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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SHARONDA BELL,

Plaintiff,

v.

ADDUS HEALTHCARE, INC.,

Defendant.

CASE NO. C06-5188RJB

ORDER DENYING WITHOUT

PREJUDICE MOTION FOR

ORDER UNDER FED. R. CIV. P.

23(d) IN RE COMMUNICATION

WITH PUTATIVE CLASS

MEMBERS

This matter comes before the Court on the defendant’s Motion for Order Under Fed. R.

Civ. P. 23(d) in re Communication with Putative Class Members (Dkt. 93). The Court has

considered the pleadings filed in support of and in opposition to the motion and the remainder of

the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Sharonda Bell filed a complaint seeking damages in excess of five million dollars

on behalf of a proposed class consisting of at least 100 members. Dkt. 1 at 1. The complaint

asserts violations of Washington and Oregon wage and hour laws. The complaint asserts that

Addus Healthcare, Inc. (“Addus Healthcare”) failed to provide employees with rest breaks,

provide an off duty meal period, pay wages owing on the next regular payday following

termination, pay overtime, and keep appropriate records, and that it wrongfully accepted false

receipts for wages in violation of Washington law. Dkt. 1 at 6-7, 9-10. It also asserts that Addus

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ORDER

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Healthcare did not pay the minimum rate of compensation for all hours worked when due, did not

pay employees overtime, failed to provide requisite rest and meal periods, and did not pay earned

wages to employees in violation of Oregon law. Dkt. 1 at 7-8.

In the plaintiff’s response to the motion, the plaintiff included a cross motion for class

certification. Dkt. 98 at 10. The Court re-noted the cross motion for class certification, and that

motion is currently pending. Dkt. 105.

Addus Healthcare now moves for an order limiting communication with potential class

members. The defendant proposes that the Court limit the parties’ contact with potential class

members as follows:

1. Any such proposed communication shall first be sent to opposing counsel at least

10 days prior to the expected date the same is to be transmitted. 

2. Opposing counsel will have two days to either approve or object, and approval

shall not be withheld absent good cause. 

3. If opposing counsel signs off, then the communication may be made without

further application to the Court. 

4. In the event counsel objects, the objection, along with argument and authority,

shall be lodged with the Court in the form of a motion, with a requested

accelerated hearing date no more than 10 days ahead of the motion. 

5. The parties shall conform communications to the following criteria: 

(a) Any such communication will not contain legal conclusions, argument or

statements of fact not otherwise established in evidence or by dispositive

motion. 

(b) The communication shall be neutral in tone. 

(c) The communication shall have some apparent purpose in connection with

extant issues to be litigated. 

Dkt. 93 at 6. 

This request was precipitated by a questionnaire and letter dated February 7, 2007, and

sent to employees of Addus Healthcare employees in Washington and Oregon. Dkt. 93 at 2. The

letter informs Addus Healthcare employees of the plaintiffs’ suit and that the Court has not yet

determined whether to certify a class in the matter. Dkt. 94, Exh. A at 5. The letter offers a very

brief explanation of the claims. Id. The letter specifies that the recipient is not required to

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ORDER

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complete the questionnaire, which seeks information about employees’ receipt of rest and meal

breaks, overtime, payment for all hours worked, and a final paycheck. Id. at 5, 6. The

questionnaire includes a signature line with the following language: “I hereby declare that the

above statement is true to the best of my knowledge and belief, and that I understand that it may

be used as evidence in Court.” Id. at 6. In response, Addus Healthcare sent employees a letter

stating that employees are under no obligation to contact the plaintiff’s attorney but may do so if

they desire. Dkt. 94, Exh. B at 8. The defendant’s letter also specifies that no disciplinary action

will be taken against employees who respond to the plaintiff’s letter. Id. 

II. DISCUSSION

Under Federal Rule 23, courts have discretion to fashion orders governing class actions:

In the conduct of actions to which this rule applies, the court may make appropriate

orders: (1) determining the course of proceedings or prescribing measures to prevent

undue repetition or complication in the presentation of evidence or argument; (2)

requiring, for the protection of the members of the class or otherwise for the fair conduct

of the action, that notice be given in such manner as the court may direct to some or all of

the members of any step in the action, or of the proposed extent of the judgment, or of the

opportunity of members to signify whether they consider the representation fair and

adequate, to intervene and present claims or defenses, or otherwise to come into the

action; (3) imposing conditions on the representative parties or on intervenors; (4)

requiring that the pleadings be amended to eliminate therefrom allegations as to

representation of absent persons, and that the action proceed accordingly; (5) dealing

with similar procedural matters. The orders may be combined with an order under Rule

16, and may be altered or amended as may be desirable from time to time.

Fed. R. Civ. P. 23(d). Class actions present a potential for abuse, and courts therefore have both

the duty and the authority to exercise control over the action and enter orders governing the

conduct of parties and counsel. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). The Supreme

Court has held that in the pre-certification phase, “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.” Id. at 101. The burden is on the moving party to demonstrate “the particular abuses by

which it is threatened.” See id. at 102. The order should also be “carefully drawn” and “ limit[]

speech as little as possible.” Id.

The defendant contends that the plaintiff’s communications with potential class members

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ORDER

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was inappropriate in several respects. First, Addus Healthcare contends that the communication

improperly omits any acknowledgment by the signor that “the testimony is under oath or may

otherwise be subject to penalties of perjury.” Dkt. 93 at 4. The wording of the questionnaire

appears to solicit responses not signed under penalty of perjury, but the admissibility of the

responses is an issue not yet before the Court. Addus Healthcare is free to dispute whether such

responses are admissible as evidence. The defendant fails to establish that the letter is abusive in

this respect.

Second, Addus Healthcare contends that the document improperly fails to “acknowledge

or disclaim that the Court makes all decisions relative to admission of evidence in Court testimony

or motion practice.” Dkt. 93 at 4. While the questionnaire and letter do not explain the Court’s

authority in this regard, the documents also do not create a false impression as to the admissibility

of evidence. Moreover, the letter is clear as to the pendency of the motion to certify a class and

that the issue is one to be decided by the Court. See Dkt. 94, Exh. A at 5.

Third, Addus Healthcare contends that the plaintiffs’ communication is an incomplete

description of the action and should specify that liability is disputed. Dkt. 93 at 5. While the letter

could be more complete in this regard, the letter does not create the impression that liability is

undisputed. In addition, Addus Healthcare has provided employees with its response to the letter,

and the plaintiff does not contest this communication. See Dkt. 94, Exh. B at 8.

Finally, the defendant contends that the document contains an improper legal conclusion.

Dkt. 93 at 6. Addus Healthcare fails to identify the legal conclusion or make a proper showing in

this regard.

While the Court is aware that communication with potential class members by counsel

presents a risk of abuse and prejudice, Addus Healthcare fails to demonstrate that the plaintiff’s

communication thus far warrants corrective action. The Court should therefore deny the motion

without prejudice, allowing the parties to again raise the issue if future communications appear to

warrant Court intervention.

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III. ORDER

Therefore, it is hereby

ORDERED that the defendant’s Motion for Order Under Fed. R. Civ. P. 23(d) in re

Communication with Putative Class Members (Dkt. 93) is DENIED without prejudice.

 The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 4th day of April, 2007.

ARobert J. Bryan

United States District Judge 

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