Defendants' presumption of a unified defense may be an expectation, but does not equate to an entitlement. Simpson v. Matthews, 339 Ill. App. 3d 322, 332 (2003). ¶ 25 Furthermore, the record reveals that Bethalto and Imo's had filed cross-claims against the settling defendants, which contributed to an adversarial environment.
Thus, while no cash technically exchanged hands, AdGooroo unquestionably obtained a financial benefit from this settlement. ¶ 37 Bank of America, for its part, received a benefit as well. While it appeared to have a strong defense against any liability to plaintiff, based on the language in the Deposit Account that insulated it from liability for honoring transactions by one of AdGooroo's authorized signatories (see supra, ¶¶ 7-8), that issue had not yet been fully litigated, and in any event, the language in the Deposit Account provided that Bank of America was not immune from liability for gross negligence or intentional acts. By settling with AdGooroo, Bank of America eliminated any possible exposure in the third-party action. A settlement agreement between a defendant and plaintiff does not lack good faith merely because one of defendant's purposes may be to purchase protection against a claim for contribution. Simpson v. Matthews, 339 Ill. App. 3d 322, 330 (2003); McDermott, 240 Ill. App. 3d at 47. ¶ 38 Hechtman also claims that the settlement was not in good faith because the zero dollar settlement is not in a reasonable range of Bank of America's fair share of liability, as alleged in Hechtman's proposed amended third-party complaint, in which Hechtman alleged that Bank of America bears the "primary" responsibility for the damages alleged in AdGooroo's claims against Hechtman. We have already explained that, given the uncertain nature of litigation, courts in Illinois have typically rejected challenges to good-faith settlements based on perceived disparities between the value of the settlement and the relative culpability of the defendants.
Contrary to plaintiffs contention, Illinois courts have recognized covenants not to enforce judgments as "settlements" under section 2 of the Contribution Act. See Simpson v. Matthews, 339 Ill. App. 3d 322, 329, 790 N.E.2d 401 (2003) ("Despite Simpson's and Reynold's adamancy that the agreement does not constitute a settlement, it clearly contains a promise that Simpson will not enforce a judgment against Reynolds in an amount in excess of $50,000"'you have agreed to accept that amount of money [policy limits] in full compensation of any settlement or judgment that might be rendered against my client, Alan Reynolds.' We find that the language of the agreement leaves little doubt that the agreement is a covenant not to enforce a judgment, thereby falling within section 2 of the Contribution Act"). Plaintiff has provided no authority to suggest a covenant not to enforce judgment cannot be considered a "settlement" under Illinois law.
As the defendants observe, settling with one of multiple defendants prior to trial is well known to be risky, and the empty chair strategy is well known to trial lawyers. C. Peck, Reading Tea Leaves: The Future of Negotiations for Tort Claimants Free from Fault, 15 U. Puget Sound L. Rev. 335, 341-42 (Winter 1992) (unwise for fault-free plaintiff to make reduction in pre-trial settlement with one of multiple defendants); 16 D. DeWolf K. Allen, Washington Practice, Tort Law Practice sec. 12.25 (2000) (suggesting covenants not to execute as possible way to circumvent empty chair situation); Simpson v. Matthews, 790 N.E.2d 401, 408 (Ill.App.Ct. 2003) (noting that the "'empty chair' strategy is well known to trial lawyers as a defendant's dream and a plaintiff's nightmare"). Moreover, Park's own claims obviate an argument of unfair surprise.
The prejudice that it creates is clearly the disconcerting aspect of Mary Carter agreements. In Simpson v. Matthews, 339 Ill.App.3d 322, 790 N.E.2d 401, cert. denied, 205 Ill.2d 647, 803 N.E.2d 501 (2003), the court explained: "The danger the courts have seen in Mary Carter agreements is clear: they give one defendant a motive to help the plaintiff obtain a judgment against another defendant that is larger than the plaintiff might otherwise have obtained." Id., 328.