West v. Mando America Corporation
MEMORANDUM OPINION AND ORDER that: (1) Mando's 12 and 15 motions for cease and desist orders are denied and (2) West's 16 Response, to the extent it requests the application of Rule 11 of the FRCP, is denied without prejudice. Signed by Honorable William Keith Watkins on 10/2/08. (sl, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J O E WEST, P l a in tif f , v. M A N D O AMERICA CORPORATION, D e f e n d a n t. ) ) ) ) ) ) ) ) )
C A S E NO. 3:08-CV-570-WKW [WO]
M E M O R A N D U M OPINION AND ORDER B e f o re the court are two motions filed by Defendant Mando America Corporation (" M a n d o " ). In both motions, Mando is requesting that the court issue an order compelling P la in t if f Joe West ("West") to cease and desist running advertisements soliciting opt-ins. (D o c s. # 12 & 15.) West filed a timely response and in addition, requested court review of M a n d o 's actions under Rule 11 of the Federal Rules of Civil Procedure. (Doc. # 16.) For the following reasons, Mando's motions for a cease and desist order (Docs. # 12 & 15) are d u e to be denied, and West's response (Doc. # 16), to the extent it requests Rule 11 review, is due to be denied as well. I . FACTS AND PROCEDURAL HISTORY O n July 17, 2008, West filed a complaint against Mando requesting damages and i n ju n c tiv e relief for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (" F L S A " ) for allegedly failing to pay West for overtime labor. (Doc. # 1.) West brought the su it as an opt-in collective action under § 216(b) with the potential class of Mando's hourly
e m p lo ye e s working during the three years prior to filing the Complaint. (Doc. # 1 ¶¶ 39-40.) O n September 16, 2008, Mando filed a motion requesting the court to compel West to cease a n d desist running advertisements soliciting opt-ins, to disqualify counsel from representing a n y solicited opt-ins, and for other relief. (Doc. # 12.) Mando's motion pertained
s p e c if ic a lly to a newspaper advertisement West arranged to be published in the Opelika News en titled "Notice of Lawsuit Against Mando America Corporation." (Doc. # 12, at 2.) In re sp o n s e to the motion, the court ordered West to show cause why the motion should not be g ra n ted . (Doc. # 13.) Before West's response, Mando filed another motion requesting again th a t the court order West to cease and desist from running advertisements he continued to p u b l is h while the first motion was pending. (Doc. # 15.) West then filed a timely response a n d in addition, requested court review of Mando's motion under Rule 11 of the Federal R u les of Civil Procedure. (Doc. # 16, at 2, 18.) Mando also filed a reply brief (Doc. # 18). I I . DISCUSSION West's Pre-Certification Contacts with Potential Plaintiffs T h e FLSA's collective action provision, § 216, authorizes a plaintiff seeking relief f o r unpaid overtime compensation to bring a collective action on behalf of himself and s im ila rly situated employees who give written consent. § 216(b). FLSA collective actions d if f er from class-action lawsuits under Rule 23 of the Federal Rules of Civil Procedure: " T h e re is a fundamental, irreconcilable difference [between the two actions]" because under R u le 23, each person within the class description must opt out to avoid being bound by a
ju d g m e n t for the class members, whereas under the FLSA, plaintiffs must affirmatively opt in to become class members. Lacahapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1 9 7 5 ).1 The notice requirements are appropriately different as well. Most notably, § 216 " g iv e s little guidance to the . . . appropriate procedure for gathering written consents," so this d i str ic t has held that "§ 216 does not require parties to obtain judicial approval before s e e k in g to locate other `similarly situated' persons." Garner v. G.D. Searle Pharm., 802 F. S u p p . 418, 421 (M.D. Ala. 1991) (Thompson, J.) (emphasis added); see also White v. O s m o s e , No. 01-A-977-N, slip. op. at 4-5 (M.D. Ala. issued Oct. 18, 2001) (Albritton, J.) (s ta tin g "[i]t was not the court's intention to imply at the scheduling conference that [ p la in tif f ] needed to make an evidentiary showing before he had a right to contact potential m e m b e rs of a plaintiff class," and rejecting the argument that plaintiff's counsel improperly is s u e d class notice in an FLSA collective case because, though it occurred prior to class c e r tif ic a tio n , the communication did not claim to be a judicially authorized notice). Thus, a s this district has already clearly stated: "Although the court would, of course, consider c h a lle n g e s to the validity of any consents filed, it is not the court's role to prohibit plaintiffs f ro m attempting to gather their consents." 2 Garner, 802 F. Supp. at 421.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981. Indeed, the burden of proof is on plaintiffs should they later request judicially authorized notices, to demonstrate "a reasonable basis for crediting the assertion that aggrieved individuals exist in the class [plaintiffs] propose." Horne v. U.S. Auto. Ass'n, 279 F. Supp. 2d 1231, 1234 (M.D. Ala. 2003) (Albritton, C.J.).
T h o u g h plaintiffs are not required to obtain judicial approval for soliciting opt-ins for F L S A collective actions, courts may become involved in the notice process when plaintiffs s e e k their involvement. Garner, 802 F. Supp. at 421. Once plaintiffs request judicial a u th o riz a tio n of a notice, "the Eleventh Circuit has held that a district court must make c e rta in determinations" before permitting that authorization. Barron v. Henry County School S y s ., 242 F. Supp. 2d 1096, 1101 (M.D. Ala. 2003) (Albritton, C.J.). At that point, the c o u rt's supervisory role is triggered. Courts also may become involved in the notice process, however, by exercising their p o w e r to restrain plaintiffs' notice until conditional class certification or approval of their n o t ic e s by prohibiting plaintiffs from including "unqualified, misleading statements" in c o m m u n ic a tio n s with potential plaintiffs, Taylor v. CompUSA, Inc., No. 1:04CV718-WBH, 2 0 0 4 WL 1660939, at *3 (M.D. Fla. June 29, 2004). See also Maddox v. Knowledge L e a r n in g Corp., 499 F. Supp. 2d 1338, 1343, 1344 (N.D. Ga. 2007) (noting that "[l]ittle g u id a n c e from the Eleventh Circuit exists on the issue of pre-certification solicitations," but re f ere n c in g Taylor and noting the court's discretion to prohibit pre-certification statements th a t are "factually inaccurate, unbalanced, or misleading"). In Taylor, a district court d e c is i o n from this circuit addressing the § 216(b) notice, the court noted that "[p]laintiffs c o n te n d [ ed ], correctly, that they are not required to rely on court-facilitated notice to notify p o te n tia l opt-in plaintiffs of the action." 2004 WL 1660939, at *3. And even though the c o u rt ordered plaintiffs not to include "unqualified, misleading statements in communication
w ith potential plaintiffs," the court found sanctions for messages with potentially misleading f a ctu a l and legal conclusions to potential plaintiffs "unwarranted," precisely because the c o u rt had not yet "prescribed a particular form of notice or placed restrictions on [the] [ p ]la in tif f s' contact with potential class members." Id. Similarly, the court in this action has not prescribed a type of notice or placed re stric tio n s on West's contact with potential members. Until that point, or until he requests a u th o riz a tio n to send judicial notice, West is permitted to contact opt-in candidates with c o m m u n ica tio n s that are not misleading. Mando complains that West's advertisement is m is le a d in g because it is titled "Notice" rather than "Advertisement." 3 (Doc. # 12, at 10 n.8.) In addition, Mando argues that the advertisement is misleading because it promises to re p re se n t solicited opt-ins at no cost if plaintiffs recover any proceeds from the lawsuit. (D o c . # 12, at 10 n.8.) West's advertisement, however, is not misleading in comparison to, f o r example, the misleading comments in Taylor. There, the advertisement told potential p lain tiff s they were "entitled" to join the lawsuit, that the defendant was obligated to pay all o v e rtim e to the described class, that any one fitting under that description was "entitled" to b e paid, and that the defendant intentionally implemented a policy encouraging u n c o m p e n s a te d work. Taylor, 2004 WL 1660939, at *4 n.7. The statements on the website in Maddox had similar flaws. The court required plaintiffs to add "the lawsuit alleges that"
The first motion appended a copy of the advertisement from West with "Notice" at the top, but Mando's related second and third filings appended copies of the advertisement without the "Notice" title. (Compare Doc. # 12, Attach. A, with Doc. # 15, and Doc. # 18.)
to a statement of fact and that the defendant denies the allegation, to change the statement t h a t certain readers were "entitled" to seek payment or "eligible" to participate to be re p h ra s e d that they may be entitled or eligible. Maddox, 499 F. Supp. 2d at 1344-45. The c o u rt also requested the plaintiffs change the language stating that readers must be re p r e s e n te d by that plaintiffs' counsel to be eligible to assert a claim in the case, and the la n g u a g e that plaintiffs' counsel will assist any members subject to "retaliation" by the d e f e n d a n t. Id. at 1346. West's advertisements do not fall into those traps. West states as a matter of fact the e x is te n c e of an "ongoing lawsuit" and states as "claims," not facts, the allegation of unlawful d e d u c tio n s from compensation; the advertisement tells readers in a certain class that they may h a v e a claim. (Doc. # 12, Attach. A; Doc. # 15, at 5.) The promise of no-cost representation is clearly qualified by plaintiffs' recovery and the reader's being a class member. (Doc. # 12, A tta c h . A; Doc. # 15, at 5.) The advertisement is not misleading, and the court will not re q u ire changes to the language in its current state. West's Advertisement under the Alabama Rules of Professional Conduct W e st's advertisements do not run afoul of the Alabama Rules of Professional C o n d u c t.4 Mando simply has misinterpreted those applicable Rules. Rule 7.2 governs la w ye r's advertisements: "A lawyer who advertises legal services . . . (A) [s]ubject to the re q u ir e m e n ts of Rule 7.1 . . . may advertise services through public media, such as a . . .
Lawyers practicing before this court must adhere to the Alabama Rules of Professional Conduct. Local Rule 83.1(f).
n e sw p a p e r . . . ." The Rule gives other examples of public media, including "written c o m m u n ica tio n not involving solicitation as defined in Rule 7.3," but that type of media is s e p a ra te from a newspaper advertisement. In other words, contrary to Mando's claim (see D o c . # 12, at 9), Rule 7.3 on soliciting professional employment does not apply to n e w s p a p e r s , which makes sense given that Rule 7.3 governs direct contact with prospective c li e n t s and concerns the more coercive context of direct communication. The newspaper a d v e r tis e m e n t must comply only with Rule 7.1, which prohibits a lawyer from making "false o r misleading communication about the lawyer or the lawyer's services." The court finds th a t West's advertisement does not "[c]ontain a material misrepresentation of fact or law, o r omit a fact necessary to make the statement considered as a whole not materially m isle a d in g ," Rule 7.1(a), and is not "likely to create an unjustified expectation about results th e lawyer can achieve," Rule 7.1(b), for the reasons stated above with respect to whether the n o tic e contains misleading statements to potential plaintiffs. C o n d u c t Alleged to Fall under Rule 11 of the Federal Rules of Civil Procedure W es t's response to Mando's motions for a cease and desist order accuses Mando's co u n sel of holding pre-certification meetings with current Mando employees who are p u ta t i v e class members, allegedly "in order to obtain declarations to use against these in d iv i d u a ls should they join [the] action, while misrepresenting the purpose of his visit as a `s u rv e y.'" (Doc. # 16, at 2.) West submitted a declaration from a recently-fired Mando e m p lo ye e , Mr. Calvin Cobb, who claimed that while working for Mando and after the suit
w a s filed, a lawyer for Mando told him that the lawyer was conducting a survey about pay a n d the treatment of employees and requested Mr. Cobb sign a document attesting that he had n o complaints about pay; Mr. Cobb refused to sign the document, and after a discussion with th e attorney, signed it with a fake name, but was fired a few days later for an ostensibly u n re late d reason. (Doc. # 16 Ex. B.) Mando maintains its right to communicate with its e m p lo ye e s, and points out that the employees were not represented at the time of the interview s. (Doc. # 18, at 10-15.) Regardless of whether West has grounds for complaint, he only has alluded to Rule 11. There is no proper motion before the court for considering Rule 11 sanctions.
F u r th e rm o re , West's request that the court consider Rule 11 pertains to Mando's "motive" f o r filing the cease and desist motions, and not directly to the "survey" meetings. (Doc. # 16, at 2.) Apparently, West's accusations about the "survey" meetings serve only to support W e st's argument that Mando's cease and desist requests are "audacious" (Doc. # 16, at 14) b e c au s e West himself is improperly communicating with the putative class (Doc. # 16, 111 4 ). The court declines to entertain Rule 11 sanctions on this basis. West has drawn no c o n n e c t i o n between Rule 11's specific considerations and the conduct in question. Even th o u g h Mando's cease and desist motions ultimately failed, Mando's motions had valid legal a rg u m e n ts in support of its contention, and as this court declined to immediately halt the a d v e rtis e m e n ts, Mando's interest warranted filing multiple motions as the advertisements
c o n tin u e d .
See Rule 11(b)(1)-(2) (detailing relevant conditions to which an attorney
c e rtif yin g a motion before the court must attest). Furthermore, the court declines to find M a n d o 's purpose was improper, even if, according to West, Mando's actions are hypocritical (D o c . # 16, at 11). See Rule 11(b)(1). A plaintiff's advertising communications to putative class members implicate different concerns than those underlying a company-defendant's c o n ta c ts with its employees. The question of whether Mando's communications with employees is sanctionable, h o w e v e r, is another matter altogether. West has not requested the appropriate relief for m itig a tin g or halting Mando's conduct West has not requested a protective order, relief g ra n te d on ethical violations, or authorization to notice Mando employees of the action or of fa lse allegations Mando purportedly already has communicated. Thus, at this point, the court d e c lin e s to grant West's request.5 I I I . CONCLUSION F o r the foregoing reasons, it is ORDERED that: 1. M an d o 's two motions for cease and desist orders (Docs. # 12 & 15) are D E N IE D ; and
The court notes that an approach to employee communications prior to certification is addressed in the non-binding but persuasive decision in Mevorah v. Wells Fargo Home Mortgage, Inc., No. C 05-1175 MHP, 2005 U.S. Dist. LEXIS 28615 (N.D. Cal. Nov. 17, 2005), where the court considered class-action pre-certification case law, and the ethical rules governing corporate counsel's interviews with employees, to find defendant company counsel's information-gathering, including its solicitation of declarations, improper. The court implied that class-action certification law was equally relevant to § 216 certification. See Mevorah, 2005 U.S. Dist. LEXIS 28615, at *2 n.1.
W e st's response, to the extent it requests the application of Rule 11 of the F e d e ra l Rules of Civil Procedure (Doc. # 16), is DENIED without prejudice.
D o n e this 2nd day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE
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