300 F.R.D. 617
N.D. Cal.2014Background
- This wage-and-hour putative class action targets The Youthful Tooth; case at an early stage; plaintiffs seek to enjoin communications with potential class members after a company letter and opt-out forms.
- Defendants distributed an Employee Letter on Feb 20-21, 2014 responding to inquiries, including an opt-out declaration, with no management-one-on-one contact.
- Plaintiffs allege the Letter is misleading, coercive, and aimed at discouraging class participation; several opt-out declarations were returned.
- DLSE had issued and then dismissed citations, enabling plaintiffs to pursue all claims; the Letter discusses finances and potential negative impact on the practice.
- Court reviews authorities on pre-certification communications and determines the opt-out declarations are invalid and curative notice is required, but declines a full communications ban; discovery issues follow.
- The parties filed a joint letter brief on discovery disputes; the Court sets disclosures and narrows some requests; phone numbers and opt-out info must be produced under protective order; omissions and responses to interrogatories are addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre-certification communications coercive? | Kleiner/Wang coercion concerns; opt-outs undermine class | Letter is a truthful, opinion-based summary | Opt-out declarations invalid; curative notice ordered; no full ban on communications. |
| Should the court impose broad restrictions on communications? | Need broader protection against coercion | Less restrictive measures suffice | Not a full ban; remedial curative notice and sanctions warnings issued. |
| Discovery regarding putative class data and interrogatories | Phone numbers and data necessary for certification; opt-out issues must be resolved | Some data sensitive; scope should be limited | Phone numbers disclosed under protective order; opt-out data to be provided; interrogatories narrowed; single document supplement required. |
Key Cases Cited
- Gulf Oil Co. v. Bernard, 452 U.S. 89 (U.S. 1981) (limits on pre-certification communications require careful record and minimal speech impact)
- Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985) (coercive opt-out practices undermine Rule 23(b)(3) class)
- Wang v. Chinese Daily News, 236 F.R.D. 485 (C.D. Cal. 2006) (employer-employee coercion concerns; pre-certification communications)
- Guifu Li v. A Perfect Day Franchise, Inc., 270 F.R.D. 509 (N.D. Cal. 2010) (ex parte opt-out solicitations before certification are improper)
- In re M.L. Stern Overtime Litigation, 250 F.R.D. 492 (S.D. Cal. 2008) (pre-certification communications may require amendment if misleading)
- Burrell v. Crown Central Petroleum, 176 F.R.D. 239 (E.D. Tex. 1997) (limits on coercive or abusive communications in class actions)