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Howard v. Securitas Security Services

May 18, 2009

CRYSTAL HOWARD, PAUL GALLOWAY, ROBERT NEWSON, ALVAN YOUNG, AND JOHN HUEBNER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
SECURITAS SECURITY SERVICES, USA INC., DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Before the court is the defendant's Emergency Motion for a Protective Order and the plaintiffs' Motion for a Protective Order. For the reasons stated below, the defendant's motion is granted in part and denied in part and the plaintiffs' motion is granted.

I. PROCEDURAL POSTURE

The plaintiffs have filed a collective action lawsuit, pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"). Specifically, the plaintiffs allege that the defendant, Securitas Security Services USA, Inc. ("Securitas"), required them to complete extensive training without compensation, to work before and after their shifts without overtime payment, and to maintain their uniforms without compensation for the time spent. Am. Comp. ¶¶ 14-18 (doc. no. 90). On January 20, 2009, the court conditionally certified the class. (Doc. no. 104.) On February 6, 2009, the court approved the notice to the class and the opt-in consent form. (Doc. no. 106.) The opt-in period concluded on April 27, 2009.*fn1 On May 7, 2009, the plaintiffs filed an Appendix of Opt-in Plaintiffs, which provided an alphabetical listing of 1,216 opt-in plaintiffs (additional opt-ins were filed on May 9, 2009 and May 15, 2009, bringing the total number to 1,218). (Doc. nos. 227-2, 228-2, 232-2.)

II. ANALYSIS

A. Securitas's Emergency Motion for a Protective Order

Securitas objects to the content of websites maintained by counsel for the plaintiffs, which it claims is misleading. It seeks an order:

(1) requiring Plaintiffs' attorneys to immediately remove from the public domain any references that they or their agents have posted regarding this litigation, including, but not limited to, the website located at: http://www.securitasovertime.com and references to this litigation located at http://www.millerlawllc.com, http://www.stephanzouras.com, and http://www.tomryanlaw.com; (2) invalidating the consents filed by all opt-in Plaintiffs; (3) decertifying the conditional collective action; (3) [sic] preventing Plaintiffs" attorneys affiliated with Stephan Zouras, LLP, Miller Law, LLC, and Ryan Law, LLC from representing any current or putative Plaintiff against [Securitas] in relation to the claims asserted in this litigation; (4) [sic] requiring Plaintiffs' attorneys to reimburse [Securitas] for its reasonable fees and costs incurred in defending this action, to date; and (5) [sic] for such other and further relief as the Court deems proper.

Def.'s Emergency Mot. for Protective Order at 1. The court held an initial hearing on the motion on April 9, 2009 and took the matter under advisement pending full briefing.

It is beyond dispute that, in a FLSA action, the court has "a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). One of the primary ways the court ensures that notice is "timely, accurate, and informative" is by monitoring preparation and distribution of the notice as early in the case as is practicable. Id. at 171. Court-approved notice ensures that putative class members receive "accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Id. at 170. Further, it limits any "opportunities for abuse[,]" including misleading communications, in the class action process. Id. at 171.

In support of its argument that that the plaintiffs' counsel's websites constitute an inappropriate attempt to communicate with putative class members outside of the court-approved notice, Securitas relies primarily on Jones v. Casey General Stores, 517 F. Supp. 2d 1080 (S.D. Iowa 2007), where two of plaintiffs' counsel in this case represented the plaintiff, Jones. In relevant part, Jones addresses a website, published by plaintiffs' counsel, that contained details of the FLSA lawsuit against the defendant. Id. at 1087. The court reviewed the website and concluded that the presentation of the "goals" of the litigation and "updates" on the case inappropriately implied that liability had already been settled. Id. at 1088. It further concluded that the absence of information regarding a putative class member's ability to retain other counsel or choose not to opt-in was misleading. Id. The court reasoned that, pursuant to Hoffmann-La Roche Inc., where the "case ha[d] not yet been conditionally certified[,]" any attempt at "one-sided, misleading communications with putative opt-in collective members" risked tainting the entire putative class. Id. at 1088-89. Thus, it ordered plaintiffs' counsel to "substantially" modify the website and provided suggestions for wording to ensure that the presentation of the case was "factual, accurate, and balanced." Id. at 1089.

Securitas argues that plaintiffs' counsel in this case is using the same language as was faulted in Jones. It contends that this conduct is made even more egregious where the plaintiffs' counsel was on notice, through Jones, that the language it was using on the websites was inappropriate and misleading. Although Securitas repeatedly raises the fact that the same lawyers were involved in the Jones case as here, as the court noted at the hearing, it will not impute wrongdoing from one case to another, nor is it bound by the decision of another district court. Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987). Thus, only the facts of this case are relevant.

In this case, unlike in Jones, the plaintiffs moved to conditionally certify the class about a month after filing suit. The court conditionally certified the class, after considering exhaustive briefing, in January 2009 and approved the notice a few weeks later. The notice, which was agreed by both sides, disclosed the website addresses of plaintiffs' counsel. It was mailed to over 10,000 Illinois employees of Securitas on or around February 11, 2009. It is likely that, even if some addresses were no longer valid, many of the eligible putative class members received the fair and balanced notice approved by the court in the mail shortly thereafter. Almost two months later, Securitas filed this emergency motion, alleging taint of the entire class as a result of misrepresentations and inappropriate solicitation of putative class members.

Unfortunately, research has uncovered no authority that addresses the precise scenario at issue here, namely communications that are alleged to be misleading and in conflict with the court-approved notice. The cases cited by both sides involve pre-certification disputes over contact with putative class members via websites. See, e.g., Self v. TPUSA, Inc., No. 2:08cv395, 2008 WL 4372928, at *1 (D. Utah Sept. 19, 2008) (discussing a website published by plaintiffs' counsel where "Plaintiffs have yet to move the court to certify a class"); Frye v. Baptist Mem'l Hosp., Inc., No. 07-2708 Ma/P, 2008 WL 2117264, at *1 (W.D. Tenn. May 20, 2008) (noting that the plaintiffs "filed their motion for conditional certification and notice to putative ...


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