Sablowsky v. Auto-Chlor System, LLC

Background

The defendants moved for sanctions against plaintiffs’ counsel, contending that counsel unlawfully solicited potential members of the proposed Fair Labor Standards Act (FLSA) collective action. The court stated that the case’s only claim was an FLSA claim. Plaintiffs’ counsel had sent a letter to sixteen Auto-Chlor branches in California and a LinkedIn message to a former Auto-Chlor branch manager in Illinois.

Court’s reasoning

The court explained that attorneys for named plaintiffs in a collective action are not automatically barred from communicating with potential collective members. Courts may impose limits on those communications in appropriate circumstances, but no such limits had yet been imposed in this case.

The court recognized that attorney solicitations offering legal services must comply with state professional-conduct rules. It concluded that the California letter was not false or misleading under California Rule of Professional Conduct 7.1(a). Although the letter was headed as an “Auto-Chlor Branch Manager Wage Claim Newsletter,” its body identified plaintiffs’ counsel as the author, described counsel’s investigation into possible unpaid overtime, provided information about California labor laws and class actions, and invited recipients to discuss their legal rights with counsel. The envelope also stated “Attorney Advertising.” Because the letter was written on paper and mailed, rather than recorded or electronic, the court held that the applicable California rule did not require an advertising notice in the body of the letter.

The court likewise found that the LinkedIn message complied with Illinois Rule of Professional Conduct 7.1. The message accurately stated that plaintiffs’ counsel represented former Auto-Chlor branch managers who had filed a collective action concerning unpaid overtime and that the recipient might be eligible to join. The message used the phrase “Advertising Material” at its beginning and end, as required for a recorded or electronic solicitation. The court also found that referring to branch managers in the plural was not misleading because the complaint named two branch-manager plaintiffs.

The court distinguished Hamm v. TBC Corp. because that case involved telephone solicitations. The defendants had not established that telephone solicitations occurred here, and the court noted that written solicitations are generally not prohibited under the cited California and Illinois rules.

Disposition

The court held that the communications between plaintiffs’ counsel and potential collective members were not improper. Judge Alex G. Tse denied the defendants’ motion for sanctions.