A&R Body Specialty and Collision Works Inc. v. Progressive Casualty Insurance Co.
Absent evidence of threats or coercion to putative class members, a court can permit defense counsel to communicate with putative class members, provided that defense counsel does not communicate, even indirectly, about settling any claims in the class-action suit. The plaintiffs brought a class-action suit on behalf of themselves and other licensed auto body repair shops that performed repairs for individuals with insurance from the Progressive Insurance defendants. The plaintiffs' suit alleged that the Progressive defendants illegally suppressed labor rates and steered the individuals who are insured to preferred body shops. The plaintiffs alleged that the Progressive defendants engaged in unfair trade and sales practices and tortiously interfered with business expectations. The Progressive defendants filed a motion to permit communications with putative class members and claimed that they will not attempt to dissuade participation in the class action or request liability waivers. The plaintiffs objected that the Progressive defendants seek to informally contact absent class members, in an attempt to circumvent court orders that prevent formal discovery from absent class members. The District Court can regulate communications between counsel and putative class members in a class-action suit, pursuant to Federal Rule of Civil Procedure 23(d)(1)(C). "The test for coercion is whether the conduct somehow overpowers the free will or business judgment of the potential class members," pursuant to Jennifer v. Delaware Solid Waste Authority, a 1999 decision from the District of Delaware. Here, the plaintiff did not present any evidence of threats or coercion to putative class members. The District Court granted permission to the defendants to communicate with putative class members with certain restrictions. Defense counsel must identify themselves as attorneys and identify any parties that they represent. Defense counsel must also ask putative class members whether they would like to consult with an attorney, prior to talking to defense counsel. Defense counsel may not communicate, even indirectly, about settling any of the claims in the class-action suit. Plaintiffs' counsel, in turn, may inform putative class members that they are not required to speak with defense counsel and that they are encouraged to consult an attorney, prior to communicating.