Bukuras v. Mueller Group, LLC

Filing 920100120

Opinion

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var WPFootnote1 = 'Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = 'At all times relevant to this dispute, Mueller\'s fiscal year\
ended on September 30.\
'

var WPFootnote3 = 'Participation in the transaction bonus pool was not coextensive\
with participation in "the bonus pool applicable to compensate\
executive management of the company" referenced in the Bonus\
Provision of Bukuras\'s Agreement.\
'

var WPFootnote4 = 'The Oxford English Dictionary notes, however, that "[o]f time"\
is also among the numerous definitions of the preposition "for." \
Oxford English Dictionary Online, available at\
http://dictionary.oed.com.\
'

var WPFootnote5 = 'Though Bukuras asserts that Smith held out the prospect of\
additional, discretionary compensation in addition to his annual\
bonus, there is no indication in the record that Bukuras received\
any other "bonuses" prior to -- or, for that matter, after -- the\
Agreement\'s execution, other than the transaction bonus. The\
record does reflect that the Company was not contractually\
obligated to pay out one hundred percent of funds available in the\
"annual bonus" pool described in the Bonus Provision, and that\
Smith had discretion as to how to dispense the remainder, and to\
whom. But even if Bukuras could have received an "annual bonus"\
greater than the share Mueller was contractually obligated to pay\
him, a fact which accounts for the "at least equivalent to"\
language used in the Bonus Provision, Bukuras had no reasonable\
expectation of receiving this additional, discretionary\
compensation at the time he negotiated the Agreement.\
'

var WPFootnote6 = 'While Bukuras asserts that his different treatment with respect\
to Transaction Benefits supports the notion that he bargained away\
those benefits in exchange for an expansive definition of "bonus"\
in the Severance Provision, there is no support for this\
proposition in the text of the Agreement or elsewhere in the\
record. Rather, the explicit language of Section 4(c) and the\
circumstances of the parties at the time of drafting indicate that\
Bukuras agreed to forgo Transaction Benefits in exchange for\
comfort regarding his entitlement to severance benefits in the\
event of his possible termination following the contemplated FY\
2003 sale. It makes little sense that Bukuras would have bargained\
away the Transaction Benefits in exchange for an expansive\
definition of bonus capable of comprehending a separate payment\
that he had no expectation of receiving.\
'

var WPFootnote7 = 'Because we conclude that the Agreement is clear on its face, we\
do not consider the August 2005 shareholder disclosures, or\
Bukuras\'s understanding of his severance rights as reflected in\
those documents.\
'

var WPFootnote8 = 'Mueller contends that we should read the release as a covenant\
not to sue, asserting that Massachusetts no longer recognizes any \
distinction between the two. The authority Mueller cites for this\
proposition, Mass. Gen. Law ch. 231B, § 4(a), is inapposite because\
it applies only to contributions among joint tortfeasors. In any\
event, we find that this distinction will not help Mueller under\
the circumstances because, as the cases cited above demonstrate,\
the prevailing view is that, as with a release, attorneys\' fees are\
not recoverable for breach of a covenant not to sue in the absence\
of express contractual language providing otherwise. Accord In re\
Weinschneider, 395 F.3d 401, 404 (7th Cir. 2005) (explaining that\
under Illinois law, which follows the American Rule, "[a]ttorney\
fees and the ordinary expenses and burden of litigation are not\
allowable to the successful party" to recover for breach of a\
covenant not to sue "in the absence of an agreement or stipulation\
specifically authorizing the allowance of attorney fees, or in the\
absence of a statute providing for the taxing of attorney fees\
against the losing party").\
'

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