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00-2839 McCaskill v. SCI Management Corp., et al.

By: dmc-admin//August 12, 2002//

00-2839 McCaskill v. SCI Management Corp., et al.

By: dmc-admin//August 12, 2002//

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“The provision at issue specifies: ‘Each party may retain legal counsel and shall pay its own costs and attorneys’ fees, regardless of the outcome of the arbitration.’ The plain terms of the phrase clearly prohibit recovery of attorney’s fees regardless of the result or the type of action filed. McCaskill’s substantive objection to the provision is that it limits her ability to effectively vindicate her rights under Title VII. At oral argument, SCI conceded that the agreement is unenforceable if construed to limit McCaskill’s ability to recover attorney’s fees (provided she prevails) under Title VII. The agreement clearly bars the plaintiff’s ability to recover any attorney’s fees, and because SCI conceded the agreement is therefore unenforceable, we need not proceed any further into an examination of whether Title VII’s fee-shifting provisions override an arbitration agreement. See First Ins. Funding Corp. v. Federal Ins. Co., 284 F.3d 799, 806 (7th Cir. 2002); Burgin v. Broglin, 900 F.2d 990, 994 n.3 (7th Cir. 1990). The verbal admission by SCI’s counsel at oral argument is a binding judicial admission, the same as any other formal concession made during the course of proceedings. See Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997); Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (‘Judicial admissions are formal concessions in the pleadings, or stipulations by a party or its counsel, that are binding upon the party making them. They may not be controverted at trial or on appeal.’); In re Lefkas Gen. Partners, 153 B.R. 804 (N.D. Ill.1993) (noting that judicial admissions are ‘any “deliberate, clear and unequivocal” statement, either written or oral, made in the course of judicial proceedings.’). The agreement prohibits the recovery of attorney’s fees in any situation, thus, based on SCI’s concession, we find that the arbitration clause is unenforceable.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Bauer, J.

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