United States District Court, N.D. California
RETIREE SUPPORT GROUP OF CONTRA COSTA COUNTY, et al., Plaintiffs,
CONTRA COSTA COUNTY, Defendant.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
AND GRANTING IN PART AND DENYING IN PART MOTION FOR
PRELIMINARY INJUNCTION RE: ECF NO. 183
TIGAR UNITED STATES DISTRICT JUDGE
Retiree Support Group of Contra Costa County, et. al.
(“RSG”) have filed an Ex Parte Motion for a
Temporary Restraining Order (“TRO”), seeking to
prevent further communication between AFSCME Retiree Chapter
57 (“Chapter 57”) and the settlement class in
this case. ECF No. 183. The motion also requests an order to
show cause why a preliminary injunction should not be issued.
Id. Defendant Contra Costa County (the
“County”) joins in the filing of the motion.
Id. Chapter 57 was given an opportunity to oppose
the motion, ECF No. 191, and RSG was also allowed to file a
reply, ECF No. 195. At oral argument, the parties agreed that
no further briefing or evidence was necessary in regards to
the preliminary injunction, and so the Court addresses that
request as well. The Court will deny the motion for a TRO and
grant in part and deny in part the request for a preliminary
factual history of this case has been set out in previous
orders and will not be repeated here. See, e.g., ECF
14, 2016, the Court conditionally certified a settlement
class and preliminarily approved a settlement in this case.
ECF No. 137. That order required that the Settlement
Administrator mail class notices to the class within
twenty-five days after the date of the order, by July 9,
2016, and set a deadline for class members to respond at
sixty days after the class notices were sent, by September 7,
2016. Id. at 14. A Fairness Hearing is scheduled for
October 25, 2016. ECF No. 179.
17, 2016, the Court denied a Motion to Intervene filed by
AFSCME Local 2700, AFSCME Local 512, AFSCME Retiree
Subchapter 142, and Richard Cabral (collectively, “the
Objectors”). ECF No. 174. The Objectors sought to
intervene in order to oppose the proposed settlement.
20, RSG, jointly with the County, filed this motion
requesting a TRO. ECF No. 183. RSG alleges that during the
week of July 4, AFSCME Retiree Chapter 57 (“Chapter
57”), through its officers Nadine Peyrucain, Ruth Roe,
and Mr. Cabral, sent to many class members a letter urging
them not to participate in the class settlement. Id.
at 3. The letter included a form by which recipients could
opt out and object to the settlement, and in so doing agree
to be represented by Beeson, Tayer & Bodine, the same
firm that represented the various objectors who filed the
Motion to Intervene. RSG contends that the letter is false
and misleading and requests a TRO enjoining Chapter 57 and
its officers from communicating any further with the class
members, as well as a preliminary injunction that requires
Chapter 57 to send a corrective notice, declares ineffective
any elections made by class members through Chapter
57’s form, and enjoins Chapter 57 from further
communications without prior approval. Id. at 8-9.
57, for its part, notes that RSG circulated a response letter
to the class refuting Chapter 57’s letter. ECF No. 191
at 11. Chapter 57 contends that RSG’s own letter is
also misleading, but it does not specify how. Id.
Chapter 57 also has not requested any relief from the Court.
addition, RSG’s motion also requests that the Court
order Chapter 57 to show cause why the Court should not issue
a preliminary injunction in response to Chapter 57’s
communications. ECF No. 183 at 8-9. Specifically, RSG
requests (1) that a corrective letter be sent that corrects any
false and misleading statements in Chapter 57’s letter;
(2) that any elections made by class members using Chapter
57’s form be invalidated; and (3) that a preliminary
injunction be entered enjoining Chapter 57 from sending any
further communications to class members without prior review
by the Court and the parties. Id.
declaration submitted by RSG’s attorney, Jeffrey Lewis,
indicates that Mr. Lewis sent an e-mail to the three
individuals who had signed the challenged communication with
this motion and related documents attached. ECF No. 188
¶ 7. It also indicates that he sent the same documents
to an attorney for the firm of Beeson, Tayer & Bodine,
and confirmed through subsequent e-mails that this was
sufficient to serve Mr. Cabral and Chapter 57. Id.
Though Chapter 57 challenges some of the statements made in
Mr. Lewis’s declaration, it does not appear to contest
that Chapter 57 received effective service. See ECF
No. 191 at 20.
57 was given leave to respond, and did so, on July 25, 2016.
ECF No. 191. RSG was similarly given leave to reply, and did
so, on July 27, 2016. ECF No. 195. The Court held a hearing
on the motion on July 29, 2016.
Court applies a familiar four-factor test on both a motion
for a temporary restraining order and a motion for a
preliminary injunction. See Stuhlbarg Int'l Sales Co.
v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th
Cir. 2001). A plaintiff seeking either remedy “must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Am. Trucking Associations, Inc. v. City
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)
(quoting Winter v. Nat. Resources Defense Council,
555 U.S. 7, 20 (2008)). Injunctive relief is “an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”
Winter, 555 U.S. at 22.
grant preliminary injunctive relief, a court must find that
“a certain threshold showing [has been] made on each
factor.” Leiva-Perez v. Holder, 640 F.3d 962,
966 (9th Cir. 2011). Assuming that this threshold has been
met, “‘serious questions going to the
merits’ and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary
injunction, so long as the plaintiff also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest." Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
addition, a movant seeking the issuance of an ex parte TRO
must satisfy Federal Rule of Civil Procedure 65(b), which
requires a showing “that immediate and irreparable
injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition” and
certification of “efforts made to give notice and the
reasons why it should not be required.” Fed.R.Civ.P.
opposition, Chapter 57 begins by disputing that the Court has
the authority to issue an order regulating its communications
with the class. It offers two arguments as to why this Court
lacks that authority. First, it contends that the Court lacks
authority over Chapter 57 because it is not a party to this
action, and because Rule 23 is not a jurisdictional statute.
ECF No. 191 at 11. Second, it argues that the requested
relief would violate the Norris-LaGuardia Act by interfering
with a labor dispute. Id. at 14. As set forth below,
both of these arguments are unpersuasive, and the Court
concludes it has the authority to address the dispute now
Authority over Nonparties
is little dispute that the Court possesses the authority,
under Rule 23, to regulate the parties’
communications to class members when those communications are
false and misleading and interfere with the class’s due
process rights. See Gulf Oil Co. v. Bernard, 452
U.S. 89, 100 (1981). The question raised by Chapter 57 is
whether the Court possesses the same authority over a
nonparty when that party sends false and misleading
communications to a class.
57 argues only that “Rule 23 is not a jurisdictional
statute and does not confer on this Court the authority to
regulate the speech of non-parties.” ECF No. 191 at 11.
However, the cases it cites for this proposition, Blyden
v. Navient Corp., No. EDCV 14-02456-JGB, 2015 WL
4508069, at *9 (C.D. Cal. July 23, 2015); Pioche Mines
Consol., Inc. v. Dolman, 333 F.2d 257, 264-65 (9th Cir.
1964); and Simon v. E. Kentucky Welfare Rights Org.,
426 U.S. 26, 40 (1976), are inapposite. Blyden and
Simon both discuss the issue of whether a plaintiff
who otherwise lacks Article III standing may obtain it
through Rule 23 by seeking class certification.
Pioche addresses the question of whether a
court’s valid jurisdiction over the individual parties
is lost if the parties’ putative class action did not
comply with the requirements of Rule 23. Neither of those
issues is relevant here.
for its part, cites several district court cases in which the
court took curative action in response to a nonparty’s
interfering communications with absent class members.
See ECF No. 195 at 12-13 (citing Williams v.
Quinn, No. 05 C 4673, 2010 WL 3021576, at *3 (N.D. Ill.
July 27, 2010); Georgine v. Amchem Products, Inc.,
160 F.R.D. 478, 497-98 (E.D. Pa. 1995); In re Synthroid
Mktg. Litig., 197 F.R.D. 607, 610 (N.D. Ill. 2000);
In re Lutheran Bhd. Variable Ins. Products Co., No.
99-MD-1309PAMJGL, 2002 WL 1205695, at *2 (D. Minn. May 31,
2002); In re Payment Card Interchange Fee & Merch.
Disc. Antitrust Litig., No. 05-MD-1720 JG, 2014 WL
4966072, at *31 (E.D.N.Y. Oct. 3, 2014), appeal
withdrawn (Feb. 17, 2015)).
it appears that courts that have exercised authority over
nonparties in this context have done so on the basis of
either Federal Rule of Civil Procedure 23, or under the All
Writs Act, 28 U.S.C. § 1651. See In re Payment
Card, 2014 WL 4966072, at *31 (“The proper
exercise of judicial authority in this context may have
either a procedural basis, under Federal Rule of Civil
Procedure 23(d), or an equitable basis, under the All Writs
Act.”). Those courts that have invoked Rule 23 as the
basis for authority have relied on the Court’s duty,
under Rule 23(d), to protect the due process rights of absent
class members through accurate notice procedures. See,
e.g., Williams, 2010 WL 3021576, at *3
(“This court, however, must ensure that proper and
adequate notice is provided to the Class. This power extends
to non-parties that interfere with this duty of the
court.”); Georgine, 160 F.R.D. at 497-98
(“Included in my responsibility to direct to the class
the best notice practicable is the duty to ensure that the
class receives accurate information”); In re
Lutheran, 2002 WL 1205695, at *2 (“Courts possess
the inherent power to protect the orderly administration of
justice and to preserve the dignity of the tribunal.”
(quoting Kleiner v. First Nat’l Bank of
Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985)). Citing
to Gulf Oil, which is discussed further below, and
Rule 23(d), a court in this district enjoined further
communications from two law firms whose bids to serve as lead
counsel for an accounting fraud class action were rejected,
and who subsequently sent solicitations to class members
seeking to recruit them. In re McKesson HBOC, Inc. Sec.
Litig., 126 F.Supp.2d 1239, 1241 (N.D. Cal. 2000). The
court referred to Rule 23(d)’s granting of “broad
powers to make ‘appropriate orders’ to ensure
efficient and fair proceedings in a class action, ”
which “include the authority to enjoin communications
with class members to protect them from undue
interference.” Id. at 1242 (citations
have also referred to the All Writs Act when addressing the
actions of nonparties. The act states that “[t]he
Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). In In
re Synthroid, 197 F.R.D. at 610, the district court
issued a corrective notice in response to a nonparty trade
association’s communications with a settlement class,
and while it declined to also enjoin them from further
communications, it concluded that it “is
authorized” to do so “under the All Writs Act,
” and “[t]hat power extends to
non-parties.” The court cited to United States v.
New York Tel. Co., 434 U.S. 159, 174 (1977), which dealt
with a court order to a nonparty telephone company ordering
cooperation with federal law enforcement, and held that
“[t]he power conferred by the [All Writs] Act extends,
under appropriate circumstances, to persons who, though not
parties to the original action or engaged in wrongdoing, are
in a position to frustrate the implementation of a court
order or the proper administration of justice[.]”
See also In re Payment Card, 2014 WL 4966072, at *31
(“In sum, where, as here, a district court retains
exclusive jurisdiction over settlement agreements and
distribution of settlement funds pursuant to those
agreements, it may issue orders necessary to protect the
settlement from threats by both parties and
non-parties.” (citation omitted)).
reviewed this case law, the Court concludes it possesses
authority to grant the requested relief against Chapter 57.
RSG has argued that Chapter 57’s communications
interferes with the class’s due process rights under
Gulf Oil and Rule 23, and accordingly, those
communications would also “frustrate the
implementation” of this court’s efforts to
properly provide class notice to the settlement class.