Brown v. Mustang Sally’s Spirits and Grill, Inc., No. 12-CV-529S (W.D.N.Y. Oct. 5, 2012, Skretny, J.): The named plaintiff, who brought class-wide violations of federal and state wage and hour laws, alleged that her ex-husband was contacted by an individual defendant in an attempt to dissuade and discourage her participation in the lawsuit. In response, the plaintiffs moved for a temporary restraining order and preliminary injunction preventing the defendants from “making any further threats or other communications that risk chilling putative class members’ participation in this action,” as well as for expedited discovery. In response, the court determined that the defendants did not threaten potential class members; however, it still held that limited intervention was warranted. In making its decision, the court analyzed the propriety of communicating with class members prior to certification, the nature of the employer-employee relationship, the potential for coercion, the defendants’ inclusion of counterclaims in their answer, and the defendants’ assertion that communication was necessary because putative plaintiffs may face tax implications as a result of joining the lawsuit. Ultimately, the court held that the defendants were not permitted to communicate with potential class members regarding the litigation, any counterclaims asserted, or any potential tax consequences of the lawsuit; but, the defendants were not enjoined from speaking with potential plaintiffs about other issues. The court also held that defense counsel was permitted to communicate with potential class members regarding the litigation as long as counsel identified him or herself and gave plaintiffs’ counsel prior notice, thereby providing plaintiffs’ counsel an opportunity to object.

This decision clarifies and reinforces the permissible scope of communications between a defendant and a putative class member in a wage and hour lawsuit.