Asymmetrx Medical, Inc. v. McKeon

Filing 251

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered. Defendant Maria McKeon's 231 Motion to enforce the December 27, 2013 231 Order is ALLOWED. The parties shall sign and execute defendants proposed version of the final settlement agreement (Docket No. 233, Exh. C) within 14 days of the date of this Order. Once executed, that document shall serve as the final settlement agreement between the parties in this case. (Danieli, Chris)

United States District Court
District of Massachusetts
ASYMMETRX MEDICAL, INC.,
ASYMMETRX, INC., PETER McKEON,
FRANK McKEON, ANNIE YANG WEAVER,
NANA YAMAMOTO, and MATTHEW P.
VINCENT,
Plaintiffs,
v.
MARIA McKEON,
Defendant.

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Civil Action No.
11-11079-NMG

MEMORANDUM & ORDER
GORTON, J.
In May, 2013, on the eve of trial, the parties in this
interminable family business dispute purportedly settled the
case.

They exchanged a Binding Settlement Term Sheet (“Term

Sheet”) which laid out the material provisions of their
agreement.

The parties appeared before this Court shortly

thereafter to report the settlement and indicated that the Term
Sheet would need to be converted into a final settlement
agreement.

In fact, the Term Sheet itself noted that the

parties “agree to incorporate these, and other, terms into a
full Settlement Agreement.” (emphasis added).

They further

agreed that any dispute with respect to the content of the final

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agreement would be resolved by this session of the Court (or
Magistrate Judge Dein) and would be binding.
After exhaustive negotiations over several months, the
parties apparently made progress on some, but not all, of the
proposed supplemental provisions.1

Magistrate Judge Dein held a

hearing in December, 2013, on a motion of defendant McKeon
(“McKeon”) to enforce the settlement.

The Court, working from a

draft settlement agreement submitted by McKeon, heard oral
argument on 19 disputed provisions, made rulings on all of them
and instructed the parties to “promptly finalize” the terms of
the ultimate agreement.
A final agreement was never executed and one year later, in
December, 2014, McKeon filed the instant motion.

The parties

continue to haggle over the “other terms” to be incorporated
into the final written agreement.

In the meantime, their

failure to resolve the issue prevents McKeon from commissioning
the annual independent accounting of gross income of the LLC
from which she can determine the amount to which she is
entitled.
I.

Current Dispute
The dispute is essentially reduced to competing proposals

over what ought to constitute the final settlement agreement.

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The parties reported to the Court in May, 2013, they expected
the process to take no more than two weeks.
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McKeon argues that her draft final settlement agreement, which
incorporates Magistrate Judge Dein’s December, 2013 amendments,
constitutes the authentic version.

Plaintiffs (“the AsymmetRx

parties”) disagree and contend that the agreement is simply the
original Term Sheet, specifically amended to reflect Magistrate
Judge Dein’s December, 2013 Order.2
The Court finds the contentions of the AsymmetRx parties
wanting for several reasons:
First, as noted above, the Term Sheet itself explicitly
contemplated that additional terms would be incorporated to
create a final settlement agreement.

That was confirmed by the

parties at the hearing in May, 2013.

The AsymmetRx parties also

assured Magistrate Judge Dein that they would continue
negotiations to supplement the Term Sheet.

It is illogical and

inconsistent for them now to suggest that the original Term
Sheet constitutes the final agreement.
Second, the proposed final agreement submitted by McKeon is
the identical document utilized by Magistrate Judge Dein at the
hearing, as amended in accordance with her December, 2013 Order.
That document includes provisions not in the Term Sheet that

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That being said, in at least one instance, the proposal
submitted by the AsymmetRx parties misreads Magistrate Judge
Dein’s Order and incorrectly removes a provision that should
have been incorporated from the original Term Sheet.
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were negotiated and purportedly agreed to prior to the December,
2013 hearing.
At that proceeding, before hearing argument on the 19
disputed issues, Magistrate Judge Dein asked the AsymmetRx
parties if there was a different version that they were offering
for her consideration.

They responded that the original Term

Sheet was their alternative and failed to offer anything more
when exhorted.

Accordingly, the Magistrate Judge utilized

McKeon’s proposed version and the AsymmetRx parties did not
object.

In fact, in her Order, Magistrate Judge Dein referred

to McKeon’s submission as the operative document when ruling on
the subject disputes.
Finally, plaintiffs’ own conduct contradicts their
argument.

On the one hand, the AsymmetRx parties assert that

the Term Sheet, as amended by Magistrate Judge Dein, ought to
constitute the final agreement.

On the other hand, they have

routinely continued, before and after the December, 2013
hearing, to negotiate supplemental terms to be included in the
final agreement.
The AsymmetRx parties contend that they continued to
negotiate merely as a good faith attempt to resolve the dispute.
That is disingenuous in light of the specific language in the
Term Sheet that calls for “these, and other, terms” to be
incorporated in the final settlement agreement.
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Even now, the

AsymmetRx parties contend that if the Court opts not to enforce
the original Term Sheet, as amended, it should adopt a third
version that they recently drafted which incorporates much of
the language from McKeon’s 2013 proposal.

Their vacillation is

unavailing.
Accordingly, the Court will allow McKeon’s motion and will
instruct the parties to execute her draft final settlement
agreement.

ORDER
For the foregoing reasons, defendant Maria McKeon’s motion
to enforce the December 27, 2013 Order (Docket No. 231) is
ALLOWED.

The parties shall sign and execute defendant’s

proposed version of the final settlement agreement (Docket No.
233, Exh. C) within 14 days of the date of this Order.

Once

executed, that document shall serve as the final settlement
agreement between the parties in this case.
So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated April 3, 2015

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