Nichols v. Noom Inc.

Background

The plaintiffs represent a proposed class of consumers who subscribed to Noom’s app-based weight-loss program. They allege that Noom Inc. and Artem Petakov used deceptive practices to persuade consumers to sign up for a trial and then placed them in automatically renewed subscriptions that were difficult to cancel.

During discovery, Noom produced documents and data containing customers’ unredacted names and contact information. Noom had initially sought to redact that information but agreed not to do so, relying instead on the case’s protective order and on plaintiffs’ counsel’s assurance that the information would not be used to solicit additional class representatives.

At a discovery conference, Noom objected to the plaintiffs’ plan to use the information to contact proposed class members as potential fact witnesses. The court directed the plaintiffs to wait for a ruling before using the confidential information for that purpose. Noom then moved for a protective order barring the proposed contacts.

Arguments and analysis

The existing protective order and electronic-discovery protocol did not expressly address this type of outreach. The court nevertheless concluded that consumers have privacy interests in their names and contact information. It also noted that courts commonly restrict disclosure of proposed class members’ identities and contact information before class certification, in part because such information might be used to find new clients rather than to establish whether class certification is appropriate.

The plaintiffs’ counsel argued that the planned contacts were intended to find fact witnesses, not additional class representatives. The court rejected that distinction as insufficient, reasoning that the two purposes were closely connected. The court also found that the plaintiffs already had enough information to support a class-certification motion, including contacts obtained through the Better Business Bureau, advertising on counsel’s website and elsewhere online, complaints supplied by Noom, and testimony from the named plaintiffs.

The court relied on Federal Rule of Civil Procedure 23(d), which allows courts to regulate communications with proposed class members before certification to prevent misleading, coercive, or otherwise improper communications. It also relied on Rule 26(c), which authorizes protective orders for good cause. The court found it unfair to allow the plaintiffs to use the information because Noom had disclosed it only to avoid the delay and expense of redaction, and because the plaintiffs would not ordinarily have been entitled to obtain the information for this purpose before Noom’s production.

Ruling

Judge Katharine H. Parker granted Noom’s motion for a protective order. The order prohibits the plaintiffs from using confidential contact information of proposed class members contained in Noom’s document and data production to contact those people during the pre-certification phase.

The order does not bar the plaintiffs or their counsel from contacting proposed class members whose information they obtained from public sources or through solicitation on counsel’s website. The court stated that there was no basis to conclude that the contacts made through those sources had been improper.