Buck et al v. Republic Services, Inc. et al
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Plaintiffs' motion for expedited corrective action [Doc. 14 ] is DENIED in part and GRANTED in part as set forth above. Signed by Magistrate Judge Thomas C. Mummert, III on 05/28/2013. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARSHA BUCK, TROY LEWIS, JEAN
LEWIS, MIKE HEAD, JANET HEAD,
individually and on behalf of all others
REPUBLIC SERVICES, INC, ALLIED
SERVICES, LLC, d/b/a Republic Services
of Bridgeton, and BRIDGETON
Case No. 4:13cv0801 TCM
MEMORANDUM AND ORDER
This is a class action arising from the operation of a landfill by Defendants in
Plaintiffs' community. The same landfill is also at the heart of a lawsuit filed by the Missouri
Attorney General the week after this action. See State of Missouri v. Republic Services, Inc.,
No. 13 SL-CC01088 (Mo. Cir. Ct. Mar. 27, 2013). The parties in this other action have
agreed to the entry of a preliminary injunction. Pursuant to that agreement, Defendants sent
a "Dear Neighbor" letter to residents living within one mile of the landfill. (See Pls. Decl.
Ex. 1, ECF No. 15-1.) Plaintiffs take exception to this letter, arguing that it is a "take-it or
leave-it offer" that is misleading and inadequate. In their pending motion for expedited
corrective action, Plaintiffs request that the Court (a) direct Defendants to submit any future
communications with putative class members to Plaintiffs' counsel and, if necessary, to the
Court for approval, and (b) compel Defendants to (i) pay a specific per diem rate to putative
class members, (ii) reimburse these members for "necessary and reasonable pet boarding
costs and childcare costs," and (iii) "provide stepped up security in a one mile radius of the
Landfill." (Pls. Mot. at 6, ECF No. 14.)
During a hearing held by telephone conference with counsel on May 17, 2013, the
Court resolved all issues raised in the pending motion with the exception of Defendants'
objection to submitting any written communications intended for putative class members to
Plaintiffs' counsel before sending out the communication. Citing Great Rivers Co-Op v.
Farmland Indus., Inc., 59 F.3d 764 (8th Cir. 1995), Defendants argue that requiring them
to obtain prior approval from Plaintiffs' counsel of any communications to putative class
members would unduly restrict their speech to such members. In Great Rivers, the trial
court order at issue (a) restricted the defendant from making any statement that could be
construed as counseling potential class members to opt out of the class and (b) required the
defendant to print in its newsletter a statement from plaintiffs about their case. Id. at 765.
Noting that "[i]n a class-action lawsuit, a district court may not order restraints on speech . . .
except when justified by actual or threatened misconduct of a serious nature, " the court held
that "there must be a clear record and specific findings that reflect a weighing of the need for
a limitation and the potential interference with the rights of the parties" before such an order
could be entered. Id. at 766. In the case before it, there was no such evidence. Id.
Defendants' reliance on this case reflects a misunderstanding of the Court's order.
Although the telephone conference was not on the record, the Court has reviewed its notes
of the hearing and its own recollection. The Court is certain that it never suggested or
intended Plaintiffs' counsel to have full veto power over Defendants' communications.
Instead, the Court found that sending the communications to opposing counsel first might
avoid any future confusion or dispute after the fact. If Plaintiffs' counsel has any objection
to these written communications, they would or should contact the Court for a hearing on the
matter after informally attempting to resolve their objection with Defendants' counsel. Thus,
unlike the trial court in Great Rivers, the Court is not ordering Defendants not to make any
written communication to potential class members or requiring it to publish a statement by
Plaintiffs. The order at issue is not that restrictive.
Additionally, there is evidence Defendants sent letters to potential class members with
an offer of lodging and expenses. This communication failed to inform the potential class
members that they would still have other litigation rights regardless whether they accepted
the offer. The parties agreed during the telephone conference that Defendants would send
out another notice to all those individuals who received the initial offer advising them that
their acceptance of the offer would not be construed as a release of any legal claims they
might have against Defendants. Such clarification is particularly important in the instant case
due to the pendency of the state court action initiated by the Missouri Attorney General about
the same landfill. Thus, confusion is a distinct possibility. To avoid this potential confusion,
notice to Plaintiffs' counsel by defense counsel of a prospective communication seems
prudent and not unduly restrictive.
The Court notes that it is not accusing Defendants of any wrong doing. The Court
does, however, perceive confusion or the possibility of confusion with concurrent lawsuits
about the same alleged wrongdoing by Defendants. This 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." Gulf Oil Co. v. Bernard, 452 U.S. 89, 100
(1981) (holding that the trial court's order imposing a complete ban on all communications
concerning a class action between parties and their counsel exceeded that broad authority).
Consistent with this duty and authority, the Court orders Defendants to provide notice to
Plaintiffs' counsel of any written communication they intend to send potential class members
three days prior to sending the communication. Plaintiffs will then will have three days to
file a motion with the Court addressing any concerns. A hearing will promptly follow.
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs' motion for expedited corrective action
[Doc. 14] is DENIED in part and GRANTED in part as set forth above.
/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of May, 2013.
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