McLaughlin v. Liberty Mutual Insurance

224 F.R.D. 295, 10 Wage & Hour Cas.2d (BNA) 442, 2004 U.S. Dist. LEXIS 15964, 2004 WL 1803192
CourtDistrict Court, D. Massachusetts
DecidedAugust 13, 2004
DocketCiv.A. No. 03-10316-REK
StatusPublished
Cited by8 cases

This text of 224 F.R.D. 295 (McLaughlin v. Liberty Mutual Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLaughlin v. Liberty Mutual Insurance, 224 F.R.D. 295, 10 Wage & Hour Cas.2d (BNA) 442, 2004 U.S. Dist. LEXIS 15964, 2004 WL 1803192 (D. Mass. 2004).

Opinion

MEMORANDUM AND ORDER

COHEN, United States Magistrate Judge.

This is an action brought by plaintiffs on behalf of themselves and who also seek class certification. At bottom, plaintiffs allege that the defendant, their employer, violated the Fair Labor Standards Act (“FLSA”) (Count 1). Riding that same horse, plaintiffs also allege that the same conduct which was violative of the FLSA also violated G.L. c. 151, § 1A, for which plaintiffs seek the customary and usual treble damages (Count 2). Count 1, as this court understands it, has already been allowed to proceed as a collective action under the FLSA, to wit: 29 U.S.C. § 216(b), and some forty-one (41) employees of the defendant have opted in to that collective action.1 Plaintiffs seek traditional opt-out certification as a class vis a vis Count 2 under the provisions of Rule 23, F.R. Civ. P. As of yet, no class has been certified under Count 2.

With respect to Count 2, a number of motions were referred to this court for disposition under Rule 2(a) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts as the emergency magistrate judge,2 to wit: (1) Plaintiffs’ Emergency Motion for Order Precluding Defendant from Conducting Ex Parte Interviews with Putative Class Members (# 55); (2) defendant’s Request for Monetary Sanctions (#59);3 and defendant’s Request for Curative Notice (# 59).4 After hearing in open court on August 12, 2004, all motions were denied ore tenus. This Memorandum and Order memorializes those rulings.

1. By way the Plaintiffs’ Emergency Motion for Order Precluding Defendant, from Conducting Ex Parte Interviews with Putative Class Members (# 55) (hereinafter “Emergency Motion”), counsel for the named plaintiffs, who just recently penned a misleading 5 missive to putative class members6 —i.e., to the defendant’s employees — without notice to the defendant, seeks to enjoin the [297]*297defendant, by and through its agents, from interviewing its own employees.

That motion is denied. In their moving papers, plaintiffs, by and through counsel, intimate (Emergency Motion, p. 3) that interviews by attorneys for the defendant of the defendant’s own employees, none of whom are parties in any capacity to this action,7 is unethical — ie., that such conduct violates Rule 4.2 of the Canons (Supreme Judicial Court Rule 3:07); plaintiffs also contend that established Rule 23 precedent vis a vis communications with putative class members mandates an order precluding such interviews.

To the extent that plaintiffs contend that any such interviews would be unethical, there are two answers — both of which are short. First and foremost, counsel for plaintiffs, at oral argument, conceded that Canon 4.2 (Supreme Judicial Court Rule 3:07) does not government interviews of putative class members. Secondly, even if it could be said that Canon 4.2 — and, hence, Supreme Court Rule 3:07 — did govern, then no further action by this court would be warranted. And that is because, if Rule 3:07 is as plaintiffs say it is, then such conduct would be violative of, and hence proscribed by, Rule 83.6(4)(B) of the Local Rules of this Court.8 Saying it twice would be, in the circumstances, adds nothing but redundancy.

To the extent that plaintiffs contends that Rule 23 precedent mandates that such interviews not occur, this court is not persuaded.

As a general rule, as plaintiffs seemingly concede (Emergency Motion, p. 5), nothing in Rule 23 precludes communications with putative class members from either side of the litigation. As one court has recently put it (Pruitt v. City of Chicago, Dept. of Aviation, 2004 WL 1146110 *2 (N.D.Ill. May 20, 2004)):

Plaintiffs filed a motion to strike and/or exclude statements procured by Defendant from putative class members. Plaintiffs allege that Defendant’s attorneys (1) participated in ex parte communications with putative class members; (2) have been undermining the express purpose of Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to determining whether a class should be certified; and that as such (3) have committed violations of the ethical rules of professional conduct. The court finds that these allegations are without merit.
In this case, Plaintiffs have not supported their contention that any abuse took place as a result of Defendant’s communications with the alleged putative class members. Plaintiffs claim that Defendant improperly contacted putative class members. This raises issues concerning whether or not the court needs to issue a protective order prohibiting communications between the parties and putative class members. The purpose of a protective order is to ensure that the putative class members’ rights are protected and that the intent of Rule 23 is not undermined. The Seventh Circuit has stated that each side of an action generally has a “right” to send a communication to class members. E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc., 102 F.3d 869, 870 (7th Cir.1996). While a court has limited “power to restrict communications be[298]*298tween defendants and putative class members before the class is even certified ... such control is designed to prevent abuse of the class action process” such as “[c]ommunications that undermine the purposes of Rule 23 including] misleading communications and communications which affect a putative class members’ decision to participate in the class action.” Wiginton v. Ellis, 2003 WL 22232907, at *2 (N.D.Ill.2003)(citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-100 n. 12, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). Generally, a Court issues “an order limiting discovery communications between parties and potential class members” only if such an order is warranted “based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Williams, 204 F.3d at 759. There is no evidence that Defendant abused the class action process or was involved in misleading communications.9 In addition, Plaintiffs have failed to supply this court with any evidence — except for three paragraphs of speculation — that any of the putative class members’ rights were in any way threatened by such communication. Pl.’s Mot. To Strike pages 4-5. Plaintiffs also claim that Defendant’s attorneys have committed violations of the ethical rules of professional conduct. Such an allegation is a serious allegation and needs to be supported.

Plaintiffs say, however, that the rule is otherwise when the putative class members are employees of the defendant. Citing a few eases hither and thither (Emergency Motion, p. 7), plaintiffs say that the employer-employee relationship is all that is required to warrant preclusion of communications because that relationship is inherently coercive. That may be the take of reality of the judges to whom plaintiffs refer, but this court sees it otherwise.

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Bluebook (online)
224 F.R.D. 295, 10 Wage & Hour Cas.2d (BNA) 442, 2004 U.S. Dist. LEXIS 15964, 2004 WL 1803192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclaughlin-v-liberty-mutual-insurance-mad-2004.