On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 85-2138.
Sloviter, Scirica and Weis, Circuit Judges
This appeal is before us following the district court's certification pursuant to 28 U.S.C. § 1292(b) of its order giving court authorization to plaintiffs in an action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., to send a notice to those members of the asserted class who have not yet opted in to plaintiffs' suit. The district court, Judge Harold A. Ackerman, identified the controlling question of law as to which there is substantial ground for difference of opinion as whether, in a case governed by 29 U.S.C. § 216(b), "the district court possess[es] the authority to facilitate notice of the action to . . . persons who have not yet filed consents to join the action." App. at 715. This court granted leave to appeal and there is no dispute as to our appellate jurisdiction over this portion of the order, which is before us in No. 88-5214.
The defendant-employer Hoffman-La Roche Inc. (Roche) also moved in the district court to vacate the approximately 400 consents to enter the suit which have already been filed, arguing that those consents were a result of plaintiffs' allegedly "inflammatory, misleading and incomplete" letter sent March 7, 1985, prior to any court authorization. Appellant's Brief in Opposition to Appellees' Motion to Dismiss at 2. The district court denied the motion and thereafter declined to certify that portion of its order under section 1292(b), expressly holding that the controlling question Roche identified as warranting immediate appellate review was not a controlling question of law which offers a substantial ground for difference of opinion.
Roche then filed a petition in this court for a writ of mandamus seeking to reverse the district court's refusal to invalidate the consents. We denied the petition. Roche has, however, filed an appeal from the court's order denying its motion to vacate. Plaintiffs have moved to dismiss that appeal, before us as No. 88-5104. We will consider our jurisdiction over that appeal following a brief summary of the facts and procedural posture of the litigation.
Facts and Procedural History
On February 4, 1985, defendant Roche allegedly fired or demoted some 1,200 workers at its various plants, primarily at two locations in New Jersey, pursuant to a reduction in work force. At the initiative of one or more of the named plaintiffs in this action, a group of employees who had been affected by Roche's reduction in force, with the assistance of counsel, formed a group known as Roche Age Discriminatees Asking Redress (R.A.D.A.R.), which initiated this class action against Roche under the ADEA.
R.A.D.A.R. and its counsel drafted a letter to former employees whom it had identified as within the protected class informing them of the action that had been brought against Roche and inviting them to submit their consents to join the action as plaintiffs. App. at 99-102. The letter was mailed to approximately 600 people on R.A.D.A.R. stationery and signed by Richard Sperling, a named plaintiff in this action. Through R.A.D.A.R.'s letters and "informal networking," over 400 consents were received and have been filed with the court.
Plaintiffs filed a motion requesting the district court to send out notice of the suit to putative class members who had not yet filed consents to join the action. See App. at 627. The court held that it was "permissible for a court to facilitate notice of an ADEA suit to absent class members in appropriate cases, so long as the court avoids communicating to absent class members any encouragement to join the suit or any approval of the suit on its merits." Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 402 (D.N.J. 1988). The court reviewed the language of 29 U.S.C. § 216(b) and its legislative history, finding "nothing in [that history] which might apply to the issue of court-facilitated notice, at least when it arises in a case other than a portal-to-portal compensation case." Id. at 402-03.
The court noted that the ADEA is a "remedial statute" and that because of that remedial purpose, court facilitation of notice would help avoid a situation where a remedy for age discrimination is afforded only those who "are already known to their 'champion.'" Id. at 403 (quoting Woods v. New York Life Ins. Co., 686 F.2d 578, 581 (7th Cir. 1982)). It also believed such notice would avoid a burden on the court of "a potentially high number of separate ADEA suits." 118 F.R.D. at 403. The court further noted that the advantages of court-authorized notice in this case would be to avoid further arguments between the parties on the propriety of the content of notice that was sent out and to enable the court to set a final deadline for consents, once the court-authorized notice had been sent. Id. at 404.
The court then prepared the content of the notice that was to go out, which it appended to its opinion, id. at 415-17, and determined that this notice could then be sent out by plaintiffs or their counsel with the following statement attached: "This notice and its contents has been authorized by the federal district court, Hon. Harold A. Ackerman, Judge. The court has taken no position regarding the merits of the plaintiffs' claims or of Roche's defenses." Id. at 417.
In the same order, the district court denied Roche's motion seeking to have the consents already filed voided because of the allegedly prejudicial nature of the March 7, 1985 letter. The court held that the letter was not flawed in any way that vitiated the consents obtained through it, and that the individuals who had elected to opt in to the action had received "sufficiently full and effective disclosure, such that their decisions may be considered informed." Id. at 410.
Roche then sought certification of both the portion of the court's order that approved the notice and the portion that refused to void the consents. As noted above, the court ...