McEwan v. OSP Group, L.P. et al
Filing
99
ORDER Regarding Communication with Putative Class Members. Signed by Magistrate Judge William V. Gallo on 8/9/2016.(knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HONEY McEWAN, et al.,
Case No.: 14-cv-2823-BEN (WVG)
Plaintiffs,
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ORDER REGARDING
COMMUNICATION WITH
PUTATIVE CLASS MEMBERS
v.
OSP GROUP, L.P., et al.,
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Defendants.
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This is a putative class action in which plaintiffs Honey McEwan, Susan Cameron,
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and Lillian Gilden (collectively “Plaintiffs”) seek damages for alleged violations of the
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California Invasion of Privacy Act, Cal. Pen. Code § 630 et seq. On March 30, 2016, this
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Court ordered defendants OSP Group, L.P., OSP Group Merchant, Inc., OSP Group, Inc.,
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and OSP Group, LLC (collectively, “OSP”) to produce the names and contact information
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of putative class members. ECF No. 78. Now before the Court is OSP and defendant Jessica
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London’s (collectively “Defendants”) request that the Court order Plaintiffs to submit any
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proposed written communications with putative class members to Defendants and the
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Court and preclude Plaintiffs from sending any written communication to putative class
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members without the Court’s approval. ECF No. 95. Plaintiff oppose the request. ECF No.
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94. The Court heard oral argument on August 2, 2016. For the reasons discussed below,
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Defendants’ request is DENIED.
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14-cv-2823-BEN (WVG)
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District courts have “broad authority to exercise control over a class action and to
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enter appropriate orders governing the conduct of counsel and parties.” Gulf Coast Oil v.
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Bernard, 452 U.S. 89, 100 (1981) (discussing Fed. R. Civ. P. 23(d)). However, “an order
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limiting communications between parties and potential class members should be based on
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a clear record and specific findings that reflect a weighing of the need for a limitation and
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the potential interference with the rights of the parties.” Id. at 101. “[S]uch a weighing—
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identifying the potential abuses being addressed—should result in a carefully drawn order
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that limits speech as little as possible, consistent with the rights of the parties under the
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circumstances.” Id. at 102. “[T]he mere possibility of abuses does not justify routine
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adoption of a communications ban that interferes with the formation of a class or the
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prosecution of a class action in accordance with the Rules.” Id. at 104; see also Domingo
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v New England Fish Co., 727 F.2d 1429, 1438-42 (9th Cir. 1984).
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Defendants argue that they seek only a “minimal restraint” and that the balancing
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required under Gulf Oil therefore tilts their way upon a showing of only a minimal risk of
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abuse. ECF No. 95 at 4. The Court does not agree. The district court order disapproved in
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Gulf Oil required prior judicial approval of any communication with potential or actual
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class members unless the party seeking to communicate asserted a constitutional right, in
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which case the party was required to file a copy of the communication with the Court within
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five days. 452 U.S. at 94-95. The order that Defendants seek here is admittedly narrower
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than the order at issue in Gulf Oil in that it would apply only to written communications.
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But, like the order in Gulf Oil, Defendants’ proposal would require Plaintiffs to obtain prior
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judicial approval of their communications. And, in contrast to the Gulf Oil order,
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Defendants’ proposal does not include a safety valve for constitutionally protected
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communications. Defendants’ proposal therefore is not a “minimal restraint.”
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During the discovery conference on August 2, 2016, Defendants proposed, as a more
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limited restriction, that the Court merely order Plaintiffs to turn over all communications
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prior to sending them out. This proposal is, perhaps, a lesser restraint than that imposed by
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the district court in Gulf Oil. Looked at another way, however, the proposal merely shifts
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14-cv-2823-BEN (WVG)
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from the Court (a neutral arbiter) to Defendants (an adversary) the job of approving (or,
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more precisely, not objecting to) Plaintiffs’ communications. Such an order which has the
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potential to stymie the usual free flow of communication, is a not an insignificant restraint
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on expression.
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The Court must therefore evaluate whether Defendants have identified potential or
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actual abuses sufficient to justify the imposition of either of Defendants’ proposed orders.
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Defendants have not identified any past abusive conduct or communications by Plaintiffs
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or their attorneys. Instead, Defendants argue that restraints should be imposed because of
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“the risk of abuse inherent in class actions” and because of the potential for damage to
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Defendants’ business relationships with putative class members. ECF No. 95 at 5.
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Creatively, Defendants argue that they need to see Plaintiffs’ communication so that they
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can prepare their call center representatives to field inquiries from concerned
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customers/putative class members. Id. However, Defendants’ “risk of abuse” argument
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fails, as it is in essence, the same argument that was rejected in Gulf Oil. And, absent a
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showing of past or likely abuse, or of some other overriding interest, Defendants’ “business
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relationships” argument is insufficient to justify the restraints that Defendants’ seek here.
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For these reasons, Defendants’ request for restrictions on Plaintiffs’ communications
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is DENIED. However, if Plaintiffs’ communications with putative class members prove
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abusive or misleading, or otherwise injurious, then Defendants may renew their request for
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relief, which may include limitations on Plaintiffs’ communications with putative class
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members and/or sanctions.
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IT IS SO ORDERED.
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Dated August 9, 2016
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14-cv-2823-BEN (WVG)
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