JOSEPH BAPTIST , RICHARD BROOKS , PRICE DUMAS , WILLIE HUNT , and LAMONT UPTON v. CITY OF KANKAKEE and MIKE KINKADE

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4034
J OSEPH B APTIST , R ICHARD B ROOKS ,
P RICE D UMAS , W ILLIE H UNT , and
L AMONT U PTON ,
Plaintiffs-Appellants,
v.
C ITY OF K ANKAKEE and M IKE K INKADE ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 2115—Michael P. McCuskey, Chief Judge.
____________
A RGUED S EPTEMBER 15, 2006—D ECIDED M ARCH 19, 2007
____________
Before F LAUM , K ANNE , and S YKES , Circuit Judges.
S YKES , Circuit Judge. The plaintiffs in this Title VII
race discrimination case agreed in open court to settle
their claims against the defendants in exchange for
changes to hiring and promotional policies and $67,000
in attorney’s fees. Shortly thereafter, they had a change of
heart and sought to rescind their agreement on the ground
that it was more beneficial to their counsel than to them-
selves. The district court denied their motion to vacate
the agreed judgment order. On appeal, the plaintiffs

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2 No. 05-4034
contend their agreement was not knowing and voluntary
because their counsel failed to adequately advise them on
the merits of the settlement in an effort to ensure pay-
ment of his fees. They also assert the agreement is unen-
forceable.
We reject these arguments and affirm. A plaintiff who
enters into a Title VII settlement on the advice of inde-
pendent counsel is presumed to have done so knowingly
and voluntarily absent a claim of fraud or duress. Collat-
eral arguments regarding the adequacy of counsel’s
advice cannot rebut this presumption. Apart from the
force of this presumption, the district court did not abuse
its discretion in evaluating the circumstances surround-
ing the settlement and denying the plaintiffs’ motion to
vacate the judgment. Finally, because an oral settlement
agreement is binding if supported by consideration and
there was consideration given here, the agreement is
enforceable.
I. Background
The plaintiffs in this case are five African-American
employees of the Kankakee Police Department. In July
2003 they sued the City of Kankakee and Police Chief
Mike Kinkade alleging that the police department’s
promotional policies had discriminated against them on
the basis of their race in violation of 42 U.S.C. § 1983 and
42 U.S.C. §§ 2000e et seq. (Title VII). Plaintiffs’ disparate
treatment and disparate impact claims were bifurcated
for trial, and a jury returned a verdict in favor of the
defendants on the § 1983 and Title VII disparate treat-
ment claims. Plaintiffs appealed that judgment. In the
meantime, the district court scheduled the disparate
impact claim for a bench trial to commence on September
12, 2005.

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No. 05-4034 3
The parties appeared in court on the morning of Septem-
ber 12 and told the judge they were close to settlement.
The court postponed the trial for a few hours so the parties
could attempt to finalize negotiations. They returned later
that morning and notified the court that they had reached
a settlement, the terms of which were then read into the
record by the defendants’ counsel. Those terms included
agreement by the City to engage in a number of practices
to safeguard against discrimination, including establishing
a “Blue Ribbon Committee” to review recruiting, testing,
and promotional policies; employing an independent
testing company for any hiring and promotional testing;
and conducting annual cultural diversity training. The
City also agreed to pay $67,000 in attorney’s fees to the
plaintiffs’ attorney, Christopher Bent. In exchange, the
plaintiffs agreed to dismiss with prejudice the disparate
impact claims and their pending appeal of the § 1983 and
disparate treatment verdict. They also agreed to execute a
covenant not to sue regarding a 2005 promotional test and
to dismiss a pending EEOC complaint regarding the test.
After the terms of the agreement were read in open
court, defense counsel stated that he would put the
agreement into writing. The following exchange then
occurred:
THE COURT: Okay. One of the things I do want to
make certain on the record, Mr. Bent, this is an
agreement that has been reached and agreed upon by
all five plaintiffs, is that correct?
MR. BENT: That’s correct, Your Honor.
THE COURT: And since I’m looking at all five and
they’re all looking at me, is anyone in disagreement
with the statement that Mr. Bent said? That all of
you are in support of this agreement, is that correct?
They’re all five nodding their head yes. So I won’t go
through the names like we’re taking attendance.

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4 No. 05-4034
Defense counsel then stated that the agreement was
subject to approval by the City Council at its meeting in
one week. The parties agreed on the record to execute the
written agreement prior to the City Council meeting so
it could be presented to the Council as a final document.
The next day, September 13, plaintiff Richard Brooks
called Bent and expressed concerns about the agreement.
On September 14 Brooks told Bent that he no longer
agreed to the settlement and planned to hire new coun-
sel. On September 22 Bent and the attorney for the
defendants signed and submitted to the court an “Agreed
Judgment Order” encompassing all the terms announced
and agreed to in court on September 12. The district court
entered the order that same day. On September 23 Bent
filed a motion to withdraw as Brooks’s counsel.
On September 30 the other plaintiffs told Bent that they
did not intend to comply with the settlement, and they
joined Brooks in obtaining new counsel. On October 2 the
plaintiffs, now represented by new counsel, moved to
alter or amend the judgment pursuant to Federal Rule of
Civil Procedure 59(e), arguing that the settlement was
manifestly unfair and unjustly enriched Bent. Each
plaintiff filed an affidavit stating that he “did not [on
September 12] understand that the settlement was one-
sided and did not provide any remedy for past discrim-
ination.” Bent then immediately filed a motion to withdraw
as counsel for all plaintiffs. In that motion he asserted that
he had discussed the settlement terms with the plaintiffs
in “excruciating detail” for two days and maintained “there
was no ambiguity as to what rights the parties were being
asked to waive” when they agreed to the settlement.
The district court granted Bent’s motions to withdraw
and denied the plaintiffs’ motion to alter or amend the
judgment. The court held that “[t]he record is crystal clear
that Plaintiffs were advised of all of the terms of the

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No. 05-4034 5
agreement in open court and expressed to this court their
agreement with the terms.” The court also stated that
the agreement was “a good settlement for the Plaintiffs”
and concluded that “second thoughts about the terms of
the agreement . . . [are not] a valid basis for vacating.” The
plaintiffs appealed, arguing that (1) the district court
failed to apply the correct legal standard to determine
whether the agreement was entered into knowingly and
voluntarily, (2) Bent engaged in misconduct, (3) the
September 12 agreement was not enforceable, and (4) the
September 22 agreement constituted a fraud on the court.
II. Discussion
We review the district court’s denial of a Rule 59 motion
to alter or amend a judgment for abuse of discretion.
Britton v. Swift Transp. Co., 127 F.3d 616, 618-19 (7th Cir.
1997). Whether the court applied the correct legal stan-
dard is a question of law that we review de novo. The
district court’s determination that the plaintiffs know-
ingly and voluntarily settled their claims is a finding of
fact that we will not set aside unless clearly erroneous.
Glass v. Rock Island Ref. Corp., 788 F.2d 450, 455 (7th Cir.
1986).
A. Knowing and Voluntary Settlement
We begin with plaintiffs’ contention that the district
court failed to properly analyze the totality of circum-
stances to determine whether they knowingly and volun-
tarily entered into the settlement. An employee’s settle-
ment of a Title VII claim must be knowing and voluntary.
See, e.g, Alexander v. Gardner-Denver Co., 415 U.S. 36, 52
n.15 (1974); Taylor v. Gordon Flesch Co., 793 F.2d 858, 862
(7th Cir. 1986). Whether a Title VII settlement is know-
ing and voluntary is a question of federal law. Pierce v.

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6 No. 05-4034
Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 571 (7th
Cir. 1995). When an employee challenges whether
a settlement was knowing and voluntary, “a court must
examine the ‘totality of the circumstances’ surrounding
[its] execution.” Id. However, “where plaintiff is repre-
sented by chosen counsel throughout negotiations and
settlement[ ] . . . [the settlement agreement] is presump-
tively informed and willing, absent circumstances such as
fraud or duress.” Riley v. Am. Family Mut. Ins. Co.,
881 F.2d 368, 373 (7th Cir. 1989); see also Pierce, 65 F.3d
at 571 n.1 (reaffirming this holding).
The plaintiffs here were represented by independent
counsel when they agreed to settle their Title VII claims;
as such, the settlement agreement is presumed to be
knowing and voluntary. See Riley, 881 F.2d at 373-74. The
plaintiffs seek to overcome this presumption by claim-
ing that their attorney engaged in misconduct, either
by failing to adequately explain the terms of the settle-
ment or by persuading them to enter into a settlement
that was not in their best interests. But the adequacy or
propriety of counsel’s advice is irrelevant to the question
of whether a settlement was knowing and voluntary. Id.
at 374; Taylor, 793 F.2d at 863-64. “[I]f an attorney’s
conduct falls substantially below what is reasonable
under the circumstances, the client’s remedy is against
the attorney in a suit for malpractice. But keeping [a]
suit alive merely because plaintiff should not be pen-
alized for the omissions of his own attorney would be
visiting the sins of plaintiff’s lawyer upon the defendant.”
Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962).
Riley and Taylor held that the adequacy of counsel’s
advice regarding settlement is an improper factor in
evaluating whether a settlement is knowing and voluntary,
see Riley, 881 F.2d at 374; Taylor, 793 F.2d at 864, and we
now reiterate that this holding extends to all claims based

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No. 05-4034 7
1 We have recognized the possible relevance of a claim that
plaintiff ’s counsel colluded with the defendant to fraudulently
induce settlement, or that the court denied a plaintiff adequate
time to consult with counsel. Riley v. Am. Family Mut. Ins. Co.,
881 F.2d, 368, 374 (7th Cir. 1989). The plaintiffs make no such
claims in this case.
2 Fraud in the inducement is a claim against the opposing
party; the plaintiffs have not claimed that the defendants
fraudulently induced them to enter into the settlement agree-
ment. Duress, too, is a claim against the other party to the
contract, and it requires more than vexation, the stress of a
difficult bargaining position, or financial pressure; duress
requires “imposition, oppression, undue influence, or the taking
of undue advantage of the business or financial stress or extreme
necessities or weakness[es] of another.” Pierce v. Atchison,
Topeka & Santa Fe Ry. Co., 65 F.3d 562, 569 (7th Cir. 1995).
Furthermore, a party asserting duress cannot prevail if he had
an alternative to entering into the agreement. Id. The plaintiffs
have not claimed the defendants took undue advantage of them.
In any event, they had the option of taking their disparate
impact claim to trial, and any claim of duress would neces-
sarily fail.
on the conduct or competence of plaintiff’s chosen counsel. 1
Collateral attacks of this nature neither negate the
presumption created by representation by counsel nor
demonstrate the kind of fraud or duress capable of rebut-
ting that presumption. 2
Because the plaintiffs were represented by independent
counsel and claimed neither fraud nor duress, the settle-
ment agreement is presumed to be knowing and voluntary
and the district court need not have evaluated the circum-
stances surrounding it. The district court examined all
of the circumstances anyway. The court noted that Bent
discussed the settlement in great detail with the plaintiffs
over the course of two days, that the plaintiffs gave Bent
their input on the terms, and that the parties were

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8 No. 05-4034
3 In assessing the totality of the circumstances, we have stated
that relevant factors include but are not limited to: (1) the
employee’s education and business experience; (2) the employee’s
input in negotiating the terms of the settlement; (3) the clarity
of the agreement; (4) the amount of time the employee had for
deliberation before signing the agreement; (5) whether the
employee actually read the release before signing it; (6) whether
the employee was represented by counsel or consulted with an
attorney; (7) whether the consideration given in exchange for
the waiver exceeded the benefits to which the employee was
already entitled by contract or law; and (8) whether the em-
ployee’s release was induced by improper conduct on the defen-
dant’s part. Pierce, 65 F.3d at 571.
given extra time to negotiate on the morning of trial. The
court also noted that the terms were unambiguously
presented to the plaintiffs during negotiations and dis-
cussed in open court, and that plaintiffs were given an
opportunity on the record to voice opposition and instead
indicated their assent. Finally, the court observed that
the settlement reached was a good one for the plaintiffs
given the burden they faced had they taken their case to
trial. We have previously endorsed this sort of analysis
for determining whether a settlement is knowing and
voluntary. 3
B. Enforceability of the Settlement
The enforceability of a Title VII settlement is a question
of federal law, under which an oral settlement constitutes
a binding contract if there was an offer, an acceptance,
and consideration. Taylor, 793 F.2d at 862. Plaintiffs
maintain that they received no consideration because the
City only paid Bent’s fees and provided no remedy for past
discrimination.
“As long as the person receives something of value in
exchange for her own promise or detriment, the courts will

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No. 05-4034 9
not inquire into the adequacy of the consideration.”
Wagner v. NutraSweet Co., 95 F.3d 527, 532 (7th Cir.
1996); see also Riley, 881 F.2d at 375 (holding that defen-
dant’s agreement to refrain from seeking costs against
plaintiff was sufficient consideration to enforce plaintiff’s
release of all claims). The plaintiffs unquestionably
received value in exchange for the settlement of their
claims. The agreement required the City to comply with a
whole host of provisions regarding hiring and promotional
policies, including conducting a review of the department’s
recruitment and promotional policies, retaining an inde-
pendent firm for hiring and promotional testing, and
implementing diversity training. The City also agreed
not to count the day in court against the plaintiffs’ vaca-
tion or sick leave and to pay $67,000 to cover the attorney’s
fees and expenses the plaintiffs had incurred in bringing
their claims. There is no merit to plaintiffs’ contention that
the agreement was not supported by consideration merely
because it did not provide them with every remedy to
which they believe they were entitled. See, e.g., Taylor, 793
F.2d at 863 (“[A] party to a settlement cannot avoid the
agreement merely because he subsequently believes the
settlement is insufficient.”).
The plaintiffs raise two other arguments challenging
the validity of the September 12 settlement: that it
lacked mutuality of obligation because it was subject to
approval by the Kankakee City Council, and that it was
not final until reduced to writing on September 22. These
arguments, however, were not explicitly raised before the
district court. Arguments not raised in the district court
are waived on appeal. See, e.g., Belom v. Nat’l Futures
Ass’n, 284 F.3d 795, 799 (7th Cir. 2002).
Finally, the plaintiffs contend that the Agreed Judgment
Order of September 22 constituted a fraud on the court
because Brooks had notified Bent in the interim that he
intended to employ new counsel. This argument also

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10 No. 05-4034
was not raised in the district court and is waived. In any
event, the argument is irrelevant given our conclusion
that the September 12 on-the-record oral settlement
was binding and enforceable.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-19-07

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