Anco v. Acco Brands

Filing 47

Opinion and Order Signed by the Honorable Joan H. Lefkow on 3/7/2012:Mailed notice(mad, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOMINIC ANCO,
Plaintiff,
v.
ACCO BRANDS USA LLC

Defendant.

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No. 10 C 4275
Judge Joan H. Lefkow

OPINION AND ORDER
Dominic Anco filed a one count complaint against his former employer, ACCO Brands
USA LLC (“ACCO”),1 in the Circuit Court of Cook County alleging that ACCO breached a
November 30, 2009 agreement by prematurely discontinuing Anco’s severance benefits. ACCO
removed the case to this court under 28 U.S.C. § 1441(b) on the basis that Anco’s state law
breach of contract claim was completely preempted by the Employee Retirement Income
Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. §§ 1001 et seq., and that federal
question jurisdiction was proper under 28 U.S.C. § 1331. This court agreed and denied Anco’s
motion to remand. [Dkt. #12.] ACCO has now moved for summary judgment pursuant to
Federal Rule of Civil Procedure 56. [Dkt. #30.] For the reasons set forth herein, ACCO’s motion
is granted.2
1

Anco improperly pleaded “ACCO Brands, a Delaware Corporation,” as the defendant in this
case. The correct entity is ACCO Brands USA LLC.
2

The court’s jurisdiction is based on sections 502(e)(1) and (2) of ERISA, as amended, 29U.S.C.
§§ 1132(e)(1) and (2); and 28 U.S.C. § 1331 (federal question). Venue is proper pursuant to section

1

BACKGROUND3
ACCO is a supplier of office products. (Def.’s SoF ¶ 5.) On February 16, 1981, ACCO
hired Anco as a Maintenance Foreman. (Id. ¶ 6.) Anco’s employment ended on July 7, 2006
and he received a severance package totaling approximately $54,169.96, which represented eight
months of severance pay. (Id.) His benefits were based in part on his February 16, 1981 hire
date. (Id.) On September 17, 2007, ACCO rehired Anco as a Manufacturing Engineering
Supervisor. (Id. ¶ 7; Def.’s Ex. 7.) He received an annual salary of $85,000, a signing bonus of
$5,000, and was eligible to participate in ACCO’s benefit programs. (Id.)
On May 4, 2009, ACCO informed Anco that it was closing its manufacturing facility and
that he would be permanently laid off on December 31, 2009, or within 14 days thereafter. (Id.
¶ 8; Def.’s Ex. 9.) On the same day, ACCO sent Anco a personalized estimated severance
benefits statement (“Estimate of Benefits”). (Def.’s SoF ¶ 8; Def.’s Ex. 10.) The Estimate of
Benefits stated that “[t]he intent of this letter is to provide you an estimate of your severance
benefit under the ACCO Brands Severance Plan and Summary Plan Description effective
February 12, 2009 [(“the Severance Plan”)] . . . [and] [o]nly the Plan itself should be relied on
for any actual severance coverage, eligibility requirements, benefits calculations and other
questions.” (Def.’s Ex. 9.) The Estimate of Benefits directed Anco to a human resources
website where he could access the Severance Plan, and stated, “According to the Plan . . . your
severance benefit would be based on your salary grade, years of service based on your most
recent hire date, and your current base salary.” (Id.) The Severance Plan similarly stated, “The
502(e)(2) of ERISA, 29 U.S.C. § 1132(e)(2), and 28 U.S.C. § 1391(a) and (b).
3

The following facts are undisputed except as noted in footnote 5 and taken from the parties’
Local Rule 56.1 statements of facts. [Def.’s SoF Dkt. #32 & Pl.’s SoF Dkt. #41.]

2

amount of severance benefit payments for covered eligible employees will be calculated . . .
based on salary grades and years of service . . . . Years of service will be measured only from an
employee’s most recent date of hire.” (Def.’s Ex. 10 Attachment A.) According to the Estimate
of Benefits, Anco was entitled to receive approximately $10,190.19 (representing six weeks of
salary), six weeks of subsidized medical and dental benefits, and three months of outpatient
services pursuant to the Severance Plan. (Def.’s SoF ¶ 9; Def.’s Ex. 9.)
On September 21, 2009, ACCO sent Anco a letter notifying him that he would be
permanently laid off on November 30, 2009, or within 14 days thereafter. (Def.’s SoF ¶ 11;
Def.’s Ex. 13.) On November 30, 2009, ACCO gave Anco a copy of a Letter Agreement along
with a confidential waiver agreement, a general release, and a copy of the Severance Plan.
(Def.’s SoF ¶ 12; Def.’s Ex. 14 & 15.) The Letter Agreement stated that “[s]everance benefits
are governed by the terms of the ACCO Brands Severance Plan . . . and will be paid only in
accordance with the Severance Plan.” (Def.’s Ex. 14.) It also stated that Anco would receive 26
weeks of severance pay at his bi-weekly rate of $3,396.73, for a total severance benefit of
$44,157.49, and 26 weeks of subsidized medical and dental benefits. (Def.’s SoF ¶ 12; Def.’s
Ex. 14.) This amount was $33,967.30 more than the amount listed in his Estimate of Benefits.
(See Def.’s Ex. 9.) Anco signed the Letter Agreement and executed the waiver and general
release. (Def.’s Ex. 14 & 15.)
On December 11, 2009, Anco received his first severance payment of $3,057.05. (Def.’s
SoF ¶ 13.) ACCO also subsidized the cost of Anco’s medical and dental coverage from

3

December 1, 2009 through January 10, 2010. (Id.)4 Four days later, during an internal audit,
ACCO discovered that the Letter Agreement did not accurately reflect the amount of benefits
that Anco was entitled to under the Severance Plan. (Def.’s SoF ¶ 14.)5 ACCO had mistakenly
relied on Anco’s original date of hire (February 16, 1981) to calculate his benefits, not his most
recent date of hire (September 17, 2007) as required by the Severance Plan. (Id.) That same
day, ACCO’s representatives called Anco and informed him that (1) there was an error in the
Letter Agreement; (2) ACCO would be sending him a revised letter agreement and a waiver and
release with the correct severance benefit amount; and (3) his severance payments would cease
until ACCO received the executed revised documents. (Id. ¶ 15.) The next day, ACCO sent
Anco a Revised Letter Agreement, a waiver and a release via overnight delivery. (Id. ¶ 16.)
Anco signed for the delivery but declined to execute the Revised Letter Agreement. (Id.) He
then filed this lawsuit seeking to enforce the Letter Agreement.

LEGAL STANDARD
4

In December 2009, Anco received a medical subsidy of $751.40 and a dental subsidy of
$72.72. (Def.’s SoF ¶ 13.) In January 2010, Anco received a medical subsidy of $305.95 and a dental
subsidy of $24.24. (Id.)
5

Employee Relations Specialist Lisa Waldman testified to this fact and others in an affidavit
attached to ACCO’s Local Rule 56.1 statement of facts. (Dkt. #41, Pl.’s SoF ¶ 3.) Anco disputes this fact
and others, stating that he was “not privy” to the information contained in Waldman’s affidavit. (Pl.’s
SoF at 2.) This denial is insufficient under the Local Rules. Anco does not dispute that Waldman
possesses personal knowledge concerning the receipt of Anco’s severance benefits. See Malec v.
Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (“affidavits must be made on personal knowledge”
(citations omitted)). Nor does he support his general denial with citations to the record. See Buttron v.
Sheehan, No. 00 C 4451, 2003 WL 21801222, at *4 (N.D. Ill. Aug. 4, 2003) (“[T]he [denying] party must
provide ‘specific references’ to the material that shows that a factual disagreement exists.” (quoting L.R.
56.1(b)(3)(A))). As such, the court will accept the facts contained in paragraphs 14 and 16 of ACCO’s
Local Rule 56.1 statement of facts as uncontested.

4

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Id. While the court must construe all facts in a light most
favorable to the non-moving party and draw all reasonable inferences in that party’s favor,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986),
where a claim or defense is factually unsupported, it should be disposed of on summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). The party seeking summary judgment bears the initial burden of proving there is no
genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare
pleadings alone but must use the evidentiary tools listed above to designate specific material
facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). “When there are no triable issues of fact . . . contract
interpretation is a subject particularly suited to disposition by summary judgment.” Hickey v.
A.E. Staley Mfg., 995 F.2d 1385, 1389 (7th Cir. 1993) (internal quotation marks and citation
omitted). “However, if the parties dispute the extrinsic evidence on an ambiguous contract, then
a fact-finder must be called upon to determine the intent of the parties.” Bock v. Computer
Assocs. Int’l, Inc., No. 99 C 5967, 2000 WL 310288, at *5 (N.D. Ill. Mar. 24, 2000) (citation
omitted) (Bock I), rev’d 257 F.3d 700 (7th Cir. 2001) (Bock II).

ANALYSIS

5

This court previously ruled that Anco’s breach of contract claim was preempted by
ERISA because interpretation of the Letter Agreement necessarily required reference to the
Severance Plan, which is an ERISA-qualified plan. (Dkt. #12.)6 As such, Anco’s claim for
benefits is analyzed as one brought under ERISA section 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B). See New v. Verizon Commc’n, 635 F. Supp. 2d 773, 782 (N.D. Ill. 2008)
(“[W]here a claimant seeks to recover severance benefits under a company’s ERISA plan,
§ 502(a) of ERISA is the claimant’s sole method of relief.” (citing Bowles v. Quantum Chem.
Co., 266 F.3d 622, 630–33 (7th Cir. 2001)). The court will “focus on traditional contract
principles in light of ERISA-specific concerns” in resolving Anco’s claim. Young v. Verizon’s
Bell Atl. Cash Balance Plan, 667 F. Supp. 2d 850, 894 (N.D. Ill. 2009) (Young I), aff’d 615 F.3d
808 (7th Cir. 2010) (Young II). These principles “are not those of any particular state’s contract
law, but rather are a body of federal common law tailored to the policies of ERISA.” Mathews v.
Sears Pension Plan, 144 F.3d 461, 465 (7th Cir. 1998) (citations omitted).

6

Anco again argues that this court lacks subject matter jurisdiction over his claim, see Anco
Resp. at 24–26, but this court previously considered and rejected his argument. See Dkt. #12 (“Because
the Severance Plan governs the benefits to which Anco is entitled per the Letter Agreement, the court
would have to look to the terms of the Severance Plan to determine whether the Letter Agreement was
breached.”). Of the cases Anco cites in his brief, only three are binding on this court. See Fort Halifax
Packaging Co., Inc. v. Coyne, 482 U.S. 1, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987); Bowles v. Quantum
Chem. Co., 266 F.3d 622, 631 (7th Cir. 2002); Collins v. Ralston Purina Co., 147 F.3d 592, 603 (7th Cir.
1998) (citing Judge Rovner’s dissenting opinion). These cases support this court’s previous holding that
Anco’s claim is pre-empted by ERISA. Here, as in Bowles and Collins and unlike in Fort Halifax, ACCO
could not satisfy its obligations under the Severance Plan by cutting a single check and making a single
set of payments to all of its covered employees at one time. Rather, ACCO was faced with the prospect
of multiple payments to various employees at different times and under different circumstances. This is
sufficient for purposes of ERISA preemption. See Fort Halifax Packaging Co., Inc, 482 U.S. at 11–12
(holding that a state statute requiring a one-time severance payment to terminated workers was not
preempted by ERISA); Bowles, 266 F.3d at 631–32 (holding that a severance plan that required the
employer to budget for the possibility of multiple payments throughout the course of a year was
preempted by ERISA); Collins, 147 F.3d at 597 (concluding that because the plan required the employer
to make nonclerical judgment calls on multiple occasions, an ongoing administrative scheme existed.)

6

ACCO urges the court to use an “abuse of discretion” standard to review ACCO’s
determination, citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948,
103 L. Ed. 2d 80 (1989) (“[A] denial of benefits challenged under § 1132(a)(1)(B) is to be
reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” )
This is not an administrative review situation in which the administrator has exercised discretion
in interpreting the terms of the plan and applied them to facts as it found them. Rather, the court
is making an independent decision as to what the Letter Agreement means. See Krolnik v.
Prudential Ins. Co. of America, 570 F.3d 841, 843 (7th Cir. 2009) (“[L]itigation under ERISA by
plan participants seeking benefits should be conducted just like contract litigation, for the plan
and any insurance policy are contracts. In a contract suit the judge does not ‘review’ either
party’s decision. Instead the court takes evidence (if there is a dispute about a material fact) and
makes an independent decision about how the language of the contract applies to those facts.”).
This court will proceed accordingly.
The issues presented are whether the severance pay contained in the Letter Agreement,
which is based on Anco’s original date of hire rather than most recent date of hire as provided in
the Severance Plan, reflects the intent of the parties and, if not, what to do about it. ACCO asks
the court to reform the contract by characterizing the Letter Agreement as having merely a
scrivener’s error. See Young I, 667 F. Supp. 2d at 894 (“The contract law doctrine of
‘scrivener’s error,’ or mutual mistake, allows a court of equity to reform a contract where a
written agreement does not reflect the clear intent of the parties due to a drafting error”); (citing
27 WILLISTON ON CONTRACTS § 70:93 (4th ed.)); WILLISTON, id. (“[A] scrivener’s error . . .

7

occurs when the intention of the parties is identical at the time of the transaction but the written
agreement does not express that intention because of that error.”); RESTATEMENT (2D)
CONTRACTS § 152 (1981). (“(1) Where a mistake of both parties at the time a contract was made
as to a basic assumption on which the contract was made has a material effect on the agreed
exchange of performances, the contract is voidable by the adversely affected party unless he
bears the risk of the mistake under the rule stated in § 154[;7] (2) [i]n determining whether the
mistake has a material effect on the agreed exchange of performances, account is taken of any
relief by way of reformation, restitution, or otherwise.”).8
Anco argues that there was no scrivener’s error or mutual mistake because he understood
the agreement as one providing him 26 weeks of severance pay, not the six set out in the Revised
Letter Agreement. Anco refers to the careful review ACCO’s representative made of the
agreement before Anco signed it and his own expectation that it would be a little more than 26
weeks based on recent service he had provided to ACCO.9 Rather, he argues, if it was a mistake,

7

“Whether the agreement places the risk on the mistaken party is a question to be answered
under the rules generally applicable to the scope of contractual obligations, including those on
interpretation, usage and unconscionability.” RESTATEMENT (2D) CONTRACTS § 154, cmt. b (1981).
8

Anco contends that reformation of contract is an equitable claim that ACCO should have
sought by way of a counterclaim. Federal courts do not require parties to plead causes of action,
however, and there is precedent in the common law for asserting mutual mistake of fact as an affirmative
defense, as ACCO has done here. E.g., Harris N.A. v. Acadia Invs. L.C., No. 09 CV 666, 2010 WL
4781458, at *5 (N.D Ill. Nov. 16, 2010); see RESTATEMENT (1ST) CONTRACTS § 507 (1932) (“Where
circumstances justify reformation of a writing, affecting the contractual relations of the parties to the
writing, a court may in its discretion without a preliminary decree of reformation give effect to the
transaction as if it had been reformed.”).
9

Anco testified, “I spent a lot or time at ACCO, and especially on this last project, I spent four
months in Mexico straight through and came home once every three weeks for a weekend. I thought that
was probably part of the compensation package.” (Anco. Dep. at 29.) He testified that he had asked
previously for a $25,000 retention bonus, but ACCO awarded him $15,000 instead. (Id.; see also Def.’s
SoF ¶ 10; Def.’s Ex. 12.). Anco received the full $15,000 minus applicable withholdings prior to his
termination. (Def.’s SoF ¶ 10.)

8

it was ACCO’s unilateral mistake.
The essence of this dispute is not a failure in the Severance Plan to set out the actual
terms intended. Rather, the Letter Agreement simply fails to reflect the correct payout under the
Severance Plan. As such, it is unlike the cited cases that discuss errors (scrivener’s or otherwise)
in benefit plans that affect all members of the plan and thus concern broad policy issues.10 Here,
one member is affected (if we disregard any impact on the financial soundness of the Plan) and
policy issues are less important. General contract principles are sufficient to resolve the case.
Nonetheless, the court’s inquiry is guided by federal common law arising from ERISA. Young I,
667 F. Supp. 2d at 885.
Under general contract principles, “[t]he mutual v. unilateral mistake distinction is an
important one in a reformation analysis, as courts have been ‘reluctant to allow a party to avoid a
contract on the ground of [unilateral] mistake, even as to a basic assumption, if the mistake was
not shared by the other party.’”) Id. at 896 (quoting RESTATEMENT (2D) CONTRACTS § 153 cmt.
a (1981)). Even analyzed under principles of unilateral mistake as Anco urges, the law points to
resolution in favor of ACCO. The Restatement uses the following rule when a mistake of one
party makes a contract voidable:
Where a mistake of one party at the time a contract was made as to a basic
assumption on which he made the contract has a material effect on the agreed
exchange of performances that is adverse to him, the contract is voidable by him

10

For example, as explained in Young I, “the Court must consider that an absolute bar on
reformation of a drafting error could have the effect of discouraging employers from establishing and
maintaining employee benefit plans. The Supreme Court has pointed out that employers are under no
obligation to provide employee benefit plans, nor what kind of benefits to provide if they do choose to
establish a plan.” 667 F. Supp. 2d at 900 (citing Lockheed Corp. v. Spink, 517 U.S. 882, 887, 116 S. Ct.
1783, 135 L. Ed. 2d 153 (1996)).

9

if he does not bear the risk of the mistake under the rule stated in § 154,11 and
(a) the effect of the mistake is such that enforcement of the
contract would be unconscionable, or
(b) the other party ha reason to know of the mistake or his fault caused the mistake.
RESTATEMENT (2D) CONTRACTS § 153 (1981); see S.T.S. Transport Service, Inc. v. Volvo White
Truck Corp., 766 F.2d 1089, 1093 (7th Cir. 1985) (“As [Illinois] law now stands, three
conditions must be fulfilled before a contract can be rescinded: (1) the mistake must relate to a
material feature of the contract; (2) it must have occurred despite the exercise of reasonable care;
and (3) the other party must be placed in the position it was in before the contract was made.”).
Under the Restatement, ACCO made a mistake as to the reference date for calculating
Anco’s severance pay. This had a material effect on the agreed exchange of performance that is
adverse to ACCO. The contract is voidable by ACCO if he does not bear the risk of the mistake
(It does not. See footnote 11), and the other party had reason to know of the mistake. The only
permissible inference under the facts is that Anco had good reason to know of the mistake.
Indeed, the Letter Agreement is ambiguous on its face. It explicitly states that benefits will be
paid only in accordance with the Severance Plan, yet the calculation is contrary to the Plan. In
other words, it says one thing but does another. In this situation, the court must look to objective

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A party bears the risk of a mistake when
(a) the risk is allocated to him by agreement of the parties, or
(b) he is aware, at the time the contract is made, that he has only limited knowledge with
respect to the facts to which the mistake relates but treats his limited knowledge as
sufficient, or
(c) the risk is allocated to him by the court on the ground that it is reasonable in the
circumstances to do so.

RESTATEMENT (2D) CONTRACTS § 154 (1981). None of these factors would place the risk of mistake on
ACCO.

10

extrinsic evidence to determine the parties’ intent.
First, the Letter Agreement identifies the payment as severance pay that is calculated
according to the formula provided in the Severance Plan (albeit based on the wrong hire date). It
expressly incorporates the Severance Plan, which provides that the amount of severance benefit
payments are to be measured only from an employee’s most recent date of hire. (Def.’s Ex. 10
Attachment A; Def.’s Ex. 14.) (Tellingly, Anco does not dispute that the Severance Plan
required his benefits to be calculated in this manner.)12 In addition, six months prior to Anco’s
termination, ACCO issued the Estimate of Benefits, which stated that Anco’s severance package
would be calculated based on his most recent hire date. (See Def.’s Ex. 12.) Like the Letter
Agreement, the Estimate of Benefits expressly incorporated the terms of the Severance Plan.
(Id.) It also told Anco that “[o]nly the Plan itself should be relied on for any actual severance
coverage.” (Id.) Anco did not dispute his benefit amount at that time, and the terms of the
Severance Plan remained unchanged throughout the duration of his employment. Moreover,
Anco played no part in negotiating or drafting the Letter Agreement such that there might be a
dispute as to what the parties actually intended. Anco merely testified to his subjective
understanding that he would receive 26 weeks of benefits as payment for extra services because
he asked for extra compensation at some unspecified time (and had received extra compensation
of $15,000). He can point to no evidence that ACCO ever agreed to pay him any severance
compensation beyond that provided under the Severance Plan. Having received the earlier
Estimate of Benefits, having previously received severance pay based on his first date of hire

12

Anco argues that the Letter Agreement did not incorporate the terms of Severance Plan and
instead constituted “an independent, complete, clear and unambiguous document” that is not subject to
ERISA. The court previously rejected this argument and will not reconsider it here. (See Dkt. #12.)

11

after his separation in July 2006, having been advised in the Letter Agreement that severance
could be paid only in compliance with the Severance Plan’s terms, Anco certainly had reason to
believe that a mistake in his favor had been made.13
In addition, enforcing the error would result in a windfall to Anco. See, e.g., Young I,
667 F. Supp. 2d at 899 (“[C]ourts do not look favorably on attempts to obtain windfall recoveries
under ERISA plans.”) (collecting cases). Under the Letter Agreement, Anco was scheduled to
receive four times the cash amount he was entitled to under the Severance Plan, plus benefits for
a much longer period. Moreover, if the court were to enforce the erroneous calculation, Anco
would receive double benefits for the dates of his original employment, February 16, 1981
through July 7, 2006. Further, the Letter Agreement provided Anco with benefits for the interim
period from July 8, 2006 through September 16, 2007 while he was not even an ACCO
employee. See Air Line Pilots Ass’n v. Shuttle, Inc., 55 F. Supp. 2d 47, 53 (D.D.C. 1999)
(finding a windfall where a scrivener’s error would result in plan participants receiving $2500
more per month in disability benefits than they would have otherwise received); see also Int’l
Union of Electronic, Elec., Salaried, Mach. & Furniture Workers, AFL-CIO v. Murata, 980 F.2d
889, 907 (3d Cir. 1992) (acknowledging that “the alleged error relates to what is admittedly a
‘windfall’ for either [defendant] or plaintiffs–an excess remaining in the Plans that neither side
could have reasonably expected,” but remanding for consideration of other disputed facts).14

13

Moreover, this court has little doubt that if ACCO had mistakenly underpaid Anco his
severance benefits under the Severance Plan, then ACCO would have promptly corrected its error rather
than relying on Anco’s signature as binding him to receive less than his entitlement under the Severance
Plan.
14

Anco attempts to distinguish these cases by arguing that “when those Courts discussed a
windfall, it was limited to the context of all participants being affected by a windfall. That is clearly not
the case presented here.” (Anco’s Resp. at 23.) The equities involved in both situations, however, are

12

Citing S.T.S. Transport Service, Inc. v. Volvo White Truck Corp., 766 F.2d 1089, 1093
(7th Cir. 1984),15 Anco argues that the contract should be enforced because he “clearly relied” on
the Letter Agreement when he agreed to release his rights pursuant to the confidential waiver
agreement and general release. (Anco Resp. at 16, 18.) ACCO, on the other hand, argues that
Anco could not have possibly relied on the erroneous term because it notified him of the mistake
promptly after issuing his first severance payment. (ACCO Mot. Summ. J. at 14.) Lifting
language from S.T.S. Transport Services, Inc. without analyzing the import of it, Anco omits the
court’s statement that “Illinois courts will generally grant relief for errors ‘which are clerical or
mathematical,’” Id. at 1093 (quoting Cummings v. Dusenbury, 472 N.E.2d 575, 579, 129 Ill.
App. 3d 338, 84 Ill. Dec. 615 (1984)). The elements of proof in that case are similar to the
Restatement and also met here: (1) the mistake was material; (2) it occurred despite the exercise
of reasonable care; and (3) the other party can be placed in the position it was in before the
contract was made. As that court put it, “[t]he question of reliance is no different from the
question whether the parties can be put into the position they were in at the time the contract was
signed.” Id. at 1094. There is no impediment to doing just that here, where the mistake was
discovered after the first monthly payment was made.
The reality is that “[p]eople make mistakes. Even administrators of ERISA plans.”
Young II, 615 F.3d at 812 (quoting Conkright v. Frommert, --- U.S. ----, ----, 130 S. Ct. 1640,
similar. Regardless of whether the error affects one or one hundred, the court must balance the preference
for enforcing the written word against need for fairness and accuracy.
15

“Naturally there are cases of extreme negligence to which this presumption should not apply;
and there is an exception of sorts where the contract has been relied upon.” S.T.S. Trans. Serv., Inc.,
766 F.2d at 1093.

13

1644, 176 L. Ed. 2d 469 (2010)). In short, the court concludes that there is no genuine issue of
material fact and that ACCO has met its burden to justify reformation of the contract as a matter
of law. Anco is entitled that which is owed him under the Severance Plan, no more and no less.
ORDER
For the foregoing reasons, defendant ACCO Brands USA LLC’s motion for summary
judgment [Dkt. #30] is granted. The Clerk is directed to enter judgment is entered in favor of
ACCO Brands USA, LLC and against plaintiff Dominic Anco.

Dated: March 7, 2012

Enter: ____________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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