The opinion of the court was delivered by: Magistrate Judge Bissoon
At a telephonic Status Conference held on October 19, 2009, the Court heard argument regarding Plaintiffs' request that Defendants' communications with putative collective action members be restricted consistent with the limitations placed on Plaintiffs' counsel. See generally Hearing Mem. (Doc. 121).*fn1
Prior to and during the Conference, Defendants stipulated to certain restrictions on their communications with putative collective action members, but Plaintiffs remained unsatisfied.
The parties, therefore, were instructed to submit proposed orders, and counsel were advised that the Court would adopt the proposal it found most appropriate.
Having carefully considered the parties' arguments offered at the Conference and in their subsequent briefing, the Court agrees with Defendants that there are legitimate reasons for rejecting Plaintiffs' request for "congruence." Specifically, Defendants' need to communicate with their employees through the course of ordinary business renders Plaintiffs' proposed restrictions untenable. Defense counsel has stated valid concerns regarding their ability to prevent arguable charges of inadvertent violation, as well as significant line-drawing difficulties attendant thereto.
For these reasons, and given Plaintiffs' failure to demonstrate that abusive communications have occurred or are threatened to occur, the Court will adopt the restrictions proposed by Defendants at the October 19th Conference, as modified below:
A. Defense counsel has not, and will not, initiate or direct communications to the putative collective action members during the opt-in period;
B. Defense counsel will comply with all Court Orders and applicable ethical rules;
C. Defense counsel is aware of no press releases, press conferences, websites, mass mailings or similar types of mass communication efforts to the putative collective action members by the individual or corporate Defendants, or on behalf of any of them, with the intended purpose of dissuading putative collective action members from joining the lawsuit, or that contain statements that undermine or contradict the Court-approved notice in this case; and
D. Should Defense counsel become aware of any communications by individual or corporate Defendants that are intended to dissuade putative collective action members from joining the lawsuit, either as described in paragraph C or otherwise, they immediately shall notify Plaintiffs' counsel and the Court, and take all appropriate remedial measures within their authority and control.
Subject to the preceding conditions, Plaintiffs' Motion for Congruent Restrictions on Defendants' Communications (Doc. 125) is DENIED.
Cathy Bissoon United States ...