18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 239 insufficient to establish liability under the Federal Wiretap Act, and intent must be assessed with respect to the communications that were actually intercepted, rather than imputed from Defendant’s intent to intercept communications that it was permitted to record. The Court held that the complaint did not allege that Defendant was sufficiently aware of any jail procedures such that its continuing to record unprotected phone calls established an intent to record attorney-client calls. As a result, the Court ruled that Plaintiff’s complaint failed to demonstrate that the recording of potentially privileged calls was intentional so as assert a viable claims under the federal or state wiretapping statutes. For these reasons, the Court granted Defendant’s motion to dismiss. (viii) Disqualification In FLSA Collective Actions Pagan, et al. v. C.I. Lobster Corp., 2021 U.S. Dist. LEXIS 133002 (S.D.N.Y. July 16, 2021). Plaintiff filed a class and collective action alleging various wage & hour violations under the FLSA and the New York Labor Law (“NYLL”). Following settlement of Plaintiff’s individual claims against Defendant, Plaintiff’s counsel (“the Ottinger Firm”) contacted Christopher Baca ("Baca"), a waiter at Defendant’s restaurant and left several voicemail messages and one text message asking him to call him so he could speak to him. Baca did not return any of the calls. Plaintiff’s counsel also contacted Laundel Booker ("Booker"), a waiter at Defendant’s restaurant, and left him similar voicemail messages and one text message. Booker also did not return the calls or text message. Subsequently, Defendant filed a motion to disqualify the Ottinger Firm, alleging improper solicitation and conflict of interest. Defendants asserted that the Ottinger Firm violated New York Rule of Professional Conduct ("RPC") 7.3, which states "A lawyer shall not engage in solicitation . . . by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client." Id . at *6. The Court disagreed with Defendant’s position. It found that the record established only that the Ottinger Firm contacted Baca and Booker and sought to speak with them. The Court noted that there was no prohibition against Plaintiff’s counsel seeking to interview witnesses, such as other restaurant employees. The Court reasoned that there was no writing or other evidence containing any solicitation by the Ottinger Firm, and no one from the law firm spoke with Booker or Baca and therefore could not possibly have solicited them during any oral conversation. Accordingly, the Court found that Defendants failed to establish that the Ottinger Firm engaged in any solicitation and thus it denied Defendants’ motion to disqualify. (ix) Discovery In FLSA Collective Actions Edwards, et al. v. PJ Ops Idaho, Case No. 17-CV-283 (D. Idaho Jan. 6, 2021). Plaintiffs filed a collective action alleging that Defendants failed to pay minimum wages and overtime wages in violation of the FLSA. The Court previously had issued a discovery order outlining certain procedural steps that Plaintiffs should take in completing discovery. Plaintiffs filed a motion for reconsideration or to clarify the order. Plaintiffs requested that the Court clarify the portion of its order stating that “Plaintiffs who receive the questionnaire shall have 45 days from the date they receive the questionnaire to complete and return it to Defense counsel. Defense counsel shall provide Plaintiffs’ counsel with copies of all the responses counsel receives.” Id . at 1. Plaintiffs explained that because the opt-in Plaintiffs were Plaintiffs’ counsel’s clients, and because Defendants’ questionnaire sought formal discovery responses under Rule 33 and 34, it would be appropriate for Plaintiffs’ counsel to distribute and collect the opt-in Plaintiffs’ responses. Id . at 2. Defendants did not oppose the request that Plaintiffs’ counsel distribute and collect the questionnaire, but objected to “any opt-in Plaintiffs stating objections, other than privilege objections, in response to the questionnaires.” Id . The Court concluded that Plaintiffs were correct, and that the questionnaire should be treated as all other discovery and served on Plaintiffs’ counsel by defense counsel and then to the clients. Accordingly, the Court amended its order to provide that “Plaintiffs who receive the questionnaire shall have 45 days from the date they receive the questionnaire to complete and return it to Plaintiffs’ counsel. Plaintiffs’ counsel shall provide Defense counsel with copies of all the responses counsel receives.” Id . Florece, et al. v. Jose Pepper ’ s Restaurants, 2021 U.S. Dist. LEXIS 19352 (D. Kan. Feb. 2, 2021). Plaintiff, a restaurant server, filed a class and collective action alleging that Defendant failed to pay minimum wages and overtime compensation in violation of the FLSA and the Missouri Minimum Wage Law (“MMWL”). Plaintiff served precertification discovery on Defendant, which sought information that she contended would assist in finding similarly-situated individuals. Defendant objected to the discovery, and Plaintiff filed a motion to compel production. The Court granted in part and denied in part the motion. Plaintiff requested the names, contact