No, the company cannot tell the jury about the job offer. There is a special court rule (Rule 408) that says anything offered or said during settlement talks is private and can't be used as evidence in a trial. The company argued the rule shouldn't apply to them since they were the ones who made the offer. But the court said the main purpose of the rule is to make people feel safe to negotiate honestly and solve problems without going to court. If lawyers knew that their settlement talks could be revealed in court, they might have to become witnesses, which means they couldn't be the lawyers on the case anymore. This would make settling cases much harder and more complicated, so the rule protects everyone involved.

Yes, the jury had enough evidence to decide Hartmarx didn't give Pierce the General Manager job because of his age. Hartmarx looked at the decision again after the old General Manager said he was retiring, and that's when Pierce said he wanted the job. It didn't matter that Pierce didn't fill out a job application because Hartmarx didn't have an official way to apply. The judge explained the law to the jury correctly.

The court was right not to let Hartmarx use evidence that it offered Pierce a different job later, during talks to settle the case. Allowing that evidence could make people less willing to have honest settlement talks, because the lawyers might have to be witnesses and stop representing their clients. The rule that says settlement talks usually can't be evidence should be followed as written, no matter who wants to use them in court.

But the court was wrong to punish Hartmarx for trying to use the job offer evidence. The court used the wrong legal standard and didn't realize Hartmarx had a decent argument for why the evidence might matter. Hartmarx shouldn't be punished for making a creative argument if it has some facts and law to back it up.

As the Second Circuit has observed, "widespread admissibility of the substance of settlement offers could bring with it a rash of motions for disqualification of a party's chosen counsel who would likely become a witness at trial."

Both the timing of the offer and the existence of a disputed claim are relevant to the determination [of whether an offer is made `in compromising or attempting to compromise a claim

Moreover, proof of statements and offers made in settlement would often have to be made through the testimony of attorneys, leading to the risks and costs of disqualification.

—"where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408."

—settlement evidence inadmissible regarding mitigation of damages as it goes to "amount" of the claim

—reversing an award of sanctions on the ground that, in the absence of controlling authority to the contrary, the party had a good faith basis to press a legal argument supported by a single decision of a state court

The "question is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment."

We believe that admission into evidence of settlement offers, even by the offeror, could inhibit settlement discussions and interfere with the effective administration of justice

"Evidence that demonstrates a failure to mitigate damages goes to the `amount'of the claim and thus, if the offer was made in the course of compromise negotiations, it is barred under the plain language of Rule 408. "

The Second Circuit upheld the charge, reasoning that:(1) ignorance of the correlation between the selection mechanism and age could not be claimed because the case was not a disparate impact case;(2) BFOQ was not claimed; and (3) defendant did not claim that it believed that plaintiff was not covered by the ADEA.

Yes, Federal Rule of Evidence 408 bars the admission of a job offer made during settlement negotiations to prove a plaintiff's failure to mitigate damages. Evidence that a plaintiff failed to mitigate damages goes to the 'amount' of the claim, which falls squarely within the plain language of Rule 408's prohibition. The court rejected the defendant's argument that the rule should not apply when the offeror seeks to introduce the evidence, reasoning that the public policy of encouraging frank and open settlement discussions is paramount. Admitting such offers would create a significant practical problem: attorneys involved in negotiations would likely be called as witnesses to testify about the offers, forcing their disqualification as trial counsel under advocate-witness rules. This would either chill settlement talks or require parties to hire separate 'negotiation counsel' and 'trial counsel,' which is inefficient and costly. Therefore, the rule must be applied as written to exclude the evidence regardless of which party offers it.

Yes, the jury had sufficient evidence to conclude that Hartmarx denied Pierce the General Manager position because of his age. The decision to promote Van Berg was revisited after the previous General Manager announced his retirement, at which point Pierce expressed his interest. Hartmarx's argument that Pierce did not formally apply was unpersuasive, as there was no formal application process. The jury instructions on pretext and willfulness were appropriate. 

Evidence of a subsequent job offer made to Pierce during settlement discussions was correctly excluded under Federal Rule of Evidence 408. Admitting such evidence could inhibit future settlement negotiations and interfere with the effective administration of justice by potentially forcing attorneys involved in settlement talks to become witnesses and be disqualified from representing their clients at trial. Rule 408 should be applied as written to exclude settlement offers regardless of which party seeks to introduce them. The job offer evidence did not fall under the 'other purpose' exception to Rule 408 because it went to the ultimate issue of liability.

However, the district court's imposition of Rule 11 sanctions against Hartmarx for attempting to introduce the job offer evidence was an abuse of discretion and is reversed. The court applied an incorrect legal standard in assessing the evidence's admissibility and failed to recognize that Hartmarx had a good faith basis for arguing the evidence's relevance to mitigation of damages and the existence of a factual dispute regarding the offer's conditionality.

Pierce v. F.R. Tripler & Co.

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