Courts Sanctions Defense for Ex-Parte Communications With Potential Class Members

On March 4, 2019, a federal court sanctioned a company for interviewing warehouse workers to obtain declarations in support of its opposition to an FLSA opt-in collective and PA Minimum Wage Act class action certification where there were no plaintiff’s attorneys present for the meetings. Because Pennsylvania law treats potential class action members as represented parties until the court decides whether to certify the class, the communications between the defense attorneys and workers violated the state Rules of Professional Conduct.

The Facts

The underlying lawsuit was filed in the Eastern District of Pennsylvania in May 2017. The plaintiff filed a putative class and collective action against Dollar General and its subsidiary Dolgencorp alleging that the company violated federal and state wage payment laws through policies that undercut regular and overtime pay for him and other warehouse workers (who comprised the potential class).

After the completion of discovery, the plaintiff moved for conditional certification of his proposed FLSA collective action and certification of his proposed class for his state law claims. After that motion was filed, attorneys for the defense visited one of the distribution centers to interview various hourly employees. At those meetings, the company ultimately obtained declarations from 16 workers in support of its opposition to class certification. Significantly, there were no plaintiff’s attorneys present for these interviews and the plaintiff’s lawyers had no knowledge of these meetings until the defense filed the declarations opposing the class certification.

The Law

Whether a proposed class of workers is certified is an issue not decided until later in the life of a lawsuit. Until that point, Pennsylvania law considers all putative class members as represented parties until the Motion for Class Certification is determined. In other words, all of the workers who could potentially be class action members are considered part of the class until the court rules otherwise. This fact is significant because Pennsylvania Rule of Professional Conduct 4.2 prevents an attorney from ex parte communications with a party known to be represented by another lawyer without the consent or presence of that party’s lawyer.

In class action lawsuits, this rule is particularly important because the workers interviewed (who were potential class members) could be confused by the communications, could be coerced by their employers, and could be encouraged by their employer/employee relationship to sign the declarations supporting the company’s position.

As a result of the violation, the judge imposed sanctions against the company. In determining the nature of the sanctions, it considered the prejudice to the plaintiff, the ability to cure the prejudice, the disruption of an orderly trial, and the defendant’s bad faith. The court found that there was prejudice to the plaintiff because the sixteen employees could have been biased by the ex parte discussions. Therefore, the court permitted the plaintiff to depose the sixteen workers at issue and required the company to pay all legal fees and costs associated with those depositions. Because the court found that the company did not act in bad faith, it declined to impose any of the more drastic sanctions requested by the plaintiff, which included compelling the production of the attorneys’ notes from the meetings with the workers at issue.


State court class actions have different rules and requirements than opt-in FLSA collective actions. This complicates the employer investigation process. Although defense counsel may be used to interviewing company employees in order to support the company’s position in litigation, the nature of state class action certification complicates this process. Putative class members are considered represented, and thus , any information from them must be obtained through tradition discovery (like depositions) so to not run afoul of state ethics rules. Be sure to understand each state’s rules of professional responsibility before undertaking such an investigation.

The case is entitled Weller v. Dollar General Corp, Civil Action No. 17-2292 in the United States District Court for the Eastern District of Pennsylvania. The Order is available here.