Bryan et al v. Wal-Mart Stores Inc. et al

Filing 56

ORDER GRANTING PLAINTIFFS' MOTION FOR PRECERTIFICATION COMMUNICATION 42 52 52 (Illston, Susan) (Filed on 9/12/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DONALD C. BRYAN, VIRGIL CALDWELL,
CARROLL HAMPTON, and ROBERT
RODRIGUEZ, individually and on behalf of all
others similarly situated,

United States District Court
For the Northern District of California

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No. C 08-5221 SI
ORDER GRANTING PLAINTIFFS’
MOTION FOR PRECERTIFICATION
COMMUNICATION

Plaintiffs,
v.
WAL-MART STORES, INC., et al.,
Defendants.

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Plaintiffs have filed a motion to be allowed to engage in precertification communications with
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class members. Docket No. 52. The motion is scheduled for a hearing on September 14, 2012.
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Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral
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argument, and hereby VACATES the hearing. Having considered the arguments of the parties and the
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papers submitted, and for good cause shown, the Court hereby GRANTS plaintiffs’ motion.
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Specifically, plaintiffs seek leave of the Court to require defendant to produce contact
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information for the putative class members and allow plaintiffs’ counsel to send a letter to the putative
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class members for the purpose of securing discovery and identifying new plaintiffs and potential class
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representatives. Plaintiffs attach a copy of their proposed letter to their motion. See Docket No. 52-2.
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As plaintiffs note, this case was stayed for over three years while the California Supreme Court
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considered and issued its ruling in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (Cal.
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2012). During that time, two of the proposed named plaintiffs have died, one has “lost interest” in
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continuing as a class representative, and plaintiffs’ counsel has “concerns” about the ability of the fourth
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named plaintiff to continue to adequately represent the class. Motion at 1. Defendants oppose, arguing
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that allowing such discovery would be an abuse of discretion and is outweighed by the privacy interests

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of the putative class members.
The Court recognizes that this is a unique case. This is not one where the named plaintiffs were

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inadequate representatives from the beginning or where plaintiffs’ counsel are attempting to secure new

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class representatives because of deficiencies that have become apparent after the filing of their

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complaint. Instead, this is a case where, due to the significant passage of time, the apparently adequate

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named plaintiffs have either died or have reconsidered their ability to serve as class representatives.

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Moreover, unlike many of the inapposite cases relied on by defendant, there is an existing case and

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controversy here. While the deceased plaintiffs’ claims have been extinguished, the claims of the

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United States District Court
For the Northern District of California

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remaining two plaintiffs, and of any similarly situated putative class member, continue to exist. The

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extraordinary stay in this case – which was jointly requested by the parties and which lasted over three

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years – requires extra action by the parties at this juncture. Finally, the information sought from the

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plaintiffs is not limited to an attempt to find additional named plaintiffs, but includes clearly relevant

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and appropriate discovery regarding the defendant’s practices.

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In these unique circumstances, the Court finds it appropriate to grant plaintiffs the relief they

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seek. Defendant shall provide the requested contact information to plaintiffs’ counsel within 30 days.

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Plaintiffs shall mail their proposed letter within 15 days of the receipt of the contact information.

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Plaintiffs shall not disclose or use the contact information for any purpose other than sending the

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approved letter, absent further order of the Court. Plaintiffs shall be prepared – if necessary – to

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file an amended complaint for the limited purpose of substituting in new named plaintiffs on or before

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November 30, 2012 and a Further Case Management Conference is hereby set for November 30, 2012.

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IT IS SO ORDERED.

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Dated: September 12, 2012
SUSAN ILLSTON
United States District Judge

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