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Procaccino v. Jeansonne

United States District Court, E.D. Louisiana

December 23, 2017


         SECTION "F"



         Before the Court is the plaintiff's motion for attorney's fees. For the reasons that follow, the motion is GRANTED.


         This lawsuit, which arose from the alleged breach of a severance agreement confected after the end of an office romance led to the plaintiff's termination of employment, was settled by the parties. The only issue remaining is whether the plaintiff may recover attorney's fees incurred during the time in which the defendants refused to abide by the settlement agreement.

         This factual summary assumes familiarity with the Court's Order and Reasons dated July 12, 2017, which is hereby incorporated by reference. The Court restates the more salient facts bearing on Ms. Procaccino's request for attorney's fees. David Jeansonne II owns or co-owns various limited liability companies, including Traffic Jam Events, LLC (TJE). Before May 2012, Kymberly Procaccino was employed by TJE. Ms. Procaccino was also romantically involved with Mr. Jeansonne. When their romantic relationship ended, Mr. Jeansonne terminated Ms. Procaccino's employment.

         On May 16, 2012, Ms. Procaccino agreed to release any claims respecting her termination of employment and, in exchange, Mr. Jeansonne and his affiliated companies agreed to pay Ms. Procaccino a total of $120, 000, payable in monthly installments of $10, 000.[1]The first $10, 000 installment payment was timely made, but no other installment payments followed. According to Ms. Procaccino, Mr. Jeansonne refused additional payment due to his personal ill feelings.

         On May 5, 2017, Ms. Procaccino sued Mr. Jeansonne along with Traffic Jam Events, LLC (TJE), Platinum Plus Printing, LLC (PPP), and DTJ Properties, LLC (DTJ) in this Court, invoking the Court's diversity jurisdiction. Ms. Procaccino alleged that the defendants' refusal to pay the remaining 11 installment payments pursuant to the severance agreement constitutes breach of contract. She sought to recover the $110, 000 owed under the severance agreement; all reasonable attorney's fees and costs she incurs in enforcing the severance agreement; damages for losses due to the defendants' bad faith refusal to perform their obligation; and damages for nonpecuniary loss pursuant to Louisiana Civil Code article 1998.

         Shortly after this lawsuit was filed and defendants were served, on May 15, 2017, defense counsel, Stephen Kepper called plaintiff's counsel, Jacob Weixler, to attempt to settle the case and to obtain the plaintiff's consent to seal her complaint.[2] Mr. Weixler told Mr. Kepper that she agreed to seal the complaint without waiving any challenge to the merits of Mr. Jeansonne's confidentiality arguments. Mr. Kepper stated that he was given an order from his client to file an answer and counterclaims to Ms. Procaccino's complaint, or settle the case, by the end of the day (May 15). Mr. Kepper stated that his client authorized him to settle all claims between the parties for $130, 000. Ms. Procaccino rejected the offer.

         To counter, Mr. Weixler proposed a settlement that would only resolve Ms. Procaccino's claim under the severance agreement for $130, 000, but Mr. Kepper insisted that the defendants were only interested in a global settlement that would settle all claims that may exist between the parties; he stated that he would not engage in discussions limited to settling only the claim underlying this lawsuit. In particular, Mr. Kepper represented that his clients also wished to discuss resolution of a real estate dispute between Ms. Procaccino and Mr. Jeansonne as a part of any settlement of the severance agreement lawsuit.[3] Nevertheless, Mr. Kepper agreed to discuss the counteroffer with his client. Mr. Kepper did so and then left Mr. Weixler a voicemail message; when Mr. Weixler returned his call, Mr. Kepper stated that the defendants were only interested in settling all claims that may exist among the parties. Mr. Kepper then said “I have my clients' authority to settle for $180, 000.” He said that he was “surprised” that Mr. Jeansonne gave him this authority given “who he is” and the aggressive approach he has taken toward Ms. Procaccino and this litigation. Mr. Kepper stated that Mr. Jeansonne had offered the $180, 000 in the hopes that he could put the litigation behind him before filing an answer and counterclaims later in the day. Mr. Weixler advised Mr. Kepper that his client was unlikely to accept this offer given that Ms. Procaccino estimates that her severance and real estate claims are worth approximately $300, 000.

         But Ms. Procaccino did indeed accept the offer. With Ms. Procaccino's blessing, Mr. Weixler called Mr. Kepper to advise him that Ms. Procaccino, who wished to put her entanglement with defendants behind her, had accepted the defendants' offer to settle. Expressing relief that that matter was concluded, Mr. Kepper asked that Mr. Weixler send him an email confirming Ms. Procaccino's acceptance and specifying the terms to which the parties had agreed, for the express purpose of binding the parties in writing, and so that Mr. Kepper was no longer obliged to file his client's answer and counterclaims by the end of the day.[4] Mr. Kepper said that he would reply to Mr. Weixler's email to document his clients' acceptance of the settlement terms.

         On that same day that Mr. Kepper first initiated settlement discussions, Mr. Weixler emailed him at 3:23 p.m., confirming in writing Ms. Procaccino's acceptance of the settlement offer and detailing the terms discussed by telephone with Mr. Kepper. About 20 minutes later, Mr. Kepper called Mr. Weixler to ask if Ms. Procaccino would consent to two additional terms: to seal the complaint in this matter and to keep certain information confidential. Mr. Weixler told Mr. Kepper that his client agreed with the additional terms. Mr. Kepper said that he would confirm the settlement agreement by replying to Mr. Weixler's prior email and memorialize the additional terms to which the parties had just agreed. Mr. Kepper asked that Mr. Weixler reply to his forthcoming email to say that Ms. Procaccino had no objections to including the two terms just agreed upon; Mr. Weixler agreed that he would confirm in writing that his client did not object.

         Shortly after the phone conversation, Mr. Kepper emailed Mr. Weixler, stating that the defendants accepted the settlement agreement and referencing the additional terms agreed upon by telephone. As promised, Mr. Weixler replied to the email stating “No objection” to inclusion of the additional terms.

         On the morning of May 16, 2017, Mr. Jeansonne reneged; he informed his attorney that the defendants no longer wanted to settle on the agreed-upon terms. Mr. Kepper says that he immediately called Mr. Weixler to inform him that the defendants had declined to settle on the terms negotiated, but Ms. Weixler says that he did not receive a call from Mr. Kepper on May 16, 2017. Rather, according to Mr. Weixler, on the evening of May 16, Greg Latham, who is Mr. Kepper's co-counsel, called Thomas McEachin, who is a named partner at the firm where Mr. Weixler is an associate attorney, and who is also a longtime friend of Mr. Latham. Mr. Latham told Mr. McEachin that Mr. Kepper had authority from his client to settle the matter on the agreed-upon terms, but that Mr. Jeansonne had changed his mind. Mr. Latham said that Mr. Kepper had ...

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