“Attestation” Re-defined: Unsworn Declarations under 28 U.S.C. § 1746 Satisfy Settlement Requirements – Commentary on Profit Point Tax Technologies Inc. v. DPAD Group LLP

1. Introduction

Profit Point Tax Technologies, Inc. (“PPTT”) and its sole shareholder Patrick Sweet entered prolonged litigation against two former independent contractors, John Manning and Daniel Steele, and their new firm, DPAD Group, LLP (“DPAD”). PPTT alleged that the defendants misused confidential client information; defendants counter-claimed for unpaid fees. After six years of discovery battles, partial summary judgments, and a failed attempt at sanctions for alleged spoliation, the parties announced a settlement in an e-mail in November 2023. Subsequent disagreement over whether Manning and Steele had to provide sworn affidavits or merely attestations disavowing any whistle-blower filings triggered a motion to enforce the settlement. The District Court granted the motion, and Sweet alone appealed.

2. Summary of the Judgment

• The Third Circuit (unpublished, hence non-precedential) affirmed:
  • (a) the District Court’s enforcement of the settlement; and
  • (b) the denial of Sweet’s motion for dispositive sanctions based on alleged electronic-document spoliation.
• Key holding: An unsworn declaration executed under penalty of perjury pursuant to 28 U.S.C. § 1746 is an “attestation” within the ordinary meaning of that term. When a settlement term requires only an “attestation,” such declarations suffice; formal notarised affidavits are unnecessary unless the agreement expressly says so.
• The Court also reiterated two procedural principles:
  1. An argument not pressed before the District Court (e.g., that Sweet as an individual was not a settlement party) is forfeited on appeal.
  2. Where a party fails to object to a magistrate or special-master recommendation, appellate review is restricted to plain-error review, a stringent standard rarely met in civil cases.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The panel’s reasoning leaned on a series of decisions that, while individually narrow, collectively shaped the outcome:

• Coltec Industries Inc. v. Hobgood, 280 F.3d 262 (3d Cir. 2002)

– establishes plenary (de novo) appellate review when the lower court interprets a settlement agreement.

• Nissho-Iwai America Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988)

– seminal Fifth Circuit case recognising that an unsworn declaration that follows § 1746 formalities may substitute for an affidavit. The Third Circuit imported this principle to conclude that a § 1746 declaration can be an “attestation.”

• Sanford Investment Co. v. Ahlstrom Machinery Holdings, Inc., 198 F.3d 415 (3d Cir. 1999)

– reiterated that courts read contract terms by their ordinary meaning absent definition; applied here in construing “attestation.”

• E.E.O.C. v. City of Long Branch, 866 F.3d 93 (3d Cir. 2017)

– provides the framework for plain-error review when a litigant failed to preserve objections below; used to dispose of Sweet’s sanctions appeal.

• Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269 (3d Cir. 1995)

– emphasised that plain-error review in civil contexts is discretionary and rare.

3.2 Court’s Legal Reasoning

1. Contract Interpretation. Material Term #4 stated: “Attestation by Manning and Steele related to whistle-blower claims.” Because the term did not define “attestation,” the Court resorted to ordinary meaning (Black’s Law Dictionary; Merriam-Webster; OED) – an attestation is merely an affirmation under oath or penalty of perjury.
2. Equivalence Doctrine under § 1746. Congress enacted 28 U.S.C. § 1746 as a cost-efficient substitute for sworn affidavits, enabling declarations made “under penalty of perjury” to function identically in federal proceedings. By submitting declarations that (a) expressly disavowed any past, present, or future whistle-blower claims and (b) were signed under penalty of perjury, Manning and Steele satisfied the settlement duty. The Court flatly rejected the contention that notarisation or a jurat was indispensable when the contract did not say “affidavit.”
3. Waiver & Forfeiture. Sweet’s arguments about his personal non-liability and alleged discovery abuse were not raised below or were insufficiently preserved. The Court invoked Simko v. U.S. Steel Corp. (failure to press an argument) and Hall (issues not briefed deemed abandoned) to foreclose review.
4. Plain-Error Standard on Sanctions. Because Sweet never objected to the Special Master’s denial of sanctions, only glaring errors affecting the integrity of the proceedings could justify reversal (Fashauer). The sparse record of “a disposed hard-drive” and speculative missing ESI failed to meet that threshold.

3.3 Impact on Future Litigation

• Settlement drafting. Parties must now appreciate that, within the Third Circuit, generic words like “attestation” will presumptively be fulfilled by § 1746 declarations. If notarised affidavits are desired, the contract should expressly use that term.
• Discovery sanctions. The opinion underscores the uphill climb in securing appellate relief on spoliation when proper objections are skipped. Litigants should object contemporaneously to magistrate or special-master reports or risk near-automatic affirmance.
• Cost and efficiency. The reinforcement of § 1746’s parity with affidavits may ease procedural burdens (no notary fees, easier remote execution) – especially significant in large-scale civil litigation and administrative settlements.
• Professional responsibility. Counsel who delay or equivocate in objecting to discovery or settlement terms risk waiver; the Court’s admonition will likely influence litigation strategy and case-management orders district-wide.

4. Complex Concepts Simplified

• Affidavit vs. Unsworn Declaration (§ 1746). • Affidavit: written statement sworn before a notary or officer. • Unsworn Declaration: same content, but signed “under penalty of perjury” without a notary. Congress declared them interchangeable for federal purposes in § 1746.
• Attestation. A broad term meaning any formal statement affirming truth; can be by affidavit, declaration, or even oral testimony if the contract so allows.
• Plain-Error Review. An appellate standard requiring (1) error that is obvious, (2) affects substantial rights, and (3) seriously impugns the fairness of proceedings. Practically impossible to satisfy in civil matters unless the lower court’s error is egregious.
• Spoliation. Destruction or significant alteration of evidence. For sanctions, a movant must show (i) relevant evidence existed and was lost, (ii) the opponent had a duty to preserve it, and (iii) bad faith or prejudice.

5. Conclusion

Profit Point Tax Technologies Inc. v. DPAD Group LLP may be “not precedential,” yet it delivers authoritative guidance on two recurring procedural dilemmas. First, by equating § 1746 declarations with “attestations,” the Third Circuit eliminates ambiguity in settlement-drafting vocabulary and favours streamlined evidentiary practice. Second, the case reiterates a stringent message on waiver and plain-error review: objections must be timely and specific, or litigants will almost certainly lose on appeal. As settlements, e-mail agreements, and remote notarisation become ubiquitous, this decision will likely be cited—formally or informally—by practitioners arguing that an unsworn declaration is good enough when a contract calls for an “attestation.” When parties truly want a notarised affidavit, they must now say so in crystal-clear terms.