831 F. Supp. 2d 559
D. Conn.2011Background
- Related bankruptcies: Archway & Mother’s Cookies entities; Catterton Defendants as shareholders; Insight Holdings as manager.
- Plaintiffs Austen and Icardi allege WARN/Cal-WARN Act violations for 60-day notice failures.
- Prior class-certification motion by Austen/Icardi denied without prejudice; later proceedings contemplated class at Battle Creek and Ashland facilities.
- Motions to permit defense counsel to contact putative class members and to clarify representation status were filed; court to decide restrictions.
- Court previously addressed alleged improper communications involving Ms. Marquette (HR at Dough Co.) and defense counsel; urged cautious, curative restrictions rather than broad prohibitions.
- Court ultimately grants in part and denies in part the motions, imposing limited pre-certification contact restrictions with putative class members.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for pre-certification restraints | Gulf Oil framework governs restrictions | Currency Conversion supports broader limits | Gulf Oil framework applies |
| Justification for restrictions given no serious abuses | Any restrictions warranted to protect class members | Unnecessary if no abuses shown | Limited restrictions proper; not extensive |
| Impact of ex parte communications | Ex parte talks with putative members are improper | Not per se abusive; context matters | Ex parte communications not misconduct; no broad ban warranted |
| Scope of restrictions imposed | Defendants should tighten communications | Moderate restrictions suffice to protect process | Impose specific, narrow restrictions as outlined in ruling |
| Who may represent putative class members during pre-certification | Plaintiffs’ counsel may represent putative class members | Need clarification of representation status | Court clarifies representation status and requires explicit disclosures before contact |
Key Cases Cited
- Gulf Oil Co. v. Bernard, 452 U.S. 89 (U.S. 1981) (district court must weigh need for limitation vs. rights of the parties; restraints must be specific and minimal)
- Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) (limits on communications may be based on concrete findings; pre-certification restrictions permitted)
- Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int'l, Inc., 455 F.2d 770 (2d Cir. 1972) (dictum that settlements with individual members may occur prior to certification; not a Rule 23 barrier)
- Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206 (2d Cir. 1987) (pre-certification settlements with potential class members not barred by Rule 23)
- In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d 237 (S.D.N.Y. 2005) (district court held pre-certification communications justify arbitration clause outcome; distinguishable from Gulf Oil standard)