Florida Court Allows Plaintiff Extensive Communication With Putative Class Members

A recent decision from the Southern District of Florida denied a motion seeking to limit plaintiffs' ability to contact putative class members to solicit support and evidence in support of a class certification motion. In A.R. ex rel. Root v. Dudek, No. 12-cv-60460, 2013 WL 5278668 (S.D. Fla. Sept 19, 2013), plaintiffs alleged that certain state officials and a private health care company denied the plaintiffs—medically fragile children—certain Medicaid services by adopting a policy and practice of reducing private duty nursing services. To support their motion for class certification, plaintiffs sent e-mails and other communications to putative class members encouraging them to participate, and circulated pre-written forms of sworn declarations for the families, parents, and caregivers of children receiving Medicaid benefits to execute.

Defendants filed a cease and desist motion asking the court to enjoin current communication between plaintiffs and putative class members, and require plaintiffs and their counsel to obtain approval from the court before sending out any further communications to putative class members. Defendants argued these communications unreasonably interfered with their existing relationships with putative class members and damaged their reputations. They also argued that the pre-written declarations were intended to "shape and form the beliefs of the putative class members and to unfairly influence the content of the requested sworn statements." Id. at *5.

The court denied the motion, holding that the defendants did not meet their burden under Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) and its progeny. Though plaintiffs had engaged in communications with and solicited putative class members, the court found that the actions did not rise to the level of threatening "the proper functioning of the litigation," because the communications emphasized the requirement...