Brown v. Colegio de Abogados de Puerto Rico

274 F.R.D. 354, 2011 U.S. Dist. LEXIS 63774, 2011 WL 2433271
Procedural entryThis page is a short order in Brown v. Colegio de Abogados de Puerto Rico. Read the opinion of the Court — 579 F. Supp. 2d 211
District Court, D. Puerto Rico·Decided March 2, 2011·No. Civil No. 06-1645(JP)·Published

Opinion

ORDER

JOSÉ ANTONIO FUSTÉ, Chief Judge.

Before the Court are: (1) Elias Dávila-Berríos, Marylucy González-Báez, Mary Jo Méndez-Vilella, Michelle Pirallo-Di Cristina, Rubén Soto-Rodríguez, and Wanda Valentin-Custodio’s (“Proposed Dávila Subclass”) motion to certify a subclass and to decertify the damages class in this case (No. 341); (2) José Julián Alvarez-González, Zaidée Acevedo-Vilá, Linda Backiel, Rogelio José Cardona-Cardona, Carmen Diana Irizarry, María L. Jiménez-Colón, Ana Matanzo-Vieéns, Efrén Rivera-Ramos, Wanda Rivera-Ortiz, and Luis Torres Rodriguez’s (“Proposed Alvarez Subclass”) motion to certify a subclass and to decertify the damages class in this case (No. 364); (3) the various motions seeking to join the Proposed Dávila Subclass and/or the Proposed Alvarez Subclass (Nos. 342, 343, 344, 345, 347, 348, 349, 352, 353, 354, 355, 356, 358, 361, 362, 363, 371, 372, 373, 376, 378, 379, 380, 381, 382, 383, 389, 390, 391, 392, 394, 395, 396, 397, 402, 404, 407, 408, 409, 410, 412, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 436, 437, 440, 441, 443, 444, 445, 446, and 448); (4) Luis F. Camacho, José Andreu-Fuentes, José Olmo-Rodríguez, and Benny Frankie Cerezo-González’s (“Proposed Camacho Class”) motion requesting decertification of the damages class, certification of a subclass, clarification of an order, and requesting a stay of the proceedings (No. 438); (5) Class Plaintiffs’ opposition thereto (No. 370); (6) Pedro Varela-Fernández’s motion in the alleged best interests of justice [355]*355(No. 337); and (7) Class Plaintiffs’ opposition thereto (No. 367). For the reasons stated herein, said motions are hereby DENIED.1

I.

Introduction

On June 27, 2006, Class Plaintiffs filed the instant class action against Colegio de Abogados de Puerto Rico (“Colegio”) alleging that Colegio had violated the First Amendment rights of its members. Thereafter, Class Plaintiffs moved to certify two classes, one for declaratory relief and one for damages, and moved for summary judgment arguing that the decision in Romero v. Colegio de Abogados de Puerto Rico, Civil Case No. 94-2503, had preclusive effect in the instant action.

On July 31, 2008, the Court certified both of the requested classes. The damages class, certified under Fed.R.Civ.P. 23(b)(3), consists of all attorneys practicing in the Commonwealth of Puerto Rico local courts from 2002-2006, who were obligated to pay Colegio their yearly annual membership renewal fee in order to practice law in this jurisdiction. The Court then entered summary judgment and Final Judgment for the Class Plaintiffs on September 25, 2008 finding that Colegio’s compulsory life insurance program violated the federal constitution.2 The Court later amended its Judgment to add damages in the amount of $4,156,988.70, plus costs, interest, and attorney’s fees.

Colegio appealed. On July 23, 2010, the First Circuit Court of Appeals issued an opinion in which it confirmed this Court’s finding of liability, that Colegio breached its members’ federal constitutional rights, and the Court’s decision to grant injunctive relief. The First Circuit also affirmed the classes certified in this case. However, the First Circuit vacated this Court’s Judgment insofar as it determined the amount of damages. The First Circuit ordered the Court to provide class members with notice including their right to opt-out. After the expiration of the notice period, the First Circuit authorized the Court to reinstate the damages award as calculated before, but this time excluding damages otherwise attributable to those who opted-out of the class.

After the case was remanded, the parties and the Court began, on September 2, 2010 (No. 168), the process of preparing a notice to be issued to class members with the Court-approved opt-out procedures. Prior to the Class Action Notice establishing the opt-out procedures being issued and as early as October 18, 2010, various petitions were filed with the Court requesting to opt-out of the damages class. Also, prior to the issuance of the Class Action Notice and to the Court approving the procedures for opting-out, Colegio began issuing communications (Nos. 183 and 188) to class members requesting that they opt-out through a form distributed by Colegio.

As such, Class Plaintiffs filed a motion for a protective order arguing that the communications being disseminated by Colegio were misleading. After considering the arguments, Judge Jaime Pieras, Jr. determined that the communications issued by Colegio were both misleading and aimed at coercing class members into opting-out (No. 202). Judge Pieras also determined that the opt-out forms submitted through the electronic filing system would not be considered valid, since class members had not had the opportunity to receive the neutral Class Action Notice with the Court-approved opt-out procedures and since class members could have easily have been misled by Colegio’s communications. Accordingly, Judge Pieras en[356]*356tered a narrowly-tailored protective order precluding Colegio from communicating directly or indirectly with class members without prior leave of Court regarding this litigation or the claims therein until the class notice was provided and the opt-out procedures were completed.

After the protective order was issued but before the Notice of Class Action with the opt-out procedures was issued, Colegio informed the Court that it had around 1,200 opt-outs in its possession. Class Plaintiffs moved to have said 1,200 pre-notice opt-outs precluded from consideration for the benefit of class members because of the potential of said opt-outs being the product of Colegio’s misleading tactics and because class members had not had the benefit of receiving the Class Action Notice (No. 259). On December 29, 2010, the undersigned held in abeyance Class Plaintiffs’ request and also reversed Judge Pieras previous decision at docket number 202 and determined that the Court would consider those opt-outs submitted through the Court’s electronic filing system (No. 269).

On January 12, 2011, the undersigned entered another order (No. 276) setting aside his decision at docket number 269 to count the opt-outs submitted through the Court’s electronic filing system. The undersigned did so upon further reflection of Judge Pier-as’ previous determination on the issue at docket number 202. Also, in said order, the Court determined that it would not consider the 1,200 pre-notice opt-outs in Colegio’s possession. The Court explained that opting-out would be done in compliance with the procedures set forth in the Class Action Notice. Also, the Court amended the Class Action Notice to deal with this issue by including in bold:

If prior to the issuance of this notice you have filed an anticipatory notice of intent to opt out with the Clerk of the U.S. District Court for the District of Puerto Rico, with the Colegio de Abogados de Puerto Rico or through CM-ECF directly, you must still reaffirm your opt out decision by following the procedures for opting out set out in this notice.

The Class Action Notice in this case was officially mailed on January 26, 2011, to class members utilizing the addresses produced by Colegio.3

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Brown v. Colegio de Abogados de Puerto Rico, 274 F.R.D. 354, 2011 U.S. Dist. LEXIS 63774, 2011 WL 2433271 (prd 2011).

274 F.R.D. 354 (Brown v. Colegio de Abogados de Puerto Rico) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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