Cohen v. CME Group Inc. Severance Plan et al

Filing 20

ORDER SCHEDULING SETTLEMENT CONFERENCE: By Order of Reference dated August 4, 2021 (Dkt. No. 14), Judge Furman referred this case to me for settlement. The parties and the Court conferred, and agreed that the conference will be held before me on November 15, 2021 at 10:00 a.m. Unless circumstances permit otherwise, the conference will be held on Zoom. The Court will begin the settlement conference in joint session with all parties before breaking into private session and speaking to the p arties individually using Zooms breakout room feature. The Court will email a Zoom link to counsel one week before the settlement conference. The Court's "Standing Order for All Cases Referred for Settlement to Magistrate Judge James L. Cott" is enclosed and is incorporated herein by reference. Please read the Standing Order carefully. Failure to comply with the Standing Order may result in sanctions. ( As further set forth in this Order.) SO ORDERED. ( Settlement Conference set for 11/15/2021 at 10:00 AM in video conference before Magistrate Judge James L. Cott.) (Signed by Magistrate Judge James L. Cott on 9/7/2021) (vfr)

Case 1:21-cv-05324-JMF Document 20 Filed 09/07/21 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
SAMUEL COHEN,
:
:
Plaintiff,
:
:
-v:
:
:
CME GROUP INC. SEVERANCE
:
PLAN, et al.,
:
:
Defendants.
:
---------------------------------------------------------------X

9/7/2021

ORDER SCHEDULING
SETTLEMENT CONFERENCE
21-CV-5324 (JMF) (JLC)

JAMES L. COTT, United States Magistrate Judge.
By Order of Reference dated August 4, 2021 (Dkt. No. 14), Judge Furman
referred this case to me for settlement. The parties and the Court conferred, and
agreed that the conference will be held before me on November 15, 2021 at
10:00 a.m. Unless circumstances permit otherwise, the conference will be held on
Zoom. The Court will begin the settlement conference in joint session with all
parties before breaking into private session and speaking to the parties individually
using Zoom’s breakout room feature. The Court will email a Zoom link to counsel
one week before the settlement conference.
The Court’s “Standing Order for All Cases Referred for Settlement to
Magistrate Judge James L. Cott” is enclosed and is incorporated herein by
reference. Please read the Standing Order carefully. Failure to comply with the
Standing Order may result in sanctions. The parties are directed to pay
particular attention to paragraph 5, which sets forth who must appear at the
conference on behalf of a corporate party. The parties should also note that

Case 1:21-cv-05324-JMF Document 20 Filed 09/07/21 Page 2 of 8

paragraph 3 of the Standing Order requires ex parte written submissions to be
made five (5) business days prior to the conference, in this case November 8, 2021.
Paragraph 4 requires that a copy of the Acknowledgment Form be submitted to
opposing parties and another copy be submitted to the Court together with the ex
parte settlement letter. Each party must include the name, telephone
number, and email address of each participant on the Acknowledgement
Form. Pursuant to the instructions in the Standing Order, the parties should
email these materials to [e-mail].
Finally, Paragraph 3 of the Standing Order requires that if plaintiff has not
already made a demand, he must do so no later than 14 days prior to the
conference, and defendants shall respond no later than 7 days thereafter. Even if
plaintiff has made a demand as part of a court-ordered or private mediation
previously attended by the parties, plaintiff is still required to make (or renew) a
demand 14 days prior to the conference, and defendants must respond within 7
days. In other words, the parties should not wait for the settlement conference in
order to commence negotiations of a resolution of their dispute.
SO ORDERED.
Dated: September 7, 2021
New York, New York

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Revised September 6, 2013

Standing Order for All Cases Referred for Settlement
to Magistrate Judge James L. Cott
Chambers
500 Pearl Street, Room 1360
United States Courthouse
New York, NY 10007
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Courtroom
500 Pearl Street, Room 21-D
United States Courthouse
Southem District of New York
New York, NY 10007

"You never really understand a person until you consider
things from his point of view - until you climb into his
skin and walk around in it." (Atticus Finch in To Kill A
Mockingbird)
Introduction
The Court believes the parties should fully explore settlement at the earliest
practical opportunity. Early consideration of settlement allows the parties to
avoid the substantial cost, expenditure of time, and uncertainty that are typically
a part of the litigation process. Even for those cases that cannot be resolved, early
consideration of settlement can provide the parties with a better understanding of
the factual and legal nature of their dispute and streamline the issues to be
litigated.
Consideration of settlement is a serious matter that requires thorough
preparation prior to the settlement conference. It also requires the earnest
consideration of the other side's point of view, as the quote above suggests. Set
forth below are the procedures the Court will require the parties and counsel to
follow and the procedures the Court typically will employ in conducting the
conference.
1.

Confidential Nature of Conference. All settlement conferences are "off the
record." All communications relating to settlement are strictly confidential
and may not be used for any purpose. They are not to be used in discovery
and will not be admissible at trial.

2.

Magistrate Judge's Role. The magistrate judge functions as a mediator,
attempting to help the parties reach a settlement. Efficient use of this
process requires that counsel and their clients be (a) prepared for the
conference, and (b) candid with the mediator.

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3.

Ex Parte Settlement Letter. Unless otherwise ordered by the Court, no later
than five (5) business days before the conference, counsel for each party
must send the Court bye-mail a letter, marked "Confidential Material for
Use Only at Settlement Conference," which should not be served on the
other parties. The letter should be sent to
[e-mail]. 1 This ex parte letter must not
exceed ten (10) pages, unless permission to do so has been granted by the
Court. The letter should include, at a minimum, the following: (a) the
history of settlement negotiations, if any, including any prior offers or
demands; (b) your evaluation of the settlement value of the case and the
rationale for it; (c) any case law authority in support of your settlement
position; and (d) any other facts that would be helpful to the Court in
preparation for the conference. 2 The reason the letter is to be submitted ex
parte is to ensure that counsel are candid with the Court as to the
strengths and weaknesses of their case, and to provide a realistic
assessment of the litigation risks each party faces were the case to be
resolved on the merits.
If the plaintiff has not already made a settlement demand, such a demand

shall be communicated to the opposing party no later than 14 days prior to
the conference. If it has not already done so, the opposing party shall
respond to any demand no later than 7 days thereafter. The parties should
not wait for the settlement conference to commence negotiations of a
resolution of their dispute.
4.

Acknowledgment Form. Counsel shall complete the Acknowledgment Form
that appears following this Standing Order. This Form must be submitted
at the same time as the Ex Parte Settlement Letter bye-mail to
[e-mail] as a .pdf attachment with a copy
simultaneously e-mailed to all counsel of record who will be participating in
the settlement conference. No hard copy of the Acknowledgment Form
needs to be sent to the Court. 3

If a party is not able to send the letter bye-mail, it may, with prior
approval of Chambers, fax the letter.
2
If a letter is accompanied by attachments exceeding 10 pages in
length, the submitting party shall hand deliver a hard copy of the letter plus
attachments to the Court, consistent with Rule LD. of the Court's Individual
Practices.

To be crystal clear, the Court expects a party to send the Ex Parte
Settlement Letter in one e-mail just to the Court, and to send a separate e-mail to
the Court, copying all other counsel, with the Acknowledgment Form.
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5.

Attendance of Parties Required. The parties - not just the attorneys - must
attend in person. A party's attendance is essential to the settlement
process. It is vital that parties hear the other side's presentation and have
the opportunity to speak with the mediator outside the presence of any
adversary. If a party resides more than 100 miles from the Courthouse and
it would be a great hardship for the party to attend in person, upon written
application in advance of the conference in the form of a letter-motion to be
filed on ECF, I will sometimes excuse that party's presence but I will require
that party to be available by telephone throughout the settlement
conference. Each party must supply its own simultaneous interpreter (who
need not have any special certification), if required. The Court does not
provide interpreters for settlement conferences.
Corporate parties or labor unions must send the person with decision­
making authority who gives directions to counsel of record (not someone
who has received settlement authority from someone else). Where liability
insurance is involved, a decision-making representative of each carrier
must attend in addition to the insured. This includes each excess carrier
unless specifically excused by the Court at least one week before the
conference. Because it is important that the decision-makers with respect
to settlement hear their adversaries' presentations and be available to
answer questions from the Court, the person who attends must be the
person with responsibility for determining the amount of any ultimate
settlement and who has not had limitations placed by another person with
respect to his or her authority to settle. That is, corporate parties. labor
unions. and insurance companies (or any other party that is not a natural
person) must send to the conference the person ultimately responsible for
giving settlement authority, not someone who has received authority from
someone else.
Where any government agency is a party. counsel of record must be
accompanied by a knowledgeable representative from the agency (or, if the
agency official with knowledge is more than 100 miles from the Courthouse,
the official must be available to participate by telephone). In addition, in
cases where the Comptroller of the City of New York has authority over
settlement, the Assistant Corporation Counsel must make arrangements in
advance of the conference for a representative of the Comptroller either to
attend the conference or to be available by telephone to approve any
proposed settlement.

6.

Consequences of Non-Compliance with Attendance Requirements. If a
party fails to come to the settlement conference with all the required

persons (attorney, plus a decision-making employee from the client, plus a
decision-making representative from each insurance carrier), that party

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may be required to reimburse all the other parties for their time and travel
expenses, and may face other sanctions.
7.

Conference Procedures. Unless advised otherwise by the Court, the
conference will take place in Courtroom 21 D at 500 Pearl Street. At the
outset of the mediation, each attorney should be prepared to make a brief
presentation in the presence of each other and the parties, summarizing not
merely a party's positions, but the party's interests as welL Written
remarks read aloud are usually ineffective. Counsel are also reminded not
to treat their opening remarks as if they were the equivalent of a jury
address. While there is no formula for the most effective presentation,
counsel should consider addressing (a) the most important issues of fact
and law, (b) the most recent offer or demand communicated to opposing
counsel, and (c) any other matters that may help to advance settlement.
The merits of the case are obviously relevant to the value of a potential
settlement, but settlement conferences are not the place to make legal
arguments. Discussion, if any, of legal issues should be offered solely in
the context of settlement, not litigation. Counsel should gear their
presentation to the opposing party, not the Court.
Following the presentations, the Court will, in some circumstances, allow
counsel to respond to points made by opposing counsel and, if appropriate,
to pose constructive questions. Clients may speak too if so desired. The
Court encourages all parties to keep an open mind in order to re-assess
their previous positions and to discover creative means for resolving the
dispute.
After the initial "joint session," in most mediations the Court will spend the
rest of the time meeting separately with each side. In these private
meetings, the parties and their counsel should be prepared to discuss their
position on settlement, the reasons for their position, the amount of
attorneys' fees and litigation expenses incurred to date, and an estimate of
the remaining cost of litigating the case to judgment, including any appeal.

8.

Adjournments of Settlement Conferences. A party may make a written
application by letter-motion filed on ECF consistent with Rule I.E. of the
Court's Individual Practices to adjourn or advance the date of the
settlement conference without providing cause as long as the application for
a change in date is made at least two weeks prior to the scheduled
conference date. Otherwise, counsel should set forth the reasons for
seeking the change in date and must make the application by letter-motion
as soon as counsel becomes aware of the need of or potential need for the
change. In addition, the parties are required to seek a change in the date if
(a) an adjournment would permit necessary discovery or exchange of
information that would make the conference more fruitful, or (b) a client
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who would otherwise be permitted to participate by telephone would be
available to attend the conference were it held on another date. Requests
for an adjournment on the eve of the scheduled settlement conference are
strongly disfavored and not likely to be granted. In no circumstances will a
telephone request for an adjournment be entertained.
To seek a change in date, the party should first consult with all other
counsel as to their and their clients' (and insurers' if applicable) availability
on at least three dates. Counsel should thereupon contact Deputy Clerk
David Tam at [phone] between 10 a.m. and 4 p.m. to determine
whether the Court is available for a settlement conference on any of those
dates. The party must then file forthwith on ECF, as a letter-motion, a
request to adjourn the settlement conference to the agreed-upon date and
time. The conference date will not be deemed changed until Chambers
receives the letter-motion and it is approved by the Court.
9.

Settlement in Advance of Mediation. If all parties advise the Court in
writing that the case has settled prior to the scheduled conference, I will
ordinarily adjourn the conference sine die. In these circumstances, the
parties should file a letter-motion on ECF requesting an adjournment of the
settlement conference sine die, and the Court will then issue a text-only
order.

10.

No Effect on other Deadlines. The scheduling of a settlement conference
has no effect on any deadlines or
er pending obligations in the case.
SO ORDERED.

Uni d States Magistrate Judge
Dated: New York, New York
September 6, 2013

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Case 1:21-cv-05324-JMF Document 20 Filed 09/07/21 Page 8 of 8

(Revised July 6, 2020)

ACKNOWLEDGMENT FORM

Complete this form (please print or type) or its equivalent, sign and date it, and send it by e-mail to
[e-mail] as a .pdf attachment (for receipt no later than five business days
prior to the conference) (I) to all other attorneys who will be attending the conference and (2) to Judge
Cott. Please read the certifications below carefully as your signature indicates your compliance with
them.
Name of Case:
Docket Number:

_ Civ. _ (_J (JLC)

I acknowledge that my client and I must attend a settlement conference on ______, 20_ at
_:__.m. in Courtroom 21-D, United States Courthouse, 500 Pearl Street, New York, New York.
I am attorney for _________________________
1.
[state name of party/also state whether party is plaintiff or defendant].
(For corporate or other non-individual clients): The name of the representative of my
client who will attend the conference is: ____________________ . The
title of this representative is:____ ___________________
If applicable (for insurance carrier): The name of the representative of the insurance carrier who
will attend the conference is:

------------------

2.

CHECK ONE LINE BELOW:
a.

__ The above-named individual will attend in person.

b.

__ The above-named individual will attend by telephone because I certify that (1) such
individual lives and works more than 100 miles from the Courthouse (or, if my client is
not an individual, the client's decision-maker lives and works more than 100 miles from
the Courthouse), and (2) it would be a great hardship for this individual to attend a
settlement conference on this or any other date. This individual understands that he or
she must participate by telephone without interruption for the duration of the conference.

3.

I certify that the person attending the conference (in person or by telephone) is the person with
ultimate responsibility for determining the settlement amount: that is, the person responsible for
giving settlement authority, not someone who has received authority from another person. In
addition, if there is an insurance carrier with authority over settlement, a representative from such
carrier with complete responsibility over settlement will be present in person or by telephone.

4.

I certify that I have read both the Court's Order scheduling this conference as well as the
"Standing Order for All Cases Referred for Settlement to Magistrate Judge Cott."

Dated: --[signature of attorney)
[print attorney's name]
Telephone number and name of each participant (for telephonic conferences):
________

_________

________

_________

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