WILLIAM B. COX v. DUKE ENERGY INC.
US Court of Appeals for the Fourth Circuit, Niemeyer, Nov. 20, 2017,
Waiver – Agreement to waive right to sue in exchange for dismissal of criminal charges held voluntary

Facts:
Fleming was seen flying his glider plane near a nuclear plant in South Carolina. While the airspace was not restricted, it made officials nervous. The local sheriff’s office ordered Fleming to ground his plane and arrested him for breach of the peace.
When the case went to trial, Fleming’s lawyer arranged for the case to be dismissed in exchange for an agreement not to sue.
After the criminal case was dismissed, Fleming filed a lawsuit.
The case was dismissed based on his agreement not to sue.
Fleming appealed, arguing that his waiver was not voluntary.

Held:
The Fourth Circuit held that Fleming’s waiver was voluntary because it was his lawyer’s idea, he was represented by counsel, was educated, and there was no evidence of prosecutorial misconduct.

Waiver – The Supreme Court has held that an agreement not to sue in exchange for the dismissal of criminal charges can be enforced if: it was voluntary, did not involve prosecutorial misconduct, and would not “adversely affect the relevant public interests.”

Waiver – Factors affecting whether the agreement was “voluntary” include: The knowledge and experience of the criminal defendant and the circumstances of the execution of the release, including, importantly, whether the defendant was counseled. Additionally, the severity of the criminal charges that are pending may have greater coercive effect.

From the Case: Because Fleming wrote the waiver in his own handwriting, was “mature and educated,” was represented by counsel, and the waiver was his attorney’s idea, the waiver was found to be valid and voluntary.