In Burford v. Cargill, Incorporated, 2007 WL 81667 (W.D. La. 1/9/07), a class action brought on behalf of a putative class of all United States dairy farmers, plaintiffs sought a temporary restraining order from the district court to prevent the defendant from contacting putative class members to settle individual claims. The court has not yet determined whether a class should be certified.
Judge Hicks relied upon Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 2193 (1981) in analyzing the issue. He first noted that such restraint required “specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” The need for limitation, in turn, is to be based upon a “specific record showing by the moving party of …actual or threatened abuse by the party sought to be restrained.” Any relief granted must be “consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”
Judge Hicks further broke down the necessary “abuse” showing by a movant –
– that a particular form of communication has occurred or is threatened to occur; and
– that the particular form of communication at issue is abusive in that it threatens the proper functioning of the litigation.
Judge Hicks noted past forms of such “abuse” included: (a) communications seeking to coerce putative class members into excluding themselves from litigation; (b) false, misleading or confusing statements; and (c) communications that seek to undermine cooperation with or confidence in the class counsel.
Judge Hicks ultimately concluded that communications by the defendant seeking offering settlements to putative class members might be allowed if “coupled with a notification or cautionary statement concerning the pending litigation above the signature line….” Such notification or cautionary statement must “sufficiently apprize any potential class member (who is presented with the general receipt and release) of the pendency of this putative class action and sufficiently describe the nature of the claims which he is releasing by signing the release, but the language in the notice should not rise to the level of a solicitation for Plaintiff’s counsel.” He further required this notice to be in bold capital letters. He then ordered the parties to draft such a notice for his approval.
The decision clearly presumes a measure of freedom for defense counsel to contact putative class members, and places the burden upon plaintiffs’ counsel to show that such contact is, or threatens to be, abusive.