A & R Body Specialty et al v. Progressive Ins Group Co et al

Filing 235

RULING granting in part and denying in part 208 plaintiffs' Motion to Preclude Informal Contact with Absent Class Members; granting in part and denying in part 209 defendants' Motion to Permit defendants' Communications with Putative Class Members. Signed by Judge Holly B. Fitzsimmons on 9/5/12. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
A&R BODY SPECIALTY AND
COLLISION WORKS, INC.,
FAMILY GARAGE, INC. and
THE AUTO BODY ASSOCIATION
OF CONNECTICUT on Behalf
of Themselves and all
Others Similarly Situated
v.
PROGRESSIVE CASUALTY
INSURANCE COMPANY and
PROGRESSIVE DIRECT INSURANCE
COMPANY

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CIV. NO. 3:07CV929 (WWE)

RULING ON CROSS-MOTIONS
This class action is brought by plaintiffs, A&R Body
Specialty, Family Garage and the Auto Body Association of
Connecticut, on behalf of themselves and all other licensed auto
body repairers in the State of Connecticut who have performed
repairs during the class period for any person with automobile
insurance from Progressive Insurance Group, Progressive
Northeast Insurance Company, Progressive Casualty Insurance
Company, Progressive Direct Insurance Company (collectively
“Progressive”).

Plaintiffs allege that defendant, Progressive,

illegally suppressed labor rates paid to auto body repair shops
and illegally steered its insured to a network of preferred body

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shops it controls under its direct repair program. (“DRPs”). In
Counts I and II, plaintiffs seek recovery under the Connecticut
Unfair Trade Practices Act (“CUTPA”).

In Count III, plaintiff

seeks to recover under the Connecticut Unfair Sales Practice Act
and in Count IV plaintiff claims tortious interference with
business expectancy. [doc. #172].1
CROSS-MOTIONS [doc. ##208 209]
The parties filed cross-motions regarding defendants’
request to permit communication and contact with putative class
members.

On April 27, 2012, plaintiffs filed a Motion to

Preclude Informal Contact with Absent Class Members [doc. #208],
and defendants filed a Motion to Permit Defendants’
Communications with Putative Class Members. [doc. #209].

On

July 20, 2012, in light of the November 16, 2011 Connecticut
Ethics Panel Opinion [CBA Informal Op. 2011-09] on contacting
members of proposed classes, the Court permitted supplemental
briefing.

The defendants filed a supplemental brief on July 27,

2012 [doc. #234].
PLAINTIFFS’ MOTION [doc. #208]
Plaintiffs seek to preclude the defendant from contacting
body shop owners in Connecticut, who are absent members of the
putative class in this case.

Plaintiffs believe contact should

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There is a pending motion to dismiss the Second Amended
Complaint. [doc. #215].
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be precluded for two reasons: the members of the putative class
in this case are represented by plaintiffs’ counsel in a similar
action certified in the Connecticut Superior Court and
plaintiffs believe that defendant’s efforts to informally
contact absent class members are an attempt to go around the
Court’s order precluding formal discovery from absent class
members.
DEFENDANTS’ MOTION [doc. #209]
Defendants seek leave to communicate with putative class
members. Defendants argue there is no justification on the
record to restrict defendants’ communications with putative
class members. Defendants have represented to the Court that
they will not attempt to dissuade class participation or seek
waivers of liability.

Defendants also argue that while courts

have restricted communication with absentee class members only
where the record justifies, here, the Court has yet to express
an affirmative intent to certify the proposed class and
furthermore, “the record contains no evidence of malfeasance on
the part of Progressive or any likelihood of abuses.”

DISCUSSION
Federal Rule of Civil Procedure 23(d)(1)(C) gives the Court
discretion to impose conditions on the parties in class action
suits. See Fed. R. Civ. P. 23(d)(1)(C). This includes regulating
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communications between counsel and putative class members. Id.
On November 16, 2011, consistent with federal case law and
American Bar Association opinions, a Connecticut Ethics Opinion
determined that it is ethical for opposing counsel to contact
putative class members prior to class certification. See CBA
Informal Op. 2011-09.
The mere fact that an attorney has filed an
action and unilaterally asked the court to
appoint him or her as the class’ attorney,
does not –- [without more] – [establish an]
attorney-client relationship [between] [an]
attorney and members of the proposed class
such that the proposed class members cannot
be contacted by attorneys for defendants in
the action. . . putative class [members] are
not [represented] until the class is
certified. [There are] legitimate reasons
for counsel to contact putative class
members regarding the facts that are the
subject matter of the litigation.
CBA Informal Op. 2011-09.

The opinion elaborated that,

consistent with the Supreme Court decision in Gulf Oil v.
Bernard, counsel may seek to place reasonable restrictions on
this contact. Id.
There is case law predating the Connecticut Ethics Opinion
which permits contact with putative class members with some
limitations. The issue was addressed generally by the U.S.
Supreme Court:
Class actions serve an important function in
our system of civil justice. They present,
however, opportunities for abuse as well as
problems for courts and counsel in the
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management of cases. Because of the
potential for abuse a district court has
both the duty and the broad authority to
exercise control over a class action and to
enter appropriate orders governing the
conduct of counsel and parties. But this
discretion is not unlimited, and indeed is
bound by the relevant provisions of the
Federal Rules.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-100 (1981). While Gulf
Oil looked to parties’ communication with putative class
members, it did not specifically address limits to communication
permitted between defendants’ counsel and putative class
members. However, the Second Circuit has followed certain Gulf
Oil principles in deciding whether to limit communications by
counsel with putative class members. See Austen v. Catterton
Partners V., LP, 831 F. Supp. 2d 559, 565 (D. Conn. 2011).
Orders limiting communications between parties and putative
class members must “be based on a clear record and specific
findings that reflect a weighing of the need for limitation and
the potential interference with the rights of the parties.”
Austen, 831 F. Supp. 2d at 565 (citing Gulf Oil, 452 U.S. at
101). Orders should “‘limit[] speech as little as possible,
consistent with the rights of the parties under the
circumstances.’” Austen, 831 F. Supp. 2d at 565 (citing Gulf
Oil, 452 U.S. at 102). “[T]he Court must pay ‘attention to
whether [a particular] restraint is justified by a likelihood of
serious abuses.’” Austen, 831 F. Supp. 2d at 565 (citing Gulf
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Oil, 452 U.S. at 104). Communications between defendants and
putative class members “are not abusive communications that
warrant limitations absent indications in the record of the need
for limitations.” Austen, 831 F. Supp. 2d at 565.
Plaintiffs contend that defendants’ communication with
putative class members in situations where there is an ongoing
relationship between the putative class members and the
defendants has the potential for coercion and can lead to abuse.
[doc. #208]. “Where there is a relationship that is inherently
coercive, the court does not need to make a finding that a
particular abuse has occurred.

The court, however, must still

require a clear record of threatened abuses.” Jenifer v.
Delaware solid Waste Authority, No. Civ.A. 98-270 MMS, CIV.A.
98-565 MMS, 1999 WL 117762, at *4 (D. Del. Feb. 25,
1999)(finding no record to show that communication between
defendants and putative class members was misleading or coercive
nor that class members would be threatened or coerced into
foregoing any claims in the present lawsuit). “The test for
coercion is whether the conduct somehow overpowers the free will
or business judgment of the potential class members.” Jenifer,
1999 WL 117762, at *5 (citing Mobilificio San Giacomo S.p.A. v.
Stoffi, No. C.A. 96-415-SLR, 1998 WL 125536, at *9 (D. Del. Jan.
29, 1998)). See Hampton Hardware, Inc. v. Cotter & Co., Inc.,
156 F.R.D. 630, 633 (N. D. Tex. 1994)(finding coercion and
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prohibiting further contact after defendant warned putative
class members of the potential cost to them, specifically
advised not the participate in the lawsuit and told them that by
participating in the suit, they would “suing themselves”).
Furthermore, “[b]oth parties need to be able to communicate
with putative class members- if only to engage in discovery
regarding issues relevant to class certification- from the
earliest stages of class litigation.” Austen, 831 F. Supp. 2d at
567. Here, plaintiff presents no record of any threats or
coercion to the putative class members. “Class members may
therefore feel pressured to cooperate or speak with Defendants,
and may not be aware of their right to refrain from doing so
absent intervention by counsel.” [doc. #208]. The Court will
permit defendants to contact putative class members, but will
place restrictions on the defendants as to their communication
with the putative class members to ensure that no abuse occurs.
Given that, by initially seeking the Court’s permission to
contact putative class members, defendants here have yet to
initiate any such contact, the Court grants permission to
plaintiffs to bring forth a motion without prejudice should
evidence of coercion or threats later be revealed.
This case distinguishes itself from others because it
involves a putative class nearly identical to the class

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represented by plaintiffs' counsel in a prior suit.2

This lends

credence to the expectation that that the proposed class in this
case will be certified.

However, this court has recently

permitted defendants to contact putative class members in a
situation where class certification was nearly certain to be
granted. See Austen, 831 F. Supp. 2d at 561.

Because the class

has yet to be formed, the class members are not yet clients of
the plaintiffs’ counsel and should be treated no differently
from any other class pre-certification, regardless of past
representation by plaintiffs’ defense counsel.
Defendants’ motion is granted with the following
restrictions.
 Defense counsel wishing to contact putative class members
must explicitly inform the putative class member that he or
she is an attorney and must also identify the party that he
or she is representing in the suit. Defense counsel should
stop all efforts to engage any putative class member who
does not wish to speak to counsel.
 Defense counsel must ask the putative class members, at the
outset of the communication, whether they are already
represented by counsel and, if not, whether they would like

2

See Artie’s Auto Body, Inc. et al. v. The Hartford Fire
Insurance Company, No. X08-CV-030196141S, 2006 WL 2730143 (Conn.
Super. Ct. August 30, 2006) (ruling granting class
certification).
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to consult with an attorney before engaging in further
communication.
 Defense counsel shall not communicate with putative class
members either directly or indirectly about settling any
claims related to the claims asserted by plaintiffs in this
case.
 Defense counsel shall keep detailed lists of all the
putative class members they contact prior to certification
and shall submit those lists to the Court when a class
certification motion is eventually filed in this case.


Plaintiffs’ counsel are granted permission to notify
members of the putative class that they are under no
obligation to speak with defendants’ counsel about the case
and are encouraged to seek the advice of an attorney before
doing so.
See Doc. #208 at 9 (plaintiff’s request for restrictions
are the same restrictions placed by the court in Austen v.
Catterton, 2011 WL 1374035, at *10).
CONCLUSION
Accordingly, defendant’s motion [doc. #209] is GRANTED in

part and DENIED in part.

Plaintiff’s motion [doc. #208] is

GRANTED in part and DENIED in part.
ruling.

This is not a recommended

This is a discovery ruling and order which is

reviewable pursuant to the "clearly erroneous" statutory
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standard of review.

28 U.S.C. ' 636 (b)(1)(A); Fed. R. Civ. P.

6(a), 6(e) and 72(a); and Rule 2 of the Local Rules for United
States Magistrate Judges.

As such, it is an order of the Court

unless reversed or modified by the district judge upon motion
timely made.
SO ORDERED at Bridgeport this 5th day of September 2012.

________/s/________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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