SNDY Rebukes Defendants for Improper Communications with Putative Class Members

13 Nov 2015

In Agerbrink et. al. v. Model Service, LLC et. al., Case No. 14-7841 (S.D.N.Y., Oct. 27, 2015), Plaintiffs sued Defendants in a class action for violations of the Fair Labor Standards Act (FLSA). During the case, Plaintiffs alerted the court that an agent of Defendants sent an email to putative class action plaintiffs who could be added to the action. The email warned of issues that could arise if they were to join the suit, and Plaintiffs alleged that the email was “misleading, coercive and likely to chill participation and confuse potential opt-in plaintiffs.”

The court noted that communications with putative plaintiffs prior to class certification is not prohibited, but that judicial intervention is warranted when the communications threaten the fairness of the process, adequacy of representation, and the administration of justice. Although the court’s authority to intervene is broad, it is not unlimited, said the court. Plaintiffs must show that the communication occurred and also that it was improper.

The court found that while not all aspects of the email were improper, many of them were, and the email had potential to mislead putative plaintiffs and chill potential participation in the lawsuit. Accordingly, the court drafted a Corrective Notice and ordered that Defendants delivered it by email to all the recipients of the original email within 7 days of the entry of the court order. The court also ordered Defendants to turn over any and all correspondence between its agent and any of the potential plaintiffs regarding the litigation. Finally, the court ordered that all future communication between Defendants and any potential plaintiffs must be in writing.

ILS – Plaintiff Electronic Discovery Experts