Preview:

UNITED STATES DISTRICT COURT DISTRICT OF MAINE MICHELLE PRESCOTT,
ET. AL.,

PLAINTIFFS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT

) ) ) ) ) ) ) ) ) )

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
1

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 IN

EMPLOYMENT LAW: THE OBAMA Institute American Bar

MID-TERM

(American

Law

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?
2

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

3

U.S. DISTRICT COURT DISTRICT OF MAINE (PORTLAND) CIVIL DOCKET NO. NO. 2:09-cv-00322 (DBH) Michelle Prescott, on Behalf of Herself and All Others Similarly Situated, Shannon Rose, Laura Ordway, Michael Carpenter, Michelle Cobbett, Russell Lashua, Janie Reid, Audrine Pickett, Jennifer Pesce, Matthew Danforth, Deane Story, Antonio B. Burnett, Celeste Davis, Lisa Rodenbaugh, Joan Van Splinter, Rose Beth Andriola, Karen H. Getchell, Darlene Bryant, Camella Field, Elizabeth Witkowski, Luigi A. Scioscia, Plaintiffs
V.

Represented By Nicholas Bull Edward S. MacColl Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. P.O. Box 447 Portland, ME 04112 (207) 774-7600 email: nbull@thomport.com emaccoll@thomport.com Timothy B. Fleming Wiggins, Childs, Quinn & Pantazis, LLC 7 Dupont Circle, N.W., Suite 200 Washington, DC 20036 (202) 467-4123 email: tfleming@wcqp.com

Prudential Insurance Company of America, Defendant

Represented By Brett E. Coburn Camille W. Ward Edmund M. Morrell Robert P. Riordan Alston & Bird, LLP 1201 West Peachtree Street One Atlantic Center Atlanta, GA 30309-3424 (404) 881-4990 email: brett.coburn@alston.com camille.ward@alston.Com edmund.morrell@alston.com bob.riordan@alston.com James R. Erwin Pierce Atwood LLP One Monument Square Portland, ME 04101 (207) 791-1100 email: jerwin@pierceatwood.com

4



Download DBH_11282011_2-09cv322_PRESCOTT_V_PRUDENTIAL_INSURANCE_CO.pdf

Maine Law