Case 3:12-cv-00246-JGH Document 59-1 Filed 02/04/14 Page 1 of 13 PageID #: 480

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MICHAEL E. JOHNSON, et al.,
Plaintiffs,
Case No. 3:12-cv-00246-JGH
v.
Electronically filed
CORRECTIONS CORPORATION OF
AMERICA,
Defendant.
MEMORANDUM IN SUPPORT OF PRISON LEGAL NEWS’
MOTION TO INTERVENE AND UNSEAL SETTLEMENT EXHIBITS
Pursuant to Fed. R. Civ. P. 24(b), Prison Legal News seeks to intervene in the abovestyled action for the purpose of requesting that the exhibits offered by the parties in support of
their court-approved settlement be unsealed and thus available for public inspection.
Statement of Facts
The Defendant, Corrections Corporation of America (“CCA”), previously operated two
prison facilities in Kentucky — Marion Adjust Center and Otter Creek Correctional Facility. On
May 11, 2012, Plaintiffs (then-current and former employees of those CCA facilities) brought
this action alleging that CCA violated the Fair Labor Standards Act and Kentucky’s Wage and
Hour Act by, inter alia, misclassifying them as exempt from FLSA’s overtime provisions and, as
a result, wrongfully withholding earned overtime compensation. [RE #1: Verified Class Action
and Collective Action Complaint (“Compl.”); RE #5: First Amended Verified Class Action and
Collective Action Complaint (“First Amended Compl.”); RE #25: Second Amended Verified
Class Action and Collective Action Complaint (“Second Amended Compl.”) at ¶¶ 2, 68-76, 77-

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84; RE #54-1: Settlement Agreement, at 1.] The Plaintiffs sought “compensatory and liquidated
damages,” injunctive relief, and attorneys’ fees. [RE #25: Second Amended Compl., at 18.]
CCA denied Plaintiffs’ allegations, but stipulated to the conditional certification of
current and former employees at the two facilities. [RE #23; RE #24.] Subsequent notice to
qualifying individuals resulted in additional plaintiffs agreeing to join the litigation (“Opt-In
Plaintiffs”). The parties thereafter reached a tentative settlement on November 4, 2013. In their
Joint Motion for Final Approval of FLSA Settlement and Memorandum in Support [RE#54], the
parties described the proposed agreement as follows:
The Settlement Agreement provides that CCA will pay an amount to settle
Plaintiffs’ claims for unpaid wages and attorneys’ fees and costs and expenses in
exchange for a release of their wage and hour claims related to their employment
as Assistant Shift Supervisors and Shift Supervisors under state and federal law.
The settlement will be distributed to all Plaintiffs based on an equitable formula
approved by all Plaintiffs and counsel that takes into account the number of weeks
worked by each Plaintiff, the number of overtime hours assumed to have been
worked by each Plaintiff, the salary of each Plaintiff, whether the individual
participated in depositions, and whether the individual was a named or lead
Plaintiff in the action.
In seeking court approval of their settlement agreement, the parties also moved to seal the
exhibits supporting that agreement. [RE #55: Joint Motion to Seal Exhibits.] Specifically, the
parties sought to seal the two supporting exhibits that contained “information concerning the
amount that will be paid to each Plaintiff if the settlement is approved” and “information
pertaining to Plaintiffs’ counsel’s attorneys’ fees and costs.” [Id. at 2.] According to the parties,
there existed “no need” to make these exhibits a part of the public record because there “is no
public interest” in their inspection. [Id. at 1, 2.]1 On November 27, 2013, this Court granted the

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Although the parties’ settlement agreement provided that the agreed-upon award of attorneys’
fees and costs would be $131,000, it provided no details regarding the allocation of those fees
and costs. [RE #54-1: Settlement Agreement, § III.B.1.] Nor did the settlement agreement
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parties’ request to seal the supporting exhibits and approved their settlement agreement. [RE
#57; RE #58.]
As detailed in the accompanying declaration of Mr. Paul Wright, Prison Legal News
(PLN) is a project of the Human Rights Defense Center, a 501(c)(3) non-profit corporation.
[Attached Exhibit 1: Wright Declaration.] PLN produces an independent monthly publication,
Prison Legal News, and maintains a website both of which are devoted to providing cutting edge
reviews and analysis of issues relating to prisoners’ rights and other prison-related news. [Id. at ¶
3.] For example, PLN has covered such varied prison-related topics as court access, disciplinary
hearings, prison conditions, use of excessive force, mail censorship, jail litigation, visitation
issues, and the Prison Litigation Reform Act. [Id.] Moreover, PLN has devoted extensive
coverage to the private prison industry, including various articles about CCA. [Id. at ¶ 4.]
In order to effectively and adequately report the outcome of this FLSA case, PLN, as a
member of the news media, needs access to the supporting exhibits referenced in the parties’
settlement agreement. Specifically, PLN seeks to review the settlement amounts paid to the
plaintiffs in this case to determine the actual financial costs incurred by CCA for its Kentucky
operations. These amounts are particularly newsworthy because providers of private prison
services, including CCA, tout their purported ability to house inmates for a lower per-inmate cost
than the state in order to secure valuable state prison contracts. Given that approximately 80% of
prison operation expenses are due to staffing costs (e.g., salaries, benefits, training, etc.), private
prison firms seek to minimize those costs in order to maximize profits. The fact that, here, CCA
incurred settlement expenses for what Plaintiffs claimed were systemic violations of the FLSA is
relevant (as is the amount of those expenses) to the ongoing political dialogue about whether
otherwise identify the amount paid by CCA to the Plaintiffs, either collectively or individually.
[See id. at §§ III.C.1-5.]
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private prison operators seek to minimize their costs improperly and whether their claimed
operational costs adequately reflect their resolution of legal claims. [Id. at ¶ 7.]
Argument
I.

THE COURT SHOULD ALLOW PRISON LEGAL NEWS TO INTERVENE FOR
THE LIMITED PURPOSE OF SEEKING TO UNSEAL THE PARTIES’
SETTLEMENT EXHIBITS.
A.

The Requirements For Permissive Intervention Are Present Here.

Fed. R. Civ. P. 24(b) establishes the circumstances under which an individual may be
permitted to intervene in an action. Specifically, Fed. R. Civ. P. 24(b)(1)(B) provides that
intervention may be permitted where the movant timely seeks intervention and “has a claim or
defense that shares with the main action a common question of law or fact.” Thus, “[u]nder Rule
24(b), a court ruling on a motion for permissive intervention must assess three factors: (1)
whether the request to intervene is timely; (2) whether the proposed intervenor “has a claim or
defense that shares with the main action a common question of law or fact”; and (3) “whether the
intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”
Vassalle v. Midland Funding LLC, 708 F.3d 747, 760 (6th Cir. 2013) (citing Fed. R. Civ. P.
24(b)(1)(B); 24(b)(3)). As is detailed below, all of the factors necessary for permissive
intervention are met here.
1.

PLN’s request to intervene is timely.

As an initial matter, “t]he determination of whether a motion to intervene is timely should
be evaluated in the context of all relevant circumstances.” Jansen v. City of Cincinnati, 904 F.2d
336, 340 (6th Cir. 1990) (citing Bradley v. Milliken, 828 F.2d 1186, 1191 (6th Cir.1987)). In
making that determination, courts should consider the following factors:
(1) [T]he point to which the suit has progressed; (2) the purpose for which
intervention is sought; (3) the length of time preceding the application during

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which the proposed intervenors knew or should have known of their interest in the
case; (4) the prejudice to the original parties due to the proposed intervenors’
failure to promptly intervene after they knew or reasonably should have known of
their interest in the case; and (5) the existence of unusual circumstances militating
against or in favor of intervention.
Id. (listing factors relevant to timeliness of requests to intervene “of right” under Rule 24(a))
(citation omitted). Here, a consideration of these factors supports the conclusion that PLN’s
request to intervene is timely.
Specifically, this suit concluded by way of a court-approved settlement on November 27,
2013. [RE #58.] But the limited basis for which PLN seeks to intervene — to unseal the exhibits
offered in support of the settlement agreement — is unrelated to the merits of the underlying
action and did not arise until the Court, simultaneous to its approval of the settlement agreement,
granted the parties’ additional request to seal the settlement exhibits from public view. [RE #57.]
Thus, PLN is seeking to intervene in this matter less than ten weeks after the Court’s ruling
implicating its substantial First Amendment interest in this matter. See Brown & Williamson
Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177-79 (6th Cir. 1983) (public right to access
applicable to civil trials); see also In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474
(6th Cir. 1983) (recognizing “the presumptive right of the public to inspect and copy judicial
documents and files”) (citations omitted). Such a de minimus lapse of time between the operative
ruling and the present motion does not (and cannot) unduly prejudice the original parties.
Because there are no unusual circumstances present that militate against intervention, and
because the remaining factors weigh in favor of finding that PLN’s request is timely, this factor
is met.

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2.

PLN possesses a claim that shares with the main action a common question
of law or fact.

The second factor necessary to establish permissive intervention is that the proposed
intervenor “has a claim or defense that shares with the main action a common question of law or
fact.” Fed. R. Civ. P. 24(b)(1)(B). In construing this provision, “courts generally have interpreted
their discretion ... broadly and have held that it can be invoked by nonparties who seek to
intervene for the sole purpose of challenging confidentiality orders.” 7C Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1911 (3d ed. 2007).
Moreover, “there is no stringent showing required under Rule 24(b) that [the] claim [supporting
intervention] must have a strong nexus of common fact or law” particularly where, as here,
intervention is sought to challenge the confidentiality of documents. Id. at 164 (citing In re
Franklin National Bank Securities Litigation, 92 F.R.D. 468, 471 (E.D.N.Y.1981), aff'd, 677
F.2d 230 (2d Cir.1982)); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir.
1994) (“[T]he procedural device of permissive intervention is appropriately used to enable a
litigant who was not an original party to an action to challenge protective or confidentiality
orders entered in that action.”).
Here, PLN’s sole basis for seeking intervention is to challenge the confidentiality
conferred upon the parties’ settlement exhibits in this FLSA case. As noted above, PLN’s status
as a news publication (coupled with its interest in reporting upon the details of the parties’
settlement in this case) present this Court with the significant legal question concerning the
appropriateness of the continued confidentiality of those documents. See Meyer Goldberg, Inc.,
of Lorain v. Fisher Foods, Inc., 823 F.2d 159, 163 (6th Cir. 1987) (“While a district court has
supervisory power over its own records and files, its discretionary powers to seal these records is
not insulated from review merely because the judge has discretion in this domain because of the

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long-established legal tradition which recognizes the presumptive right of the public to inspect
and copy....”) (internal quotations and citations omitted); see also id. (recognizing that “both civil
and criminal trials are presumptively open proceedings and open records are fundamental to our
system of law.”) (emphasis added). Thus, because PLN seeks to vindicate a substantial right of
access to judicial records, and because courts routinely consider such legal claims sufficient
under Fed. R. Civ. P. 24(b) to satisfy the “common question of law” requirement for permissive
intervention, this element is likewise satisfied.
3.

Intervention will not unduly delay or prejudice the adjudication of the
original parties’ rights.

The final consideration in deciding whether (or not) to grant permissive intervention is
deciding whether the intervention, if granted, would result in undue delay or prejudice to the
original parties. Fed. R. Civ. P. 24(b)(3). Here, there is no reasonable argument that granting
PLN permissive intervention for the limited purpose of challenging the confidentiality of the
parties’ settlement exhibits would unduly delay the proceedings. These proceedings have already
concluded by way of the parties’ settlement agreement, and PLN does not seek to re-litigate any
issues relating to the merits of the underlying claims or challenge the validity of the parties’
settlement agreement. Rather, PLN seeks only to assert a collateral claim regarding the validity
of shielding the parties’ settlement exhibits from public view. Because granting PLN’s request to
intervene for this limited purpose would not require the parties to revisit substantive issues
regarding their underlying claims and defenses, and because PLN’s request is submitted less than
ten weeks after the documents at issue were sealed (and while the Court retains continuing
jurisdiction over the settlement agreement), granting PLN’s request for permissive intervention
would not result in undue delay See e.g., United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d

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1424, 1427 (10th Cir. 1990) (allowing permissive intervention three years after settlement for the
purpose of gaining access to discovery materials subject to protective order).
Similarly, allowing PLN to intervene for a limited purpose would not result in undue
prejudice to original parties in this case. Several courts to have considered the issue have
concluded that where, as here, the parties have fully resolved their dispute and the basis for
intervention relates solely to a “collateral purpose” such as challenging a confidentiality order,
there is no undue prejudice. Id. (noting that Rule 24(b)’s timeliness requirement designed “to
prevent prejudice in the adjudication of the rights of the existing parties” but that the potential for
such prejudice is “not present when the existing parties have settled their dispute and
intervention is for a collateral purpose.”); see also Pub. Citizen v. Liggett Grp., Inc., 858 F.2d
775, 786 (1st Cir. 1988) (holding that because proposed intervenor “sought to litigate only the
issue of the protective order, and not to reopen the merits, we find that its delayed intervention
caused little prejudice to the existing parties in this case.”); Liberte Capital Grp., LLC v. Capwill,
126 F. App’x 214, 220-21 (6th Cir. 2005) (unreported) (finding district court abused its
discretion in denying permissive intervention where movant’s basis for intervention “would
presumably have the sole effect of asking the district court to revisit its decision in an unopposed
order and to apprise the judge of case law affecting the order.”). For the foregoing reasons,
PLN’s request for permissive intervention is timely, is based upon a claim that shares a common
question of law with the underlying action, and would not result in undue delay or prejudice to
the original parties. As such, PLN’s request for permissive intervention for the limited purpose of
challenging the confidentiality of the parties’ settlement exhibits should be granted.

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II.

THE COURT SHOULD UNSEAL THE EXHIBITS OFFERED IN SUPPORT OF
THE FAIR LABOR STANDARDS ACT SETTLEMENT REACHED IN THIS
MATTER.
In addition to seeking to intervene in this case, PLN also requests that the parties’

settlement exhibits be unsealed and thus available for public inspection. In doing so, PLN asserts
the “long-established legal tradition” that recognizes “the presumptive right of the public to
inspect and copy judicial documents and files.” Nixon v. Warner Communications, 435 U.S. 589,
597 (1978); see also In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 473 (6th Cir. 1983).
Admittedly, the public’s right to inspect judicial documents is not absolute and courts may, in the
exercise of their supervisory authority, deny access under certain circumstances. Nixon, 435 U.S.
at 598. But in deciding those questions, the legal presumption in favor of openness, “[i]f not
overpowering ... is nonetheless strong and sturdy.” F.T.C. v. Standard Fin. Mgmt. Corp., 830
F.2d 404, 410 (1st Cir. 1987). “Only the most compelling reasons can justify non-disclosure of
judicial records.” In re Knoxville News-Sentinel Co., Inc., 723 F.2d at 476 (citing Brown &
Williamson, 710 F.2d at 1179–80; United States v. Myers, 635 F.2d at 952)).
Here, the judicial documents at issue include two exhibits filed by the parties in support
of their FLSA settlement agreement. One exhibit contains “information concerning the amount
that will be paid to each Plaintiff” pursuant to the settlement, and the other contains “information
pertaining to Plaintiffs’ counsel’s attorneys’ fees and costs.” [RE #55: Joint Motion to Seal
Exhibits.] These exhibits, offered in support of the parties’ proposed settlement agreement, lie at
the heart of the “long-established legal tradition” of allowing public access to judicial records
because only with full access to the documents upon which courts rely in making decisions may
the public “effectively monitor the activities” of the court. Pratt & Whitney Canada Inc. v.
United States, 14 Cl. Ct. 268, 273 (1988); see also Boone v. City of Suffolk, Va., 79 F. Supp. 2d

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603, 609 (E.D. Va. 1999) (“[I]n a FLSA action, where federal law requires court approval for
fairness before any settlement can be executed, the public has an interest in determining whether
the Court is properly fulfilling its duties when it approves a back-wages settlement agreement.”)
Here, the Court’s order granting the parties’ request to seal the settlement exhibits did not
articulate its justification for doing so. [RE #57.] Thus, PLN is unable to adequately address all
of the potential bases upon which that decision rested. However, PLN argues that it cannot
conceive, based upon the parties’ own descriptions of the exhibits, that any permissible basis
exists to overcome the strong presumption of openness applicable to judicial records. For
example, despite the parties’ assertion that there “is no public interest in allowing the public”
access to the information contained in the exhibits, PLN (and the public) clearly possess strong
interests not only in the ability to inspect judicial records relied upon by the Court in approving
the parties’ FLSA settlement, but also in the monies paid by CCA to resolve these claims. As
noted above, PLN closely tracks the assertions of those in the private prison industry, including
CCA, who allege that private prison providers can deliver prison services to state and local
governments at a lower cost than the governments themselves. Of course, monetary settlements
to employees of such private companies is highly relevant to that ongoing public debate and, as
such, is a matter of utmost public concern.
Similarly, the claims of harm the parties asserted in seeking to seal the exhibits consisted
of the avoidance of protracted litigation, mitigation of disruption in the workplace, and
minimization of the risk of “copycat” lawsuits. [RE #55: Joint Motion to Seal Exhibits, at 2.] But
those conclusory assertions are merely speculative and thus insufficient to provide the
“compelling” justification necessary to warrant restricting the public’s access to the judicial
records. See Womack v. Delaware Highlands AL Servs. Provider, LLC, 2012 WL 1033384 (D.

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Kan. Mar. 27, 2012) (“The party seeking to overcome the presumption [of openness for judicial
records] ... must come forward with evidence as to the nature of the public or private harm that
would result if it were so filed.”) (internal quotations and citations omitted).
As further support for its assertion that the parties’ settlement exhibits should be
unsealed, PLN points to a ruling on nearly identical facts in Barnwell, et al. v. Corrections
Corporation of America, Civil Action No. 08-cv-02151 (D. Kan. Aug. 27, 2009) (unreported).
[Attached Exhibit 2: Barnwell Order.] There, as here, various plaintiffs sued CCA for alleged
violations of the Fair Labor Standards Act. [Id. at 1.] And there, as here, the original parties
reached a court-approved settlement agreement that included sealing various documents,
including the agreement itself and the supporting documents. [Id. at 1-2.] And in that case, PLN
also sought to intervene for the purpose of unsealing the parties’ settlement agreement and
related documents. [Id. at 1.] There, the district court granted PLN’s request to intervene and
further granted, in part, the request to unseal the documents at issue. [Id. at 2 n.1; 7.] In doing so,
the court distinguished between those “judicial records” that had been filed with the court as part
of the settlement agreement from any unfiled transcripts or other documents. The court granted
PLN’s request as it related to the filed, judicial records relating to the settlement agreement
(including the settlement agreement itself) because it found that the original parties failed to
establish any “compelling” justification to overcome the presumption of openness relating to
those judicial records. [Id. at 4-6.] Here, as in Barnwell, PLN seeks to unseal the parties’ exhibits
filed with the court in support of their court-approved FLSA settlement agreement. And as in
Barnwell, the original parties cannot overcome the strong presumption in favor of openness that
attaches to the judicial records at issue. Thus, PLN’s request to unseal those exhibits should be
granted.

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Conclusion
PLN should be permitted to intervene in this action for the limited purpose of challenging
the continued confidentiality of the exhibits offered in support of the parties’ settlement
agreement. PLN’s request for intervention is timely, asserts a claim that, when properly
construed, shares a common question of law with the underling action, and would not result in
undue delay or prejudice to the original parties. Moreover, because PLN (and the public) enjoy a
long-standing right to inspect judicial records that can only be restricted for “the most
compelling” reasons, and because no such compelling reasons are present here, PLN’s motion to
intervene and unseal the settlement exhibits should be granted in full.

Respectfully Submitted,
s/ William Sharp
William E. Sharp
ACLU OF KENTUCKY
315 Guthrie Street, Suite 300
Louisville, KY 40202
(502) 581-9746
sharp@aclu-ky.org
Counsel for Prison Legal News

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CERTIFICATE OF SERVICE
I hereby certify that on February 4, 2014, I electronically filed this document with the
Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to
the following:

Thomas W. Miller
Elizabeth C. Woodford
Don A. Pisacano
MILLER, GRIFFIN & MARKS, P.S.C.
271 W. Short Street, Suite 600
Lexington, KY 40507
twm@kentuckylaw.com
ewoodford@kentuckylaw.com
pisacano@kentuckylaw.com
Counsel for Plaintiffs

Margaret T. Blackwood
LITTLER MENDELSON, P.C.
3344 Peachtree Road, Suite 1500
Atlanta, GA 30326
mblackwood@littler.com
LaToi D. Mayo
LITTLER MENDELSON, P.S.C.
333 West Vine Street, Suite 1620
Lexington, KY 40507
lmayo@littler.com
Vincent J. Mersich
Robert W. Pritchard
LITTLER MENDELSON, P.C.
625 Liberty Avenue, 26th Floor
Pittsburgh, PA 15237
vmersich@littler.com
rpritchard@littler.com
Counsel for Defendant

/s William E. Sharp
Staff Attorney
ACLU OF KENTUCKY
Counsel for Prison Legal News

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