Discovery related to class certification in an FLSA case ended in July 2018. In August, the plaintiff moved for conditional certification of his proposed FLSA collective action and certification of his proposed class for his state law claims under Fed. Rule Civ. Pro. 23. In September, the defendant’s counsel visited the Bethel Distribution Center, interviewed various employees, and obtained 16 declarations submitted in opposition to certification.

The U.S. Magistrate Judge agreed that defense counsel’s ex parte communication with the 16 hourly employees was prohibited under Pennsylvania law, which treats such putative members as represented parties until a certification decision is made. The defendant argued that such legal authority does not apply to FLSA claims, which require the putative members to affirmatively opt into the case to become a party. “Although some nonbinding legal authority permits defense counsel to communicate ex parte with putative opt-in collective action members in FLSA cases, Weller’s case also features a potential Fed. R. Civ. P. 23 class for state law claims. Dolgencorp’s ex parte communication related to putative members of both the FLSA and Fed. R. Civ. P. 23 classes. Accordingly, Dolgencorp was bound by law governing Rule 23 class actions in Pennsylvania, and it was not permitted to communicate with the declarants merely based on the case law governing FLSA class actions.”

The court further noted that if the defendant was uncertain whether Pennsylvania law applied to its communication with putative class members, it should have sought Court authorization, or requested the information through formal discovery.

Finding that the submission of the affidavits also violated Defendant’s mandatory disclosure obligations, (as those witnesses had not been previously disclosed), the court declined to strike the witness affidavits, but allowed the plaintiff to depose the employees – at Defendant’s cost. “Although I do not find bad faith, I note that Dolgencorp’s counsel knew or should have known about the ban on ex parte contact with putative class members. Accordingly, Dolgencorp shall pay plaintiff’s costs and expenses relating to the 16 depositions.”

Weller v. Dollar General, No.17-2292, 2019 WL 1045960 (E.D.Pa. March 4, 2019).