United States District Court, S.D. New York
SHAVEZ JACKSON, individually and on behalf of others similarly situated, Plaintiffs,
BLOOMBERG, L.P., Defendant.
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
Plaintiff Shavez Jackson, individually and on behalf of all others similarly situated, brings this action against Bloomberg L.P. ("Bloomberg") for allegedly failing to compensate Global Customer Support ("GCUS") representatives for overtime work, in violation of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). A collective action under the FLSA and a class action with respect to the NYLL claims have been certified. Now before the Court are Plaintiffs' objections to an order of the Honorable Gabriel W. Gorenstein, U.S. Magistrate Judge, concerning Bloomberg's request to contact certain members of the class. For the reasons that follow, Plaintiffs' objections are sustained.
On March 19, 2014, the Court certified an FLSA collective action and an NYLL class action in this matter. (Dkt. No. 31.) In early 2015, Bloomberg sought an order from Judge Gorenstein-to whom this case had been referred for general pretrial supervision-that would permit Bloomberg to contact 10 members of the certified class outside the presence of Plaintiffs' counsel. ( See Dkt. No. 88 ("Contact Order") at 1 & n.1.) After the parties filed letters concerning Bloomberg's contact request ( see Dkt. Nos. 69, 76, 80, 83, 85, 86), Judge Gorenstein issued an order on February 25, 2015, permitting contact under certain conditions with seven of the class member employees with whom Bloomberg sought to communicate (Contact Order). Judge Gorenstein stayed the effective date of the order to permit Plaintiffs to object. (Dkt. No. 89.) Plaintiffs objected to the Contact Order on March 5, 2015. (Dkt. No. 91.) Bloomberg responded on March 12 (Dkt. No. 93), and Plaintiffs have replied (Dkt. Nos. 97-98). Discovery deadlines in the case have been extended until 45 days after this Court's ruling on the objections to the Contact Order. (Dkt. No. 92.)
II. Standard of Review
A district court will not set aside a magistrate judge's decision on a nondispositive matter unless it "is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see Passlogix, Inc. v. 2FA Tech., LLC, No. 08 Civ. 10986 (PKL), 2010 WL 1789929, at *4 (S.D.N.Y. May 4, 2010). "A magistrate judge's decision is clearly erroneous' only if the district court is left with the definite and firm conviction that a mistake has been committed.'" Galland v. Johnston, No. 14 Civ. 4411 (RJS), 2015 WL 1290775, at *4 (S.D.N.Y. Mar. 19, 2015) (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)). A decision is "contrary to law' if it fails to apply... or misapplies relevant statutes, case law, or rules of procedure.'" Dilworth v. Goldberg, No. 10 Civ. 2224 (JMF), 2014 WL 3798631, at *13 (S.D.N.Y. Aug. 1, 2014) (quoting MASTR Adjustable Rate Mortgs. Trust v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB), 2013 WL 6840282, at *1 (S.D.N.Y. Dec. 27, 2013)).
A. Rule 4.2
"Although disciplinary rules and rules of professional responsibility are not statutorily mandated, federal courts enforce professional responsibility standards pursuant to their general supervisory authority over members of the bar." SEC v. Lines, 669 F.Supp.2d 460, 463 (S.D.N.Y. 2009) (quoting United States v. Hammad, 858 F.2d 834, 837 (2d Cir. 1988)) (internal quotation marks omitted). Generally, "[t]he New York Rules of Professional Conduct provide that a lawyer representing a client may not have ex parte communications with an opposing party who the lawyer knows is represented by counsel, unless the lawyer has the consent of that party's counsel." Arista Records LLC v. Lime Grp. LLC, 784 F.Supp.2d 398, 415 (S.D.N.Y. 2011) (citing N.Y. Rules Prof'l Conduct 4.2). As relevant here, Rule 4.2 of the New York Rules of Professional Conduct (sometimes called the "no-contact rule") provides:
In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.
N.Y. Rules Prof'l Conduct 4.2(a), codified at N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.0 (2015). "Barring lawyers from communicating directly with an opposing party represented by counsel preserves the integrity of the attorney-client relationship, including by preventing counsel from driving a wedge between the opposing attorney and that attorney's client." Scott v. Chipotle Mexican Grill, Inc., No. 12 Civ. 8333 (ALC) (SN), 2014 WL 4852063, at *2 (S.D.N.Y. Sept. 29, 2014) (internal quotation marks omitted). The Rule "does not prohibit communication with a represented party... concerning matters outside the representation." N.Y. Rules Prof'l Conduct 4.2 cmt. 4. The question whether conduct implicating Rule 4.2 is permissible "require[s] a case-by-case determination." Grievance Comm. v. Simels, 48 F.3d 640, 649 (2d Cir. 1995).
Rule 4.2 applies to members of a class after class certification. See Gortat v. Capala Bros., No. 07 Civ. 3629 (ILG) (SMG), 2010 WL 1879922, at *2 (E.D.N.Y. May 10, 2010) ("Upon class certification, the rules governing communications with class members are heightened because they apply as though each class member is a client of the class counsel.'" (quoting Manual for Complex Litigation § 21.33 (4th ed. 2004)), objections overruled, 2010 WL 3417847 (E.D.N.Y. Aug. 27, 2010)); see also Van Gemert v. Boeing Co., 590 F.2d 433, 440 n.15 (2d Cir. 1978) (en banc) ("A certification under Rule 23(c) makes the Class the attorney's client for all practical purposes."), aff'd, 444 U.S. 472 (1980). Putative class members-because they are not considered clients of class counsel-do not enjoy the same degree of protection, so decisions concerning precertification contact are of limited value in this context. See Garrett v. Metro. Life Ins. Co., No. 95 Civ. 2406 (PKL), 1996 WL 325725, at *6 (S.D.N.Y. June 12, 1996) (stating that "before class certification, the putative class members are not represented' by the class counsel for purposes" of the predecessor to Rule 4.2), report & rec. adopted, 1996 WL 563342 (S.D.N.Y. Oct. 3, 1996); see also, e.g., Bobryk v. Durand Glass Mfg. Co., No. 12 Civ. 5360 (NLH/JS), 2013 WL 5574504, at *9 (D.N.J. Oct. 9, 2013) (holding that "until a Rule 23 class is certified and the opt-out period expires, defense counsel is not completely barred from communicating with putative class members" under New Jersey's version of Rule 4.2).
Bloomberg seeks to speak with 10 individuals "who were direct supervisors of GCUS representatives during the class period in a job title called team leader, '" who "are also class members themselves based on their earlier jobs as GCUS representatives." (Contact Order at 1.) Some of these individuals also held other positions that ...