Cavalier’s attorneys assert Magistrate Judge Bourgeois “forcefully” told Cavalier to accept $200k settlement and joined in then-attorney Craft’s “browbeating” of Cavalier into settling.

May 14, 2022 meeting of the Louisiana State Police Commission (LSPC) at which fired whistleblower Carl Cavalier’s then-attorney, Jill Craft, lambasts high-ranking LSP officials for refusing to honor her subpoenas and thereby continue the delays of Cavalier having his hearing before the LSPC to attempt to obtain his job as an LSP Trooper back.

When we published this latest feature on LSP’s efforts to cram a $200,000 settlement down fired whistleblower Carl Cavalier’s throat, we painted a rather bleak picture of prospects going forward given that Federal Magistrate Judge Richard Bourgeois recommended that Judge John deGravelles enforce the alleged settlement.

The reason for our bleak outlook is that we’ve followed plenty of Federal cases in which a Magistrate Judge makes recommendations to the Judge overseeing the case, and it has been our experience that the recommendations are merely adopted by the judge as a matter of routine practice.

What makes Cavalier’s case unique, however, is that, in his case, the Magistrate Judge, Bourgeois, was an active participant in an October 6, 2022 “settlement” conference.  At that conference, at best, Bourgeois fell well short of what should have been done in terms of adequately memorializing any alleged settlement.  At worst, he failed miserably to serve as a neutral party in the “settlement” and instead, by injecting his opinion that the $200,000 was a “fantastic settlement offer,” actually engaged in misconduct in joining LSP’s efforts to all-but force this settlement upon Cavalier.

There is little doubt of Bourgeois making that utterance about the “fantastic settlement offer” as both Cavalier and his then-attorney, Jill Craft, stated as much in an October 13, 2022 recorded phone call.  Lets take just 33 short seconds to substantiate that fact:

33-second segment of recorded phone call on October 13, 2022 between Cavalier and his then-attorney, Jill Craft, in which Craft openly asks Cavalier, “What part of the judge saying, ‘this is a fantastic settlement’ did you not hear?”

As is obvious, Craft remained consistent, just as she’d done on two prior phone calls (9/2/22 and 9/27/22), that Cavalier simply couldn’t see the forest for the trees, and she appears to be operating under the assumption that she must superimpose her superior knowledge of these type cases to tell him basically that he would be an idiot to not accept the $200,000.  While she may even be right, in the end, it is the client, not the attorney, who makes the call.  The evidence is overwhelming (thanks to Cavalier’s astute recording of those phone calls) that Craft refused to let her client be the boss entailing the decision being made in this matter.

When Cavalier’s attorneys filed this Opposition to Bourgeois’ Report on Tuesday, March 7, 2023, we’re going to admit upfront:  we were impressed.  With what were we impressed?  It’s normal for an attorney to be critical of a Federal Judge’s conclusions of law, but in this instance, Cavalier’s attorneys were willing to accuse Bourgeois of inappropriate conduct to include “forcefully” telling Cavalier to accept the agreement “or get nothing” and also joining Craft and serving as her tag-team partner to “browbeat” Cavalier into accepting the agreement.  Let’s take a look at some of the highlights, shall we?:

To Mr. Cavalier’s shock, when Magistrate Bourgeois was on the call with Mr. Cavalier and his attorney, Magistrate Bourgeois forcefully told Mr. Cavalier to accept a settlement that had been proposed by Defendants. Ms. Craft and Magistrate Judge Bourgeois browbeat Mr. Cavalier into settling. They both kept saying that $200,000.00 was a great settlement, and the details would be worked out later. Though Mr. Cavalier did not want to settle, under duress from both his counsel and Magistrate Judge Bourgeois, he orally agreed to what he thought was an “agreement to agree.”

It is important to note that there is NO contemporaneous Record of the terms of the purported settlement. The Court failed to read the oral settlement into the record. The oral settlement was not reduced to writing at the settlement conference. Typically, if a settlement is reached during a mediation, all parties at least sign a short document memorializing the essence, if not the key terms, of the settlement; no such document was signed at the end of the mediation.

The terms of the settlement were NEVER made a part of the Judicial Record. Post mediation, the Attorneys for both sides collaborated on the details of the putative settlement, but Mr. Cavalier never agreed to the written document. Further, at no time did Mr. Cavalier authorize his attorney to settle on his behalf. No writing or recording from Mr. Cavalier authorized his attorneys to settle the underlying matter on his behalf.

In the case at bar the underlying action for wrongful termination was filed in Louisiana State Court by a Louisiana State employee, Carl Cavalier, against Louisiana entities, Louisiana Department of Public Safety & Corrections, the State Police and the Superintendent of the State Police. Mr. Cavalier alleged that he was terminated because he revealed abuse of certain employees of the Louisiana State Police against a Louisiana citizen. It would seem appropriate
for Louisiana law to be followed in this case. Several cases cited in the Recommendations (R. Doc. 83) involve Maritime Law or other federal law, and such cases were filed in Federal Court.  The instant matter is clearly distinguished from these cases. The EEOC case5 involves an agency settlement, not a lawsuit settlement, and thus is not applicable to the case at bar.

One key fact is that the putative agreement was oral, not reduced to writing at the end of the settlement conference, and not put into the Record. Clearly, under Louisiana Law, the settlement is not enforceable.

Under Louisiana law,

“A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.”

In general, when a person is given the “opportunity to agree to a contract or be deprived of economic security, the Court has found this to be Duress. Mr. Cavalier was told that if he didn’t take the settlement on the table, he would get nothing. Mr. Cavalier’s “personal circumstance” was that he was not sophisticated in legal matters or how settlements worked. He did the right thing and exposed a coverup, and was rewarded by being fired. His counsel at the time had assured him that he had a great case. She was confident and wanted to take it to trial. But then money showed up, and suddenly she said he had better take the money because he had no chance if he did not. He was confused and intimidated by the whole process. Not being experienced in such matters, his circumstance made his fear more than reasonable. His own lawyer, who was to be on his side and on whom he had relied, abandoned him in the negotiations, and said she was not going to push for more money or for his reinstatement as a State Trooper. She in essence forced him to agree to a proposal. To compound his fears of not agreeing, his neutral arbiter forcefully told Mr. Cavalier to take the money, or get nothing. Mr. Cavalier again was confused and intimidated. Is it surprising that Mr. Cavalier, with no time to consider the offer, said OK? Mr. Cavalier did agree to settle orally, but the settlement was never read into the record, and as soon as he saw the writing, purported to reflect the agreement, Mr. Cavalier refused to sign.

In the instant matter, the purported settlement was not made in writing; the purported settlement was not recited in open court; and the purported settlement could not possibly have been “transcribed from the record” as there was no record of the proceedings!

It is clear that Mr. Cavalier had only verbally agreed to a settlement because he believed that there would be more negotiations, and when he saw the written terms of the putative settlement, Mr. Cavalier refused to sign the writing, prepared by and agreed to by his Counsel and Counsel for the Defendants. Mr. Cavalier had insisted that his reemployment be included in any settlement, and it was not. Clearly there was no meeting of the minds, and thus no agreement.

There is no valid compromise. Regardless, whether under state law or federal law, a contract must reflect the “meeting of the minds” of the parties or the consent of all parties to the contract. Further, whether viewed under Louisiana or federal law, the standard of review for enforcing or challenging a settlement is the same—whether there was abuse of discretion and clear error. A purported agreement is invalid if it was agreed to in ERROR or made under FRAUDULENT circumstances or made under DURESS. In the instant matter, any settlement apparently reached would be invalid because of Error and Duress.

Thus, there is no settlement agreement as Mr. Cavalier only verbally agreed in error, believing that more negotiations were to follow, and even what he agreed to was done under duress.

WHEREFORE, Mr. Cavalier asks that the Recommendations from Magistrate Bourgeois be rejected, and that Mr. Cavalier’s Motion to Rescind the Settlement be granted, or in the alterative, a Hearing on this matter be held. Further, Mr. Cavalier asks that the Motion to Intervene be denied, and that all Motions by the Intervenor be denied.

We’re certainly heartened by the wording above about there being no “meeting of the minds” because, as we’ve previously emphasized on several occasions in covering this matter, from what Burns was taught in Business Law classes at LSU and, judging by the questions along those lines on the CPA exam, we’ve felt it was clear there was no “meeting of the minds” in this case.  Obviously, Cavalier’s attorneys, one of whom is a PhD, strongly concur!

We’ll just have to see whether Judge deGravelles concurs with Cavalier’s attorneys or whether he concurs with his Magistrate Judge but, given the highly-unusual circumstances of this case, perhaps this will be a rare instance in which the Federal Judge overseeing the case, deGravelles, deviates from the Report of his Magistrate Judge, Bourgeois.

At any rate, whenever a hearing time and date is set, we plan to attend or, in the event no hearing is set by Judge deGravelles to hear oral arguments and testimony, we’ll certainly alert our subscribers to whatever decision Judge deGravalles makes.

No matter what the ruling, however, we commend and admire Cavalier’s attorneys for having the courage to call a Federal Judge on the carpet, and we believe that act shows they’re willing to go to the wall in advocating for their clients (Cavalier in this case).

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