Opinion
Civil Action No. 3:01-CV-1179-P
February 12, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Class Plaintiffs Motion for Court Supervision of Defendant's Contacts with Class Members Pursuant to Rule 23(d), with brief in support and appendix, filed July 10, 2001; and
2. Defendant American Airlines, Inc.'s Response and Brief to Plaintiffs Motion for Court Supervision of Defendant's Contacts with Class Members Pursuant to Rule 23(d), filed August 30, 2001.
After a thorough review of the evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Plaintiffs Motion for Court Supervision of Defendant's Contacts with Class Members should be DENIED.
BACKGROUND
This case arises out of an alleged class action brought by plaintiff Darren M. Lee, on behalf of himself and all other similarly situated ticketed passengers on American Airlines Flight 100, claiming damages as a result of delay and inconvenience caused when this flight did not depart New York's JFK International Airport ("JFK") for London's Heathrow International Airport ("Heathrow") at its scheduled departure time of 6:35 p.m. on Friday, May 18, 2001. See Pls.' Class Action Compl. at 1-15. Plaintiff has moved this Court for an Order providing that defendant American Airlines, Inc. ("American") not be allowed to communicate with or otherwise contact potential class members without first: (1) providing prior notice to class counsel; (2) at the outset of any communication with a class member, fully disclosing to such the existence of the instant litigation; (3) providing class counsel with the name and all contact information for any class member with whom Defendant has contact (whether or not such contact is or was initiated by Defendant); (4) being ordered not to issue coupons or other forms or remunerations to class members which purport to release such class member's claims or otherwise solicit releases by any class members of their claims; and (5) providing all class members contacted by Defendant with contact information for class counsel. See Class Pl.'s Mem. Supp. Mot. for Ct. Supervision ("Pl.'s Br.") at 1-2.
Currently pending before the Court is Plaintiffs Motion for Class Certification, filed January 15, 2002. The Court will not address that Motion at this time.
By Order dated August 1, 2001, the Court had previously held that an interim order restraining pre-certification communications between Defendant and potential Class members pending a ruling on Plaintiffs Motion now before the Court was not warranted at the time. See Order dated 8/1/2001.
Meanwhile, American's position is that Plaintiff has failed to present any evidence to support his motion, and even if he could, his proposed order is both overbroad and unworkable under the circumstances. See Def.'s Resp. at 3-8. Each of these arguments will be addressed below.
DISCUSSION
I. The Court's Power to Supervise Communications Under Rule 23
Class actions serve an important function in our system of civil justice. Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981). They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Id. at 100. Because of the potential for abuse, a district court has both 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.
This discretion, however, is limited, and indeed is bounded by the relevant provisions of the Federal Rules. Id. Under Rule 23 of the Federal Rules of Civil Procedure, pertaining to Class Actions, "the court may make appropriate orders . . . (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters." FED. R. Civ. P. 23(d). Nevertheless, an 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. Gulf Oil, 452 U.S. at 101. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. Id. at 102.
In support of Plaintiffs argument that Defendant should be enjoined from ex parte communications with potential class members, Plaintiffs counsel has testified as follows:
Our clients, in addition to engaging us to represent them in connection with this case, have been in contact with defendant American Airlines, Inc. with respect to the subject matter of this case. Upon information and belief, other absent class members may be contacting defendant . . . with respect to the subject matter of this case. Defendant . . . has previously offered non-monetary compensation in the form travel vouchers to passengers with complaints about airline service. Such vouchers have purported to release claims held by the passenger for further compensation.See App. Pl.'s Mot. at 3 (Spector Aff. at ¶¶ 2-3). In addition, since the filing of Plaintiffs Motion, the parties have submitted a stipulation stating that "some putative class members have received American Airlines' flight/transportation vouchers, American Airlines' flight miles, and ground transportation compensation from American Airlines for the events of May 18-19, 2001." See Stipulation dated 1/25/02.
As previously held by the Court's Order of August 1, 2002 (denying an interim order restraining pre-certification communications), such an order, barring potential class members' contact with Defendant without first complying with Plaintiff's suggested limitations, is not justified by the clear record before it. The Court finds that Plaintiff has failed to allege or prove that Defendant has engaged in any abusive or unethical communications with the potential class members. See Order dated 8/1/01 at 4. Similarly, information and belief that other absent potential class members may be contacting American with respect to the subject matter in the case constitute an inadequate basis for imposing such sweeping pre-certification communication restrictions here. See Id.; see also Gates v. Cook, 234 F.3d 221, 227 (5th Cir. 2000) (overruling order prohibiting contact with class members regarding anything within the subject matter of the class action-i.e., prison conditions, treatment, and healthcare of HIV inmates-as not narrowly drawn nor justified by any factual findings other than very minimal contacts). Moreover, the Court finds that Lee has failed to allege or prove any instances of targeted letters or announcements designed to threaten or intimidate potential class members if they were to join the litigation. See Hampton Hardware, Inc. v. Cotter Co., Inc., 156 F.R.D. 630, 631-635 (N.D. Tex. 1994) (Boyle, Mag. J.) (prohibiting defendant and defendant's counsel from contacting potential class members following issuance of three letters specifically advising not to participate in the lawsuit); see also Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239, 241-245 (E.D. Tex. 1997) (Schell, C.J.) (denying plaintiffs motion for limitation on defendant's ex parte communications with class members after finding communication through e-mail, announcements and meetings were not misleading, coercive, or improper attempts to undermine Rule 23). Therefore, the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules. Gulf Oil, 452 U.S. at 104. As such, the Court shall DENY Plaintiffs Motion for court supervision of Defendant's contacts with potential class members in this case.
CONCLUSION
Accordingly, upon careful review of the parties' arguments and the relevant law, for the reasons stated previously, the Court concludes that Plaintiffs Motion for Court Supervision of Defendant's Contacts with Class Members should be DENIED.
IT IS SO ORDERED.