SETTLEMENT AGREEMENT AND RELEASE BETWEEN MARK LONG AND THE STATE OF OREGON

8/22/2019 SETTLEMENT AGREEMENT AND RELEASE BETWEEN MARK LONG AND THE STATE OF OREGON

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PAGE 1 SETTLEMENT AGREEMENT AND RELEASE BETWEEN MARK LONG ANDTHE STATE OF OREGON

SETTLEMENT AGREEMENT AND RELEASE

BETWEEN MARK LONG AND THE STATE OF

OREGON

RECITALS

A. Mark Long (hereinafter Plaintiff) is an employee with the Oregon

Department of Consumer and Business Services. The parties to this Agreement are

Plaintiff and the State of Oregon, including all State of Oregon offices, divisions,

departments, agencies, institutions, officers, employees, former employees and agents

(hereafter State of Oregon).

B. On November 29, 2010, Plaintiffs attorneys, William F. Gary, Dave

Frohnmayer and Harrang Long Gary Rudnick P.C. served a notice on the Oregon Department

of Administrative Services, and other state officials, attached as Exhibit 1 herein. The notice

alleged that the State of Oregon and its officials had taken improper, illegal, and tortious

actions in violation of Plaintiffs constitutional rights. The State of Oregon denies the

allegations.

C. On December 29, 2010, Plaintiffs attorneys, William F. Gary, Dave

Frohnmayer and Harrang Long Gary Rudnick P.C. sent a letter to Governor Kulongoski and

other state officials, attached as Exhibit 2 herein. The letter alleged that the State and its

officials had taken improper, illegal, and tortious actions in violation of Plaintiffs

constitutional rights. The State of Oregon denies the allegations.

D. On June 24, 2011, Plaintiffs attorneys, Sharon Rudnick and Harrang Long

Gary Rudnick P.C., served a tort claims notice on the Oregon Department of Administrative

Services, attached as Exhibit 3 herein. The notice alleged that the State of Oregon and its

officials had taken improper, illegal, tortious and retaliatory actions in violation of Plaintiffs


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constitutional rights. The State of Oregon denies the allegations.

E. On April 8, 2011, Mark Long filed a public records lawsuit in Marion County

Circuit Court entitledMark Long v. John Kroger, in his official capacity as Attorney General

for the State of Oregon, Case No. 11C14422 for declaratory and injunctive relief. That case

went to trial in 2012 and a general judgment in favor of Plaintiff entered on June 18, 2012. A

supplemental judgment awarding Plaintiff $562,569.36 in attorney fees and costs was entered

on October 30, 2012. The State filed a timely appeal of both the judgment and supplemental

judgment, which is currently pending before the Oregon Court of Appeals, Case No.

A151934.

F. On June 21, 2012, Plaintiff filed suit in Marion County Circuit Court entitled

Mark Long v. John Kroger, Sean C. Riddell, and the State of Oregon, by and through the

Oregon Department of Justice, Case No. 12C17833. Following its removal to federal court,

the State of Oregon and the individual defendants asserted counterclaims against Plaintiff for

their attorney fees incurred in connection with the case. The case is currently pending before

the United States District Court for the District of Oregon, Case No. 6:12-cv-01383TC

(Federal action). The State of Oregon and the individual defendants deny the allegations.

G. Collectively, Plaintiffs tort claim notices identified in paragraphs B, C and D,

and Exhibits 1, 2 and 3 and lawsuits identified in paragraphs E and F herein, and all claims

relating to or arising from the events described therein shall be referred to as Plaintiffs

Claims.

H. The parties wish to resolve all issues between them including those

concerning Plaintiffs Claims and the counterclaims asserted in the Federal action.

I. If any provision of this Settlement Agreement and Release (hereinafter


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Agreement) shall ever be declared defective, void or voidable, or otherwise struck down

or invalidated, the invalidation shall affect that particular provision only. The remaining

provisions shall continue in full force and effect.

J. This Agreement does not establish a precedent in the settlement of any current

or future grievance, claim of unfair labor practice, or other dispute among the parties, and shall

not be admissible as evidence in any future arbitration, administrative or court proceeding

except in a proceeding brought to enforce the terms of this Agreement.

K. In the event Plaintiff pursues a claim waived or released pursuant to this

Agreement, the State of Oregon may plead this Agreement as an absolute defense. This

Agreement does not operate to waive any right that may not legally be waived.

L. This settlement is meant to resolve all issues with Plaintiff and the State of

Oregon, including but not limited to all matters set forth in these recitals.

M. This Agreement and all of the terms and provisions hereof, shall be binding

upon and shall inure to the benefit of the parties and their respective heirs, legal

representatives, successors and assigns.

AGREEMENT

CONSIDERATION FROM THE STATE OF OREGON

1. The State of Oregon agrees to pay Plaintiff, within ten (10) days of the date

this Agreement is executed by Plaintiff, the sum of one million dollars ($1,000,000.00) to

resolve all matters between Plaintiff and the State of Oregon, including those set forth in the

recitals above. The State of Oregon shall complete Internal Revenue Service (IRS) form

1099 and/or such other documents as may be required by taxing authorities.

2. The State of Oregon also agrees to reinstate 220 hours of Plaintiffs vacation

time.


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3. The State of Oregon and the individual defendants will dismiss their

counterclaims in the Federal action with prejudice, each party to bear its own costs.

CONSIDERATION FROM PLAINTIFF.

4. Plaintiff, on behalf of himself and his executors, heirs, administrators,

successors and assigns, hereby covenants not to sue and fully and forever releases, acquits,

and forever discharges the State of Oregon and all of its offices, departments, agencies,

divisions, and institutions, including but not limited to Oregon Department of Energy, Oregon

Department of Consumer and Business Services, Oregon Department of Justice, the Office of

the Secretary of State, the Office of the Governor, Ellen Rosenblum, John Kroger and Sean

Riddell, together with all of the State of Oregons current and former agents, employees,

managers, and officials, whether elected or appointed, from any and all claims whatsoever

which exist through the date of this Agreement, including but not limited to demands, actions,

suits, causes of action, obligations, controversies, debts, costs, attorneys fees, expenses,

damages, losses, employee compensation, employee benefits, judgments, orders, liens, and

liabilities of any, every and whatever kind or nature, in all forms thereof, whether in law,

equity or otherwise, whether based in contract, tort, statute, regulation, tariff, rule,

indemnification, contribution, or any other theory of recovery whether known or unknown,

whether suspected or unsuspected, and whether or not concealed or hidden, which have

existed or may have existed, or which do exist or which hereafter can, shall or may exist,

based on any facts, events, or omissions that in any manner or fashion relate to or arise out of

Plaintiffs employment with the State of Oregon through the date of this Agreement or

Plaintiffs Claims. This includes any and all of Plaintiffs damages, including any damages,

injuries and claims which are not anticipated or which may develop in the future that arise out

of Plaintiffs employment with the State of Oregon through the date of this Agreement or

Plaintiffs Claims, and Plaintiff hereby expressly waives and relinquishes any and all rights

under any law or statute to the contrary. This release includes any claim arising from the


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negotiation and execution of this Agreement, including fraud in the inducement. This release

does not preclude Plaintiff from bringing a claim for specific performance of this Agreement.

5. Plaintiff agrees to be personally liable for all unsatisfied bills, charges, liens,

subrogation rights, and reimbursement rights which are or may be presented or held by

other persons or organizations having provided services, insurance benefits, or other value

to him or on his behalf as a result of the injuries and damages arising out of the events

alleged in the matters described above, and on Plaintiffs Claims, and he agrees to hold

harmless from any such claims the parties being released, their agents, representatives,

successors and assigns.

6. Plaintiff understands and agrees that this is a compromise settlement, and

payment is accepted voluntarily as full and final compromise, satisfaction and settlement of

disputed claims and rights. He further understands and agrees that this settlement is not to be

considered as an admission of any liability or fault whatsoever, in whole or in part, from any

incident in which the parties, their agents, or representatives, are released by this Agreement.

He further understands and agrees that the parties who are released by this Agreement

expressly deny any liability or fault whatsoever, in whole or in part, for any incidents

described and referred to in this Agreement.

7. The parties to this Agreement agree that no party warrants or represents how

the United States Internal Revenue Service (IRS) or other governmental authority will treat

the payment described above for tax purposes, and agree that no further payment of money

from the State of Oregon will be due in the event that the payments or the release of the

claims embodied in this Agreement or any portion thereof is found by the IRS or other

governmental authority to be, or result in, taxable income to any party. The State of Oregon

agrees not to initiate any contact with any governmental authority beyond providing an

IRS form 1099. The State of Oregon reserves the right to respond to inquiries by said

authorities and to make any additional disclosures requested by the governmental

authority or required by law. Plaintiff agrees to defend, indemnify and hold harmless the


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State of Oregon from any and all manner of liability if any should be imposed on the State of

Oregon regarding the payment to Plaintiff under this Agreement specified above. Plaintiff

understands that he is solely responsible for the tax consequences of the payments outlined

above in paragraph 1. Plaintiff agrees not to hold any other party to this Agreement

responsible for taxes due and recognizes that he is solely responsible for any resultant tax

payments associated with this release.

8. This release includes, but is not limited to, any claims that Plaintiff may bring

under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621, et seq.)

(ADEA) or the Older Workers Protection Act pursuant to the specific conditions set forth

below in compliance with the ADEA.

a. Plaintiff acknowledges that he has consulted with legal counsel

before signing this Agreement.

b. By signing this Agreement, Plaintiff acknowledges he waives any and

all claims under the ADEA as of the date of signing this Agreement and realizes that neither

he, nor anyone on his behalf, can sue the State of Oregon or any of their agencies, employees,

or contractors, or insurers and their successors for any claims of discrimination based on age.

c. Plaintiff acknowledges that he may, but is not required to, take up to 21

(twenty-one) days to sign this Agreement.

d. Plaintiff acknowledges he has seven (7) days following the date he

signs this Agreement to revoke his waiver of claims under the ADEA, and this portion of the

Agreement will not become effective until the revocation period has expired. For such

revocation to be effective, written notice of Plaintiffs intent to revoke must be sent or

delivered to the Oregon Department of Justice, Trial Division, Employment Litigation

Section, at 1162 Court Street NE, Salem, Oregon 97301, and the written notice must be

received at the Department of Justice by midnight on the seventh (7th) calendar day after

Plaintiff signs this Agreement.


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MUTUAL PROMISES

9. The parties to this Agreement understand and agree that this settlement is not

to be considered as an admission by any party of any liability or fault whatsoever, in whole

or in part. They further understand and agree that the parties to this Agreement expressly

deny any liability or fault whatsoever, in whole or in part, for any incidents described and

referred to in this Agreement.

10. All parties understand and agree that this Agreement states the entire

agreement between the parties in settlement of the above-described claims and supersedes

all prior or contemporaneous oral or written statements, understandings, representations or

promises. The terms of this Agreement are contractual, binding on the parties, and not

merely recitals.

11. No party warrants or represents how taxing authorities will treat the payments

described above for tax purposes, and agree that no further payment of money to Plaintiff

from the State of Oregon will be due in the event that the payment or the release of the

claims embodied in this Agreement or any portion thereof is found by a government

authority to be, or result in, taxable income to any party.

12. All parties understand that this Agreement represents a full and final

compromise, satisfaction and resolution of all of Plaintiffs potential claims, and Plaintiff

acknowledges that Plaintiff relinquishes his claims knowingly, voluntarily, and intelligently.

The State of Oregon denies any and all allegations of wrongdoing and denies liability for the

claims described above.

13. Following the execution of this Agreement, Plaintiff will be entitled to the

same ORS 30.285 investigation, review and decision process as any other current or former

State employee or official who affirmatively requests legal representation.

14. The State of Oregon will not rely on the fact that Plaintiff brought Plaintiffs

Claims or this Agreement as grounds to terminate Plaintiffs employment with the State.


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11/22Exhibit 1

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12/22Exhibit 1

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13/22Exhibit 1

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14/22Exhibit 2

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15/22Exhibit 2

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16/22Exhibit 2

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17/22Exhibit 3

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18/22Exhibit 3

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1 - FULL SATISFACTION OF JUDGMENT

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

MARK LONG,

Plaintiff,

vs.

ELLEN ROSENBLUM, in her officialcapacity as Attorney General for the State ofOregon and Successor to Kroger,

Defendant.

No. 11C14422

FULL SATISFACTION OFJUDGMENT

Plaintiff, Mark Long, through counsel, hereby acknowledges that defendant has fully

satisfied the General Judgment entered on June 18, 2012 and the Supplemental Judgment

entered on October 20, 2012, in the above-captioned matter, and plaintiffs counsel hereby

instructs the Court Administrator to note said Satisfaction in Full in the register of the Court.

DATED this ______ day of August, 2013.

HARRANG LONG GARY RUDNICK, PC

By:

William F. Gary, OSB #[email protected] A. Rudnick, OSB #[email protected] J. Matthews, OSB #[email protected] Attorneys for Plaintiff

SUBSCRIBED AND SWORN to before me this_____day of___________, 2013.

____________________________________

Notary Public for Oregon

My Commission Expires: ________________

Exhibit 4Page 1 of 1


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Page 1 - NOTICE OF DISMISSAL WITH PREJUDICE, BASED ON STIPULATION OFTHE PARTIES; PROPOSED ORDER

William F. Gary, OSB #[email protected] A. Rudnick, OSB #[email protected] J. Matthews, OSB #[email protected]

HARRANG LONG GARY RUDNICK, PC360 East 10th Avenue, Suite 300

Eugene, OR 97401-3248

Telephone: (541) 485-0220

Fax: (541) 686-6564Attorneys for Plaintiff

David B. Markowitz, OSB #[email protected]

Lisa A. Kaner, OSB #[email protected]

Michele E. Stone, OSB #[email protected]

Joseph L. Franco. OSB #[email protected]

MARKOWITZ, HERBOLD, GLADE

& MEHLHAF, P.C.

Suite 3000, Pacwest Center1211 SW Fifth Avenue

Portland, OR 97204-3730

Telephone: (503) 295-3085Fax: (503) 323-9105

Attorneys for Defendants John Kroger and the State of Oregon

Keith J. Bauer, OSB # [email protected], BAUER, SIME, WINKLER & FERNETY LLP

570 Liberty Street, SE #200

Salem, OR 97301Attorney for Defendant Sean Riddell

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION



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Page 2 - NOTICE OF DISMISSAL WITH PREJUDICE, BASED ON STIPULATION OFTHE PARTIES; PROPOSED ORDER

MARK LONG,

Plaintiff,

v.

JOHN KROGER, SEAN C. RIDDELL,and the STATE OF OREGON, by and

through THE OREGON DEPARTMENT

OF JUSTICE,

Defendants.

Case No. 6:12-cv-1383-TC

NOTICE OF DISMISSAL WITH

PREJUDICE, BASED ONSTIPULATION OF THE PARTIES;PROPOSED ORDER

The parties have settled this matter and, pursuant to Fed R. Civ. P. 41, dismiss this action

with prejudice, with the parties bearing their own costs and attorneys fees.

IT IS STIPULATED this ______ day of August, 2013.

HARRANG LONG GARY RUDNICK, PC

By:__________________________________William F. Gary, OSB #[email protected] A. Rudnick, OSB #[email protected] J. Matthews, OSB #[email protected]

(541) 485-0220

Of Attorneys for Plaintiff

MARKOWITZ, HERBOLD, GLADE

& MEHLHAF, P.C.

By:__________________________________David B. Markowitz, OSB #74204

[email protected]

Lisa A. Kaner, OSB #[email protected]

Michele E. Stone, OSB #[email protected]

Joseph L. Franco. OSB #073913

[email protected](503) 295-3085

Attorneys for Defendants John Kroger andthe State of Oregon

PARKS, BAUER, SIME, WINKLER &FERNETY LLP

By:________________________________Keith J. Bauer, OSB # [email protected](503) 371-3502

Attorney for Defendant Sean Riddell



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Page 3 - NOTICE OF DISMISSAL WITH PREJUDICE, BASED ON STIPULATION OF

ORDER

The parties have fully settled the above entitled matter, and the COURT HEREBY

ORDERS that all claims and counterclaims are dismissed with prejudice. The parties shall bear

their own costs and attorneys fees.

DATED:_______________________

_____________________________________The Honorable Thomas M. CoffinJUDGE, United States District Court for theDistrict of Oregon

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SETTLEMENT AGREEMENT AND RELEASE BETWEEN MARK LONG AND THE STATE OF OREGON

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