Whitehorn v. Wolfgang's Steakhouse, Inc. et al

Filing 69

MEMORANDUM & ORDER: Plaintiffs are hereby ordered to revise their notice in accordance with this Memorandum & Order and to submit it to the Court for approval within 5 days of this order. Defendants will have 3 days from the date of submission to object to the revisions, and to the revisions only. If Defendants fail to object, and this Court is satisfied with Plaintiffs' revisions, Plaintiffs' notice will become final. (Signed by Judge Leonard B. Sand on 2/8/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERr\ DISTRICT Of NEVV YORK
WHITEHORN, et al.,
Plaintiffs,

v.

09 Civ. 1148 (LBS)

MEMORANDUM &
ORDER

WOLFGANG'S STEAKHOUSE, INC., et al.,

Defendants.
SAND,

J.
On July 20, 2011, this Court certified Plaintiffs' class action for various New York Labor

Law claims pursuant to Rule 23 of the Federal Rules of Civil Proced ure. We further appointed
Plaintiffs' counsel as class counsel. Whitehorn v. Wolfgang's Steakhouse, Inc., 275 ER.D. 193
(S.D.N.Y. 2011). Plaintiffs drafted a proposed Rule 23 notice and exclusion form, which
Defendants amended and returned. Plaintiffs objected to certain of Defendants' amendments and
the parties engaged in further discussions-but to no avail. Plaintiffs now seek court approval for
their notice of pendency of the above-captioned class action suit.
Plaintiffs are hereby ordered to revise their notice in accordance with this Memorandum

& Order and to submit it to the Court for approval within 5 days of this order. Defendants will
have 3 days from the date of submission to object to the revisions, and to the revisions only. If
Defendants fail to object, and this Court is satisfied with Plaintiffs' revisions, Plaintiffs' notice will
become final.
I. Discussion

a. Subcaption
Defendants seek to add the capitalized words "this is different from other notices you
might have received previously" below the caption. Opp'n to PIs: Mot. Ct. Approval Notice of
Pendency ("Defendants' Opposition Brief'), at 2. We agree with Defendants that the addition of

the words below Plaintiffs' proposed caption does not prejudice Plaintiffs and serves the goal of
ensuring that recipients read the notice. Besides, Plaintiffs have not objected.

h. Defendants' Position
We reject Defendants' proposal to include the details of their factual and legal
counterarguments under the heading "Defendants' Position:' Defendants' Opposition Brief, Ex.
C, at 1. 'ihis is unnecessary and could well have the effect of discouraging class members from
participating. Shajmz v. Bczroio, No. 10 Civ. 1385 (CM), 2010 U.S. Dist. LEXIS 54581, at "5
(S.D.N.Y. June 2, 2010). ]he statement that "Wolfgang's denies that the Class Representatives'
claims have merit and asserts various defenses against those claims;' included in Plaintiffs'
proposed notice, is clear, neutral and sufficient. See, e.g., In re Milos Litig., No. 08 Gv. 6666 (LBS),
2010 U.S. Dist. LEXIS 3038, at "8 (S.D.N.Y. Jan. 11,2(10) (approving for inclusion in the notice
the statement "Milos denies that Plaintiffs' claims have merit, and they will assert various defenses
against those claims.").

c. Contacting Defendants' Counsel
Defendants request that class members be notified that they may, if they wish, contact
defense counsel regarding the case. It is clear that defense counsel may not contact class members
without the prior consent of either class counsel or this Court. Gortat v. Capala Bros., Inc., No. 07
Civ. 3629 (ILG), 2010 U.S. Dist. LEXIS 45549, at

10 (E.D.N.Y. May 10, 2010). The reason, as

the Gortat court explained, is that because class certification gives rise to an attorney-client
relationship between potential class members and class counsel, defense counsel is bound by New
York Rule of Professional Conduct 4.2(a) barring unauthorized ex parte communications between
a la\vyer and opposing parties. Id. While this rule explicitly prohibits defense counsel from
contacting class members, it does not necessarily prohibit class members from contacting defense
counsel. Indeed, the inclusion of "contact information of counsel for Defendants as one source
from whom potential plaintiffs could obtain information" has been explicitly approved by this

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Court. Bah v. Shoe 1Vfania, Inc., No. 08 Civ. 9380 (ITS), 2009 US. Dist. LEXIS 40803, at *12
(S.D.N.Y. May 13,2009). Plaintiff" are ordered to include language informing class members that:
(1) they may, if they wish, contact defense counsel, but (2) they may only do so if they have asked,
and received the approval of, class counsel.

d. "Your Legal Rights and Options in this Lawsuit"
We are at a loss as to how Defendants have improved upon Plaintiffs' proposed version of
this section of the notice. Compare Defendants' Opposition Brief, Ex. C at 2 (Defendants' version)
lvith Defendants' Opposition Brief, Ex. D at 2-3 (Plaintiffs' version). Indeed, Defendants'

tabulation of this section strikes this Court as unnecessarily complicating the information. As
such, Plaintiffs' version is approved and Defendants' proposed amendments are rejected.

e. Certified Mail
Defendants seek to have notice sent via certified mail. Defendants' Opposition Brief at 3.
Plaintiffs object, arguing that first class mail is adequate. Plaintiffs have the better of the
argument. Wolfert v. Transamerica Home First, Inc., 439 F. 3d 165, 176 (2d CiL 2006) (finding that
"use of first-class mail to send a required notice has regularly been upheld"). Plaintiffs may mail
the notice first class.
f.

Postcard

Defendants request that in order to make the opt-out process as simple as practical, the
exclusion request form should be printed on a postcard. Ibis, they argue, "could be more easily
checked off and dropped in the mail than a piece of paper that must be mailed in a separate
envelope." Defendants' Opposition Brief, at 3. Perhaps; but Defendants have presented this court
with no legal support for their request, which, at the very least, \vill increase the cost of producing
the notice and exclusion forms. Defendants' request is denied.

II. Conclusion

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Plaintiffs are hereby ordered to revise their notice in accordance with this Memorandum
& Order and to submit it to the Court for approval within 5 days of this order. Defendants will

have 3 days from the date of submission to object to the revisions, and to the revisions only. If
Defendants fail to object, and this Court is satisfied with Plaintiffs' revisions, Plaintiffs' notice will
become final.

SO ORDERED.
february 8,2012
New York, N. Y.

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