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Federal Bar Update: Client representative at settlement conferences

John Maley
September 29, 2010
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In the Southern District of Indiana, settlement conferences are routinely held in most civil cases before the assigned magistrate judge. These conferences are authorized pursuant to Fed. R. Civ. P. 16 and S.D. Ind. Local Rule 16.1(c). Each magistrate judge issues a standard order (with some modest variations) setting the settlement conference, and which requires the presence of a client representative, or if an insurer is named or contractually required to defend or indemnify, the presence of a fully authorized representative of the insurer. Further, Local Rule 16.1(c) requires counsel to confer prior to all court conferences to prepare for the conference.

In Auto-Owners Ins. Co. v. Yamaha Motor Corp., No. 2:09-CV-191 (Aug. 25, 2010), these issues came into play when plaintiff and its representative appeared for a scheduled settlement conference, but defense counsel appeared without a client representative and without advance notice of no representative attending. Defense counsel did not attempt to notify plaintiff counsel until the morning of the conference that no defense representative would attend with him, and by that time both plaintiff counsel were en route to the settlement conference.

The matter was not settled at the conference, but the parties did settle the matter within several weeks thereafter. Plaintiff’s counsel moved for sanctions for travel costs of $200.20 and for the client representative’s time spent at the conference of $800.

Magistrate Judge Hussmann granted in part the motion and sanctioned defendant Yamaha $200.20 to compensate plaintiff’s client representative for travel costs incurred in attending a settlement conference with plaintiff’s counsel. Judge Hussmann denied the $800 for time spent at the conference, reasoning that “the case was ultimately resolved shortly after the settlement conference” such that the representative’s “time was not wasted.”

Judge Hussmann concluded his for-publication order, writing: “The practice of attending settlement conferences without an appropriate client is explicitly discouraged from this point forward. If a particularly difficult logistical problem arises with the client’s attendance, counsel must, pursuant to Local Rule 16.1, seek permission from opposing counsel. If opposing counsel does not agree, a motion seeking permission should be filed sufficiently in advance of the conference to allow opposing counsel to file an objection.”

Mark your calendars – The annual Federal Civil Practice Update seminar will be Dec. 17 from 1:30 to 4:45 p.m. Registration information will be available in October at www.theindianalawyer.com.•

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John Maley (jmaley@btlaw.com) is a partner with Barnes & Thornburg, concentrating on federal and state litigation. The opinions expressed in this column are those of the author.

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