law

0

Case 2:02-cv-02026-JWS

Document 58-2

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)ller, Shawn
r

rom:

Lynn M. Laney, Jr. [[email protected]] Tuesday, December 12, 2006 2:26 PM Oiler, Shawn
j

Sent: To:

Subject: Re: Baton/ v. Sears - Settlement Offer - Rule 408

awn,
ave spoken with Mr. Batory and he is willing to settle for $37,500 with a 1099,only-no withholding.

nn
-- Original Message -- : rom: Oiler, Shawn To: '[email protected]' Sent: Monday, December 11, 2006 2:42 PM Subject: Batory v. Sears - Settlement Offer - Rule 408

-ynn,
/Ve received your offer to settle this case for $40,000. We are prepared to offer $27,500 to settle the case in return for a complete elease of all claims. The amount will need to be split as 50% wages, subject to statutory withholdings, and 50% as other damages. Dtherwise, I think this can be resolved before the New Year. As I said before I will be in trial for the rest of the week and my contact a Sears is leaving on vacation soon. Please let me know if Mr. Batory is willing to accept this offer. Shawn *. Shawn Oiler -ittler Mendelson, P.C. 1425 E. Camelback Road, Suite 900 3 hoenix, AZ 85016 502.474.3600 502.474.3608 (direct) 502.926.8757 (facsimile)

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in his document (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) ivoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any ransaction or matter addressed herein. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, listribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for tl ·ecipient), please contact the sender by reply email and delete all copies of this message. To reply to our email administrator directly, send an email to )[email protected] .ittler Mendelson, P.C. ittp.Y/www.littler.com

^o virus found in this incoming message. Case 2:02-cv-02026-JWS 13/2007

Document 58-2

Filed 03/19/2007

Page 3 of 14

Version: 7.5.432 / Virus Database: 268.15.16/582 - Release Date: 12/11/2006 4:32 PM

Case 2:02-cv-02026-JWS

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Filed 03/19/2007

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13/2007

)ller, Shawn
r

rom:

Lynn M. Laney, Jr. [[email protected]] Thursday, December 14, 2006 1:33 PM Oiler, Shawn

Sent: To:

Subject: Re: Batory v. Sears - Rule 408 Protected

awn,
response to your last offer of $30,000, Mr. Batory will for a minimum of $32,500.00, and no less.

nn
-- Original Message -- rom: Oiler, Shawn To: '[email protected]' Sent: Thursday, December 14, 2006 6:53 AM Subject: Batory v. Sears - Rule 408 Protected
r

.ynn, Ate can go to $30,000.00 but then I am out of room. Mr. Batory will need to sign our standard settlement agreement and release. We still have to talk about withholdings and what percentage of the settlement will be subject to withholding. My contact at Sears is leavint )n Monday, so you need to let me know by Friday.
Shawn

R. Shawn Oiler Jttler Mendelson, P.C. >425 E. Camelback Road, Suite 900 3 hoenix, AZ 85016 502.474.3600 502.474.3608 (direct) 502.926.8757 (facsimile)

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in his document (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) ivoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any ransaction or matter addressed herein. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, listribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for tl ·ecipient), please contact the sender by reply email and delete all copies of this message. To reply to our email administrator directly, send an email to )[email protected] ^ittler Mendelson, P.C. ittp ://www. littler. com

vfo virus found in this incoming message. Checked by AVG Free Edition. Case 2:02-cv-02026-JWS
13/2007

Document 58-2

Filed 03/19/2007

Page 5 of 14

)ller, Shawn
r

rom:

Oiler, Shawn Monday, January 22, 2007 9:29 AM '[email protected]

sent: To:

Subject: FW: Batory v. Sears - Rule 408 Protected
in,

ave spoken to my client about your proposal that characterize only $2,000 of the settlement proceeds as lost wages, subject to statute ductions. They cannot agree with this proposal and the amount subject to statutory deductions must be greater than that, though it ed not be $10,000. Please let me know if you and your client are willing to characterize $7,500 of the settlement proceeds as lost ges, subject to statutory deductions.
awn

--Original Message om: Oiler, Shawn nt: Wednesday, January 17, 2007 12:32 PM : 'Lynn M. Laney, Jr.' bject: RE: Batory v. Sears - Rule 408 Protected
in,

ooke to my client about our settlement discussions. It appears that we have agreed on an amount, $30,000.00, but cannot agree on w that amount will be characterized. ars suggests issuing three (3) checks. The first is for attorneys' fees (without any statutory deductions); the second is for compensate mages (without any statutory deductions); and the third is for lost wages (with statutory deductions). Checks 2 and 3 would need to b it evenly. For example, if your attorneys' fees are one-third, then Sears would issue (1) a check payable to you for $10,000; (2) a che /able to Mr. Batory for $10,000 (for compensatory damages); and (3) a check payable to Mr. Batory for the gross amount of $10,000, h the appropriate statutory deductions (for lost wages). Like I said, this is only an example. his is acceptable to Mr. Batory, please let me know by this Friday, January 19, 2007. If not, then we will need to agree upon a date to change initial disclosures.
awn

Original Message From: Lynn M. Laney, Jr. [mailto:[email protected]] Sent: Thursday, December 14, 2006 1:33 PM To: Oiler, Shawn Subject: Re: Batory v. Sears - Rule 408 Protected Shawn, In response to your last offer of $30,000, Mr. Batory will for a minimum of $32,500.00, and no less. Lynn Original Message -- From: Oiler. Shawn To: '[email protected]' Sent: Thursday, December 14, 2006 6:53 AM Subject: Batory v. Sears - Rule 408 Protected Lynn, We can go to $30,000.00 but then I am out of room. Mr. Batory will need to sign our standard settlement agreement and releasi We still have to talk about withholdings and what percentage of the settlement will be subject to withholding. My contact at Seai is leaving on Monday, so you need to let me know by Friday.

13/2007

Case 2:02-cv-02026-JWS

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R. Shawn Oiler Littler Mendelson, P.C. 2425 E. Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 602.474.3608 (direct) 602.926.8757 (facsimile)

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contain in this document (including any attachments) is not intended or written to be used, and cannot be used, for the purpos of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. To reply to our email administrator directly, send an email to postmaster@littler. com Littler Mendelson, P.C. http ://www.littler.com

No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.432 / Virus Database: 268.15.18/585 - Release Date: 12/13/2006 11:49 AM

Case 2:02-cv-02026-JWS

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13/2007

Oiler, Shawn
From: Sent: To: Subject: Lynn, Please provide me with Mr. Batory's current mailing address and social security number. Also, please provide me with your tax identification number. Thanks. Shawn R. Shawn Oiler Littler Mendelson, P.C. 2425 E. Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 602.474.3608 (direct) 602.926.8757 (facsimile) Oiler, Shawn Tuesday, February 13, 2007 2:33 PM 'Lynn M. Laney, Jr.' Batory v. Sears

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Oiler, Shawn
From: Sent: To: Subject: Lynn, Attached is a draft of the Stipulation to Dismiss and accompanying Order for your review. Please let me know if you have any changes. If not, please let me know if these are approved for filing and if I can sign on your behalf. Shawn Oiler, Shawn Tuesday, February 13, 2007 3:56 PM 'Lynn M. Laney, Jr.' Batory v. Sears - Stipulation of Dismissal and Order

Sears/Batory/Order Sears/Batory/ re: Stipula... Stipulation of Di...

R. Shawn Oiler Littler Mendelson, P.C. 2425 E. Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 602.474.3608 (direct) 602.926.8757 (facsimile)

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Oiler, Shawn
From: Sent: To: Cc: Subject: Lynn, Attached is the revised settlement agreement and release for your review. Please have Mr. Batory sign it and send me the original, signed signature page. I have begun processing the settlement check and will have it to you shortly. Shawn Oiler, Shawn Wednesday, February 14, 2007 2:51 PM 'Lynn M. Laney, Jr.' Sanschagrin, Jaye Batory v. Sears - Settlement Agreement and Release

Sears/Batory/ Settlement Agreem..

R. Shawn Oiler Littler Mendelson, P.C. 2425 E. Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 602.474.3608 (direct) 602.926.8757 (facsimile)

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Oiler, Shawn
From: Sent: To: Lynn M. Laney, Jr. [[email protected]] Wednesday, February 21, 2007 1:21 PM Oiler, Shawn

Subject: Re: Batory v. Sears - Settlement Dear Shawn, I have your email of February 21, 2007. I don't believe there's any president for holding a claimant liable for attorney's fees of the other side if the claimant decides not to sign the settlement agreement. If you have cases that hold in your favor from Arizona or Federal cases I would be interested in seeing those and they might change my opinion. Sincerely, Lynn

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this document (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message.
-- Original Message -- From: Oiler, Shawn To: 'Lynn M. Laney, Jr.' Sent: Wednesday, February 21, 2007 12:47 PM Subject: Batory v. Sears - Settlement Lynn, I am writing in response to our telephone conversation in which you told me that your client was "backing out" of the parties' settlement. If you recall, the parties negotiated this settlement over an extended period of time, finally reaching a settlement agreement on February 2, 2007. The parties agreed on the total settlement amount, how the monies would be characterized, including what amount would be subject to statutory withholdings, etc. All material terms of the settlement agreement were reached and, afterwards, I forwarded to you a draft of the settlement agreement and release and then a revised draft of the settlement agreement and release. For your client to now say that he is "backing out" of the settlement does not change the fact that the parties reached a mutually binding settlement. If necessary, we will move to have the settlement agreement enforced under Arizona law. If you force us to do this, we will ask the court to award our attorneys' fees and costs for doing so against your client because it appears that he is the one who is refusing to sign the settlement agreement. Please let me know no later than close of business tomorrow, February 22, 2007, whether Mr. Batory will honor the settlement agreement or

Case 2:02-cv-02026-JWS 2/23/2007

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whether we will be forced to address the matter to Judge Sedwick. Shawn R. Shawn Oiler Littler Mendelson, P.C. 2425 E. Camelback Road, Suite 900 Phoenix, AZ 85016 602.474.3600 602.474.3608 (direct) 602.926.8757 (facsimile)

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this document (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This email may contain confidential and privileged material for the sole use of the intended recipient (s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. To reply to our email administrator directly, send an email to [email protected] Littler Mendelson, P.C. http://www.littler.com

No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.441 / Virus Database: 268.18.3/696 - Release Date: 2/21/2007 3:19 PM

Case 2:02-cv-02026-JWS
2/23/2007

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LYNN M. LANEY, JR.
ATTORNEY AT LAW
934 WEST MCDOWELL ROAD PHOENIX, ARIZONA 8SOO7-173O TELEPHONE: (6O2) 254-76OO FACSIMILE: (602)252-7225

March 6, 2007
R. Shawn Oiler, Attorney at Law LITTLER MENDELSON , P.C. 2425 E. Camelback Road Suite 900 Phoenix, AZ 85016 Via Fax and Mail

Re: Batory v. Sears Roebuck U.S. District Court for Arizona case #CV 02-2026-PHX-JWS

Dear Mr. Oiler:
I have received your motion to enforce an alleged unwritten settlement agreement, and the order from Judge Sedwick setting, inter alia, a response due date of March 12, 2007. I am very disturbed since your motion has no basis in fact or law and I will now have to waste my time responding to your groundless motion. First, while I agreed to recommend to Mr. Batory a particular settlement amount, I never claimed to have his authority for that amount and made it clear that I would have to present the proposal to him for his acceptance or rejection. He chose the latter after my presentation to him, which was solely his prerogative. See A.R.S. Rules of Supreme Court, Rule 42, ER 1.2(a). You should not have sent over the settlement agreement unless and until I told you that there was a settlement, which never happened. Second, to avoid just such disputes and wasting the time of the courts and counsel, both our Arizona Courts (ARCP Rule 80 d) and our U.S. District Court (LRCiv. 83.7) have adopted explicit rules that no settlement or agreement between counsel or parties with respect to a pending case are enforceable unless written and signed or done in open court. Your motion cites neither rule, and is clearly barred by such rules, as well as the fact that Mr. Batory never agreed to the proposal.

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Mr. Batory will settle for $50,000, but this offer is withdrawn if I have to file a response to your motion on Monday, and I will seek my attorneys fees for responding.

Very truly yours, /)

Lynn M. Laney, Jr. Attorney at Law

1/4WWI 0

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