Although plaintiffs’ counsel is naturally expected to communicate with putative class members, sometimes such communication is improper.  In A.R. ex rel. Root v. Dudek, 2013 WL 5278668 (S.D. Fla. Sept. 19, 2013), the United States District Court for the Southern District of Florida determined that Plaintiffs’ counsel’s and other representatives’ e-mails to putative class members  were not the type of  improper, disparaging, coercive, or misleading communications that should be prohibited by the court.

This class action against the Secretary for the Agency for Health Care Administration and a number of other defendants, was filed on behalf of children who had been diagnosed as “medically fragile” and, as a result, were denied certain benefits and services under Florida’s Medicaid program.  The complaint alleged that the defendants were “denying Plaintiffs Medicaid services, including private-duty nursing services, due to the adoption of uniform policies, practices, and regulations to reduce private duty nursing services.”  Id. at *1.  Prior to class certification proceedings and in what Defendants’ described as “a last-minute effort to solicit support for their class-action claims,” Plaintiffs sent two e-mails to a number of parents of medically fragile children.  Id. at *2. Both of the e-mails contained a form “declaration” supporting the plaintiffs’ allegations which the parents were encouraged to fill out and execute.  The parents were also encouraged to describe the specific ways in which their children were denied certain benefits by the defendants.  Id. at *4.   After discovering the emails, the defendants filed a Motion for Cease and Desist Order Regarding Plaintiffs’ Improper and Misleading Communications with Putative Class Members.  In their Motion, the defendants asserted that the e-mails violated the rules of communications with putative class members by causing irreparable harm to the defendants’ reputations, and unreasonably interfering with the defendants’ relationships with its beneficiaries.   Defendants further asserted 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.

Although the court recognized that it had the authority to restrict communications between Plaintiffs (or defendants) and putative class members when those communications are “abusive in that they threaten the proper functioning of the litigation,” it held that these communications did not rise to such a level.   Indeed, the Court acknowledged that the declaration suggested certain specific language, but declined to find that the communications were misleading or coercive.  In permitting the communications, the Court found comfort in the fact that that the e-mails instructed putative class members to “feel free to take anything out [of the declaration] you don’t want,” “feel free to modify [the declaration] however you want,” and “just tell the truth.”  Id. at *9.   This begs the question: so long as the exonerating “just tell the truth” type of language is included, can any communication to putative class members be found to be improper?

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