Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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1 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS John Doe Growers 1-7, and John Doe B Pool Grower 1 on behalf of Themselves and all others similarly situated as a class Plaintiffs, Civil Action No. 1:12-cv RWZ v. Ocean Spray Cranberries, Inc., An agricultural cooperative. Defendant. OCEAN SPRAY CRANBERRIES, INC. S OPPOSITION TO PLAINTIFFS MOTION FOR A PROTECTIVE ORDER Plaintiffs ask the Court to prevent Ocean Spray from contacting any cranberry grower who may someday become a member of the proposed classes that plaintiffs want to represent. Plaintiffs motion is legally baseless. The motion is premised in the first instance on plaintiffs erroneous belief that their lawyers also represent the potential class members. But, it is well settled that, prior to class certification, counsel for the named class representatives do not have an attorney-client relationship with other potential class members. Therefore, the ethics rules do not preclude Ocean Spray from communicating with those putative members on any subject, including the lawsuit. Plaintiffs also argue that they are entitled to a protective order because of their alleged fear of the possibility of threats to be sued by Ocean Spray and other [unspecified] tactics

2 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 2 of 8 that justify a restriction on Ocean Spray s ability to conduct its business and defend itself in this case. But the Supreme Court held nearly 30 years ago that courts do not have the discretion to limit a party s ability to communicate with potential members of a class absent a specific evidentiary showing of misconduct that would interfere with the operation of the class action and thus justify the potential interference with the rights of the parties. Plaintiffs cannot make, and have not even attempted to make, that evidentiary showing. ARGUMENT I. PLAINTIFFS MOTION IGNORES THE SETTLED AUTHORITY THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN PLAINTIFFS COUNSEL AND POTENTIAL CLASS MEMBERS Plaintiffs argue that it is a violation of the code of professional ethics for [Ocean Spray] to contact any of the opposing party s clients. Mot. at 1. However, the ABA has issued a formal opinion that confirms that, prior to class certification, counsel for the named class representatives do not have an attorney-client relationship with other potential class members. 1 See, e.g., ABA Comm. on Ethics and Prof l Responsibility, Formal Op , at 3 (2007) ( ABA Op ) ( [P]utative class members are not represented parties for purposes of the Model Rules prior to certification of the class and the expiration of the opt-out period. ) (attached as Ex. A). Courts in this district have consistently applied the Massachusetts version of this rule to find that there is no ethical bar to pre-certification communications with potential class members. McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D. 295, 297 (D. Mass. 2004) (Massachusetts ethics rule preventing contact with represented parties did not apply to putative class members); Litz v. 1 As to the eight named plaintiffs themselves, if Ocean Spray knew who they were, it would attempt to avoid communicating with them directly because they are represented by counsel. However, the plaintiffs have refused to identify themselves, and are asking this Court to let them proceed anonymously, so Ocean Spray has no way of knowing who they are. 2

3 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 3 of 8 Saint Consulting Grp., Inc., No , 2012 U.S. Dist. LEXIS 20586, at *4 (D. Mass. Feb. 17, 2012) ( The defendants have a right to communicate with potential class members, just as the plaintiff does. ). Thus, the fact that plaintiffs counsel represents the named plaintiffs does not permit them to block Ocean Spray from communicating with other cranberry growers. II. PLAINTIFFS HAVE NOT OFFERED EVIDENCE THAT WOULD JUSTIFY ANY LIMITATION ON OCEAN SPRAY S COMMUNICATIONS WITH PUTATIVE CLASS MEMBERS Plaintiffs also claim that they are entitled to a protective order prohibiting any communications with potential class members because Ocean Spray filed a lawsuit against certain John Doe growers two years ago and the class fears the potential of another suit and other tactics. But this inchoate fear is insufficient, under settled Supreme Court precedent, to obtain the relief that they seek. In Gulf Oil Co. v. Bernard, 452 U.S. 89, (1981), the Supreme Court vacated a district court order that prohibited contact with putative class members without prior judicial approval. The Court noted that [c]lass actions serve an important function in our system of civil justice, but recognized that pre-certification communications from either party to potential class members could lead to abuse of the class action process. Id. Nevertheless, the Court held that, prior to class certification, a court cannot restrict communications between parties and putative class members, unless the moving party makes a specific record showing... of the particular abuses by which it is threatened. 2 Id. at 102 (quotation marks and citation omitted). [T]he mere possibility of abuses is not sufficient. Id. at 104; Litz, 2012 U.S. Dist. LEXIS 20586, at *4 2 Although Gulf Oil dealt with the authority of trial courts to limit communications by the named plaintiffs and their counsel with putative class members, numerous courts have applied Gulf Oil to communications between defendants and putative class members. See, e.g., Litz v. Saint Consulting Grp., Inc., 2012 U.S. Dist. LEXIS 20586, at *3-4 (D. Mass. Feb. 17, 2012). 3

4 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 4 of 8 (the protective order must be based on [a] clear record and specific findings and only imposed in situations where the communications are misleading or improper (quoting Gulf Oil, 452 U.S. at )). In McLaughlin v. Liberty Mutual Insurance Co., for example, the plaintiffs sought to prevent Liberty Mutual from interviewing its own employees, who were putative class members, about the facts giving rise to the lawsuit. 224 F.R.D. at Plaintiffs argued that the court should preclude defendants from doing so because the employer-employee relationship is inherently coercive. Id. at 298. In support of this assertion, plaintiffs offered evidence that the named plaintiffs did not participate in a related case because they were fearful of retaliation for exercising their rights. Id. at 298 n.10. The court held that this argument was insufficient to justify a restriction on defendants communications since plaintiffs had not presented any evidence that the defendant was pressuring the potential class members to opt out of the lawsuit or was engaging in any other abuse of Rule 23. Similarly, in Payne v. Goodyear Tire & Rubber Co., plaintiffs alleged that Goodyear manufactured a defective hose used in floor heating systems, and sought an order prohibiting Goodyear from engaging in any communications with putative class members. The desired protective order would have forbidden on-going ex parte home inspections at which plaintiffs contended that improper communications may be taking place. 207 F.R.D. 16, 18 (D. Mass. 2002) (emphasis added). The court refused to issue the order because the plaintiffs failed to show that [Goodyear had] engaged in any threatened or actual abusive or unethical communications with putative class members, such as misleading the potential class members or pressuring them to opt out of the class. Id. at 20. 4

5 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 5 of 8 The court in Wiginton v. Ellis, No , 2003 WL , at *3 (N.D. Ill. Sept. 16, 2003), reached a similar result. It denied plaintiffs motion to restrict defendants communications with putative class members because the plaintiffs had failed to produce evidence that the defendants communications were misleading or designed to reduce the size of the class. Plaintiffs have not even attempted to make their required evidentiary showing here, nor could they. Plaintiffs offer no evidence that Ocean Spray has or is likely to pressure putative class members to opt out of the class, nor have the plaintiffs offered any evidence that Ocean Spray has engaged in any misleading or improper communications with them about this lawsuit or anything else. Plaintiffs submitted no evidence of any Ocean Spray communications at all. Instead, plaintiffs base their entire motion on their unsupported claim that all potential class members fear that Ocean Spray will sue them. Mot. at 1 ( The class is so concerned with the possibility of threats to be sued as Ocean Spray did in the related case that they also fear other tactics and need the protection of the court. ). But plaintiffs fail to explain how the fear that Ocean Spray would sue potential class members would have any effect on the named plaintiffs willingness or ability to pursue the case that they filed, and so have completely failed to establish that a restriction on Ocean Spray s communications with potential class members is justified. See, e.g., Payne, 207 F.R.D. at 21 (plaintiffs belief that putative class members might be discouraged about participating in lawsuit was insufficient to restrict defendant s communications). Ocean Spray, of course, has every right to protect itself and to vindicate its rights by filing counterclaims in this case or separate litigation against any of the named plaintiffs or putative class members who have violated the law and harmed Ocean Spray. Plaintiffs imply 5

6 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 6 of 8 that there was something improper about the lawsuit that Ocean Spray filed in 2010 for violations of the Agricultural Fair Practices Act, 7 U.S.C et seq. Ocean Spray Cranberries, Inc. v. Decas Cranberry Products, Inc., No. 10-cv RWZ (D. Mass.). But that was a real case with valid, well-pled claims against specific named defendants. The named defendants answered the complaint without even attempting to move to dismiss it, and the parties proceeded with full merits discovery at the express direction of this Court. The complaint also named certain John Doe defendants, but the case settled before Ocean Spray was able to identify them. Plaintiffs cite no case holding that fear of a valid lawsuit is grounds to restrict communications with potential class members, and Ocean Spray is aware of none. Cf. Otis Elevator Co. v. Int l Union of Elevator Constructors, 408 F.3d 1, 10 (1st Cir. 2005) ( [L]itigiousness alone will not support an injunction against a plaintiff. (quotation marks and citation omitted)). III. EVEN IF PLAINTIFFS HAD MET THEIR EVIDENTIARY BURDEN, THE COURT COULD NOT PROHIBIT OCEAN SPRAY S ORDINARY BUSINESS COMMUNICATIONS WITH POTENTIAL CLASS MEMBERS Even if plaintiffs had submitted the evidence necessary to meet their burden under Gulf Oil, the protective order could only preclude Ocean Spray from communicating with potential class members about this litigation; the order could not prohibit any communications in the ordinary course of business. Gulf Oil, 452 U.S. at 102 (order restricting communications with the potential class members must be narrowly tailored and must limit[] speech as little as possible ). For example, in Kleiner v. First National Bank of Atlanta, the court found that the defendant bank had used a mass mailing and telephone campaign to contact its customers, who were putative class members, to encourage them to opt out of the class. 99 F.R.D. 77, (N.D. Ga. 1983). The court issued a protective order prohibiting the defendant from 6

7 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 7 of 8 communicating with prospective class members about the litigation, but also expressly ordered that the bank was not prohibited from engaging in its ordinary business affairs with any of the Bank s customers who may be prospective class members. Id. at 79. The same would have to apply here. To function as a business, Ocean Spray has to be able to engage in ordinary course business communications with the members of plaintiffs proposed classes, many of whom are Ocean Spray s own growers. With respect to its own growers the owners of the Ocean Spray cooperative Ocean Spray regularly communicates with them regarding such issues as the growers acreage, Ocean Spray s financial results, and marketing and sales strategies, and also provides updates on the status of pending litigation, such as this case. These communications are conducted in a variety of ways, including grower meetings, mailings, and postings on the Ocean Spray grower extranet (a member-only internet site). With respect to independent growers, Ocean Spray communicates with them regularly through industry associations, committees and the like. Additionally, Ocean Spray communicates with independent growers regarding their interest in bringing cranberry-producing acres into the Ocean Spray cooperative. Accordingly, to prohibit Ocean Spray s contact with the members of plaintiffs proposed classes would unnecessarily and unreasonably interrupt Ocean Spray s business. 7

8 Case 1:12-cv RWZ Document 21 Filed 11/15/12 Page 8 of 8 CONCLUSION For the above reasons, the Court should deny plaintiffs motion for a protective order. Dated: November 15, 2012 Respectfully submitted, By: /s/ Jennifer L. Giordano Jennifer L. Giordano (B.B.O. #650537) Margaret M. Zwisler (pro hac vice pending) LATHAM & WATKINS LLP 555 Eleventh Street, NW, Suite 1000 Washington, DC Telephone: (202) Facsimile: (202) margaret.zwisler@lw.com Alfred C. Pfeiffer, Jr. (pro hac vice pending) LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA Telephone: (415) Facsimile: (415) al.pfeiffer@lw.com Attorneys for Defendant Ocean Spray Cranberries, Inc. CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on November 15, /s/ Jennifer L. Giordano Jennifer L. Giordano 8