Wilson et al v. Prime Source Healthcare Of Ohio, Inc et al

Filing 286

Opinion & Order signed by Judge James S. Gwin on 3/2/18. The Court, for the reasons set forth in this order, grants plaintiffs' motion to enforce the settlement. The Court denies defendants' motion to approve the settlement, denies both plaintiffs' and defendants' motions to file the settlement under seal, denies plaintiffs' motion to hold that the settlement terms are no longer confidential, and denies plaintiffs' motion for sanctions. The parties are ord ered to file a settlement agreement comporting with this decision within 14 days of the date of this order. The Court also orders plaintiffs to file an accounting of their attorney's fees related to their motion to enforce the settlement and a calculation of prejudgment interest within 14 days of the date of this order. (Related Docs. 270 , 271 , 273 , 274 , and 281 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------HENRIETTA WILSON, et al.,
Plaintiffs,
vs.

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PRIME SOURCE HEALTHCARE
OF OHIO, et al.,
Defendants.

CASE NO. 1:16-cv-1298

OPINION & ORDER
[Resolving Docs. 270, 271, 273, 274,
281]

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-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Both Plaintiffs1 and Defendants2 seek to finalize and enforce their version of a settlement
agreement originally reached on August 2, 2017.
Defendants also request leave to file their version of the settlement agreement under
seal.3
Plaintiffs further seek an order holding that the settlement terms are no longer
confidential or, in the alternative, leave to file the settlement agreement under seal.4
Finally, Plaintiffs seek sanctions against Attorney Barry Freeman and his law firm.5
For the reasons stated below, the Court GRANTS Plaintiffs’ motion to enforce the
settlement. The Court DENIES all of the parties’ other motions and requests.

Doc. 273 (Plaintiffs’ motion to enforce settlement). Defendants oppose. Doc. 277. Plaintiffs reply.
Doc. 279.
2
Doc. 270 (Defendants’ motion to approve settlement). Plaintiffs oppose. Doc. 272. Defendants reply.
Doc. 275.
3
Doc. 271.
4
Doc. 274. Defendants oppose. Doc. 276. Plaintiffs reply. Doc. 278.
5
Doc. 281. Defendants oppose. Doc. 284. Plaintiffs reply. Doc. 285.
1

Case No. 1:16-cv-1298
Gwin, J.
I. BACKGROUND
This Fair Labor Standards Act collective action settled at the final pretrial conference on
August 2, 2017.6 The parties placed the settlement terms on the record at the end of that
conference, with the understanding that they would memorialize that settlement in writing and
file it with the Court shortly thereafter.7 The parties also agreed that the settlement’s terms
would be confidential.8
Nearly three months later, the parties reached out to the Court to discuss a settlement
impasse.9 Defendants contended that they did not agree to a mutual release of claims between
themselves and the Plaintiffs and that they were entitled to claw back some portion of the
settlement amount if fewer class members materialized than the parties originally
contemplated.10
The Court disagreed with both of Defendants’ contentions.11 Nothing in the settlement
hearing transcript suggested that the parties had agreed to a unilateral release of claims by the
Plaintiffs, as opposed to the mutual release of claims that is typical of settlements.12 Similarly,
the recorded settlement terms specified that Defendants would pay a sum certain, and there was
no suggestion that this amount was contingent on the size of the number of claimants.13
Defendants then appealed the Court’s findings from this November 2017 hearing to the
Sixth Circuit.14 However, Plaintiffs moved to dismiss that appeal for lack of jurisdiction,

6

See Doc. 261.
Id. at 4:4-6.
8
Id. at 3:4-14.
9
Doc. 262.
10
See generally Doc. 266.
11
Id. at 3:23-6:14.
12
Id. at 3:23-5:3.
13
Id. at 5:14-16.
14
See Doc. 269.
7

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arguing that nothing about this November 2017 hearing created a final appealable order.15
Defendants apparently agreed with this position, because they voluntarily dismissed their appeal
and brought their dispute back to this Court.16
Meanwhile, both during and after the pendency of Defendants’ appeal, the parties have
filed dueling motions seeking approval, in Defendants’ case,17 or enforcement, in Plaintiffs’ case,
of the settlement agreement.18
As a result of all this litigation surrounding the settlement agreement, none of which is
sealed, Plaintiffs have moved for a ruling that the settlement terms are no longer confidential.19
Plaintiffs also seek sanctions against Defendants’ attorney, Barry Freeman, and his firm,
Buckhingham, Doolittle & Burroughs LLC.20 Plaintiffs argue that Freeman and his firm have
attempted to extract the claw back and unilateral release of claims provisions in bad faith.21
II. LEGAL STANDARD
A federal court maintains jurisdiction to enforce a settlement agreement when the parties’
obligation to comply with the settlement is “part of the order of dismissal-either by separate
provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by
incorporating the terms of the settlement agreement in the order.”22
Before enforcing a settlement, a district court must conclude that agreement has been
reached on all material terms.23 Ordinarily, an evidentiary hearing is required where facts

15

Doc. 273-1 at 3-4.
See Doc. 282.
17
See Doc. 270.
18
See Doc. 273.
19
Doc. 274.
20
See Doc. 281.
21
Id. at 2.
22
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381 (1994) (internal citations omitted).
23
Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988).
16

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Gwin, J.
material to an agreement are disputed.24 However, no evidentiary hearing is required where an
agreement is clear and unambiguous and no issue of fact is present.25 Thus, summary
enforcement of a settlement agreement has been deemed appropriate where no substantial
dispute exists regarding the entry into and terms of an agreement.26
The existence of a valid agreement is not diminished by the fact that the parties have yet
to memorialize the agreement. When parties have agreed on the essential terms of a settlement,
and all that remains is to memorialize the agreement in writing, the parties are bound by the
terms of the oral agreement.27
Courts generally give effect to the parties’ expressed intentions in a contract, whereas
intentions not directly expressed in the contract are deemed to have no existence.28
III. ANALYSIS
A. Plaintiffs’ Motion to Enforce Settlement and Defendants’ Motion to Approve Settlement
1. Settlement Terms
The parties currently argue over two terms that they have both described as “nonmaterial”:29 (1) whether the parties agreed to a mutual release of claims or whether Plaintiffs will
unilaterally release their claims against Defendants, and (2) whether the settlement also includes
a provision that allows Defendants to claw back a portion of their payment to Plaintiffs if fewer

24

Kukla v. Nat'l Distillers Prods. Co., 483 F.2d 619, 622 (6th Cir. 1973).
Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976).
26
Kukla, 483 F.2d at 621; cf. Therma–Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 419 (6th Cir. 2000)
(recognizing that summary proceedings may result in inequities when a dispute exists as to a material
term).
27
Brock, 841 F.2d at 154; Kukla, 483 F.2d at 621 (observing that the power of a trial court to enforce a
settlement agreement has been upheld even where the agreement has not been arrived at in the presence
of the court nor reduced to writing); see also Spercel v. Sterling Indus., Inc., 285 N.E.2d 324, 326-27
(Ohio 1972) (“[A] settlement agreement entered into between the parties in the presence of the court
constitutes a binding contract, even though it is not reduced to writing . . . .”).
28
Aultman Hosp. Ass'n v. Cmty. Mut. Ins. Co., 544 N.E.2d 920, 923 (Ohio 1989).
29
See Doc. 270; Doc. 273-1 at 6.
25

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class members file claims. Plaintiffs argue that Defendants are attempting to add these terms to
the settlement contract even though they would contravene the express terms of the settlement
placed on the record during the August 2, 2017 conference. The Court agrees.
The Court finds that neither of these terms was included by the parties as part of the
settlement contract agreed to on the record during the August 2, 2017 final pre-trial conference.
The parties agreed to a mutual release of claims that accrued on or before the date of the August
2, 2017 final pre-trial conference. The parties also agreed that Defendants would pay Plaintiffs a
sum certain with no potential for a Defendant claw back.
Regarding the mutual release of claims, the record of those proceedings does not support
Defendants’ position that there was only a unilateral claim release.
“[O]ne of the primary purposes of a settlement agreement is to put an end to litigation.”30
As the Court explained during the November 2017 hearing, a settlement typically involves both
parties releasing the legal claims that they had against each other relating to the suit as of the date
of the settlement.31 Plaintiffs had numerous claims against Defendants that accrued both before
and during this litigation, and Defendants may have had counterclaims relating to this litigation
against the Plaintiffs. If either party wished to preserve any of those possible claims, they could
have bargained for a term to that effect, but neither party took that step.
Additionally, Defendants’ argument that Defense Counsel was “cut off” during the final
pre-trial conference is not well taken.32 If Defendants believed that there was some ambiguity in
the settlement terms, they could have clarified those terms on the record during the August 2017

Galiano v. Harrah’s Operating Co., 67 F. App’x 252, at *2 (5th Cir. 2003).
Doc. 266 at 3:25-4:5; see also Smoot v. Fox, 340 F.2d 301, 302 (6th Cir. 1964) (“Dismissal of an action
with prejudice is a complete adjudication of the issues presented by the pleadings and is a bar to a further
action between the parties.”); Montgomery v. Honda of Amer. Mfg., Inc., 47 F. App’x 342, 348 (6th Cir.
2002).
32
See Doc. 277 at 4.
30
31

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proceedings. In fact, that is exactly what Defense Counsel did when Defendants were unsure of
other terms that the Court and parties described as part of the settlement.33
Similarly, the record is abundantly clear that Defendants did not include a claw back
provision as part of the settlement. Defendants agreed to pay Plaintiffs a sum certain.34 Nothing
in the record of the settlement proceedings suggests that this sum was either per Plaintiff or
otherwise dependent on the size of the final Plaintiff class.
For those reasons, the Court finds that the parties formed a valid and enforceable
settlement contract on the record at the August 2017 final pre-trial conference. This agreement
did not include a one-sided release of claims and claw back terms that Defendants have
attempted to add. Defendants’ unwillingness to finalize the settlement agreement absent the
addition of these two terms and subsequent failure to make payments to Plaintiffs constitutes a
breach of that agreement.35
2. Attorney’s Fees and Interest
Plaintiffs also seek attorney’s fees and prejudgment interest stemming from Defendants’
failure to finalize the settlement agreement.
The Sixth Circuit, while interpreting Ohio law,36 has held that “Ohio law allows a court
to award attorney’s fees as compensatory damages when a party’s breach of a settlement

33

See Doc. 261 at 4:14-5:14.
Doc. 261 at 2:7-11.
35
See Suter v. Farmers’ Fertilizer Co., 126 N.E. 304, 306 (Ohio 1919) (“[W]here the obligations of a
contract have attached, and one party, without the consent of the other, does some act or makes some new
arrangement which prevents the carrying out of the contract according to its terms, he cannot avail
himself of this conduct to avoid his liability to the other party to the contract.”).
36
A settlement like this one is ultimately a contract. A dispute over that contract is therefore controlled
by state contract law. Here, the settlement contract was formed in Ohio and dealt with events that
occurred in Ohio. See generally Doc. 1. There is also no choice-of-law provision in the settlement
contract. As such, Ohio contract law applies. See, e.g., Tocci v. Antioch Univ., 967 F. Supp. 2d 1176,
1191-94 (S.D. Ohio 2013) (conducting a choice-of-law analysis before ultimately applying Ohio law to a
settlement contract with significantly less contacts to Ohio than exist here).
34

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agreement makes litigation necessary, even where none of the exceptions to the American Rule
have been shown” and “[n]either party had acted in bad faith.”37 Attorney’s fees as
compensatory damages are available whether a party files a separate breach of contract suit or a
motion to enforce settlement before the original trial court.38
Rohrer Corp. is directly on point. Defendants have breached the settlement contract by
refusing to execute the settlement agreement according to the terms placed on the record during
the August 2, 2017 hearing. As a result, Defendants have forced Plaintiffs to litigate this motion
to enforce the settlement. Plaintiffs are therefore entitled to attorney’s fees stemming from this
additional litigation as compensatory damages.
Ohio law also entitles a prevailing party to receive prejudgment interest on a breach of
contract action. “Once a plaintiff receives judgment on a contract claim, the trial court has no
discretion but to award prejudgment interest under [Ohio Revised Code §] 1343.03(A).”39 The
trial court must determine how much interest is due by deciding “when interest commences to
run, based on when the claim became due and payable, and as to what legal rate of interest
applies.”40
Plaintiffs contend that interest commenced to run on August 2, 2017, when the parties
placed the settlement terms on the record. But, by the terms of the settlement, Defendants first
Rohrer Corp. v. Dane Elec Corp. USA, 482 F. App’x 113, 117 (6th Cir. 2012) (citing Raymond J.
Schaefer, Inc. v. Pytlik, No. OT–09–026, 2010 WL 3820552 (Ohio Ct. App. Sep. 30, 2010); Tejada–
Hercules v. State Auto. Ins. Co., No. 08AP150, 2008 WL 4416534 (Ohio Ct. App. Sep. 30, 2008);
Shanker v. Columbus Warehouse Ltd., No. 99AP–772, 2000 WL 726786 (Ohio Ct. App. June 6, 2000)).
38
See Wehr v. Petraglia, 65 N.E.3d 242, 254-56 (Ohio Ct. App. 2016) (recognizing the potential for
awarding attorney’s fees as compensatory damages on a motion to enforce settlement); McClusky v.
Century Bank, No. 2:12-cv-706, 2013 WL 12176597, at *7 (S.D. Ohio Sept. 27, 2013) (awarding
attorney’s fees as compensatory damages on a breach of settlement contract action).
39
Johncol, Inc. v. Cardinal Concession Servs., LLC, No. 17AP-337, 2017 WL 6389166, at *7 (Ohio Ct.
App. 2017). Separate and apart from this statutory mandate, the Court also finds that prejudgment
interest is an appropriate equitable remedy for Defendants’ breach. See Chao v. American National Fleet
Services, Inc., No. 1:08-cv-65, 2008 WL 2704410, at *3 (N.D. Ohio July 3, 2008) (awarding interest on a
motion to enforce settlement resulting from a delayed payment).
40
Id.
37

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payment would only become due thirty days after the settlement was committed to writing and
approved by the Court.41
As a result, the Court finds that, but for Defendants’ attempts to insert the additional
terms discussed above into the settlement, the Court could have approved the written settlement
by October 17, 2017. By this date, the parties had apparently resolved all other issues relating to
the settlement.42
The parties have continuously represented that the two terms that are the subjects of this
order are the only things preventing them from filing a written settlement agreement. Without
time spent negotiating those two terms, the parties should have been able to file their agreement
and have the Court’s approval by the time they reached the impasse that led to this litigation.
Therefore, by the terms of the settlement contract, interest began to accrue on November 16,
2017, thirty days after the Court could have approved the settlement.
Ohio Revised Code §§ 1343.03 and 5703.47 control the applicable interest rate for a
breach of contract action. Plaintiffs will therefore calculate interest based on the rate provided
for in those statutes.
The Court GRANTS Plaintiffs’ motion to enforce the settlement and DENIES
Defendants’ motion to approve the settlement. The parties will file a final settlement agreement
within fourteen (14) days of the date of this order that comports with the terms placed on the
record during the August 2, 2017 conference. This includes a mutual release of claims that
accrued on or before August 2, 2017 and does not include Defendants’ proposed claw back
provision.

41
42

See Doc. 261 at 4:15-16.
Doc. 276 at 1.

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Further, the Court GRANTS Plaintiffs’ request for attorney’s fees and interest. Plaintiffs
will produce for the Court’s approval an accounting of their attorney’s fees incurred as a result of
litigating their motion to enforce the settlement within fourteen (14) days of the date of this
order. Plaintiffs will also produce a calculation of interest consistent with this opinion within
fourteen (14) days of the date of this order.
B. Plaintiffs’ Motion to Hold That the Settlement Terms Are No Longer Confidential and
Defendants’ Motion to File the Settlement Agreement under Seal
1. The Confidentiality Provision and Defendants’ Potential Breach
Plaintiffs argue that because Defendants discussed the settlement terms in open court, did
not request that the Court seal the transcript of those discussions, ordered that unsealed
transcript, and then attached that same transcript to their public appeal to the Sixth Circuit, the
settlement terms are no longer confidential. Plaintiffs also contend that the settlement terms are
no longer confidential because the Court must use the transcripts discussing those terms to
adjudicate Plaintiffs’ motion to enforce the settlement.
When the parties originally reached a settlement agreement, they agreed to a mutual
confidentiality provision as part of that settlement.43 That provision required both parties to keep
the amount of the settlement confidential, excepting disclosure to spouses, tax preparers, or a few
relevant legal entities.44 In order to facilitate that confidentiality provision, the Court sealed the
transcript of the settlement hearing and instructed the parties to file their proposed settlement
agreement under seal.45
Defendants did not heed this instruction. To date, Defendants have caused the material
terms of the settlement to be placed into the public record four separate times: first, during the

43

Doc. 261 at 3:4-14.
Id. at 3:4-15.
45
Id. at 5:13-14.
44

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November 2017 settlement impasse hearing;46 second, when Defendants failed to request that
any private information be redacted from the transcript of that hearing by the date set forth in the
relevant docket entry;47 third, when Defendants ordered that un-redacted transcript;48 and fourth,
when Defendants filed that un-redacted transcript as the basis of their appeal to the Sixth
Circuit.49 Because of Defendants’ actions, the cat, as the saying goes, is out of the bag.
Plaintiffs request that the Court rescind the confidentiality provision from the settlement
contract (or to modify the contract to exclude that provision). The Court will not do this.
However, as Plaintiffs correctly argue, the public has a right to access court records, and so the
Court will not allow the parties to file their final settlement agreement under seal.
2. Rescission or Modification of the Settlement Contract
Under Ohio law, “a settlement agreement may be enforced either through filing an
independent action for breach of contract or by filing a motion to enforce the settlement in the
same action . . . .”50 Plaintiffs argue that Defendants’ revealing the settlement terms has
breached the settlement contract. Accordingly, Plaintiffs wish to remove the confidentiality
provision from the contract as a remedy for that breach.
Rescission of a single material term in a contract is not an available remedy for breach of
contract in Ohio.51 The Court therefore cannot grant them this remedy.
Similarly, although “[p]arties may implicitly modify an agreement by their actions,” an
implicit modification requires “[a] continued, different, course of performance between

Doc. 266 at 5:22 – 6:9.
See Docket Entry 266 (“Parties requesting that privacy information be redacted must file a notice of
intent to redact with the court by 12/7/2017. Redaction Request due 12/21/2017.”).
48
See Doc. 267.
49
See Doc. 269-1.
50
See Davis v. Jackson, 823 N.E.2d 941, 943-44 (Ohio Ct. App. 2004).
51
See Fenix Enter., Inc. v. M & M Mortg. Corp., Inc., 624 F. Supp. 2d 834, 842 (S.D. Ohio 2009) (“When
a contract is rescinded, it must be rescinded in total and the parties put in the position that they were
before the contract was executed.”).
46
47

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parties.”52 A modification requires “a meeting of [the parties’] minds in agreement to modify” a
contractual term.53 That meeting of the minds is not present here. Defendants’ isolated and
seemingly accidental incidents of breaching confidentiality by including the settlement terms in
the November 2017 hearing and their appeal of that hearing are not the type of “continued . . .
course of performance” that constitutes a contract modification.54
Plaintiffs’ numerous citations to this Court’s prior opinions do not suggest a different
conclusion.55 Those opinions are about whether the Court will facilitate a party’s wish to keep
some information confidential by allowing a party to file that information under seal.56 They do
not address whether a party can rescind or modify a confidentiality provision as a remedy for the
opposing party’s previous breach of that provision.
For those reasons, the Court will not hold that the confidentiality provision within the
settlement contract is no longer effective.
3. Sealing the Settlement Agreement
However, the Court will not further aid the parties’ attempts to keep the terms of their
settlement confidential. In order to uphold the public’s right to access court records, the Court
will not allow the parties to file their settlement agreement under seal.

St. Mary’s v. Auglaize Cty. Bd. of Commrs., 875 N.E.2d 561, 568 (Ohio 2007) (internal quotation marks
and citations omitted).
53
Dvorske, et al., 18 Ohio Jur. 3d Contracts § 248 (Nov. 2017).
54
St. Mary’s, 875 N.E.2d at 568; cf. Dvorske, et al., 18 Ohio Jur. 3d Contracts § 248 (Nov. 2017) (noting
by example that “a promise to pay money at a certain time is modified by the acceptance of notes of a
third person payable at a later time” and “[a]cceptance by a lessor of a reduced rental constitutes a
modification of the rental contract”).
55
See Doc. 274 at 2-3.
56
See, e.g., Fitness Quest Inc. v. Wonderfulbuys.com, No. 5:06-CV-2204, 2007 WL 1072026, at *1 (N.D.
Ohio Apr. 5, 2007) (denying motion for protective order).
52

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There is a strong, constitutionally based presumption that the materials the courts rely on
in reaching their decisions will be made available to the public.57 Although private parties are
free to negotiate confidentiality between themselves, the courts do not shield their decisionmaking from the public without some overriding public interest justification, such as protecting
trade secrets.58
This right of access includes access to finalized settlement agreements.59 Once a
settlement agreement becomes the subject of litigation, the terms of that agreement become a
matter of public record unless the Court finds that the public interest is better served by
confidentiality.60
Here, in order to decide the parties’ motions, the Court must rely on and evaluate the
settlement terms placed into the record during the August and November 2017 hearings. The
Court must also evaluate and approve the final settlement agreement in order to ensure that it
conforms to the Court’s orders. Defendants have not presented any argument that suggests that
the Court’s refusal to aid them in maintaining the settlement’s confidentiality will prejudice
them, much less that they will suffer the types of harm that allow a court to seal documents from
the public.

57

Id. (citing Brown & Williamson Tobacco Corp. v. Fed. Trade Comm., 710 F.2d 1165, 1177-79 (6th Cir.
1983)).
58
See Goesel v. Boley Intern. (H.K.) Ltd., 738 F.3d 831, 833-36 (7th Cir. 2013) (citing trade secrets and
“compelling reasons of personal privacy” as two such public interest concerns that allow a court to seal
documents).
59
See Oberthaler v. Ameristep Corp., No. 4:08-cv-1613, 2010 WL 1506908, at *1 (N.D. Ohio Apr. 13,
2010) (“Simply put, litigants may not shield otherwise discoverable information from disclosure to others
merely by agreeing to maintain its confidentiality.”).
60
See Zwerin v. 533 Short North LLC, No. 2:10-cv-288, 2012 WL 5388762, at *3 (S.D. Ohio Nov. 2,
2012) (noting that a settlement agreement must become opened to the public once it becomes the subject
of litigation and “influence[s] or underpin[s] the judicial decision”).

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Additionally, Defendants’ citations to case law are unavailing. Those cases dealt with
protecting settlement negotiations from disclosure.61 Defendants, however, are attempting to
protect finalized settlement terms.62
Therefore, in order to protect the public’s right to access court records, the Court
DENIES both Plaintiffs’ and Defendants’ motions to file the final settlement agreement under
seal. The Court also DENIES Plaintiffs’ motion to hold the confidentiality provision no longer
part of the settlement agreement.
C. Plaintiffs’ Motion for Sanctions
Plaintiffs seek sanctions against Attorney Barry Freeman and his firm, Buckhingham,
Doolittle & Burroughs, LLC, for their continued delay in finalizing the settlement.
There is some indication in the record that Attorney Freeman refused to finalize the
settlement solely in order to strong arm Plaintiffs into agreeing to the two terms described above
that the Court finds were not part of the original settlement agreement.63
Nevertheless, the Court finds that Freeman’s position was not so wholly unreasonable or
obviously taken in bad faith that it warrants sanctions.64 This is especially so given that
Freeman’s (or perhaps his clients’) unwillingness to finalize the settlement agreement has
already caused his clients to incur Plaintiffs’ attorney’s fees.
The Court DENIES Plaintiffs’ motion for sanctions.

61

See Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980-81 (noting that
“[t]here exists a strong public interest in favor of secrecy . . . during settlement negotiations” and that the
Sixth Circuit’s previous cases recognized “the historical secrecy of settlement talks” (emphasis added)).
62
See Grupo Condumex, S.A. de C.V. v. SPX Corp., 331 F. Supp. 2d 623, 629 (N.D. Ohio 2004) (noting
that while settlement negotiations are protected from disclosure, the existence of a settlement or a
settlement’s terms are not).
63
See Doc. 273-2 at 2, 6 (exhibiting a willingness to issue the payment due to the Plaintiffs immediately if
they agree to Defendants’ interpretation of the release of claims and claw back provisions).
64
See, e.g., Fed. R. Civ. P. 11(b) (noting that sanctions may be warranted when a party presents a motion
for an improper purpose, “such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation”).

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IV. CONCLUSION
For those reasons, the Court GRANTS Plaintiffs’ motion to enforce the settlement.
The Court DENIES Defendants’ motion to approve the settlement, DENIES both
Plaintiffs’ and Defendants’ motions to file the settlement under seal, DENIES Plaintiffs’ motion
to hold that the settlement terms are no longer confidential, and DENIES Plaintiffs’ motion for
sanctions.
The Court ORDERS the parties to file a settlement agreement comporting with this
decision within fourteen (14) days of the date of this order.
The Court also ORDERS Plaintiffs to file an accounting of their attorney’s fees related to
their motion to enforce the settlement and a calculation of prejudgment interest within fourteen
(14) days of the date of this order.

IT IS SO ORDERED

Dated: March 2, 2018

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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