DOREEN FORAUER, NANCY J. BART, MICHAEL MULLADY, CANDY MANNING, JOLENE KALANQUIN, GWENDOLYN C. TAFT, COURTNEY TOWLE, CANDICE MAYETTE, 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.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PROTECTIVE ORDER (Doc. 29)
CHRISTINA REISS, Chief District Judge.
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 of 29 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' foim. 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 of th[e] website ha[d] not been provided to the 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 at firstname.lastname@example.org. 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 turn, 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 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 ...