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Pennsylvania Federal District Court Rules That Putative Class Members May Be Interviewed By Defendant

Article by Lyle D. Washowich, Esq.

A recent ruling by a Pennsylvania Federal District Court addresses whether putative class members may be interviewed by the Defendant prior to a decision on class certification.

In a decision rendered by Senior U.S. District Judge Harvey Bartle (Lloyd v. Covanta Plymouth Renewable Energy, LLC, 2:20-cv-04330-HB, E.D. Pa. Apr. 1, 2021), the Court granted the Defendant company’s request to interview putative class members without the Named Plaintiff’s counsel present.

Because the putative class members are not represented parties and do not possess a “traditional attorney-client relationship” with the Named Plaintiff’s counsel prior to class certification, the interviews may proceed.  Unlike a matter proceeding in Pennsylvania state court under Pennsylvania law, a putative class member under federal law is “not a party to the class action before the class is certified.”

The decision came in a proposed class action on behalf of certain residents of Conshohocken, Pennsylvania against Covanta Plymouth Renewable Energy.  The lawsuit alleges that the company’s waste-to-energy plant emits noxious odors, so as to interfere with the residents’ use and enjoyment of their property and local community.  The action asserts state law claims for private and public nuisance.

Covanta sought to interview residents who are not Named Plaintiffs but are part of a proposed class – those living within 1.5 miles of the plant.

The Named Plaintiff’s counsel opposed the interviews.  Counsel argued that the interviews would violate Rule 4.2 of the Pennsylvania Rules of Professional Conduct, prohibiting attorneys from speaking with parties represented by counsel in the matter.

However, as the Court explained, Rule 23 of the Federal Rules of Civil Procedure provides the Court with broad discretion for how to conduct class actions and “supersedes any contrary state law rule.”  Because the Court has not yet ruled as to whether a class should be certified, the non-named plaintiff residents are not yet subject to the same considerations as parties represented by counsel in traditional litigation.

Indeed, the putative class members “are not parties to the lawsuit, may not wish to be a part of any class, and may engage their own attorneys.”  Accordingly, the filing of a putative class action lawsuit should not automatically bar putative class members from these interviews.

Although the decision provides the Defendant important latitude for contacting and interviewing putative class members, it also provides guardrails for making that contact.

To effectuate a fair and balanced process, as explained by the Court, the Defendant must provide information to interviewees stating that:

  • The interviewer represents the Defendant, which owns the plant at issue;
  • Defendant is being sued for allegedly emitting noxious odors;
  • The Named Plaintiff is seeking to represent the local residents in a class action;
  • The purpose of the interview is to obtain information related to the suit;
  • The interviewee has the right to decline the interview; and
  • The interviewee has the right to have a lawyer present.

The Court reasoned that these requirements are necessary to protect the residents, who have a “contingent interest” in the lawsuit.  As the Court noted, “[t]here is a need for balance and safeguards in the situation at hand,” so that “[i]n fairness, putative class members should go into any interview voluntarily and with their eyes open.”  It is important for the Court to “safeguard” putative class members from “unauthorized and misleading communications from the parties or their counsel,” protecting against “opportunities for abuse” including the “ability to restrict communication with putative class members.”

This decision will be an important guidepost in addressing similar requests in other federal putative class action matters.