Austen v. Catterton Partners V LP
3:09-cv-01257
D. Conn.Apr 6, 2011Background
- Plaintiffs Austen and Icardi allege WARN/Cal-WARN Act violations by the Archway entities' shareholders and management after related bankruptcies.
- Defendants include Catterton Partners V, LP; Catterton Partners V Offshore, LP; Catterton Coinvest I, LLC; and Insight Holdings, LLC.
- The court previously denied class certification without prejudice, anticipated certifying a class at the Battle Creek and Ashland facilities, and extended discovery to April 15, 2011.
- In Feb. 2011, defendants' counsel allegedly engaged in improper communications with Jennifer Marquette, a Dough Co. HR executive, prompting an on-record telephonic status conference in March 2011.
- The court raised questions about whether and how defendants' and plaintiffs' counsel could contact putative class members prior to certification and whether plaintiffs could represent putative class members before class certification.
- The court ultimately held that limited restrictions on pre-certification communications are appropriate, while forbidding broad, sweeping prohibitions absent a record of serious abuses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gulf Oil standard governs pre-certification communications | Aust en argues for broad restrictions under Gulf Oil | Gulf Oil requires a careful, specific record and tailored restrictions | Restricted communications allowed; limits must be narrowly tailored based on the record |
| Whether ex parte communications constitute abuses justifying restrictions | Plaintiffs contend ex parte communications show potential abuse | Defendants deny misconduct or need for extensive limits | No finding of serious abuse; cannot impose broad restrictions |
| What pre-certification contact restrictions to impose | No overarching rule, but need safeguards on contact with putative class | Restrictions should be minimal and proportionate to risk | Impose four-part restrictions: (1) identify attorney and representation; (2) confirm representation; (3) limit to facts/class discovery; (4) maintain contact lists and file with court |
| Whether to require pre-certification contact lists and Court submission | Not explicitly required | Lists should be kept for potential certification proceedings | Lists of contacted putative class members must be kept and submitted when certification motion is filed |
Key Cases Cited
- Gulf Oil Co. v. Bernard, 452 U.S. 89 (U.S. 1981) (district court must base restrictions on a clear record with careful weighing of abuses)
- Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) (pre-certification limits may be upheld with specific findings)
- Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770 (2d Cir. 1972) (dicta supporting unilateral settlements with putative class members pre-certification)
- Christensen v. Kiewit‑Murdock Investment Corp., 815 F.2d 206 (2d Cir. 1987) (pre-certification settlements with putative class members not violative of Rule 23)
- In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d 237 (S.D.N.Y. 2005) (district court rejected narrow Gulf Oil-based approach for pre-certification communications)