PRESCOTT v. PRUDENTIAL INSURANCE COMPANY

Filing 168

PROCEDURAL ORDER - By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHELLE PRESCOTT,

ET. AL.,

PLAINTIFFS
v.
PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
DEFENDANT

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NO. 2:09-cv-00322-DBH

PROCEDURAL ORDER
In this Fair Labor Standards Act collective action, the parties have
submitted a proposed settlement agreement and seek my approval. I have read
the proposal and concluded that a conference of counsel would be helpful. At
the conference, I request that counsel be prepared to address the following
questions:
1. Why are the settlement amounts not being disclosed to all of the
plaintiffs?

See, e.g., Maine Rule of Prof’l Conduct 1.8(g) & cmt. 13

(stating that an attorney representing multiple clients “must inform
each of them … what the other clients will receive or pay if the
settlement or plea offer is accepted”); and FORMAL OPINION 06-438:
LAWYER PROPOSING

TO

MAKE

OR

ACCEPT

AN

AGGREGATE SETTLEMENT

OR

AGGREGATED AGREEMENT pp. 4-5 (American Bar Association Standing
Committee on Ethics and Professional Responsibility) (Feb. 10, 2006)
(listing “[t]he details of every other client’s participation in the
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aggregate settlement” among the “minimum” information that must be
disclosed to clients to whom a settlement proposal is made).
2. Why should the settlement agreement and hearing be confidential,
especially when class action settlements are required to be public?
See, e.g., Stalnaker v. Novar Corp., 293 F.Supp.2d 1260 (2003); Perry
v. National City Bank, No. 05-cv-891-DRH, 2008 WL 427771 (S.D. Ill.
Feb. 14, 2008); and ROBERT B. FITZPATRICK, “Cutting Edge Employment
Law Issues,” CURRENT DEVELOPMENTS
YEARS

AT

MID-TERM

(American

IN

Law

EMPLOYMENT LAW: THE OBAMA
Institute

-

American

Bar

Association Continuing Legal Education) (July 28 - 30, 2011) (citing
inter alia Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227 (2010); Poulin
v. Gen. Dynamics Shared Res., Inc., 3:09-cv-00058, 2010 U.S. Dist.
LEXIS 47511 (W.D. Va. May 5, 2010); and Baker v. Dolgencorp, Inc.,
No. 2:10cv199, 2011 U.S. Dist. LEXIS 5208 (E.D. Va. Jan. 19, 2011).)
3. Why does the settlement agreement provide for termination of the
plaintiffs’ employment?
4. How have the individual settlement payments been calculated? For
example, is there a mathematical formula that has guided the amount
of each employee’s payment?
5. In assessing whether the settlement is reasonable, should I have a
statement explaining its reasonableness from the person who
mediated it?
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6. How were the attorneys’ fees negotiated and determined?
Counsel may also wish to consult, as I have, THE FAIR LABOR STANDARDS ACT
(Ellen C. Kearns ed., BNA Books) (2010).
SO ORDERED.
DATED THIS 28TH DAY OF NOVEMBER, 2011
/S/D. BROCK HORNBY__________
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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