United States District Court, E.D. Louisiana
DANIEL E. KNOWLES, III, Magistrate Judge.
On January 21, 2015, Plaintiffs' Motion for Protective Order [Doc. #170] came on for oral hearing before the undersigned. Present were Mary Jackson and David Abdullah on behalf of plaintiffs and Thomas Kiggans, Joseph DiRosa, and Jessica Huffman on behalf of defendants. After the oral hearing, the Court took the motion under advisement. Having reviewed the motion, the opposition, and the case law, the Court rules as follows.
I. Factual Background
On November 28, 2012, plaintiffs Dania Gissell Cruz Mejia, Maria Elisa Bueso Mejia, Martha L. Martinez Balleza and Esther Sanchez Torres filed this case against two defendants, Brothers Petroleum, L.L.C. ("Brothers Petroleum") and Imad F. Hamdan. In their complaint, plaintiffs asserted various claims under the Fair Labor Standards Act of 1938 (the "FLSA"), 29 U.S.C. § 201 et seq., in connection with their former employment at the Brothers Food Mart convenience stores. Plaintiffs asserted claims only on their own behalf, and not as a collective action under 29 U.S.C. § 216(b).
On November 19, 2013, almost a year after they first initiated these proceedings, plaintiffs requested leave to file their First Amended Collective Action Complaint ("First Amended Complaint"). In the First Amended Complaint, plaintiffs for the first time sought to pursue their FLSA claims as a collective action. Plaintiffs also sought to add two new plaintiffs, Claudia Wilson and Dora Pineda. Defendants did not oppose plaintiffs' request for leave to file the First Amended Complaint, and this Court subsequently allowed plaintiffs to file the First Amended Complaint.
On July 16, 2014, the District Court conditionally certified a collective action consisting of all current and former hourly employees who worked at any of defendants' Brothers Food Mart convenience stores in Louisiana during the period November 28, 2009 through the present. Pursuant to this Court's order, defendants provided plaintiffs with lists of potential collective action members on August 15, 2014.
II. The Parties' Contentions
A. Plaintiffs' Motion
Only 63 plaintiffs have opted in to this lawsuit. Plaintiffs seek a protective order to prevent defendants and/or their agents, employees, and attorneys from contacting plaintiffs or any potential opt-in plaintiffs of the FLSA proposed collective action for the purpose of intimidating, harassing, threatening, or otherwise retaliating or threatening to retaliate against them if they participate in this lawsuit. Counsel for plaintiffs allege that they have been notified that agents of defendants have repeatedly called former employees and threatened their current and future employment if they participate in the action. Plaintiffs also ask that remedial notice be sent in Arabic and English, at defendants' expense, to all putative collective members who have not yet opted in. Plaintiffs also ask that the opt-in period (which expired on December 26, 2014) be re-opened and extended for a period of 60 days.
Plaintiffs note that the District Court conditionally certified this collective action and ordered defendants to produce a list of all potential opt-in plaintiffs. Instead of complying with the order, defendant Hamdan invoked his Fifth Amendment right against self-incrimination and refused to provide a list of undocumented workers. In addition, defendants have not produced a list of undocumented workers because the District Court stayed this action as to them, and the stay is still in effect.
Since they mailed the notice to opt-in plaintiffs, counsel contend that they have been contacted by numerous potential plaintiffs who have informed them that defendants have contacted them to coerce them not to participate in the lawsuit. This is supported by the affidavit of Salman Aleses attached to the motion. Citing case law, plaintiffs note that courts often restrict improper communications such as these. They also note that courts order that truthful curative letters be sent in these circumstances.
B. Defendants' Opposition
Defendants contend that an order that limits communications between parties and potential collective actions members is a prior restraint on speech and that such orders apply equally to communications by plaintiffs and defendants to collective action members. They maintain that an order that limits collective action contacts must be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.
Defendants argue that the timing of the motion is suspect and based solely on the low opt-in rate. They note that plaintiffs first mailed notice on September 26, 2014 but waited until January 13, 2015 to file their motion. The affidavit of Aleses was even executed on November 6, 2014, two months before plaintiffs filed their motion. They note that plaintiffs ...