Limiting Pre-Certification Communication in a Class Action Lawsuit

May 18, 2016

 “In the context of a class action, it is the court’s authority and duty to exercise control over the class action to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice.” (Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581 (citing Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 100–103).)

“Communications that misrepresent the status or effect of the pending action, or which may cause confusion, adversely affect the administration of justice.” (Howard Gunty, supra, 88 Cal.App.4th 572at 582.) “Where a trial court identifies a potential for abuse, the court ‘has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties.’” (Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1454 (quoting Howard Gunty, supra, 88 Cal.App.4th at 579).

Limiting pre-certification communications is appropriate when misleading, coercive, or improper communications have occurred. (Maddock v. KB Homes, Inc. (C.D.Cal.2007) 248 F.R.D. 229, 236; Howard Gunty, supra, at 577; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 872 [In the absence of controlling California authority, trial courts should utilize the class action procedures of the federal rules.]) In the employment class action context, Courts applying these principles have recognized that there is a “heightened potential for coercion” in employer communications to Putative Class Members (“PCMs”) where there exists an employer-employee relationship. (In re Wells Fargo Home Mortg. Overtime Pay Litigation (N.D. Cal. 2007) 527 F.Supp.2d 1053, 1060; Mevorah v. Wells Fargo Home Mortg. (N.D. Cal.2005) 2005 WL 4813532 at *4).

In considering whether pre-certification communications between employers and employees warrant relief due to deception or coercion, courts consider several factors, including whether the employer adequately informed the employees about: (1) the details underlying the lawsuit, (2) the nature and purpose of the communications, and (3) the fact that any defense attorneys conducting the communications represent the employer and not the employee. (See, e.g. Maddock, at 237; Mevorah, at *4–5.)

Federal courts in California have found that a violation of the California Rules of Professional Conduct weighs in favor of finding that improper communications with the class have taken place. (Mevorah, at * 4–5 [holding that a violation of Rule 3-600 weighed in favor of finding that improper communications had taken place].)

A temporary restraining order may issue when it appears from the facts shown that “great or irreparable injury will result to the applicant before the matter can be heard on notice…” (Code Civ. Proc. § 527(c)(1).) If an opposing party seeks an injunction or protective order against counsel communicating with members of a potential class, the trial court may impose restrictions on a showing that such communications will result in “direct, immediate and irreparable harm.” (Parris v. Sup.Ct. (2003) 109 Cal.App.4th 285, 299-300.)

Author: Richard Hoyer
Category: Class Actions, Ex Parte Application, Legal Procedure, Missed Meal and Rest Breaks, Wage and Hour
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