Harper v. Charter Communications, LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 LIONEL HARPER, DANIEL SINCLAIR, No. 2:19-cv-00902 WBS DMC HASSAN TURNER, LUIS VAZQUEZ, and 13 PEDRO ABASCAL, individually and on behalf of all others 14 similarly situated and all ORDER RE: MOTION TO RESTRICT aggrieved employees, COMMUNICATIONS AND ISSUE 15 CURATIVE NOTICE Plaintiffs, 16 v. 17 CHARTER COMMUNICATIONS, LLC, 18 Defendant. 19 20 ----oo0oo---- 21 22 This case is again before the court on a motion by 23 defendant Charter Communications, challenging a letter and two- 24 page survey sent to a selection of putative class members 25 requesting information related to recipients’ work for Charter, 26 sent by a research consulting group hired by plaintiffs’ counsel. 27 (Mot. (Docket No. 253); see Opp. at 10-11 (Docket No. 267).) 28 The court would have preferred to confer with counsel 1 to reach a resolution of Charter’s concerns with the letter and 2 survey. However, the traditional modes of communication are 3 unfortunately no longer available to the court. On February 22, 4 2022, the court attempted to hear the arguments of counsel by 5 Zoom, but a few minutes into the proceeding the electronic 6 communication system malfunctioned to the point where the hearing 7 had to be aborted. The court’s IT department thinks it has the 8 problem pinpointed, but it is uncertain when if at all it can be 9 resolved. 10 The court has considered inviting counsel to appear in 11 person for oral argument on the motion, but aside from requiring 12 plaintiffs’ counsel to travel from Southern California and 13 defendants’ counsel to travel from Georgia, we would have to sit 14 in a socially distanced room with plexiglass partitions between 15 us and converse with masks covering our faces. That option does 16 not appear to the court to be much more conducive to a meaningful 17 dialogue. Accordingly, the court will take the motion under 18 submission on the papers and address it in this Order. 19 Charter’s motion seeks several forms of court 20 intervention including: (1) a restriction on further 21 communications between plaintiffs’ counsel and members of the 22 putative class; (2) a requirement that a curative notice be 23 issued to putative class members, at plaintiffs’ counsel’s 24 expense; (3) compelled production of plaintiffs’ counsel’s 25 records relating to the survey, including a list of recipients, 26 all materials sent, and all responses received; and 27 (4) imposition of monetary sanctions against plaintiffs’ counsel. 28 (Mot. at 2, 27.) 1 First, the court recognizes that Federal Rule of Civil 2 Procedure 23(d) affords district courts “broad authority to 3 exercise control over a class action and to enter appropriate 4 orders governing the conduct of counsel and parties.” Gulf Oil 5 v. Bernard, 452 U.S. 89, 99-100 (1981). Nevertheless, the court 6 does not deem it appropriate to prohibit plaintiffs’ counsel from 7 further communicating with members of the putative class in this 8 case. The ability to communicate with potential class members, 9 moreover, is a freedom that litigants and their counsel enjoy 10 under the First Amendment. See id. at 103-04; Kutzman v. 11 Derrel’s Mini Storage, Inc., 354 F. Supp. 3d 1149, 1153 (E.D. 12 Cal. 2018) (“Before a class is certified, counsel for both 13 parties maintain a free-speech right to communicate with putative 14 class members, ex parte, about the lawsuit . . . .”), vacated 15 pursuant to settlement, 2018 WL 11389263 (E.D. Cal. Dec. 19, 16 2018); Mevorah v. Wells Fargo Home Mortg., Inc., 05-cv-1175 MHP, 17 2005 WL 4813532, at *3 (N.D. Cal. Nov. 17, 2005). 18 In nearly every decision Charter cites in which a court 19 limited communications or took other remedial measures pursuant 20 to Rule 23(d), the court did so in response to concerns that 21 defendants’ communications would prevent class members’ 22 participation in the action, whether through intimidation, 23 solicitation of waivers, or other coercive means. See Kutzman, 24 354 F. Supp. 3d at 1153-58; McKee v. Audible, Inc., 17-cv-1941 25 GW(Ex), 2018 WL 2422582, at *3-8 (C.D. Cal. Apr. 6, 2018); 26 Talavera v. Leprino Foods Co., 1:15-cv-105 AWI BAM, 2016 WL 27 880550, at *4-6 (E.D. Cal. Mar. 8, 2016); O’Connor v. Uber 28 Techs., 13-cv-3826 EMC, 2014 WL 1760314, at *7-8 (N.D. Cal. May 1 1, 2014); Wright v. Adventures Rolling Cross Country, Inc., 12- 2 cv-982 EMC, 2012 WL 2239797, at *5 (N.D. Cal. June 15, 2012); In 3 re Oil Spill by the Oil Rig “Deep Horizon” in the Gulf of Mex., 4 on Apr. 20, 2010, MDL No. 2179, 2011 WL 323866, at *6-7 (E.D. La. 5 Feb. 2, 2011); Laguna v. Coverall N. Am., Inc., 09-cv-2131 JM 6 (BGS), 2010 WL 11508987, at *5-10 (S.D. Cal. Nov. 30, 2010); In 7 re M.L. Stern Overtime Litig., 250 F.R.D. 492, 498-500 (S.D. Cal. 8 2008); Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 1224-30 9 (S.D. Ala. 2008); In re Sch. Asbestos Litig., 842 F.2d 671, 681- 10 84 (3d Cir. 1988); Kleiner v. First Nat. Bank of Atlanta, 751 11 F.2d 1193, 1201-07 (11th Cir. 1985).1 12 In the few cases Charter cites in which courts 13 addressed concerns about communications by plaintiffs or their 14 counsel, the extent the courts’ intervention was simply to order 15 parties to meet and confer regarding the creation of a revised 16 questionnaire, see Sutton v. Hopkins Cnty., Ky., 4:03-cv-3 JHM, 17 2007 WL 9798245, at *1-2 (W.D. Ky. Sept. 7, 2007) -- a measure 18 Charter has not requested -– or to order them to confer and 19 prepare a proposed order imposing “some level of court 20 1 See also Pierce v. Wyndham Vacation Resorts, Inc., 3:13-cv-641 PLR CCS, 2015 WL 574501, at *2-3 (E.D. Tenn. Feb. 11, 21 2015) (denying, in FLSA collective action, defendant employer’s 22 request to include mandatory questionnaire requiring recipients to affirm answers on penalty of perjury); City of Farmington 23 Hills Emps. Ret. Sys. v. Wells Fargo Bank, N.A., 10-cv-4372 DWF JJG, 2012 WL 12898811, at *6 (D. Minn. July 27, 2012) 24 (conditioning defendant employer’s ability to obtain class discovery via questionnaire on inclusion of disclaimer notifying 25 recipients that failure to respond would not cause them to forfeit recovery); Schwartz v. Celestial Seasonings, Inc., 185 26 F.R.D. 313, 319 (D. Colo. 1999) (ordering deletion of 27 questionnaire language indicating it was mandatory to prevent “exclusion of any party member that does not return the 28 questionnaire”). 1 supervision of communications,” Doyon v. Rite Aid Corp., 279 2 F.R.D. 43, 50-51 (D. Maine 2001). None restricted plaintiffs’ 3 counsel from communication with putative class members 4 altogether. 5 Second, the court does not deem it appropriate to send 6 out a curative notice to the recipients of Charter’s letter. 7 Dignifying the original communication with another one from the 8 court could create the false impression that the court somehow 9 has an interest in the questionnaire. However, the court shares 10 several of Charter’s concerns with the contents of letter and 11 survey and sees nothing wrong with Charter sending its own 12 communication to those who received it, although the court does 13 not deem it appropriate to dictate the contents of any such 14 communication at this time. 15 Third, in order for Charter to send such a 16 communication it would need a list of all the recipients, copies 17 of all the materials that were sent to them, and the addresses to 18 which they were sent. The court sees nothing wrong with 19 requiring plaintiffs’ counsel to provide the defense with such 20 information. 21 Fourth, the court does not perceive the conduct of 22 plaintiffs’ counsel to be sufficiently egregious to merit the 23 imposition of sanctions. 24 IT IS THEREFORE ORDERED that, if defense counsel wishes 25 to send a follow-up communication to the recipients of the 26 attached letter and survey, counsel meet and confer, either 27 remotely or in person, to the extent that such is possible, to 28 discuss the details of such communication; nee nnn en nn ne nnn nnn nn nen EI ID NE 1 AND IT IS FURTHER ORDERED that within fourteen days 2 from the date of this Order, or at such other time as may be 3 agreed upon by stipulation between the parties, plaintiffs’ 4 counsel shall provide defendants’ attorneys with a list of the 5 names and addresses of all recipients of any communications sent 6 | or caused to be sent by plaintiffs’ attorneys or any of their 7 consultants, along with copies of all materials sent to them. 8 | Dated: February 24, 2022 be te . ak. Ld. bE 9 WILLIAM B. SHUBB 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28