{"id":1468,"date":"2024-05-30T09:41:30","date_gmt":"2024-05-30T13:41:30","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1468"},"modified":"2024-05-30T09:41:30","modified_gmt":"2024-05-30T13:41:30","slug":"alabama-federal-court-rules-that-attorneys-misleading-communication-undermined-the-integrity-of-class-action-plumbing-settlement","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/05\/30\/alabama-federal-court-rules-that-attorneys-misleading-communication-undermined-the-integrity-of-class-action-plumbing-settlement\/","title":{"rendered":"Alabama Federal Court Rules That Attorneys\u2019 Misleading Communication Undermined The Integrity Of Class Action Plumbing Settlement"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Zachary J. McCormack<\/strong><\/p>\n

Duane Morris Takeaways<\/em><\/strong>: <\/strong>On May 23, 2024, <\/strong>in Braswell, et al. v. Bow Plumbing Group, Inc., No. 21-CV-00025, 2024 U.S. Dist. LEXIS 92478 (M.D. Ala. May 23, 2024), Judge Emily C. Marks of the U.S. District Court for the Middle District of Alabama granted<\/a> Plaintiffs’ Emergency Motion for Curative Action to the extent that: (1) the Court struck 319 requests for exclusion (or \u201copt-outs\u201d) submitted by individuals seeking to opt-out of a class-wide settlement; (2) the Court re-opened the opt-out and objection period for these 319 class members; and (3) the Court authorized issuance of a second curative notice and request for exclusion form to the 319 class members. Judge Marks tossed out the 319 \u201copt-outs\u201d and partially reopened the objection period in an attempt to protect the due process rights of the affected class members. The Court took this action because it found that outside attorneys repeatedly misled the class members regarding the pending $8.025 million settlement, which lead to the numerous exclusion requests. <\/em><\/p>\n

The Court found that two attorneys, who represent the same plaintiffs in separate but related class actions against the same defendant, Bow Plumbing Group, Inc., repeatedly contacted eligible class members to urge them to opt out of the settlement. The Court\u2019s order not only provides guidance regarding the due process rights of class members, but also demonstrates the importance of effective and accurate attorney-client communications in the context of Rule 23.<\/em><\/p>\n

Case Background<\/strong><\/p>\n

Bow Plumbing Group, Inc. produces drainage and pressure plumbing products in all the major plastic materials, including PEX tubing. On January 13, 2021, plaintiffs filed a class action alleging defects in Bow’s PEX tubing, which was installed in the homes of plaintiffs and the class members. Id<\/em>. at *3. The parties eventually settled the case on a class-wide basis, and on February 28, 2024, the Court preliminarily approved the parties\u2019 proposed $8.025 million settlement, provisionally certified the settlement class, and directed notice to the settlement class. Id<\/em>. Shortly after, in March 2024, Attorneys Jay Aughtman and Kenneth Mendelsohn sent emails to a \u201cblind-copied\u201d list of their clients, which contained misleading or inaccurate statements regarding the proposed class action settlement and associated proceedings in this case. Id<\/em>. Specifically, the emails contained misleading deadlines, misinformation regarding the terms of the settlement, an inaccurate statement that a California-based administrator, who was paid for from the settlement, would determine class members\u2019 individual eligibility to receive any funds, and an incorrect suggestion that it could be unethical for plaintiffs\u2019 counsel to communicate with presumptive class members. Id<\/em>. at *4.<\/p>\n

In response, on April 4, 2024, the Court determined that these emails \u201cmaterially interfere[ed] with the Court’s order to effectuate a notice plan which fairly, accurately, and reasonably informs the settlement class members of the proposed settlement terms and associated procedures to resolve their claims.\u201d Id<\/em>. The Court further pointed out that this misinformation put final resolution of the case in jeopardy and risked class members to opt out without the benefit of accurate and complete information. Id<\/em>.<\/p>\n

On April 9, 2024 \u2014 within days of the Court’s order \u2014 the same attorneys sent another email to their clients stating: \u201cBow’s defense counsel and the class action attorneys are making rigorous efforts to delay your individual claims that we continue to pursue for you.\u201d Id<\/em>. The Court found the April 9, 2024 email falsely portrayed its efforts to rectify Attorneys Aughtman and Mendelsohn’s misleading communications as unnecessarily delaying their clients\u2019 individual claims. Id<\/em>. Finally, on May 7, 2024, the attorneys sent another email suggesting that class members should not speak with class counsel, despite the Court’s April 4 O\\order expressly observing that such communications are permissible. Id.<\/em> at *5. Presumably as a result of the attorneys\u2019 misleading communication, the parties received, through the Court-appointed settlement administrator, a total of 319 requests for exclusion. Id.<\/em><\/p>\n

The Court\u2019s Decision<\/strong><\/p>\n

The Court held that the attorneys undermined the integrity of the class settlement process by providing incomplete, misleading, and coercive information to potential class members. Id<\/em>. at *7. Based on these communications, as well as the fact that many of the requests for exclusion were signed before the Court’s curative notice or before the Court-approved notice of the settlement was even issued, the Court was concerned that a significant percentage of these requests for exclusion were caused, in whole or in part, by the inaccurate or incomplete information disseminated by the attorneys. Id<\/em>. Therefore, to safeguard the integrity of Rule 23, the class members\u2019 due process rights, and the administration of justice, the Court ordered corrective measures to ascertain whether the 319 \u201copt-outs\u201d are aware of the terms of the settlement, have been adequately informed, and have been provided a sufficient, uncoerced opportunity to decide whether they wish to remain in the class. Id<\/em>. at *8.<\/p>\n

Rule 23 \u201crequires that class members be given information reasonably necessary for them to make a decision.\u201d Id<\/em>. at *9. The Court reasoned that, under Rule 23(c)(2)(B) it has a responsibility to give class members \u201cthe best notice that is practicable under the circumstances.\u201d Id<\/em>. The Court reasoned that, since it was over two months since the affected class members first learned about the settlement, a shortened opt-out period is both practical and reasonable. Id<\/em>. Accordingly, the settlement administrator was given seven days to send out the curative letter and renewed request for exclusion forms to the 319 presumptive class members, and they were given 29 days to respond, with a new deadline of June 21. Id<\/em>. at *10.<\/p>\n

Implications Of The Decision<\/strong><\/p>\n

This order serves as a cautionary reminder of the potential repercussions for providing incomplete or inaccurate information to clients. Further, it depicts the consequences of subverting a class action settlement deal.<\/p>\n

Rule 23 provides courts with a responsibility to ensure class members have information necessary to decide whether to opt-out of litigation. Corporate counsel should take note of the Court\u2019s interpretation of Rule 23 to be more equipped to effectively handle class action litigation, and continue to monitor this space for future developments.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Zachary J. McCormack Duane Morris Takeaways: On May 23, 2024, in Braswell, et al. v. Bow Plumbing Group, Inc., No. 21-CV-00025, 2024 U.S. Dist. LEXIS 92478 (M.D. Ala. May 23, 2024), Judge Emily C. Marks of the U.S. District Court for the Middle District of Alabama … <\/p>\n

Continue reading “Alabama Federal Court Rules That Attorneys\u2019 Misleading Communication Undermined The Integrity Of Class Action Plumbing Settlement”<\/span><\/a><\/p>\n","protected":false},"author":583,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[],"ppma_author":[30],"class_list":["post-1468","post","type-post","status-publish","format-standard","hentry","category-procedural-issues"],"authors":[{"term_id":30,"user_id":583,"is_guest":0,"slug":"classactiondefense","display_name":"Class Action Defense","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2020\/10\/dmlogo.jpg","author_category":"","last_name":"Defense","first_name":"Class Action","job_title":"","user_url":"","description":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1468","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/583"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=1468"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1468\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=1468"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=1468"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=1468"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=1468"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}