Jackson v. Bloomberg, L.P.

SHAVEZ JACKSON, individually and on behalfof others similarly situated, Plaintiffs, v. BLOOMBERG, L.P., Defendant.

13-CV-2001 (JPO)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 22, 2015

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Plaintiff Shavez Jackson, individually and on behalf of all others similarly situated, brings this action against Bloomberg L.P. ("Bloomberg") for allegedly failing to compensate Global Customer Support ("GCUS") representatives for overtime work, in violation of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). A collective action under the FLSA and a class action with respect to the NYLL claims have been certified. Now before the Court are Plaintiffs' objections to an order of the Honorable Gabriel W. Gorenstein, U.S. Magistrate Judge, concerning Bloomberg's request to contact certain members of the class. For the reasons that follow, Plaintiffs' objections are sustained.

I. Background¹

On March 19, 2014, the Court certified an FLSA collective action and an NYLL class action in this matter. (Dkt. No. 31.) In early 2015, Bloomberg sought an order from Judge Gorenstein—to whom this case had been referred for general pretrial supervision—that would permit Bloomberg to contact 10 members of the certified class outside the presence of Plaintiffs'counsel. (See Dkt. No. 88 ("Contact Order") at 1 & n.1.) After the parties filed letters concerning Bloomberg's contact request (see Dkt. Nos. 69, 76, 80, 83, 85, 86), Judge Gorenstein issued an order on February 25, 2015, permitting contact under certain conditions with seven of the class member employees with whom Bloomberg sought to communicate (Contact Order). Judge Gorenstein stayed the effective date of the order to permit Plaintiffs to object. (Dkt. No. 89.) Plaintiffs objected to the Contact Order on March 5, 2015. (Dkt. No. 91.) Bloomberg responded on March 12 (Dkt. No. 93), and Plaintiffs have replied (Dkt. Nos. 97-98). Discovery deadlines in the case have been extended until 45 days after this Court's ruling on the objections to the Contact Order. (Dkt. No. 92.)

II. Standard of Review

A district court will not set aside a magistrate judge's decision on a nondispositive matter unless it "is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see Passlogix, Inc. v. 2FA Tech., LLC, No. 08 Civ. 10986 (PKL), 2010 WL 1789929, at *4 (S.D.N.Y. May 4, 2010). "A magistrate judge's decision is 'clearly erroneous' only if the district court is 'left with the definite and firm conviction that a mistake has been committed.'" Galland v. Johnston, No. 14 Civ. 4411 (RJS), 2015 WL 1290775, at *4 (S.D.N.Y. Mar. 19, 2015) (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)). A decision is "'contrary to law' if it 'fails to apply . . . or misapplies relevant statutes, case law, or rules of procedure.'" Dilworth v. Goldberg, No. 10 Civ. 2224 (JMF), 2014 WL 3798631, at *13 (S.D.N.Y. Aug. 1, 2014) (quoting MASTR Adjustable Rate Mortgs. Trust v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB), 2013 WL 6840282, at *1 (S.D.N.Y. Dec. 27, 2013)).

III. Discussion

A. Rule 4.2

"Although disciplinary rules and rules of professional responsibility are not statutorily mandated, federal courts enforce professional responsibility standards pursuant to their general supervisory authority over members of the bar." SEC v. Lines, 669 F. Supp. 2d 460, 463 (S.D.N.Y. 2009) (quoting United States v. Hammad, 858 F.2d 834, 837 (2d Cir. 1988)) (internal quotation marks omitted). Generally, "[t]he New York Rules of Professional Conduct provide that a lawyer representing a client may not have ex parte communications with an opposing party who the lawyer knows is represented by counsel, unless the lawyer has the consent of that party's counsel." Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398, 415 (S.D.N.Y. 2011) (citing N.Y. Rules Prof'l Conduct 4.2). As relevant here, Rule 4.2 of the New York Rules of Professional Conduct (sometimes called the "no-contact rule") provides:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

N.Y. Rules Prof'l Conduct 4.2(a), codified at N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.0 (2015). "Barring lawyers from communicating directly with an opposing party represented by counsel preserves the integrity of the attorney-client relationship, including by preventing counsel from driving a wedge between the opposing attorney and that attorney's client." Scott v. Chipotle Mexican Grill, Inc., No. 12 Civ. 8333 (ALC) (SN), 2014 WL 4852063, at *2 (S.D.N.Y. Sept. 29, 2014) (internal quotation marks omitted). The Rule "does not prohibit communication with a represented party . . . concerning matters outside the representation." N.Y. Rules Prof'l Conduct 4.2 cmt. 4. The question whether conduct implicating Rule 4.2 is permissible"require[s] a case-by-case determination." Grievance Comm. v. Simels, 48 F.3d 640, 649 (2d Cir. 1995).

Rule 4.2 applies to members of a class after class certification. See Gortat v. Capala Bros., No. 07 Civ. 3629 (ILG) (SMG), 2010 WL 1879922, at *2 (E.D.N.Y. May 10, 2010) ("Upon class certification, the rules governing communications with class members are heightened because they 'apply as though each class member is a client of the class counsel.'" (quoting Manual for Complex Litigation § 21.33 (4th ed. 2004)), objections overruled, 2010 WL 3417847 (E.D.N.Y. Aug. 27, 2010)); see also Van Gemert v. Boeing Co., 590 F.2d 433, 440 n.15 (2d Cir. 1978) (en banc) ("A certification under Rule 23(c) makes the Class the attorney's client for all practical purposes."), aff'd, 444 U.S. 472 (1980).² Putative class members—because they are not considered clients of class counsel—do not enjoy the same degree of protection, so decisions concerning precertification contact are of limited value in this context. See Garrett v. Metro. Life Ins. Co., No. 95 Civ. 2406 (PKL), 1996 WL 325725, at *6 (S.D.N.Y. June 12, 1996) (stating that "before class certification, the putative class members are not 'represented' by the class counsel for purposes" of the predecessor to Rule 4.2), report & rec. adopted, 1996 WL 563342 (S.D.N.Y. Oct. 3, 1996); see also, e.g., Bobryk v. Durand Glass Mfg. Co., No. 12 Civ.5360 (NLH/JS), 2013 WL 5574504, at *9 (D.N.J. Oct. 9, 2013) (holding that "until a Rule 23 class is certified and the opt-out period expires, defense counsel is not completely barred from communicating with putative class members" under New Jersey's version of Rule 4.2).

B. Application

Bloomberg seeks to speak with 10 individuals "who were direct supervisors of GCUS representatives during the class period in a job title called 'team leader,'" who "are also class members themselves based on their earlier jobs as GCUS representatives." (Contact Order at 1.) Some of these individuals also held other positions that "involved either indirect management or other interaction with GCUS representatives." (Id.)

At the outset, the Court concludes that the contact sought by Bloomberg will concern the "subject of the representation." The only reason that Bloomberg wishes to speak with the class member employees at issue here is that they possess information germane to this lawsuit. Bloomberg apparently plans to elicit that information by asking these class members about their experience of supervising GCUS representatives. This line of questioning (as restricted by the Contact Order) might not directly require the employees to talk about their own experiences during the time period for which they are class members.³ (See Contact Order at 2-3.) However, these questions would nonetheless concern the subject of the employees' representation because the central issues in this suit focus on the employment and supervision of GCUS representatives. See Campbell v. PricewaterhouseCoopers, LLP, No. CIV. S-06-2376 (LKK/GGH), 2012 WL 1355742, at *2 (E.D. Cal. Apr. 18, 2012) (rejecting a similar argument). That Bloomberg's proposed questioning of these class members would be focused on their experience assupervisors of GCUS representatives does not make that questioning any less about the "subject of the representation"; Bloomberg's contrary reading is too narrow to be a fair reading of the phrase. Accordingly, Rule 4.2 applies here.

It is undisputed that Bloomberg does not have the "prior consent" of Plaintiffs' counsel to contact class members in this case. (Dkt. No. 91 ("Pl. Obj.") at 7 n.4.) Accordingly, the only remaining question is whether the contact is "authorized by law." See ROY D. SIMON, SIMON'S NEW YORK RULES OF PROFESSIONAL CONDUCT ANNOTATED 1206 (2015 ed.) (stating that the "two express exceptions to the no-contact rule" are "the only two exceptions").

Some uncertainty surrounds the issue of what kinds of contacts are "authorized by law." A 1995 ABA ethics opinion interpreting Model Rule 4.2—to which the Court looks for guidance in interpreting the New York rule—explored this question and stated that the condition could be

satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel—such as court rules providing for service of process on a party, or a statute authorizing a government agency to inspect certain regulated premises. Further, in appropriate circumstances, a court order could provide the necessary authorization.

ABA Formal Op. 95-396 (1995) (footnotes omitted). A commentator on New York Rule 4.2 similarly enumerates the types of communications considered to be authorized by law:

(a) undercover investigations conducted or sponsored by prosecutors (within constitutional limits); (b) service of a summons and complaint,

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