Correction, December 8, 2020: The headline and abstract for this document originally incorrectly stated the agreement had been approved by the Illinois Court of Appeals for the Fourth District. The agreement was reached between the parties and not adjudicated by the court.
]TAX ANALYSTS,
Plaintiff-Appellee,
v.
ILLINOIS DEPARTMENT OF REVENUE,
Defendant-Appellant.
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
Appeal from the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois
The Honorable
JACK DAVIS,
Judge Presiding.
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (“Agreement”) is made and entered into by and between Tax Analysts (“Plaintiff") and the Illinois Department of Revenue (“Defendant” and, collectively with Plaintiff, “Parties”).
RECITALS
Plaintiff filed a lawsuit in the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois, entitled Tax Analysts v. Illinois Department of Revenue, No. 18-MR-1018, in which Plaintiff sought production by Defendant of the Illinois Department of Revenue Audit Tax Manual (“Manual”) pursuant to the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq. (2018). On December 18, 2019, the circuit court granted summary judgment in favor of Plaintiff, and denied summary judgment in favor of Defendant, and ordered production of the Manual by Defendant. On February 10, 2020, the circuit court awarded Plaintiff $40,388.15 in attorneys' fees and costs. Defendant appealed these orders to the Illinois Appellate Court, Fourth Judicial District, where the matter was docketed as Appeal No. 4-20-0153 (together with the lower court action No. 18-MR-1018, “State Actions”).
To avoid further expense and in recognition of the Parties' positions, the Parties wish to settle, compromise, and terminate the State Actions on the following terms.
TERMS
1. In consideration for the full and complete settlement of the State Actions, Plaintiff shall receive $35,000 (“Settlement Amount”) and Defendant shall provide Plaintiff with a redacted copy of the Manual.
2. The Settlement Amount shall be paid from the funds available to Defendant for fiscal year 2021. The Settlement Amount shall be paid electronically to Donald M. Craven, Plaintiff's attorney, for payment to Plaintiff. Plaintiffs attorney shall submit a W-9 form to effectuate payment.
3. The Parties understand that the Settlement Amount is subject to the operations of the State Comptroller's office in processing vouchers for payment and withholding funds that Plaintiff may owe to other persons or to state agencies. Plaintiff may contest the validity of these claims through applicable state procedures. The Parties understand that all applicable taxes will be deducted from the Settlement Amount.
4. The Manual has been provided by chapter, in electronic portable document format (“pdf"), via electronic mail to Cornish F. Hitchcock, Plaintiffs attorney, at conh@hitchlaw.com, for distribution to Plaintiff. The Manual consists of chapters 1-2; 5-16; 19; 20-33; 35-36; 38-40, 42-49; 50; and 60-61, and Audit Manual Updates for the period 2018-2020.
5. The Manual has been redacted by the Department. Plaintiff has reviewed and approved the basis for all redactions. Plaintiff agrees not to publish or otherwise distribute the Manual provided by the Department except as provided by Defendant in redacted form.
6. Plaintiff agrees that it is in receipt of the redacted Manual.
7. Plaintiff agrees that it has received all documents subject to production under the order entered by the circuit court on December 18, 2019.
8. Each provided chapter contains a disclaimer, an example of which is attached as Addendum A to this Agreement. No chapter of the Manual may be published or otherwise distributed by Plaintiff without inclusion of the disclaimer as set forth in Addendum A.
9. Defendant has provided, as reference guides, a Redaction Log and Audit Manual Index in electronic Microsoft Excel spreadsheet (“xls”) format, via electronic mail to Cornish F. Hitchcock, Plaintiffs attorney, at conh@hitchlaw.com, for distribution to Plaintiff.
10. The above-tendered consideration is not to be construed as an admission of any liability.
11. Plaintiff and its agents, former and present employees, successors. assigns, and all other persons acting on its behalf release and forever discharge Defendant and the State of Illinois, their agents, former and present employees, successors, assigns, and all other persons acting on their behalf from all actions, claims, and demands of any kind that arose or could have arisen from the facts alleged or claims made in the State Actions, whether known or unknown, up to the effective date of this Agreement. For legal fees, costs, or expenses generated on or after the circuit court order of February 10, 2020, Plaintiff and Plaintiffs attorney release, waive, and relinquish any claim or right to attorneys' fees, costs, or expenses allegedly incurred or due under any statute, rule, or common law provision.
12. The Parties agree to dismiss the appeal with prejudice and without attorneys' fees, costs, or expenses incurred on or after February 10, 2020, by Defendant filing a fully executed, agreed motion to voluntarily dismiss in the Illinois Appellate Court, Fourth Judicial District, within 30 days of payment of the Settlement Amount. Counsel for Plaintiff will notify counsel for Defendant when payment is received.
13. The Plaintiff shall file a signed release and satisfaction of judgment in the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois, subject to prior review by Defendant's counsel and in conformity with paragraph 15, below, within seven days of the order granting the motion for voluntary dismissal of the appeal.
14. This Agreement contains the entire agreement between the Parties. No promise has been made to pay or give Plaintiff any consideration other than as stated in this Agreement. All of the Parties' agreements, covenants, commitments, and warranties, express or implied, oral or written, concerning this Agreement's subject matter are contained in this Agreement.
15. Plaintiff enters into this Agreement as a free and voluntary act with full knowledge of its legal consequences, and in doing so it represents and warrants that it has not relied on any information or representation by Defendant, its counsel, or other agents, oral or written, that are not contained in this Agreement.
16. This Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois, without regard to principles of conflict of laws.
17. This Agreement may not be changed, modified, or assigned except by written agreement of Plaintiff, Defendant, and the Illinois Attorney General.
18. This Agreement shall not be construed to constitute a waiver of sovereign immunity of the State of Illinois or Defendant.
19. If any provision of this Agreement is declared invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
20. This Agreement may be executed in multiple counterparts and shall be deemed effective when executed by all Parties.
AGREED:
Cara L. Griffith,
President and CEO, on behalf of Plaintiff, Tax Analysts
Date 12/2/2020
Brian E. Fliflet,
Acting General Counsel, on behalf of Defendant,
Illinois Department of Revenue
Date 12/3/2020