Forauer v. The Vermont Country Store, Inc.

Filing 49

OPINION AND ORDER granting in part and denying in part 29 MOTION for Protective Order Re: Plaintiffs' Notifications Through Website Posting and Postcard . Signed by Chief Judge Christina Reiss on 11/19/2013. (pac)

U.S. DIS1

DISTRICT ,c

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

2013 ?m'1 \ 9 Pf~ 3: \ 5
CLERK

DOREEN FORAUER, NANCY J. BART,
)
MICHAEL MULLADY, CANDY MANNING,)
JOLENE KALANQUIN, GWENDOLYN C. )
TAFT, COURTNEY TOWLE, CANDICE
)
MA YETTE, ROBERT MIDDLETON,
)
MARISSA FITZGERALD, SUSAN D.
)
CLARK, LINDA J. KASUBA, MATTHEW
)
MARTINDALE, MARK W. MILLER,
)
)
MARY LOU CAMERON, DONNA G.
PRIOLO, RONALD S. AUSTIN, JAMIE
)
TUCKER, CAROLE KULIKOWSKI,
)
DEVON R. AUSTIN, DEBBIE BEZIO,
)
AMANDA PRITCHARD, CAROL JEAN
)
PRITCHARD, LINDA STOCKER REUTHER, )
and DEBORAH CONNORS,
)
)
Plaintiffs,
)
)
~

THE VERMONT COUNTRY STORE, INC.,
Defendant.

)

Case No. 5:l2-cv-276

)
)
)
)

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR PROTECTIVE ORDER
(Doc. 29)
Pending before the court is a motion for a protective order filed by Defendant The
Vermont Country Store, Inc. ("VCS"). (Doc. 29.) Plaintiffs oppose the motion. (Doc.
34.) At issue is the nature and scope of permissible communications with the
conditionally certified class.
Plaintiffs are represented by Christopher J. Larson, Esq. and Erin H. Gallivan, Esq.
VCS is represented by Andrew H. Maass, Esq.

I.

Factual and Procedural Background.

In her complaint, Doreen Forauer alleges that VCS required her and other
similarly-situated telemarketing sales representatives and customer service
representatives to perform certain duties before and after their shifts for which the
employees were not compensated. The complaint alleges this practice constituted a
violation of29 U.S.C. § 206, which requires employers to pay all employees at least the
minimum wage for all hours worked.
After filing this lawsuit, Ms. Forauer sought conditional certification of a
collective action, pursuant to 29 U.S.C. § 216(b), for "a class of all current and former
Telemarketing Sales Representatives and Customer Service Representatives employed by
The Vermont Country Store within three years prior to the date of the [court's] order,
who worked for [The Vermont Country Store] but were not paid minimum wages for a
portion of the hours worked." (Doc. 7-1 at 1.) Among other requests, Ms. Forauer
requested that the court authorize notice of the collective action to potential class
members and approve the contents of that notice.
In this court's July 31, 2013 Opinion and Order (Doc. 19), the court granted Ms.
Forauer's motion for conditional certification of a collective action under the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219 (the "FLSA"), and the court conditionally certified
a class of all current and former telemarketing sales representatives and customer service
representatives employed by VCS within three years prior to the date of the Opinion and
Order. See Forauer v. Vt. Country Store, Inc., 2013 WL 3967932, at *7 (D.

vt. July 31,

2013). The court further granted Ms. Forauer's motion to notify the potential class
members of the collective action and authorized Ms. Forauer to send to potential class
members a "Notice of Opportunity to Join a Lawsuit To Recover Back Wages" and a
"Consent to Become a Party Plaintiff" form. Id. at *7-8. Regarding the specific content
of the notice, the court refused Ms. Forauer's request to include, under a section titled
"Further Information," one sentence that read, "There is information about this suit at the
attorneys' website, www.yourvtlawyer.com ... Id.at *8. The court declined to include
this information "[b]ecause the content ofth[e] website ha[d] not been provided to the
2

court to review." Id. The court's Opinion and Order set a 60-day period for potential
class members to opt-in. See id. at *9-10. During the opt-in period, which has not yet
expired, twenty-four individuals have filed their consents to join this collective action and
have been added as plaintiffs.
Following the court's July 31, 2013 Opinion and Order, Plaintiffs' counsel sent a
postcard to potential class members. In addition, Plaintiffs' counsel posted information
about the collective action on counsel's website. The postcard, titled "Important
Information About Class Action Lawsuit Against Vermont Country Store," states:
We recently sent you a consent form about a lawsuit against The Vermont
County Store. You must return the consent form by November 19,2013 to
join this class action lawsuit. There is no cost to you to join the lawsuit,
and the time requirement is minimal. You may be part of the suit even if
you did not keep track of the hours that you worked. Please contact me
with any questions about this opportunity - you can call me at (802) 747­
0610 or email [e-mail]. Information is also available
at www.yourvtlawyer.com.
(Doc. 29-2 at 2.) The webpage from counsel's website provides information about the
"Vermont County Store Lawsuit." (Doc. 29-1 at 1-2.)
In tum, VCS sent a letter to an employee or former employee on September 11,
2013. This letter advised the individual of the lawsuit by Ms. Forauer "claiming that she
was required to do work without being paid." (Doc. 34-1 at 1.) The letter further stated:
"I am not writing to you to argue this lawsuit: that's what lawyers get paid to do. To
those of you who are invited to join in the lawsuit, you will get a notice from the lawyers,
and it never has been my place to tell other folks how to lead their lives." Id. The letter
also outlines the "values" that VCS "stand[s] for," including the belief "that our
employees deserve fair pay for a fair day of work." Id. Finally, the letter asks the
individual "to make your judgments based on our history of supporting our employees
and investing in our communities, and not what a lawyer writes in a lawsuit." Id.
Based on the postcard and webpage, which VCS contends violate this court's July
31,2013 Opinion and Order, VCS now moves for a protective order that would
"preclude[] Plaintiffs' counsel from communicating with potential collective action
3

members unless using the language that was approved by the Court's Opinion and Order
... and Addendum." (Doc. 29 at 1.) Specifically, VCS contends that the webpage
posted on the website for Plaintiffs' counsel, titled "Vermont County Store Lawsuit," was
not authorized by this court and does not follow the language authorized by the court in
the notice. VCS requests that the court order Plaintiffs' counsel to remove the webpage
"until modified to match the approved language of the [n]otice." Id. at 7. Second, VCS
contends that the postcard Plaintiffs' counsel sent to potential class members is
"inaccurate, misleading, and violates the Court's Opinion and Order ... as well as the
Vermont Rules of Professional Conduct." Id. at 5. VCS requests that the court issue an
order that "precludes Plaintiffs' counsel from communicating with potential collection
action members unless using only the language that was approved by the Court and
providing advance notice to VCS so that the language of any communication can be
reviewed." Id. at 6. Finally, VCS requests the court's permission to send its own
communication to potential class members "inviting them to contact VCS with any
questions on the lawsuit." Id.
Plaintiffs oppose the motion for a protective order, asserting primarily that parties
are generally allowed to communicate with potential class members and that a court may
impose limitations on such communications only when narrowly tailored to prevent
abuse. (Doc. 34 at 1-3.) Plaintiffs further argue that this court's July 31, 2013 Opinion
and Order did not prohibit post-notice communications with potential class members and
that a protective order is "unnecessary" and "unworkable" as it would effectively
"preclude the Plaintiffs' attorneys from any communication different from the Court­
authorized language." Id. at 3-5.

II.

Conclusions of Law and Analysis.
In Gu/fOil Co. v. Bernard, 452 U.S. 89 (1981), the Supreme Court recognized the

"potential problems" that can arise out of communications between parties, counsel, and
potential class members and that this "potential for abuse" provides district courts "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." Id. at 100-01. Noting
4

this discretion is "bounded" and "not unlimited," however, the Supreme Court dictated
that any "order limiting communications between parties and potential class members
should be based on 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." Id. "[S]uch
a weighing-identifying the potential abuses being addressed-should result in a
carefully drawn order that limits speech as little as possible, consistent with the rights of
the parties under the circumstances." Id. at 102; see also Rossini v. Ogilvy & Mather,

Inc., 798 F.2d 590, 602 (2d Cir. 1986) (requiring order "to curb the abuses found by the
court," or at least be "a reasonable effort to respond to real and potential problems"). The
court must look for "less burdensome remedies" so that any restrictions on
communications do not interfere "with the formation of a class or the prosecution of a
class action." GulfOil, 452 U.S. at 104.
While GulfOil involved a class action proceeding under Fed. R. Civ. P. 23, the
Supreme Court in Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989), cited Gulf

Oil and noted that the "same justifications" for "governing the conduct of counsel and the
parties" in order to mitigate "the potential for abuse" apply in a FLSA collective action.

Id. at 171 (internal quotation marks omitted). A court's authority to regulate
communications between counsel and parties stems from the court's "managerial
responsibility" over FLSA collective actions "to oversee the joinder of additional parties
to assure that the task is accomplished in an efficient and proper way." Id. at 169-71
(holding that "district courts have discretion, in appropriate cases, to implement 29
U.S.C. § 216(b) ... by facilitating notice to potential plaintiffs" and by allowing
discovery of the names and addresses of potential class members and explaining that it is
"within the discretion of a district court to begin its involvement early, at the point of the
initial notice, rather than at some later time"). District courts have likewise applied Gulf

Oil to FLSA collective actions. See Fengler v. Crouse Health Sys., Inc., 634 F. Supp. 2d
257,261-62 (N.D.N.Y. 2009) (applying GulfOil and noting that "[o]rders limiting the
communications of the parties and counsel fall within the purview of a district court
managing a class action" under the FLSA); see also Brown v. Mustang Sally's Spirits &
5

Grill, Inc., 2012 WL 4764585, at *2 (W.D.N.Y. Oct. 5,2012) ("Courts have the authority
in both Rule 23 class actions and FLSA collective actions (29 U.S.C. § 216(b)) to enter
appropriate orders governing the conduct of counsel and parties.").
The court's first task under GulfOil is to consider whether any abuse or potential
for abuse warrants limiting communications with potential class members. In this case,
neither party has violated the court's July 31, 2013 Opinion and Order because nothing in
that Opinion and Order expressly prohibited the parties from communicating with
potential class members. GulfOil instructs that parties retain their ability to
communicate with potential class members absent a court-ordered restriction. See Gulf

Oil, 452 U.S. at 101-02; Rossini, 798 F.2d at 601-02.
Even if the parties may send post-notice communications, VCS contends that
those communications must comport with the language approved in the notice. VCS thus
requests the court to order that Plaintiffs may communicate with potential class members
using only the language of the notice. VCS misconstrues the import of court-approved
notice. Because notice bears the name and imprimatur of the court, the court must review
the specific content of the notice and consent form and the representations contained
therein to "ensure" that notice is "timely, accurate, and informative." Hoffmann-La

Roche, 493 U.S. at 172; see also Erhardt v. Prudential Grp., Inc., 629 F.2d 843,846 (2d
Cir. 1980) ("It is the responsibility of the court to direct the best notice practicable to
class members, and to safeguard them from unauthorized, misleading communications
from the parties or their counsel.") (internal citation and quotation marks omitted). VCS
cites no authority for the proposition that thereafter all communications with potential
class members must be managed and monitored by the court. To the contrary, a court
"must not interfere with any party's ability to communicate freely with putative class
members, unless there is a specific reason to believe that such interference is necessary."

Austen v. Catterton Partners V, LP, 831 F. Supp. 2d 559, 567 (D. Conn. 2011). Any
restrictions on communications must be based on a consideration of whether "potential
problems" that arise specifically in class or collective actions require such restrictions.

GulfOil, 452 U.S. at 101-02; see also Brown, 2012 WL 4764585, at *5 (concluding the
6

court was "precluded from any significant restraint on the parties' communications with
potential class members because this record [did] not support a finding of actual abuse"
but finding a "limited order [was] warranted, however, in order to guard against the
likelihood that participation in the class action would be chilled by such abuse").
Here,

ves contends such restrictions are warranted because discrepancies

between the court's approved notice and post-notice communications could be confusing
or misleading to potential class members.

ves is correct that a court managing a FLSA

collection action "has a substantial interest in communications that are mailed for single
actions involving multiple parties," including the prevention of "misleading
communications." Hoffmann-La Roche, 493 U.S. at 171. The court's "duty and
authority ... to protect the integrity of the potential class" extends to '"communications
that mislead or otherwise threaten to create confusion,'" or that influence the decision of
whether to opt-in. Hinds County, Miss. v. Wachovia Bank N.A., 790 F. Supp. 2d 125, 134
(S.D.N.Y. 2011) (quoting In re Currency Conversion Fee Antitrust Litig., 224 F.R.D.
555,569 (S.D.N.Y. 2004»; see also Gordon v. Kaleida Health, 737 F. Supp. 2d 91,99
(W.D.N.Y. 2010) ("To be sure, the court's interest in preventing undue confusion among
putative members of class or FLSA collective actions under its supervision during the
certification and notification phases of the case is a substantial one.").

ves is also correct that the webpage and postcard contain certain language that
may cause confusion if read in isolation; however, read as a whole, the webpage
accurately explains who is authorized to join the action. It also does not improperly
"reference[] several factual issues," as ves contends (Doc. 29 at 2-3), because the
information provided under the heading "How were employees underpaid?" is framed as
claims and contentions and not as facts. (Doc. 29-1 at 1.) This information therefore
does not run afoul of this court's concerns in its July 31, 2013 Opinion and Order that any
notice should not "assume[] that employees have performed work for which they should
have been paid, which is an unresolved factual issue in this case." Forauer, 2013 WL
3967932, at *8. The court finds that the entirety of the webpage is not so misleading or

7

confusing as to require the court to dictate to Plaintiffs' counsel the content of counsel's
webpage or order it removed.
Both parties' post-notice communications, however, raise potential conflicts with
the Supreme Court's directive in Hoffmann-La Roche that a district court managing a
FLSA collective action "must be scrupulous to respect judicial neutrality" and ''to avoid
even the appearance of judicial endorsement of the merits of the action." Hoffmann-La
Roche, 493 U.S. at 174 (cautioning further that "intervention in the notice process for
case management purposes [must be] distinguishable in form and function from the
solicitation of claims"); see also Brown, 2012 WL 4764585, at *2 ("The primary purpose
in supervising communications is to ensure that potential members receive accurate and
impartial information regarding the status, purposes and effects of the class action.")
(internal quotation marks and alteration omitted). It is for this reason that the district
court carefully manages the authorization of notice and its content because any
discrepancies between the court-authorized notice and subsequent communications could
undermine the district court's responsibility to remain neutral in the process. Here, the
webpage states that the "Federal Court has ordered that notice should be sent" (Doc. 29-1
at 1), but it omits the language this court expressly directed the notice to include: "This
notice has been authorized by the United States District Court for the District of
Vermont; however, the United States District Court has made no decision in this case
about the merits of the Plaintiff's claim or yeS's defenses." (Doc. 19-1 at 4.) The
webpage also omits any explanation that the class is only conditionally certified and that
the "continued right to participate in this action will depend upon a later decision by the
court that you and the named Plaintiff are 'similarly situated' in accordance with
applicable laws and that it is appropriate for this case to proceed as a collective action."
(Doc. 19-1 at 2-3.) The language of the webpage may therefore suggest to potential class
members that this court has issued a final determination that the lawsuit will proceed as a
collective action and that this court has essentially endorsed "the merits of the action."
Hoffmann-La Roche, 493 U.S. at 174. This undermines judicial neutrality and may be
misleading or confusing to potential class members. See Ruggles v. WellPoint, Inc., 591
8

F. Supp. 2d 150, 164 (N.D.N.Y. 2008) (explaining that once the court "is fully engaged in
supervising th[e] notice process," the court must seek to minimize any "apparent conflict
between the court-authorized notice and those communications made by counsel to
potential plaintiffs" and that the "[tlailure to limit notification to a single process would
be dissonant with the intent of the FLSA statute that the [c]ourt playa significant role in
prescribing the terms and conditions of communications from the named plaintiffs to the
potential members of the class on whose behalf the collective action was commenced").
The court's concerns are not limited to Plaintiffs' communications with potential
class members. See Austen, 831 F. Supp. 2d at 567 ("[T]he principles set forth in Gulf
Oil and other cases regarding a district court's authority to impose restrictions on

communications with putative class members apply to restrictions on plaintiffs'
communications and defendants' communications alike.") (citing Manual for Complex
Litigation (Fourth) § 21.12 (2004) ("Direct communications with class members, ...
whether by plaintiffs or defendants, can lead to abuse.")). yeS's correspondence with an
employee or former employee may also be misleading or confusing to potential class
members concerning the validity of the collective action. The letter addressed the lawsuit
brought by Ms. Forauer "claiming that she was required to do work without being paid."
(Doc. 34-1 at 1.) The letter implies the collective action is without merit since ves
"believe[s] that [its] employees deserve fair pay for a fair day of work" and since ves
"ask[s] [its employees] to make [their] judgments based on [yeS's] history of supporting
[its] employees and investing in [the] communities, and not what a lawyer writes in a
lawsuit." Id. The implication regarding the merits ofthe action is particularly acute here
given "the risk of explicit or implicit coercion in the employment context." Lujan v.
Cabana Mgmt., Inc., 2011 WL 3235628, at *2 (E.D.N.Y. July 27, 2011); see also
Zamboni v. Pepe West 48th St. LLC, 2013 WL 978935, at *3 (S.D.N.Y. Mar. 12,2013)

(recognizing that "[i]n some circumstances where there is an ongoing and unequal
business or employment relationship between the parties, communications may be
deemed inherently coercive").

9

In sum, the court finds that both parties' post-notice communications demonstrate
the "need" for limited court intervention. See GuljOil, 452 U.S. at 101-02 (requiring a
finding "of the need for a limitation"). The court therefore ORDERS that both parties
must refrain from any statement to potential class members or existing class members
that the court has ruled on the merits of the lawsuit or otherwise endorsed the parties'
positions, including Plaintiffs' claims or yeS's defenses. Any statement regarding the
status of class certification must also accurately reflect the court's July 31,2013 Opinion
and Order and any orders regarding class certification issued thereafter.
The court concludes that this limited intervention has no "potential [to] interfere[]
with the rights of the parties" and will limit "speech as little as possible, consistent with
the rights of the parties under the circumstances." GuljOil, 452 U.S. at 101-02
(explaining that courts should consider whether limitations on communications would
"interfere[] with ... efforts to inform potential class members ... of th[e] lawsuit" and
would make "it more difficult ... to obtain information about the merits of the case from
the persons [plaintiffs] s[eek] to represent"); see also Gordon, 737 F. Supp. 2d at 98
(explaining "the employees' important interests, created by the FLSA, to be appraised of
[p]laintiffs' qualifiedly certified collective action and their right to elect to consent to join
in the action to gain the additional compensation to which [p]laintiffs assert they and
similarly situated employees are entitled"); Hinterberger v. Catholic Health Sys., Inc.,
2010 WL 3395672, at *12 (W.D.N.Y. May 13,2010) (explaining that plaintiffs in a
FLSA action "have a right to seek information from putative class members").
As a final matter, ves has requested the court's permission to send its own
communications to potential class members inviting them to contact ves with any
questions about the lawsuit. Nothing in this court's July 31, 2013 Opinion and Order
prohibits ves from contacting potential class members, and indeed ves has already sent
at least one letter. Accordingly, ves need not seek the court's permission to send post­
notice communications, provided future communications do not violate counsel's ethical

10

duties and responsibilities and are not coercive in nature.! Because Plaintiffs have not
sought a protective order to limit yes's communications, the court will not order any
such limitation sua sponte.
CONCLUSION

For the reasons stated above, the court GRANTS IN PART and DENIES IN
PART ves's Motion for a Protective Order. Nothing in this Opinion and Order
precludes the parties and counsel from communicating, orally or in writing, with potential
class members, apart from the limited order contained herein and provided counsel
complies with their ethical duties and responsibilities.
The court ORDERS that both parties must refrain from any statement to potential
class members or existing class members that the court has ruled on the merits of the
lawsuit or otherwise endorsed the parties' positions, including Plaintiffs' claims or yeS's
defenses and that any statement regarding the status of class certification must accurately
reflect the court's July 31, 2013 Opinion and Order and any orders regarding class
certification issued thereafter.
The court DENIES yes's motion for a protective order that would preclude
Plaintiffs' counsel from communicating with potential class members unless using the
I Numerous courts in the Second Circuit have recognized that the "workplace relationship with
current employees, and [the employer's] knowledge of sensitive information about current and
former employees, put[s] [the employer] in a position to exercise strong coercion in connection
with potential class members' decisions regarding participation in this litigation." Urtubia v.
B.A. Victory Corp., 857 F. Supp. 2d 476,485 (S.D.N.Y. 2012); see also Zamboni, 2013 WL
978935, at *3; Brown, 2012 WL 4764585, at *3; Lujan, 2011 WL 3235628, at *2; Wu v. Pearson
Educ., Inc., 2011 WL 2314778, at *6 (S.D.N.Y. June 7, 2011); Gortat v. Capala Bros., Inc.,
2009 WL 3347091, at *11 (E.D.N.Y. Oct. 16,2009). Because "courts have a responsibility to
restrict communications that are potentially coercive or misleading," Zamboni, 2013 WL
978935, at *3, district courts often impose extensive restrictions on an employer's
communications with employees. See Brown, 2012 WL 4764585, at *3 (prohibiting employer
from speaking with potential class members regarding the litigation); Urtubia, 857 F. Supp. 2d at
485 (prohibiting employer from communicating with any potential class member regarding the
lawsuit and its subject matter other than through the class member's counsel, if any, absent prior
permission from the court); Lujan, 2011 WL 3235628, at *2-3 (declining to order "a blanket ban
on communications with employees" but ordering defendants' counsel to "advise defendants that
they and their supervisory employees may not, apart from posting or emailing approved notices,
direct or encourage any employee to contact defendant's counsel") (footnote omitted).

11

language approved by the court's prior Opinion and Order; DENIES VCS's motion for a
protective order that would require Plaintiffs' counsel to remove the webpage on the
lawsuit until modified to correspond with the notice; and DENIES VCS's motion for a
protective order that would require Plaintiffs to provide advance notice to VCS of any
written communications so that VCS can preview the communications.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

l~1hday of November, 2013.

lsI Christina Reiss
Christina Reiss, Chief Judge
United States District Court

12