The opinion of the court was delivered by: Magistrate Judge Bissoon
Defendants‟ Motion for Sanctions (Doc. 286), based on Plaintiffs‟ counsel‟s unauthorized communications with putative collective action members, will be denied, consistent with the instructions below.
Defendants have come to learn, and Plaintiffs admit, that Plaintiffs‟ counsel mailed copies of a letter, dated September 1, 2009, to an untold number of putative collective action members in this case. See generally Pls.‟ Opp‟n Br. (Doc. 294) at 3 (citation to record evidence omitted). This issue does not reach the Court in a vacuum, as it previously was addressed in a substantially similar FLSA action, Taylor v. Pittsburgh Mercy Health System, Inc., Civil Action No. 09-377 (W.D. Pa.) (Bissoon, M.J., presiding). In Taylor, the defendants requested a blanket protective order requiring the plaintiffs to refrain from utilizing the employee information produced by the defendants for any purpose other than issuing Court-approved notice.
See Doc. 90 in 09-377 at 2 (citation omitted).
In response, the same lawyers representing Plaintiffs here indicated that their "decision to undertake additional mailings [wa]s a fluid process in reaction to the events following issuance of the [C]court-approved notice." See id. at 3 (citation omitted). Counsel‟s non-exhaustive list of potential transmissions included: "[mailers r]eminding employees of the opt-in deadline"; "[sending] information about the case consistent with the Court-approved notice"; and "[c]onfirming that putative plaintiffs have received the Court notice." See id. at 3 (citation omitted).
Although the Court in Taylor agreed with Plaintiffs‟ counsel that the defendants had failed to meet their heavy burdens regarding the entry of a blanket protective order, it found the plaintiffs‟ stated desire to have unfettered written communications, post-notice and without the benefit of judicial supervision, inappropriate:
[In light of] the relatively considerable latitude afforded to [the p]laintiffs, . . . the Court . . . [finds] it appropriate for their counsel to identify any contemplated additional mailings before they are sent. . . [T]he undersigned generally agrees [with those decisions holding] that the court-controlled mechanism should trump . . . attorney driven modes of communication after conditional certification [is granted]. . . . Given the uncertainties that lie ahead, Plaintiffs‟ counsel understandably will not voluntarily cede the possibility of additional mailings given their duty to zealously represent the legal interests of the putative collective action. Nevertheless, the undersigned remains convinced that transparency is essential to the Court‟s fulfillment of its duty . . . to exercise control over [this collective] action and to enter appropriate orders governing the conduct of counsel and [the] parties. . . . Absent Court supervision, [the p]laintiffs‟ issuance of further mailings may well present a situation in which it is difficult, if not impossible, to "unscramble the egg.‟
Id. at 7 (citations and most internal quotations omitted).
For these reasons, the Court in Taylor ordered that, "should [the p]laintiffs determine that the issuance of additional mailings is necessary, their counsel shall: advise opposing counsel; provide via facsimile a sample copy of the proposed mailing to opposing counsel and the Court; and call opposing counsel and Chambers to schedule a telephone conference so that the Court promptly may consider [the p]laintiffs‟ proposed course of action." Id.
While Plaintiffs may hasten to add that no analogous order was entered here, this Court‟s views regarding the mass transmission of unsupervised, post-Notice mailings hardly has been a mystery. See discussion supra; see also Order dated Oct. 29, 2009 (Doc. 133 in 09-377) at 1-2 n.1 (stating that "[the p]laintiffs‟ right to transmit mailings after the issuance of Court-approved notice is not as clear as their counsel suggests," citing Jackson v. Papa John‟s USA, Inc., 2009 WL 650181, *2 (N.D. Oh. Mar. 10, 2009) (once "[the c]court has approved of a communication to potential opt-in class members," "[o]ther communications from [the parties] during the pendency of the notice period may cause confusion or undermine the authority of the Court-approved communication") and Ruggles v. WellPoint, Inc., 591 F. Supp.2d 150, 164 (N.D.N.Y. 2008) ("to bring order and efficiency to the notice process, the court-controlled mechanism should trump any attorney driven notice and resolve any post-conditional certification notice in favor of the Court‟s controlled process"; "[f]ailure to limit notification to a single process would be dissonant with the intent of the FLSA statute that the Court play a significant role in prescribing the terms and conditions of communications from the named plaintiffs to the potential members . . . on whose behalf the collective action was commenced")).
In the absence of contemptuous behavior, it was Plaintiffs‟ counsel‟s prerogative to weigh the perceived benefits of zealous advocacy against the potential loss of good will and trust before the judicial officer presiding over their litigation. Given the absence of an order like the one in Taylor here, however, the Court is constrained to conclude that the sanctions requested by Defendants are unwarranted.
As another district court recently observed, there is little precedent "that addresses the precise scenario at issue . . ., namely communications that are alleged to be misleading and in conflict with the court-approved notice"; most of the cases "involve pre-certification disputes over contact with putative class members." Howard v. Securitas Sec. Servs., USA Inc., 630 F. Supp.2d 905, 908 (N.D. Ill. 2009) (citations omitted). Even Plaintiffs agree, however, that communications "undermin[ing] or contradict[ing] the Court‟s notice" are inappropriate. See generally Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp.2d 1082, 1085 (C.D. Cal. 2002); see also Pls.‟ Opp‟n Br. at 12 (citing same).
Plaintiffs‟ mailing appears, in context and intent, to be much as their counsel characterizes it: a "remind[er] letter." Cf. Pls.‟ Opp‟n Br. ...