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Davine v. Golub Corporation

United States District Court, D. Massachusetts

October 24, 2014

SHELLY J. DAVINE, JAMES E. WILLIAMS, JACOB E. OGDEN, BETH A. FARRAR, and PHILIP CARDINALE, on behalf of themselves and all others similarly situated, Plaintiffs,


MARK G. MASTROIANNI, District Judge.

Plaintiffs, Shelly J. Davine, James E. Williams, Jacob E. Ogden, Beth A. Farrar, and Philip Cardinale, are current or former employees of Price Chopper supermarkets in Massachusetts, New York, Connecticut, and Pennsylvania. Each is or has been employed as a Team Leader at one or more Price Chopper supermarkets.[1] They have instituted this suit against Defendants: The Golub Corporation; The Price Chopper, Inc.; Price Chopper Operating Co. of Massachusetts, Inc.; Neil M. Golub; Jerel Golub; John J. Endres, Jr.; Christine C. Daniels; and Jerel T. Golub (collectively "Price Chopper" or "Defendants"). Plaintiffs assert that Price Chopper improperly classified them, and other similarly situated Team Leaders, as workers exempt from overtime protections in violation of the Fair Labor Standards Act ("FLSA") and analogous state laws.

Before the court is Plaintiff's Emergency Motion for Protective Order (Dkt. No. 43). In their motion, Plaintiffs assert that one or more Price Chopper store managers made misleading statements about this litigation to potential class and collective members. They argue that remedial action is required to prevent further misleading communications and to prevent the communications that have occurred from discouraging potential class members from participating in the lawsuit. Defendants concede that one Store Manager initiated communication about this lawsuit with a group of employees that included Plaintiff Philip Cardinale and three potential class members, but they assert that any harm has already been neutralized.

The parties have each submitted an affidavit from a person connected with the communications at issue. Plaintiffs support their position with the affidavit of Philip Cardinale, ("Cardinale") who attended the meeting at the Wyoming, Pennsylvania Price Chopper (the "Wyoming Store") during which the Store Manager discussed the litigation. Defendants have provided the affidavit of their Legal Assistant, Carrie Terraferma ("Terraferma"). Recognizing that Plaintiffs, as the moving party, have the burden of establishing, by a preponderance of the evidence, that a protective order is warranted, the court asked whether Plaintiffs wanted an evidentiary hearing. Plaintiffs declined the offer, asserting that the written record provides sufficient evidence to support their position.[2]

A careful reading of the two affidavits reveals no factual conflicts between them, though read independently each affidavit suggests inferences at odds with the facts presented in the other affidavit. The most glaring example comes from Cardinale's speculation that Price Chopper's corporate executives had instructed the Store Manager relative to his comments regarding this litigation. From this speculation, Plaintiffs unsuccessfully urge the court to infer the Store Manager did, in fact, receive instructions from one or more corporate executives. Based on the absence of clear conflicts between the affidavits and the positions taken by the parties at the hearing, the court concludes that an evidentiary hearing is unnecessary in this case. Instead, the court relies on the Cardinale and Terraferma affidavits to find that the following facts are supported by a preponderance of the evidence before the court.


Plaintiffs filed an amended complaint, which added Cardinale as a plaintiff, on August 6, 2014. (Dkt. No. 11, First Amended Class Action Complaint.) Cardinale is a Team Leader at the Wyoming Store. (Dkt. No. 45, Cardinale Aff. ¶ 5.) The following day, Terraferma arranged for an email to be sent to all Price Chopper Store Managers outlining the proper conduct for Store Managers in connection with the pending litigation. (Dkt. 46-1, Terrafirma Aff. ¶ 3.) In that email, Price Chopper store managers were instructed not to initiate conversations about the lawsuit and to discuss the lawsuit only if specifically asked about it. (Dkt. 46-1, Terraferma Aff. ¶ 4.) Additionally, Carrie Terraferma stated that she personally called the Store Manager at the Wyoming Store on August 7, 2014 to inform him that one named plaintiff was employed at his store and to "reinforce with him not to initiate any communication with putative class members." (Dkt. 46-1, Terraferma Aff. ¶ 5.)

On August 11, the Store Manager at the Wyoming Store held a meeting for all Team Leaders in the store break room. (Dkt. 45, Cardinale Aff. ¶ 7.) At the end of the meeting, the Store Manager made comments about the litigation. (Dkt. 46-1, Terraferma Aff. ¶ 10.) The Store Manager told those at the meeting about the law suit, indicating that it has no merit, and said that the suit was filed by a "disgruntled ex-employee who had been fired from Price Chopper multiple times." (Dkt. 45, Cardinale Aff. ¶ 8.) He also "indicated that Price Chopper has a team of legal counsel" whom attendees could contact with questions. Finally, he said that Team Leaders should "inform him immediately" if contacted by an attorney about the case. (Dkt. 45, Cardinale Aff. ¶ 10.)

Three days after the meeting occurred, Terraferma learned about an allegation that a Store Manager had commented about the litigation to his store's Team Leaders. (Dkt. 46-1, Terraferma Aff. ¶ 6.) The following week, Terraferma contacted the Store Manager and discussed the allegation with him. (Dkt. 46-1, Terraferma Aff. ¶ 6.) She reminded him of the August 7th email and their previous conversation, again counseling him to refrain from commenting on the pending litigation. (Dkt. 46-1, Terraferma Aff. ¶ 11.) Plaintiffs' counsel sent a letter to Defendants' counsel expressing concern about the incident on August 28, 2014. (Dkt. 44-1, Letter from William Anthony, Esq. to Rachel Bien, Esq. to Pls. (Sept. 3, 2014).) On September 4, 2014, Price Chopper's Human Resources Specialist traveled to the Wyoming Store. (Dkt. 46-1, Terraferma Aff. ¶ 12.) He reiterated that the Store Manager should not initiate conversations about the lawsuit. (Id.) Then, outside the presence of the Store Manager, he met with the employees who had attended the August 11, 2014 meeting and conveyed to them that "Price Chopper respects their choice whether they choose to participate in the lawsuit or not." (Dkt. 46-1, Terraferma Aff. ¶ 14.) He also assured them that regardless of their decision they would receive neither adverse action nor preferential treatment. Id . That same day, Terraferma arranged for the content of the August 7, 2014 email to be resent to all store managers. (Dkt. 46-1, Terraferma Aff. ¶ 15.)

Finally, no court approved notices of this suit have yet been sent to potential class members and there is currently no time limit for potential plaintiffs to choose to join this suit.



"[A] district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties." Gulf Oil Co. v. Bernard , 452 U.S. 89, 100 (1981). "[E]ven prior to certification, a district court may, pursuant to Rule 23(d), regulate communications by parties and their counsel with putative class members." Hinds Cnty., Miss. v. Wachovia Bank N.A. , 790 F.Supp.2d 125, 134 (S.D.N.Y. 2011) (citing additional cases); see also Castaneda v. Burger King Corp., No. C 08-4262, 2009 WL 2382688, at *5 (N.D.Cal. July 31, 2009). The court's duty and authority flows from Rule 23 of the Federal Rules of Civil Procedure. Gulf Oil Co. v. Bernard , 452 U.S. at 99. "Rule 23 specifically empowers district courts to issue orders to prevent abuse of the class action process." In re Sch. Asbestos Litig. , 842 F.2d 671, 680 (3d Cir. 1988). "[T]he same principles that govern communications with putative class members in a class action under Rule 23 also apply to communications with potential opt-in plaintiffs in a collective action brought under the FLSA." Zamboni v. Pepe W. 48th St. LLC, 12 CIV. 3157 AJN JCF, 2013 WL 978935 (S.D.N.Y. Mar. 12, 2013).

An "order limiting communications between parties and potential class members should 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." Gulf Oil Co. 452 U.S. at 101. The court should also give "explicit consideration to the narrowest possible relief" that would protect the respective parties. Id. at 102 (quoting Coles v. Marsh , 560 F.2d 186, 189 (3d Cir. 1977)). Courts should impose only such restrictions as are required to prevent serious abuses or remedy the harm from such abuses because restrictions can limit expression, implicating First Amendment issues. Id . Misleading or coercive communications with potential class members that could or are intended to undermine participation in a class or collective action are of great concern. Id . When an ongoing business relationship, such as employer-employee exists, any communications are more likely to be coercive. Belt v. Emcare, Inc. , 299 F.Supp.2d 664, 668 (E.D. Tex. 2003). On the other hand, "a ...

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