Burrow v. Sybaris Clubs International, Inc. et al
Filing
54
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/17/2014: Burrows Motion for Interim Class Certification 46 is denied.Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT C. BURROW, on Behalf of
Himself and Others Similarly
Situated,
Case No. 13 C 2342
Plaintiff,
v.
Hon. Harry D. Leinenweber
SYBARIS CLUBS INTERNATIONAL,
INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Robert Burrow’s (hereinafter,
the “Plaintiff” or “Burrow”) Motion for Interim Class Certification
or, Alternatively, for a Protective Order [ECF No. 46].
For the
reasons stated herein, the Motion is denied.
I.
BACKGROUND
Burrow used to work at the reservations desk for one of
Defendant Sybaris Clubs International’s five “romantic getaway”
motels.
(Pl.’s Mot. for Interim Class Cert. (“Pl.’s Mot.”), ECF
No. 46 at 2.) According to Burrow’s Complaint, “[e]very phone call
made to or from the reservations desk at every one of the five
Sybaris locations over the last two years has been intercepted,
recorded, and electronically archived without obtaining consent of
either party to the calls.”
(Pl.’s Compl., ECF No. 1, ¶ 1.)
Burrow claims that some of his calls were recorded without his
consent, and he brings this five-count putative class action
complaint on behalf of himself and other Sybaris employees and
customers whose calls were recorded without consent.
At this
point, the Court has dismissed Count II, there is not yet any
certified class, and discovery on the class certification issue is
ongoing.
During discovery, however, Sybaris’ attorneys contacted and
interviewed several Sybaris employees.
Before initiating any
conversations, Sybaris’ attorneys gave the employees a “Consent to
Interview” letter, which the employees signed if they decided to
speak with the attorneys. Burrow’s Motion is based on the letter’s
contents, and the parties’ briefing on this Motion demonstrates
great disagreement over what the letter says and what it means.
The Court, therefore, reproduces the letter’s contents in full:
Sybaris Clubs International, Inc. (“Sybaris”),
has been sued by a former employee, Robert
Burrow. Mr. Burrow alleges that the recording
of telephone calls by Sybaris after the
installation of the new ShoreTel phone system
was improper. Mr. Burrow claims that he was
not aware that the reservation lines were
being recorded. Mr. Burrow also claims that
some employees listened to recordings of phone
calls for their own amusement, and that his
personal phone calls were recorded.
Mr. Burrow claims that he should be able to
recover damages on behalf of all employees and
customers whose calls were recorded, as their
representative. No court has determined that
Mr. Burrow has the right to bring claims and
collect money on behalf of other employees
like you (or on behalf of customers). If a
court agrees with Mr. Burrow, he may be
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allowed represent a class of people, including
you, in his action against Sybaris.
At this stage of the lawsuit, the attorneys
for both sides are investigating the claims
and gathering information.
Attorneys for
Sybaris would like to interview you to obtain
information relevant to Sybaris' defense in
the case.
Sybaris’ attorneys expect to use
this information to show that Sybaris’
employees knew that the reservation lines were
being recorded for quality assurance purposes
and could be used for “phone grades”, and
therefore the employees consented to the
recordings. If a court agrees with Sybaris,
Mr. Burrow will only be able to bring claims
on his own behalf.
You are not required to speak with Sybaris’
attorneys. They are not employees of Sybaris,
and will not report anything you reveal in the
interview to Sybaris unless you consent to the
disclosure of the information or a court
orders its production.
Sybaris will not
retaliate against you for anything say in an
interview or for refusing to be interviewed.
Please be advised that your personal interests
may not be the same as Sybaris’ interests and
information you give may limit your ability to
participate in this or another lawsuit against
your employer, Sybaris. If you are represented
by an attorney in connection with any claims
against
Sybaris,
please
decline
to
be
interviewed at this time. [emphasis in
original]
I, ___________, have read the above Consent to
Interview and understand it.
I understand
that I am not being represented by Sybaris’
counsel, that I have the right to be
represented by an attorney of my own, and that
I am under no obligation to participate in an
interview.
I further understand that my
interests could be adverse to the interests of
Sybaris. I hereby consent to be interviewed
by Sybaris’ counsel.
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[Pl.’s Mot., Ex. A].
The letter then provides a space for the
employee’s name and signature.
Burrow asks the Court to grant “interim class certification”
or issue a protective order because, according to Burrow, the
letter is misleading and coercive.
Sybaris argues that the letter
is proper and modeled on other communications that courts deem
permissible.
II.
LEGAL STANDARD
As a general rule, each party to a potential class action has
a “right” to communicate with putative class members.
E.E.O.C. v.
Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869, 870 (7th Cir.
1996).
That right, however, is not unlimited, and Federal Rule of
Civil Procedure 23(d) allows a court to limit communications
between parties and putative class members in certain situations.
Gulf Oil Co. v. Bernarnd, 452 U.S. 89, 100 (1981).
Courts may
limit communications between potential class members and parties
only if the order is “based on a clear record and specific findings
that reflect a weighing of the need for a limitation and the
potential for interference with the rights of the parties.” Id. at
101.
The party seeking to limit communications — Burrow in this
case — “bears the burden of showing that the nonmovant has engaged
in coercive, misleading, or other abusive communications with the
putative class.”
Piekarski v. Amedisys Ill., LLC, --- F.Supp.2d
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---, No. 12-CV-7346, 2013 WL 6055488, at *2 (N.D. Ill. Nov. 12,
2013) (citing Gulf Oil Co., 452 U.S. at 102).
This means that
Burrow must show “(1) that a particular form of communication has
occurred . . . and (2) that the particular form of communication at
issue . . . threatens the proper functioning of the litigation.”
Bobryk v. Durand Glass Mfg. Co., No. 12-cv-5360(NLH/JS), 2013 WL
5574504, at *4 (D.N.J. Oct. 9, 2013).
Courts are concerned
particularly with parties that make “misrepresentations to putative
class members or [have] attempted to discourage class members from
participating in the class.”
Id. (collecting cases).
III.
ANALYSIS
There is no dispute that Sybaris’s attorneys communicated with
Sybaris employees.
The issue here is whether that communication
was abusive, coercive, or misleading in a way that threatens the
proper functioning of the putative class-action litigation. Burrow
argues that the letter provides a sufficiently clear record upon
which the Court may limit further communications between Sybaris’s
attorneys and potential class members.
The Court disagrees.
Several courts have considered communications similar to the
letter here and have found the communications proper. For example,
in
Kuhl,
the
defendants’
attorneys
contacted
some
of
the
defendants’ current employees who were also potential class members
in a pending lawsuit.
Kuhl v. Guitar Ctr. Stores, Inc., No. 07 C
0214, 2008 WL 5244570, at *2 (N.D. Ill. Dec. 16, 2008).
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Before
interviewing
statement
each
that
employee,
informed
the
each
defendants’
employee
that
attorneys
(1)
the
read
a
attorney
represented the employer (Guitar Center), and not the employee
being interviewed, in a “potential class action” brought by former
employees, (2) the “purpose of the interview is to gather as much
information as possible to help Guitar Center evaluate and defend
this case,” (3) the information obtained from the interviews would
be
used
to
defend
Guitar
Center,
but
not
for
any
employee-
evaluation purposes, (4) the employee was part of the potential
class, (5) the employee’s interests could be adverse to Guitar
Center’s interests, (6) the employee had a right to an attorney
before deciding whether to be interviewed, (7) the employee’s
choice to be interviewed would not benefit the employee, and (7) no
action would be taken against the employee for declining the
interview. Id.
The court found that the communication was permissible and did
not justify the plaintiffs’ request to suspend the interviews. Id.
at *3–5.
The court rejected the plaintiffs’ argument that the
communication was improper because of the “inherently coercive
relationship between employer and employee.”
Id. at *4.
Although
the risk of coercion increases in the employer–employee context,
see, Piekarski, 2013 WL 6055488, at *2, the court found that the
existence of such a relationship was not alone enough to justify an
order
limiting
communication
or
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authorizing
a
corrective
communication.
record
that
the
Kuhl, 2008 WL 5244570, at *5.
defendants
sought
to
Without a clear
discourage
or
actually
discouraged employees from participating in the potential class
action, the court refused to limit or stop the communications. Id.
Likewise, the court in Bobryk considered a communication that
is similar in substance to the letter at issue here.
WL 5574504, at *2–3.
Bobryk, 2013
In that case, the defendant’s attorneys
obtained declarations from some of the defendant’s employees before
any decision was made regarding class certification.
Id. at *1.
Prior to obtaining the declarations, the attorneys read a “script”
to employees that informed them of several things.
Id. at *2.
The
script informed the employees that (1) the attorneys represented
the employer in a lawsuit brought by a former employee “who alleges
she was not paid properly,” (2) the plaintiff sought class-action
status, but that “[n]o court has determined that [the plaintiff]
has the right to bring claims . . . on behalf of other employees,
like you,” (3) the employer “expect[ed] to use this information to
show that not all hourly employees in the plant have the same
experience as Plaintiff had and she should not be able to be
representative for all hourly employees,” (4) the employer would
use the information obtained from the employees to show that the
defendant “has paid its employees as required by law,” (5) the
employee would have a chance to review the attorneys’ written
summary of what was discussed, (6) the employee was not required to
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speak with the attorneys and that failure to speak with them would
not result in the employer retaliating against the employee, and
(7) the attorneys would not share what the employees said with the
employee’s manager.
The
rejected
court
the
Id. at *2–3.
found
that
plaintiff’s
this
communication
request
communications with its employees.
to
limit
Id. at *3.
was
the
proper
and
defendant’s
The court found
that nothing in the script was misleading or coercive; to the
contrary, the court found that the script itself was evidence that
the interviews were “not coercive or abusive, and did not thwart
the proper functioning of the litigation.”
Id. at *5.
Also, the
court rejected the argument that the communication was misleading
because it omitted the “plaintiffs’ counsel’s contact information,
a ‘neutral advisement of Plaintiff’s theory of the case,’ and the
right to speak with class counsel.”
Id.
Instead, the court
examined the “entirety of defendant’s conduct and communications”
and found that there is no “statutory rule or case law that
requires
defense
counsel
to
give
specific
instructions to putative class members.”
information
and
Id.
The letter in this case is similar to the communications in
both Bobryk and Kuhl.
Like both of those cases, the letter here
informed Sybaris employees that the attorneys represented Sybaris
and not the employee.
The letter also advised each interviewed
employee that he or she could decline the interview without any
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possibility of retaliation.
And although the letter here did not
give Sybaris employees a perfectly neutral explanation of the case,
Burrow’s counsel’s contact information, or the case-identifying
information, the communications in Kuhl and Bobryk were deemed
appropriate
despite
similar
omissions.
In
short,
Sybaris’
attorneys appear to have drafted the letter in order to communicate
with Sybaris employees while still complying with the case law in
this area.
Despite
the
similarities
discussed
above,
Burrow
argues
primarily that the letter is coercive and misleading because it
states that Sybaris’ attorneys “expect to use this information to
show that Sybaris’ employees knew that the reservation lines were
being recorded.”
what
Sybaris
interviewed.
According to Burrow, this phrase tells employees
“expect[s]”
them
to
say
if
they
agree
to
be
Burrow argues that this phrase, plus the coercive
nature of an employer-employee relationship, makes the letter
coercive.
This argument fails for several reasons.
can mean one of two things.
First, the phrase
It could have the meaning Burrow
ascribes to it, or that phrase could just be Sybaris’ attorneys
fully disclosing the purpose of their interview — that they plan on
or “expect” to use the information in order to defend Sybaris.
The
phrase therefore is not necessarily a covert attempt to tell
employees what they should say.
Second, the defendants’ attorneys
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in Bobryk also told the interviewed employees that the attorneys
“expect to use this information to show that not all hourly
employees” were treated like the plaintiff.
Bobryk, 2013 WL
5574504, at *2. The court there found nothing wrong with informing
employees that the attorneys “expect[ed]” to use the information to
disprove the plaintiff’s case.
explicitly
relied
on
that
Id. at *4.
disclosure
in
communication was not coercive or abusive.
Rather, the court
finding
Id. at *5.
that
the
The Court
agrees with the Bobryk court and finds nothing wrong or coercive
about a letter that informs employees how the attorneys plan on
using the information.
Burrow also argues that the communication at issue here is
like
a
number
of
other
cases
in
which
a
communication
potential class members justified court intervention.
there
are
plenty
of
instances
where
with
To be sure,
defendant–employers
have
communicated with putative class members in a coercive, misleading,
or
abusive
manner.
The
cases
Burrow
cites,
however,
depict
communications so extreme that they actually cut against Burrow’s
position, making the letter at issue in this case appear entirely
benign.
For example, Burrow relies on Hampton Hardware, a case in
which the defendant sent three separate letters to potential class
members that did not sugar-coat the defendant’s feelings about the
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lawsuit.
Hampton Hardware, Inc. v. Cotter & Co., 156 F.R.D. 630,
631–32 (N.D. Tex. 1994).
The letters advocated explicitly for
potential class members to refuse to participate in the class
because, “[b]y refusing to join the class, you save your Company
time and expenses which ultimately will be returned to you in the
form of your patronage dividend.” Id. The letters also threatened
potential class members, stating that “[e]very member who joins the
class adds to the expense” of the lawsuit and that the “expense
will, ultimately, come out of your pocket.”
Id.
Finally, the
letters stated that “[b]y asking you to join the class, [the
plaintiff] is asking you to sue yourself.”
Id.
Unremarkably, the Hampton Hardware court found these letters
abusive and prohibited the defendants from further contacting
putative class members regarding the litigation.
Id. at 635.
The
letter at issue here could not be further from the abusive letters
in Hampton Hardware.
Nothing in the letter here threatens Sybaris
employees with reduced pay if they participate in the class.
The
letter does not tell employees that they should not participate in
the class, nor does the letter mention anything about the time and
cost to Sybaris in defending the lawsuit.
Burrow’s argument that
the Sybaris letter is similar to the letters in Hampton Hardware
fails to pass the straight-face test, and the other cases Burrow
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relies on are likewise distinguishable.
See, e.g., In re School
Asbestos Litig., 842 F.2d 671, 674–75 (3rd Cir. 1988) (involving a
booklet sent to potential class members that purported to be
information on asbestos from a neutral source but was in fact
created by the defendants); Kleiner v. First Nat’l Bank of Atlanta,
751 F.2d 1193, 1196–1203 (11th Cir. 1985) (involving a massive
communication campaign shrouded in “secrecy and haste” in which the
defendants contacted class members — after the class was already
certified — to convince them to opt-out); Waldo v. Lakeshore
Estates, Inc., 433 F.Supp. 782, 787, 794 (E.D. La. 1977) (involving
communication where the plaintiff “attempt[ed] to solicit and
promote participation in the suit”).
In sum, Burrow has failed to establish a clear record that
demonstrates the letter was misleading or coercive to the point
that it threatened the proper function of the litigation. Although
Burrow cites several cases in which courts have restricted precertification
communications,
none
of
those
cases
communications that are similar to the letter here.
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contain
IV.
CONCLUSION
For reasons stated herein, Burrow’s Motion for Interim Class
Certification [ECF No. 46] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:10/17/2014
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