18th Annual Workplace Class Action Report - 2022 Edition

700 Annual Workplace Class Action Litigation Report: 2022 Edition prior to the deadline for their class certification motion, the Court opined that sanctions were unwarranted. For these reasons, the Court denied Plaintiffs’ motion for sanctions. Miller, et al. v. Midland Credit Management, Inc., No. 20-13390 (11th Cir. Sept. 17, 2021). Plaintiff filed a class action alleging that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”). The District Court imposed sanctions on Plaintiff and her counsel following her failure to appear for her mediation. On the appeal of Plaintiff’s counsel, the Eleventh Circuit vacated and remanded the District Court’s order. Plaintiff’s counsel argued that the District Court abused its discretion: (i) by not providing sufficient notice before issuing sanctions; (ii) by basing its decision on insufficient evidence and failing to make a finding of bad faith; and (iii) by ignoring evidence that the attorneys presented in denying their motion for reconsideration. Id . at 2. Plaintiff failed to show up for the scheduled mediation on June 16, 2020. The District Court thereafter entered an order to show cause why Plaintiff failed to appear. Plaintiff responded that she could not attend the mediation because she was relieved of duty from work three hours late and could not access her phone in order to inform her attorneys of this unexpected issue. Id . at 3. After the parties settled the lawsuit, Plaintiff’s counsel requested that the District Court reconsider its sanctions order. The District Court denied the motion and determined that Plaintiff’s counsel failed to provide new argument or evidence to justify reconsideration. On review, the Eleventh Circuit opined that the District Court did not provide Plaintiff’s counsel with adequate notice that it was considering imposing sanctions against them for their client’s failure to appear at mediation. Id . at 5. The Eleventh Circuit reasoned that nothing in the District Court’s communications included any information that it would impose sanctions on Plaintiff’s counsel, but only that it was considering doing so for Plaintiff herself. Further, the Eleventh Circuit determined that a finding of bad faith was required to impose sanctions, and the District Court did not make the requisite finding here. For these reasons, the Eleventh Circuit vacated and remanded the District Court’s order imposing sanctions on Plaintiff’s counsel. Moore, et al. v. Club Exploria, LLC, 2021 U.S. Dist. LEXIS 13741 (N.D. Ill. Jan. 26, 2021). Plaintiff filed a class action alleging that Defendant improperly placed telemarking phone calls without recipients’ consent in violation of the Telephone Consumer Protection Act (“TCPA”). While investigating the case, defense counsel discovered that Plaintiff’s phone number was associated with Donald Jorgensen as recently as September 2020. Defense counsel then called Plaintiff’s number as part of its defense strategy and asked to speak with “Don.” Plaintiff answered the phone and told defense counsel that Don was not associated with the phone number, and the parties proceeded to have a brief discussion regarding the history of Plaintiff’s phone number. Defense counsel identified himself by name but failed to mention that he was counsel for Defendant in this action. As a result of this phone call, Plaintiff filed a motion for sanctions, which the Court granted in part. Plaintiff’s motion contended that defense counsel violated ABA Model Rule 4.2, which prohibits lawyers from knowingly communicating with a represented party about the subject of representation unless the lawyer has the consent of opposing counsel. Id. at *6. In addressing the motion, the Court noted that the Seventh Circuit recognized Rule 4.2 violations even in brief encounters with a represented party. As to the elements of Rule 4.2, the Court reasoned that defense counsel had actual knowledge that Plaintiff was represented in this matter, especially after Plaintiff said that “Don” was not associated with the number and defense counsel continued the conservation. Defendant cited case law on this point, which the Court distinguished because the rulings concerned a situation in which counsel called a named Plaintiff due to a document formatting error, and here the Court held that defense counsel’s contact “was no accident.” Id. at *17-18. The Court found that, while the conversation was brief, it involved the subject of representation. As the Court stated, “there is no escape clause for attorneys who speak to represented parties about the subject matter of the representation where the contact is brief and nothing pertinent is discovered.” Id. at *21. Furthermore, because Plaintiff’s counsel clearly did not consent to this call, the Court concluded that defense counsel violated Rule 4.2. With respect to sanctions, Plaintiff sought defense counsel’s disqualification and production of all work product related to Donald Jorgensen’s alleged ownership of the subject phone number. Id. at *26-27. However, because the only facts revealed on the call were only those already disclosed through discovery, the Court reasoned that this situation did not warrant the serious sanction of disqualification. The Court also opined that the production of defense counsel’s work product would be inappropriate, since the scope of this request would likely involve breaching the attorney work product privilege. Accordingly, the Court granted in part and denied in part Plaintiff’s motion for sanctions.