iIn putative class action lawsuits, it is not uncommon for counsel for the employer to interview putative class members about the claims in the lawsuit. A new decision from the United States District Court for the Eastern District of Pennsylvania has concluded that such communications could be improper, at least in that state.
In Weller v. Dollar General Corp., No. 17-2292 (E.D. Pa.), a case in which the plaintiff brought both putative class action claims under Fed. R. Civ. P. 23 and a proposed collective action on the Fair Labor Standards Act (“FLSA”), the employer interviewed putative class members and submitted declarations from some of them in opposition to the plaintiff’s motion for class certification.
The plaintiff moved to strike those declarations on the grounds that (i) defendant had not identified the declarants in its initial or supplemental disclosures and (ii) Pennsylvania law prohibits ex parte communications with putative members of class actions.
In its decision, the court held that defendant’s communications with putative class members, in fact, were improper, but allowed the plaintiff to depose the declarants rather than exclude this evidence. The court determined that the defendant did not violate Fed. R. Civ. P. 26 by failing to identify the declarants in its disclosures.
On the issue of communications with putative class members, the court found the absence of an absolute bar on defense counsel’s communications with potential FLSA plaintiffs irrelevant for purposes of determining the propriety of counsel’s communications with putative Rule 23 class members. As the court explained, defense counsel was still required to comply with law governing Rule 23 class actions in Pennsylvania, and under Pennsylvania Rule of Professional Conduct 4.2, defense counsel may not contact or interview potential witnesses who are putative class members without the named plaintiffs’ consent. In so holding, the court rejected the defendant’s argument that the U.S. Supreme Court case of Gulf Oil Co. v. Bernard supports ex parte communications between defense counsel and putative class members, reasoning that Gulf Oil addressed a plaintiff’s efforts to communicate with putative class members and recognized the potential for abuse in any party’s communication with potential class members.
On the issue of insufficient disclosures, the court reasoned that the defendant did not violate Rule 26 by not identifying putative class member witnesses in its disclosures because defendant was barred from ex parte communications with putative class members and therefore could not identify such class members in its disclosures. Moreover, the court held that the defendant did not need to update its disclosures to identify employees that were already known to the plaintiff through other forms of discovery.
Finally, as to sanctions, while the court acknowledged the prejudice to the plaintiff arising from the defendant’s ex parte communications with current employees likely to cooperate with their current employer, it did not find bad faith on the defendant’s part (notwithstanding the court’s conclusion that it should have known the law) and determined that such prejudice could be cured by allowing plaintiff access to these employees in the form of depositions.
This decision is a reminder that the rules regarding counsel’s communications with putative class members are not uniform and that the consequences for improper ex parte communications can be severe. As the court in Weller advised, if in doubt about whether contact is permitted, a party should seek court authorization or request the information through formal discovery. At a minimum, counsel should consider the consequences of any communication before initiating contact with potential class members.
