Judge Kennelly, in the Northern District of Illinois, certified a class against the owners and operators of a youth volleyball training business for concealing a history of sexual abuse of underage girls. Class notice was approved, with a deadline to opt out. One of the defendant owners and one of her employees sent, forwarded and responded to various e-mails which generally encouraged and/or provided directions to class members as to how to opt out. During a hearing, defense counsel represented to the Court that, when inquiries about the case were received, they were responding along the lines of “we can’t talk about this”, which wasn’t true. Class Counsel eventually brought a Motion for Sanctions, which was granted.
As to the defendants, the Court has general authority and responsibility to regulate communications with the class that are potentially misleading and/or discourage participation in the action. Courts, in this regard, have identified two circumstances in which party communications with class members may be considered coercive: unilateral communications; and the existence of a business relationship between class members and the class opponent. “Gilb’s mass e-mail brought both of these concerns into play. It was a unilateral communication from a party to class members that described the case in Gilb’s own words rather than in the language of the class notice, which the Court had approved after obtaining input from both parties. And Gilb’s communications could have affected class members’ decision to remain in the class given their business relationship with GLV. As the defendants themselves highlight in their brief, many of the class members are current clients of GLV, namely they are parents of youth volleyball players in GLV’s programs. As such, they have an interest in maintaining a positive relationship with the defendants. Among other things, GLV is known for placing its participants in elite college volleyball programs, and class members may be depending on the defendants to help place their children in those programs. Thus, communications like Gilb’s mass e-mail, sent by the defendants to class members in what was quite obviously an effort to encourage opt-outs, are potentially coercive.”
As to defenese counsel, the Court first publicly reprimanded the attorney for communicating with a represented party in violation of Rule 4.2. “Once a class has been certified, class members who have not opted out are regarded as clients of class counsel – which in this case was D’Ambrose’s opponent. D’Ambrose obviously knew that the class had been certified, and thus she knew that class members were represented by counsel – indeed, the Court’s class certification order expressly appointed counsel to represent the class. As a result, D’Ambrose’s April 11 e-mail directly to a class member requesting a list of names was a prohibited communication.”
The Court also publicly reprimanded her for making misrepresentations to the Court. “D’Ambrose’s characterization of the defendants’ statements to class members contained a significant falsehood. Specifically, her statement that the defendants were only responding to class members’ e-mails about opting out and, in doing so, were declining to say anything, was untrue. Gilb sent an unsolicited mass e-mail to class members describing the suit and the implications of opting out. And in response to an inquiry by a class member, Gilb most certainly did not decline to comment. Rather, he stated that ‘everyone knows what this lawsuit is about and I know that there are a lot of parents opting out. I hope that … all the opt outs will have a positive impact on the judge.’ Finally, that was not the only e-mail in which defendants did something other than decline to comment; the Court has described several such communications in the facts section of this opinion, at least some of which had been forwarded to D’Ambrose before the March 21 hearing. D’Ambrose received Gilb’s mass e-mail on March 21, prior to the March 29 hearing, and she now acknowledges that it was an improper communication. She argues, however, that her statement to the Court did not run afoul of Model Rule 3.3 because it was not knowingly false. D’Ambrose says that she received Gilb’s e-mail as part of an exchange with multiple messages and that she simply neglected to scroll down far enough to see it. Therefore, she asserts that her March 29 characterization of the defendants’ communications with class members was not a knowing misrepresentation. But D’Ambrose’s purported failure to scroll down in the e-mail exchange does not allow her to avoid culpability for knowing conduct. A person is considered to have acted knowingly if she believed there was a high probability that a fact existed and took deliberate actions to avoid learning the fact. Under this formulation, a willfully blind party is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. D’Ambrose made a statement to the Court characterizing the defendants’ communications, despite knowing that she had not seen all of them or even thoroughly reviewed the e-mail exchanges that had been forwarded to her. D’Ambrose’s claimed ‘failure to scroll’ amounts to willful blindness. Gilb forwarded to D’Ambrose a three-message e-mail exchange that started with his March 20 mass e-mail to class members. In the most recent of these messages, dated March 21, 2019, Gilb thanked an individual for his decision to opt out of the class. D’Ambrose replied to that e-mail within the hour she received it, and she concedes she knew that Gilb’s e-mail was part of a longer e-mail exchange. And the timing of Gilb’s thank-you e-mail – only two days after the class notice was issued – suggests a high probability that the preceding e-mails had been exchanged before the person opted out. This meant it was highly probable that the earlier e-mails contained an improper communication by Gilb to a then-class member. By choosing not to take the relatively simple step of scrolling down to read the preceding messages to confirm whether Gilb had been improperly communicating with class members, D’Ambrose took deliberate action to avoid confirming a high probability of wrongdoing.”
Mullen v. GLV, Inc., 334 F.R.D. 656 (N.D.Ill. 2020).