By Gerald L. Maatman, Jr., and Alexis P. Robertson

On October 17, 2014, in Burrow v. Sybaris Clubs International, Case No. 13 C 2342 (N.D. Ill. 2014), Judge Harry Leinenweber of the U.S. District Court for the Northern District of Illinois denied Plaintiff’s Motion for Interim Class Certification, or alternatively, for a Protective Order on the basis that Defendants had improperly communicated with putative class members in association with a declarations campaign. The Court held that Defendant’s communications were not improper and therefore did not merit the entry of a protective order or interim class certification.

The case is a good guidepost for corporate counsel on the limits and opportunities to engage in class communications in the early, pre-certification stage of workplace class action litigation.

Case Background

Plaintiff sued Sybaris Clubs International (“Sybaris”) for allegedly recording and electronically archiving every phone call made to or from the reservations desks, at all locations, over a two-year period. Plaintiff claimed that some of his calls were recorded without his consent.  He filed a putative class action complaint on behalf of himself and other Sybaris employees and customers whose calls were allegedly recorded without consent.

During discovery, Sybaris’ attorneys contacted and interviewed several Sybaris employees. Before initiating any conversations, the Sybaris attorneys gave the Sybaris employees a “Consent to Interview” letter, which the employees signed if they decided to speak with the attorneys. Plaintiff’s motion was based on the letter’s contents. Amongst other things, the letter summarized the Plaintiff’s claims, stated the rationale behind the Sybaris attorneys reaching out to employees (“Attorney for Sybaris would like to interview you to obtain information relevant to Sybaris’ defense…Sybaris attorneys expect to use this information to show that Sybaris employees knew that the reservation lines were being recorded for quality assurance…”). Additionally, the letter stated that the employees were not required to speak with the Sybaris attorneys.

Based on this letter, Plaintiff filed a motion requesting that the Court either grant “interim class certification” or issue a protective order because, according to Plaintiff, the letter was misleading and coercive.

The Court’s Decision

In reaching its decision, the Court noted that there is no “statutory rule or case law that requires defense counsel to give specific information and instructions to putative class members.” Id. at 8 (internal quotations and citations omitted). Further, the Court determined that the communications at issue were proper and consistent with case law authority that had addressed similar types of communications with putative class members. Defendant’s counsel informed Sybaris employees that the attorneys represented Sybaris and not the employee. They also told each employee that he or she could decline the interview without any possibility of retaliation. Further, the Court found that it was of no concern that the letter did not provide a perfectly neutral explanation of the case, Plaintiff’s counsel’s contact information, or the case-identifying information, because this type of information is not legally required.

Plaintiff attempted to argue that the portion of the letter which stated that Sybaris’ attorneys “expect to use this information to show that Sybaris’ employees knew that the reservation lines were being recorded,” constituted coercion because the phrase essentially told employees what they were expected to say. Id. at 9. The Court rejected this argument, reasoning that although it could be viewed in that light, the phrase could also be construed as the  Sybaris’ attorneys fully disclosing the purpose of their interview – they “expect” to use the information to defend the case. Id.

Finally, unlike prior cases where court intervention was appropriate, the Court concluded that defense counsel had not communicated with the putative class members in a coercive, misleading, or abusive manner. For example, defendant had not threatened the employees’ pay or fabricated information. Ultimately, the Court reasoned that the communications between the putative class members and Defendant’s attorneys were not abusive, coercive, or misleading and did not threaten the proper functioning of the putative class action litigation.

Implications For Employers

Burrows is one of the rare cases that addresses communications with an uncertified class action. The case is beneficial to employers facing putative class actions, as it confirms that there is no stringent standard in terms of what defense counsel must include in the Notice of Rights to employees. There is no bright-line rule and there are no “buzz words” in terms of what must be included. Based on Burrows, as long as the notice contains general information as to case background, purpose, makes clear that participation is voluntary, and refrains from including coercive, misleading, or fraudulent statements, that notice – and subsequent communications with putative class members – will likely be in-line with the body of law on this issue.