American Homeland Title Agency v. Stephen Robertson , 930 F.3d 806 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3293
AMERICAN HOMELAND TITLE AGENCY, INC.,
JOHN YONAS, and MARTIN RINK,
Plaintiffs-Appellants,
v.
STEPHEN W. ROBERTSON,
Commissioner of the
Indiana Department of Insurance,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cv-02059-SEB-DML — Sarah Evans Barker, Judge.
____________________
ARGUED APRIL 1, 2019 — DECIDED JULY 15, 2019
____________________
Before EASTERBROOK, SYKES, and BRENNAN, Circuit Judges.
SYKES, Circuit Judge. During a random audit, the Indiana
Department of Insurance (“the Department”) discovered
that American Homeland Title Agency had committed
hundreds of regulatory violations. After several rounds of
negotiation, American Homeland agreed to pay a fine and
2 No. 18-3293
relinquish its licenses. But just a few months later, American
Homeland sued the Department’s commissioner, Stephen
Robertson, for allegedly discriminating against the company
because of its out-of-state residency.
We need not reach the merits of that discrimination
claim. In its agreement with the Department, American
Homeland consented to the same penalties it now challeng-
es. It hasn’t provided a valid reason to void that agreement,
so judicial review is unavailable. We therefore affirm sum-
mary judgment in favor of Robertson.
I. Background
American Homeland Title Agency is a Cincinnati-based
company that performs title searches and sells title insur-
ance. Its owners are John Yonas and Martin Rink, both of
whom are attorneys. In 2015 the Department randomly
audited American Homeland’s files and found hundreds of
code violations, none of which American Homeland denies.
The Department’s examiners recommended that the
Commissioner fine American Homeland $70,082 and order
$42,202 in consumer reimbursements. To calculate those
penalties, the examiners started with what their guidelines
recommended but then deviated upward. The guidelines are
fully advisory, so everyone agrees that the examiners had
the discretion to do so.
The parties then went through several rounds of negotia-
tion. But not only did the examiners refuse to adjust the
fines, they added a new sanction: Yonas and Rink would
lose their licenses to do business in Indiana. Later, one of the
Department’s attorneys informed American Homeland that
if it refused to agree to the penalties, it could seek adminis-
No. 18-3293 3
trative review. But if American Homeland did that, it could
face the maximum fine of $9.5 million. Fearing that expo-
sure, American Homeland agreed to the recommended
sanctions.
After the Commissioner’s approval, the parties signed
the “Agreed Entry.” American Homeland accepted the
penalties and “voluntarily and freely waive[d] the right to
judicial review of th[e] matter.” After settling the dispute,
American Homeland paid the fees, and Yonas and Rink gave
up their licenses.
A few months later, American Homeland sued Commis-
sioner Robertson. The complaint alleged that the Depart-
ment imposed higher penalties because American Homeland
is based in Ohio, not Indiana. American Homeland initially
contended that this disparate treatment violated the Consti-
tution’s Commerce and Equal Protection Clauses. But as
everyone now agrees, “the McCarran-Ferguson Act exempts
the insurance industry from Commerce Clause restrictions.”
Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 880 (1985); see
15 U.S.C. §§ 1011–1015. Still, the McCarran-Ferguson Act
“does not purport to limit in any way the applicability of the
Equal Protection Clause.” Metro. Life Ins., 470 U.S. at 880
(striking down, under rational-basis scrutiny, a tax regime
that favored in-state insurers). So American Homeland’s
second claim proceeded.
American Homeland’s equal-protection case rests on
three pieces of evidence. First, the company offers the expert
testimony of Dr. Daniel Voss, who conducted a statistical
analysis and found that when the Department audits out-of-
state companies, it tends to deviate more from its guidelines
than when it audits in-state companies. Second, American
4 No. 18-3293
Homeland points to a stray comment that a Department
examiner made during a recorded phone call while negotiat-
ing the penalties. When Yonas and Rink insisted that the
sanctions would put them out of business, the examiner
said, “[P]lease understand if you … guys aren’t writing this
business in Indiana[,] people in Indiana would probably be
writing it.” Third, American Homeland emphasizes that
Robertson was unable to say definitively during his deposi-
tion that no one in his department was motivated by in-state
bias—though he did say that he himself would never con-
sider that factor.
If the case were to go to trial, American Homeland would
seek three kinds of relief. First, it asks for damages. The
complaint is somewhat unclear, but the company presuma-
bly wants to be reimbursed for whatever amount it overpaid
because of its out-of-state residency. Second, it wants an
injunction ordering that the licenses be reinstated. And third,
it wants a declaratory judgment stating that the Agreed
Entry violates the Equal Protection Clause. In short, it wants
a court to undo the settlement agreement.
The district judge entered summary judgment for
Robertson. She did not think that the Agreed Entry preclud-
ed judicial review altogether, but she held that American
Homeland did not have enough evidence on the merits to
survive summary judgment. First, she excluded Dr. Voss’s
testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Then she determined that the remaining
evidence—the examiner’s stray remark and Robertson’s
deposition testimony—was insufficient to create a genuine
dispute of material fact. She entered judgment, and
American Homeland now appeals.
No. 18-3293 5
II. Discussion
We review a summary judgment de novo. See Kopplin v.
Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). In doing
so we may affirm “on any ground supported in the record,
so long as that ground was adequately addressed in the
district court and the nonmoving party had an opportunity
to contest the issue.” Cardoso v. Robert Bosch Corp., 427 F.3d
429, 432 (7th Cir. 2005).
Our first and only question is whether the Agreed Entry
bars judicial review. We note, however, that this is not a
question of constitutional standing. Commissioner
Robertson has consistently argued that American Homeland
lacks standing because its injuries are not redressable in light
of the settlement. While we agree that the Agreed Entry bars
review, we disagree with that characterization.
The standing doctrine addresses whether a court has the
power to hear a case under Article III of the Constitution. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). It is there-
fore jurisdictional. See Transamerica Ins. Co. v. South, 125 F.3d
392, 396 (7th Cir. 1997). In contrast, the fact that a plaintiff
already released his claims through settlement is an affirma-
tive defense that may be waived. See Caudill Seed & Ware-
house Co. v. Rose, 868 F.3d 558, 560–61 (7th Cir. 2017); FED. R.
CIV. P. 8(c).
In this case, American Homeland has satisfied each of the
required elements of standing. See Lujan, 504 U.S. at 560–61
(requiring that a plaintiff show a concrete injury in fact that
is fairly traceable to the defendant and that a favorable
decision would redress). The company claims that it re-
ceived inappropriately severe penalties. If true, that is an
6 No. 18-3293
injury in fact traceable to the Department’s conduct. And the
remedies at issue—damages and an order to restore the
licenses—would unquestionably redress that wrong. So
standing is not the problem.
Still, the relevant question remains the same: Did
American Homeland release these claims when it signed the
Agreed Entry? When a party settles a disciplinary matter
with an agency, the “consent decree or order is to be con-
strued for enforcement purposes basically as a contract.”
United States v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975).
More specifically, “[i]ssues regarding the formation, con-
struction, and enforceability of a settlement agreement are
governed by local contract law.” Pohl v. United Airlines, Inc.,
213 F.3d 336, 338 (7th Cir. 2000). So in this case, Indiana
contract law applies.
Under the plain terms of its agreement, American Home-
land accepted the penalties now at issue and waived its right
to judicial review. Yet this lawsuit is nothing more than an
attempt to use judicial review to unwind those penalties.
Indeed, each of the requested remedies is directly keyed to
undoing some sanction imposed by the agreement—namely,
the size of the monetary penalty and the revocation of the
licenses. Nothing else is at stake. 1
1 In fairness, American Homeland briefly argues that it also seeks
damages for a reputational harm, but it has never explained exactly how
it suffered that kind of harm here. Likewise, it also asks for a broader
injunction ordering the Department to stop discriminating against other
firms. But that would do nothing to remedy American Homeland’s own
injury, so it can’t be enough to sustain this lawsuit. To hold otherwise
would present standing problems. See Lewis v. Cont’l Bank Corp., 494 U.S.
472, 479 (1990) (explaining that for standing purposes, the question is not
No. 18-3293 7
In response American Homeland offers two reasons not
to enforce the Agreed Entry as written: duress and the
existence of unconstitutional bias. Neither has any merit. As
for duress, American Homeland argues that if it hadn’t
signed the agreement, it would have run the risk of facing a
much higher penalty—anything up to the maximum penalty
of $9.5 million. That is plainly insufficient to constitute
duress under Indiana law:
In order to avoid a contract on the basis of du-
ress, there must be an actual or threatened vio-
lence of restraint of a man’s person contrary to
law[] to compel him to enter into a contract or
discharge one. In deciding whether a person
signed a document under duress, the ultimate
fact to be determined is whether or not the
purported victim was deprived of the free ex-
ercise of his own will.
Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 378 (Ind.
Ct. App. 2012) (citations, quotation marks, and alteration
omitted). Here, there was no threat of violence. In fact, it’s
not clear there was any threat at all. The Department’s
lawyer appears to have simply informed American Home-
land that if it sought administrative review, the penalty
could go as high as $9.5 million. The attorney did no more
than explain the law. That isn’t the kind of coercion that
suffices to void a contract. After all, most consent decrees
involve the payment of a smaller sum in lieu of litigating the
what the relief does for “the world at large” but whether the plaintiff
“has a stake in that relief”).
8 No. 18-3293
full amount at issue. Under American Homeland’s view of
duress, no settlement negotiation could survive.
American Homeland’s second argument for voiding the
Agreed Entry is that its terms were the result of unconstitu-
tional bias. But none of the cases it cites explain under what
circumstances an equal-protection claim voids a settlement
agreement. Under some circumstances Indiana does, like
most states, void contracts on illegality grounds. But the
doctrine of illegality does not apply here. It typically applies
when a statute prohibits the formation of a particular type of
contract or when the performance of a contract would
require an illegal act. See Hogston v. Bell, 112 N.E. 883, 888
(Ind. 1916) (“[A] contract is not void as against public policy
[on the basis of its illegality] unless the contract itself … is
forbidden by law, or its consideration is illegal or immor-
al.”).
To give an example, an Indiana statute once specifically
voided agreements between students and unaccredited
postsecondary educational institutions. See Cont'l Basketball
Ass'n, Inc. v. Ellenstein Enters., Inc., 669 N.E.2d 134, 140 n.10
(Ind. 1996) (citing the since-repealed IND. CODE § 20-1-19-19).
Likewise, Indiana has outlawed both prostitution and
gambling, so contracts involving either are generally void.
See Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind. Ct. App.
1980) (“Our most recent criminal code … does still proscribe
acts of prostitution … . Thus, any contract in which sexual
services serve as consideration are unenforceable and
void … .”); Auman v. Fabiano, 132 F. Supp. 353, 353 (N.D. Ind.
1955) (holding that a contact involving gambling is not
enforceable unless the claim “can be wholly disconnected
from the illegal transaction”). But because Indiana “value[s]
No. 18-3293 9
the freedom to contract so highly,” it will void a contract on
illegality grounds only in rare cases. See Cont'l Basketball
Ass'n, Inc., 669 N.E.2d at 140. In the case before us, the
doctrine simply does not apply. American Homeland claims
that the Department was impermissibly biased, but nothing
makes it illegal to enter an ordinary consent decree; nor
would performance of this contract require any illegal
conduct.
Moreover, American Homeland hasn’t even alleged that
there is anything wrong with the provision at issue: the
waiver of judicial review. American Homeland wants a jury
to find that the penalty provisions were unconstitutionally
severe; it does not argue that the waiver itself was unlawful.
And according to that provision, we can’t inquire into the
terms of the agreement at all.
American Homeland tried a new approach at oral argu-
ment. It analogized this case to the plight of a criminal
defendant who challenges his sentence after entering a plea
bargain. If anything, the analogy hurts American Home-
land’s case. When a criminal defendant waives appellate
review of his plea bargain, we will generally enforce that
waiver. See United States v. Jones, 381 F.3d 615, 619 (7th Cir.
2004) (“A defendant may waive his appeal rights as part of a
plea agreement, provided the waiver is clear and unambigu-
ous.”); see also United States v. Hallahan, 756 F.3d 962, 971 (7th
Cir. 2014) (“A knowing and voluntary appeal waiver pre-
cludes appellate review.”). Even more relevant, a criminal
defendant can waive the right to challenge the severity of his
punishment. See Jones, 381 F.3d at 619 (“Jones explicitly
waived his right to appeal his sentence. And, as established
above, he knowingly and voluntarily signed the plea agree-
10 No. 18-3293
ment and pled guilty. The fact that he is unhappy with his
ultimate sentence does not undo his acquiescence.”).
American Homeland’s analogy shows only that it is asking
for a degree of leniency that even a criminal defendant
doesn’t receive.
In sum, American Homeland has offered no meaningful
reason to ignore the Agreed Entry. Because the company
waived its right to judicial review of the penalties, its claims
are foreclosed. As a result, we need not reach the merits of
American Homeland’s equal-protection claim.
AFFIRMED