F.G. v. CooperSurgical, Inc.

Background

Plaintiffs F.G. and H.I. alleged that four embryos created during their fertility treatment were exposed to recalled culture media manufactured by CooperSurgical, Inc. and The Cooper Companies, Inc. They filed a proposed class action alleging claims including strict products liability, negligent failure to recall, negligence or gross negligence, trespass to chattels, and unjust enrichment.

Beginning in January 2024, CooperSurgical contacted affected patients through clinics as part of a settlement program called the “Fertility Patient Program.” The communications stated that embryos had been exposed to recalled media and requested a health-information release to resolve the patient’s matter. The communications continued after the complaint was filed on March 1, 2024, but did not inform patients about the pending lawsuit.

Plaintiffs moved under Federal Rule of Civil Procedure 23(d), which allows a court overseeing a proposed class action to regulate communications with potential class members. They asked the Court to stop Defendants’ communications, invalidate releases or settlements, provide Plaintiffs’ counsel with the names of contacted people, and require a corrective notice.

Threshold Issues

The Court held that a protective order could be issued before deciding whether the proposed class should be certified. The Court also found that the argument concerning the lack of a summons was moot because a summons had issued and Defendants had been served. The Court declined to decide Defendants’ personal-jurisdiction and venue arguments before resolving this non-dispositive motion, explaining that the order did not decide the merits of Plaintiffs’ claims.

Findings About the Communications

Applying the standard from Gulf Oil Co. v. Bernard, the Court found a clear record that at least some of CooperSurgical’s communications were misleading. The Court did not find that the communications were coercive. It rejected Plaintiffs’ argument that the six-month deadline for accepting reimbursement was inherently coercive and found no basis to conclude that the request for a health-information release alone showed coercion.

The Court found that communications before March 1, 2024, were not misleading because no proposed class action was pending at that time. But communications on or after March 1, 2024, were misleading because they did not disclose the pending class action. The Court found that this omission created a risk that potential class members would waive claims without knowing about the lawsuit.

Relief Ordered

The Court granted the motion in part and ordered the following:

1. By June 3, 2024, CooperSurgical had to provide Plaintiffs with a list of people with whom it communicated about settlement or release on or after March 1, 2024, including people it tried to reach through third parties. The information was subject to a qualifying protective order.

2. For each putative class member contacted on or after March 1, 2024, who had not signed a release on or before that date, CooperSurgical had to send a Court-approved corrective disclosure by mail and email, and by other previously used communication methods when applicable. The disclosure had to be provided in English and, when applicable, in the other language previously used. CooperSurgical also had to file a declaration under penalty of perjury by June 14, 2024, confirming compliance.

3. The parties had to meet and confer about the corrective-notice language and submit it to the Court for approval within 14 days of the order.

4. The corrective notice had to provide accurate and impartial information about the class action, include a copy of the operative complaint and Plaintiffs’ counsel’s name and contact information, and explain that a settling putative class member could void the agreement as described in the order and might wish to consult an attorney.

5. If the Court later ordered, or the parties agreed to, disclosure of information about putative class members to Plaintiffs’ counsel, CooperSurgical had to provide information about all such people, whether or not they had signed a release on or before March 1, 2024, and had to indicate whether CooperSurgical or its affiliates claimed that any person had released claims.

6. Releases signed on or after March 1, 2024, were voidable at the individual settling class member’s election. A person could elect to void the agreement through the end of any future opt-out period if a class were certified, or at another time ordered by the Court. Amounts already paid under an agreement later voided could be treated as an offset against another recovery.

7. For releases obtained after the complaint was filed and before the order, CooperSurgical had to send a corrective disclosure stating that the lawsuit was pending, providing Plaintiffs’ counsel’s contact information and a copy of the complaint, and explaining the option to void the agreement.

8. Beginning May 20, 2024, Defendants had to notify Plaintiffs by email within three days of any ex parte communication with a putative class member about the litigation. Future such communications had to be in writing and prominently include Plaintiffs’ counsel’s name and contact information and a copy of the complaint if one had not already been provided.

The Court granted the motion as set forth in these directives and denied it in all other respects. The order did not decide Plaintiffs’ underlying claims, whether the class would be certified, or the disputed jurisdiction and venue issues.