Taylor et al v. Waddell & Reed Inc et al
Filing
147
ORDER Denying Without Prejudice Plaintiffs' Request to Compel Contact Information of Putative Class Members. Signed by Magistrate Judge William V. Gallo on 04/27/12.(cge)(jrd)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MICHAEL E. TAYLOR, et al.,
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Plaintiffs,
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v.
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WADDELL & REED, INC., et al.,
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Defendants.
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Civil No. 09-2909-AJB(WVG)
ORDER DENYING WITHOUT
PREJUDICE PLAINTIFFS’ REQUEST
TO COMPEL CONTACT INFORMATION
OF PUTATIVE CLASS MEMBERS
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On April 11, 2012, Plaintiffs submitted a letter to the Court
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that requested that Defendants be compelled to produce the contact
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information of putative class members, Financial Advisors (“FAs”),
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past and present, from December 2005 to the present. On April 13,
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2012, Defendants submitted to the Court a letter that opposed
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Plaintiffs’ request. After considering the letter briefs submitted
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by the parties and the applicable law, and GOOD CAUSE APPEARING,
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Plaintiffs’ request is DENIED without prejudice.
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BACKGROUND
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On January 21, 2011, the Court ordered Defendants to permit
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Plaintiffs to contact then-current FAs using Defendant’s e-mail
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system. Plaintiffs utilized this means to communicate with putative
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class members. In an e-mail to the then-current FAs, Plaintiffs’
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attorneys identified themselves, advised that a lawsuit was filed
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and invited the FAs and others (presumably former FAs that the
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current FAs may know) interested in the lawsuit to contact the
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attorneys to learn more about the case.
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Plaintiffs once again have requested Defendants to identify
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all California FAs and to produce their contact information (name,
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work and home address, and work, home and cell phone numbers) who
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worked for Defendants from December 2005 to the present. Defendants
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have opposed the requests primarily on the grounds that the requests
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are premature and would violates the FAs’ privacy rights.
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DISCUSSION
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The Court is not persuaded that the privacy interests of the
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putative class members would be violated by the disclosure of the
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contact information requested by Plaintiffs. Pioneer Electrics
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(USA), Inc. v. Superior Court, 40 Cal. 4th 360, 373 (2007), Belaire-
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West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 562
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(2007). However, the Court agrees with Defendants that Plaintiffs
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have not diligently pursued the avenues available to them to
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ascertain the identity of putative class members of FAs, past and
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present, in California.
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Plaintiffs argue that Defendants have “almost exclusive
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access to the putative class members.” The Court disagrees, at least
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as it pertains to the current FAs. The current FAs are readily
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ascertainable by simply going to Defendants’ public website and
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typing in a zip code number. The FAs that service the area in and
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around the zip code immediately appear by name, address, e-mail
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address and phone number.
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take some effort by Plaintiffs to work their way through the zip
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codes assigned in California, it is not a difficult task. Presum-
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ably, Plaintiffs already have done this by virtue of their mass e-
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mail notification sent in January 2011. Also, presumably, those FAs,
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current as well as former, if any, who are interested in joining the
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lawsuit have reached out to Plaintiffs’ attorneys and made their
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intentions known. If current FAs have not contacted Plaintiffs’
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attorneys or done so in sufficient numbers, this may be an indica-
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tion,
as
Defendants
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While searching for the current FAs may
argue,
that
there
simply
is
no
merit
to
Plaintiffs’ lawsuit.
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As to former FAs, Plaintiffs are partly correct. Undoubtedly
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Defendants know the identity of its former FAs. Whether Defendants
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also have the current contact information of those former FAs is
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another question altogether. Regardless, Plaintiffs have access to
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current FAs and with a modicum of effort, which to date has not been
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demonstrated by Plaintiffs, can interview or depose those FAs who
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may
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Plaintiffs can then find and interview. This effort may not bear
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fruit and Plaintiffs may very well not be able to identify any
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former FAs, but they must at least try to do so. It does not appear
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that Plaintiffs have done so, or if they have, Plaintiffs have not
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so described their efforts to the Court. Until Plaintiffs have
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diligently tried and failed, the Court is not of the mind to order
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Defendants to do Plaintiffs’ work. Doninger v. Pacific Northwest
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Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977), Krzesniak v. Cendant
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Corp., 2007 WL 756905 at *1 (C.D. Cal. 2007).
be
able
to
reveal
the
identity
of
former
colleagues
who
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Plaintiffs also argue that contacting the current FAs via
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their work e-mail addresses or work phone numbers at Defendants’
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offices is inadequate. However, Plaintiffs fail to offer even one
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reason why contacting current FAs in this manner is inadequate.
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Although Plaintiffs have failed to offer an explanation, the Court
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disagrees. Contacting current FAs at Defendants’ offices may be the
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best method to obtain current FAs’ personal contact information or
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to make arrangements for a more private discussion.
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Moreover, Plaintiffs do not need to contact all FAs working
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for Defendants in California to establish the Rule 23 requirements
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of numerosity, commonality, typicality and adequacy. The Court
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believes, and Plaintiffs have not presented any argument to the
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contrary, that Plaintiffs may satisfy the Rule 23 requirements on a
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motion to certify the class, based upon information obtained from
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current FAs whose contact information is immediately and readily
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accessible to Plaintiffs via Defendants’ website.
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Plaintiffs “bear the burden of advancing a prima facie
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showing that the class action requirements of Fed. R. Civ. P. 23 are
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satisfied or that discovery is likely to produce substantiation of
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the class allegations.”
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(9th Cir. 1985); Doninger, 564 F.2d at 1313. Plaintiffs simply have
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not met their burden or made the required showing.
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Mantolete v. Bolger, 767 F.2d 1416, 1424
The Court acknowledges that “the propriety of a class action
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cannot be determined in some cases without discovery.”
Kaminske v.
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JP Morgan Chase Bank N.A., 2010 WL 5782995 at *2 (C.D. Cal. 2010).
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Plaintiffs are not precluded from taking discovery. Current FAs with
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a wealth of relevant information are available and within reach of
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09cv2909
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Plaintiffs
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information they seek.
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if
only
they
would
make
the
effort
to
obtain
the
Plaintiffs’ request that Defendants be compelled to produce
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the
contact
information
of
putative
class
members,
Financial
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Advisors (“FAs”), past and present, from December 2005 to the
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present, is DENIED without prejudice.
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DATED:
April 27, 2012
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Hon. William V. Gallo
U.S. Magistrate Judge
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