The Northern District of Illinois refused to restrict a defense counsel’s communications with putative class members, reasoning that the communications were not misleading or coercive.  The case arose when a “romantic getaway” motel reservations desk employee claimed that all phone calls made to or from the motel’s reservations desks were intercepted, recorded, and archived without consent of either party to the calls, and that some employees listened to the calls for their amusement.

The Plaintiff sought interim class certification or, alternatively, a protective order, upon learning that the motel’s attorneys had contacted and interviewed several motel employees after first sending them a “Consent to Interview” letter that stated:

Sybaris Clubs International, Inc. (“Sybaris”), has been sued by a former employee, Robert Burrow. Mr. Burrow alleges that the recording of telephone calls by Sybaris after the installation of the new ShoreTel phone system was improper.  Mr. Burrow claims that he was not aware that the reservation lines were being recorded.  Mr. Burrow also claims that some employees listened to recordings of phone calls for their own amusement, and that his personal phone calls were recorded. 

Mr. Burrow claims that he should be able to recover damages on behalf of all employees and customers whose calls were recorded, as their representative. No court has determined that Mr. Burrow has the right to bring claims and collect money on behalf of other employees like you (or on behalf of customers).  If a court agrees with Mr. Burrow, he may be allowed represent a class of people, including you, in his action against Sybaris.

At this stage of the lawsuit, the attorneys for both sides are investigating the claims and gathering information. Attorneys for Sybaris would like to interview you to obtain information relevant to Sybaris' defense in the case. Sybaris’ attorneys expect to use this information to show that Sybaris’ employees knew that the reservation lines were being recorded for quality assurance purposes and could be used for “phone grades”, and therefore the employees consented to the recordings. If a court agrees with Sybaris, Mr. Burrow will only be able to bring claims on his own behalf.

You are not required to speak with Sybaris’ attorneys. They are not employees of Sybaris, and will not report anything you reveal in the interview to Sybaris unless you consent to the disclosure of the information or a court orders its production. Sybaris will not retaliate against you for anything say in an interview or for refusing to be interviewed.

Please be advised that your personal interests may not be the same as Sybaris’ interests and information you give may limit your ability to participate in this or another lawsuit against your employer, Sybaris. If you are represented by an attorney in connection with any claims against Sybaris, please decline to be interviewed at this time.

I, ___________, have read the above Consent to Interview and understand it. I understand that I am not being represented by Sybaris’ counsel, that I have the right to be represented by an attorney of my own, and that I am under no obligation to participate in an interview. I further understand that my interests could be adverse to the interests of Sybaris. I hereby consent to be interviewed by Sybaris’ counsel.

The Plaintiff argued that the Consent to Interview letter was misleading and coercive, in part, because it stated that the attorneys “expect to use this information to show that Sybaris’ employees knew that the reservations lines were being recorded,” which he argued told the employees what Sybaris “expect[ed]” them to say if they agreed to be interviewed.  He also argued that the coercive nature of an employer-employee relationship made the letter coercive. 

The Northern District of Illinois disagreed, reasoning that the disputed language “could just be Sybaris’ attorneys fully disclosing the purpose of their interview – that they plan on or ‘expect’ to use the information in order to defend Sybaris” – which other courts interpreting similar communications had explicitly relied on in finding that communications were not coercive or abusive.  And the Court noted that the letter informed employees who the attorneys represented and advised them that they could decline the interview without retaliation.  As a result, the Court concluded that the Plaintiff had failed to demonstrate that the letter was misleading or coercive to the point that it threatened the proper function of the litigation. 

Burrow v. Sybaris Clubs Int’l., Inc., No. 13 C 2342 (N.D. Ill. October 17, 2014)