United States District Court, D. South Carolina, Charleston Division
John P. Irvine, on behalf of himself and all others similarly situated, Plaintiff,
Destination Wild Dunes Management, Inc.; Destination Hotels & Resorts, Inc.; and Lowe Hospitality Group, Inc., Defendants
September 13, 2015.
John P Irvine, On behalf of himself and all others similarly
situated, Plaintiff: Joseph Scott Falls, LEAD ATTORNEY, Falls
Destination Wild Dunes Management Inc, Destination Hotels &
Resorts Inc, Lowe Hospitality Group Inc, Defendants: Eric R
Magnus, LEAD ATTORNEY, PRO HAC VICE, Jackson Lewis PC,
Atlanta, GA; Andreas Neal Satterfield, Jr, Jackson Lewis PC,
Mark Gergel, J.
has moved for the Court to strike sworn declarations obtained
by Defendants' counsel from putative class members after
the filing of this lawsuit and before the Court ruled on the
motion for conditional class certification. (Dkt. No. 44).
Plaintiff has characterized the one-on-one meetings between
putative class members and defense counsel as " ex parte
communications" and seeks an order prohibiting future
meetings between putative class members and defense counsel
without Plaintiff's counsel being present. (Dkt. No. 44-1
at 25). Defendants assert that the meetings were proper and
that putative class members, all employees of Defendant, were
told by defense counsel that the meetings were entirely
voluntary. (Dkt. No. 55 at 28-31).
upon affidavits provided by three employees of Defendants who
were then potential members of the putative class in this
matter, employees were directed by a supervisory or human
resources department employee of Defendants to report during
work hours to a room to meet with defense counsel. (Dkt. Nos.
44-3, 44-4 and 44-11). When the employees appeared, they were
told by the defense counsel that the meeting was voluntary.
The employees were then provided a written statement to sign
which described the nature of the pending FLSA litigation,
disclosed that the employee may have an adverse interest to
the Defendants and informed the employee that no retaliation
would occur based upon their answers or willingness to
participate. (Dkt. No. 55-2).
well settled that after a collective action has been filed
and before a class certification motion has been ruled upon,
an employer and/or its attorney are not prohibited from
meeting with members of a putative class. Longcrier v.
Hi-A Co., Inc., 595 F.Supp.2d 1218, 1225-26 (S.D. Ala.
2009). Thus, any such communications were not ex parte. Where
it can be shown by Plaintiff that a Defendant's
communications are coercive, deceptive or otherwise improper,
the Court is authorized to take steps to protect members of
the potential class. Quezada v. Schneider Logistics
Transloading and Distritribution, 2013 WL 1296761 at *4
(C.D. Cal. 2013).
Since this Court has now conditionally certified the class in
this matter, any motion to limit Defendants' contacts
with putative class members in the future is moot.
question remains what weight should be given to the sworn
declarations procured by defense counsel from the one-on-one
meetings with putative class members prior to conditional
class certification. In a recent Fourth Circuit decision,
Brown v. Nucor Corp., 785 F.3d 895, 913-14 (4th Cir.
2015), the Court observed that " common sense and
prudence . . . instruct" that affidavits obtained by an
employer from employees who are putative class members after
the filing of litigation " do little to rebut
discrimination insofar as they were given under potentially
coercive circumstances." Recognizing that a "
'unilateral communications scheme . . . is rife with
potential for coercion,'" the Fourth Circuit advised
lower courts in assessing the probative value of such
statements, to " proceed with eyes open to the imbalance
of power and competing interests." Id. at 914
(citing Quezada v. Schneider, [WL] at *5).
review of the record before the Court suggests that while
defense counsel appears to have made an effort to communicate
orally and in writing to Defendants' employees that their
participation and statements were entirely voluntary, the
reality was that the employees received a direct order from
supervisory or human resource personnel to appear during work
hours while on the company's clock. The employees, who
were low-paid and at-will under South Carolina law, were made
aware that their employer had been sued, was fighting the
suit and sought the help of the employees in resisting the
litigation. To accept Defendants' argument that the
employees' statements were freely and voluntarily given
without any hint of coercion, this Court would, as the Fourth
Circuit observed in the landmark case of Johnson v.
Branch, 364 F.2d 177, 182 (4th Cir. 1966), " have
to pretend not to know as judges what we know as men."
challenged statements were presented to the Court by
Defendants in opposition to the motion for conditional class
certification. Since this motion has already been disposed
of, the motion to strike the employee statements is moot. Any
future effort by Defendants to use the employee statements
will be evaluated by this Court under the standards
established in Brown v. Nucor Corp. Further, in
order that these statements not taint, in any way, the future
discovery in this case, the parties are directed not to use
the statements in the course of any depositions in this
matter, including for purposes of impeachment ...