Free Motion to Enforce - District Court of Arizona - Arizona

Exhibit A
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback E»planade 2425 East Camelback Reed Suite 900 Phoenix. A2 85016 602474.3600

J. Mark Ogden; AZ Bar No. 017018 [email protected] R. Shawn Oiler; AZ Bar No. 019233 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kenneth A. Batory, Plaintiff, Case No. CIV 02 2026 PHX-JWS DECLARATION OF ROBERT SHAWN OLLER

v.
Sears, Roebuck and Co., a New York corporation, dba "The Great Indoors," Defendant.

I, Robert Shawn Oiler, hereby declare as follows: 1. I am over the age of 18 years of age and make this Declaration of my own

personal knowledge, to which I could testify if called upon before this Court. 2. 3. I am an attorney in the Phoenix office of Littler Mendelson, P.C. Beginning in mid-December 2006, the parties, through their respective

attorneys, began negotiating a settlement of the above-styled lawsuit. 4. While the parties were negotiating, both attorneys agreed to forego formal

discovery in the hope of reaching an amicable settlement. 5. On January 17, 2007, the parties agreed on a settlement amount to settle the

above-styled case in exchange for Mr. Batory releasing his claims against Defendant. 6. At that time, the parties disagreed about the characterization of the settlement

proceeds. That is, the parties disagreed what portion of the settlement proceeds would be characterized as compensation for lost wages, subject to statutory withholdings.
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7.

On February 2, 2007, the parties, through their respective counsel, resolved

this issue and reached a final settlement of the above-styled lawsuit. 8. Following their oral agreement, I requested the plaintiffs current mailing

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address, social security number, and tax identification number from Plaintiffs counsel for preparation of the settlement check. A true and correct copy of the e-mail that I sent to Mr. Laney requesting this information is attached at Exhibit 1 (02/13/07, 2:33 p.m. e-mail to Lynn M. Laney, Jr.; Exhibit 1). In response, Mr. Laney provided me with this information to facilitate the processing of the settlement check. 9. In addition, I forwarded a draft of the Stipulation to Dismiss and

accompanying Order to Mr. Laney. A true and correct copy of that e-mail is attached as Exhibit 1 (02/13/07, 3:56 p.m. email to Lynn M. Laney, Jr.; Exhibit 1). 10. In addition, I forwarded a draft of the settlement agreement and release to

Mr. Laney, asking that his client sign it, and notifying Mr. Laney that my client had begun processing the settlement check and would "have it to you shortly." A true and correct copy of that e-mail is attached as Exhibit 1 (02/14/07, 2:51 p.m. email to Lynn M. Laney, Jr.; Exhibit 1). 11. At no time between February 2, 2007 and February 15, 2007 did Mr. Laney

dispute that the parties had reached a settlement of the above-styled case. 12. However, on Friday, February 16, 2007, Mr. Laney telephoned me to say that

his client, Mr. Batory, was "backing out" of the parties' settlement. Mr. Laney would not elaborate why his client would no longer honor the parties' settlement agreement. At no time during the conversation did Mr. Laney express the belief that the parties did not have a prior settlement agreement. 13. In response, I e-mailed Mr. Laney to reiterate that the parties had entered into a

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Carnal bock Esplanade 2425 East Carryback Road Suite 900 Phoenix, AZ 85016 602.474.3600

binding settlement agreement and provided Mr. Laney with a deadline of February 22, 2007 to honor the parties' settlement agreement or, alternatively, I would file a Motion to Enforce the parties' settlement agreement. I also notified Mr. Laney that if forced to file a Motion to Enforce, we would seek its attorneys' fees and costs for doing so. In response, Mr. Laney
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Cametback Esplanade 2425 East Camelback Road Suits 900 Phoenix, AZ 65016 602.474.3600

did not dispute that the parties had entered into a binding settlement agreement but, instead, only questioned whether attorneys' fees would be available in such a case. A true and correct copy of that e-mail is attached as Exhibit 1 (02/21/07, 1:21 p.m. e-mail from Lynn M. Laney, Jr.; Exhibit 1). I declare under penalty of perjury that the foregoing is true and correct. EXECUTED within the United States this 26th day of February, 2007.

^IMW* DttJ
Robert Shawn Oiler

-

Firmwide:82079815.1 016144.1070

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Exhibit 1
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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 DL

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: Oiler, Shawn Wednesday, February 14, 2007 2:51 PM 'Lynn M. Laney, Jr.' Sanschagrin, Jaye Batory v. Sears - Settlement Agreement and Release

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

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

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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

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