A recent decision from the Southern District of Florida denied a motion seeking to limit plaintiffs’ ability to contact putative class members to solicit support and evidence in support of a class certification motion. In A.R. ex rel. Root v. Dudek, No. 12-cv-60460, 2013 WL 5278668 (S.D. Fla. Sept 19, 2013), plaintiffs alleged that certain state officials and a private health care company denied the plaintiffs—medically fragile children—certain Medicaid services by adopting a policy and practice of reducing private duty nursing services. To support their motion for class certification, plaintiffs sent e-mails and other communications to putative class members encouraging them to participate, and circulated pre-written forms of sworn declarations for the families, parents, and caregivers of children receiving Medicaid benefits to execute.
Defendants filed a cease and desist motion asking the court to enjoin current communication between plaintiffs and putative class members, and require plaintiffs and their counsel to obtain approval from the court before sending out any further communications to putative class members. Defendants argued these communications unreasonably interfered with their existing relationships with putative class members and damaged their reputations. They also argued that the pre-written declarations were intended to “shape and form the beliefs of the putative class members and to unfairly influence the content of the requested sworn statements.” Id. at *5.
The court denied the motion, holding that the defendants did not meet their burden under Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) and its progeny. Though plaintiffs had engaged in communications with and solicited putative class members, the court found that the actions did not rise to the level of threatening “the proper functioning of the litigation,” because the communications emphasized the requirement to be honest, accurate, and truthful in any allegations against defendants. Though the proposed declarations contained standard language regarding defendants’ alleged actions underlying the class action suit, the court held communications were not misleading, coercive, or “clearly injurious” to defendants because the correspondence made clear that the proposed phrases should be omitted if they are not applicable to a certain situation. Important to the court’s decision was that the communications were not widespread or nationwide mass communications, but emails and draft declarations sent to a select group of individuals who already have contact with defendants on a regular basis.
In not only permitting plaintiffs and their counsel to engage in significant contact with and solicitation of potential class members, but also permitting proposed draft declarations to be sent to putative class members, the Dudek decision appears to be a significant victory for plaintiffs attempting to garner participation in or support for a putative class action. Though the Dudek Court emphasized that all communications should emphasize the requirements of truthfulness and accuracy and should be limited and not mass in nature, the case lends support for solicitation of putative class members regardless of a defendant’s pre-existing relationship with such persons or the possibility that such communications may negatively impact the defendant’s reputation.