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Robinson v. The Chefs' Warehouse Inc.

United States District Court, N.D. California

July 17, 2019

SHAON ROBINSON, Plaintiff,
v.
THE CHEFS' WAREHOUSE, INC., et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION RE: DKT. NO. 243

          KANDIS A WESTMORE United States Magistrate Judge.

         On June 24, 2019, Plaintiffs filed an ex parte application for a temporary restraining order barring contact with class members regarding the lawsuit and a motion for preliminary injunction. (Pls.' Mot., Dkt. No. 243.)

         Upon review of the moving papers, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, DENIES Plaintiffs' motion for preliminary injunction.

         I. BACKGROUND

         Plaintiffs Shaon Robinson, Sean Clark, Saul Prado, and James Robert assert individual and class action claims against Defendant The Chef's Warehouse West Coast, LLC, alleging wage and hour violations, as well as various discrimination claims. The proposed class consists of “[a]ll persons employed by Defendant [ ] in the State of California as a Driver or Driver Trainer at any time on or after October 26, 2011.” (Fifth Am. Compl., Dkt. No. 183-1 at 5 ¶ 26.)

         In June 2019, Defendant decided to offer individual settlements to putative class members who were former drivers. (Def.'s Opp'n at 3; Decl. of Alejandro Gonzalez, “Gonzalez Decl., ” Dkt. No. 251-2 ¶ 2.) Defendant claims to have not contacted current employees to settle their claims. (Def.'s Opp'n at 3.) In preparing to offer settlement, Defendant contracted with attorney Alejandro Gonzalez, and created a call list spreadsheet containing contact information for approximately 100 former drivers. (Def.'s Opp'n at 3; Gonzalez Decl. ¶¶ 1, 5.) Defendant provided the callers with the spreadsheet, which was accessible to all of the callers to update in real time. (Gonzalez Decl. ¶ 5.) Some of the individuals on the spreadsheet were marked “do not call.” Id. Gonzalez was unaware of the reasons the individuals were designated “do not call.” Id.

         On June 20, 2019, the callers began making calls. (Def.'s Opp'n at 4; Gonzalez Decl. ¶ 6.) The callers were provided with a script to follow, English and Spanish versions of a release agreement, and answers to frequently asked questions. (Def.'s Opp'n at 3; Gonzalez Decl. ¶ 3.)

         Defendant contends that the script required callers to first state that they worked for the Chefs' Warehouse and the purpose of the call. (Def.'s Opp'n at 3; Gonzalez Decl. ¶ 4.) The script also purportedly required the callers to confirm that individuals were not represented by counsel prior to continuing the conversation beyond a brief introduction. Ids. Per the script, the callers provided background information regarding the lawsuit, identified the putative class action claims, and the upcoming class certification hearing date. (Gonzalez Decl. ¶ 4.) The script required the callers to make it clear that there was no obligation to accept the offered settlement. Id. It also made clear that acceptance of the settlement offer meant giving up any claims in the case, and instructed individuals to read the release carefully before exercising their voluntary right to accept. Id. Also, upon request, the callers provided contact information for Plaintiffs' counsel. Id.

         Defendant also prepared an email to send to the former drivers if they were not reachable by telephone or as follow-up to telephone calls, which was in both English and Spanish. (Def.'s Opp'n at 3; Gonzalez Decl. ¶ 3.)

         Defendant claims that shortly after calling commenced, the formatting of the spreadsheet was altered by one of the callers. (Def.'s Opp'n at 4; Gonzalez Decl. ¶ 6.) Gonzalez attempted to reformat the document, and inadvertently removed the “do not call” tag from Plaintiff Prado. (Gonzalez Decl. ¶ 6; Def.'s Opp'n at 4.) On June 20, 2019, at 11:02 PM EDT (8:02 PM PDT), Gonzalez left Prado a voicemail message regarding the proposed settlement. (Gonzalez Decl. ¶ 6; Decl. of Stephen Noel Ilg, “Ilg Decl., ” Dkt. No. 244 ¶ 20, Ex. 8; Decl. of Saul Prado, “Prado Decl., ” Dkt. No. 245 ¶ 3.) Prado called Gonzalez back at 11:33 PM EDT (8:33 PM PDT) and left a voicemail asking Gonzalez to return his call. (Gonzalez Decl. ¶ 6, Ex. A.)

         On June 21, 2019, at 12:03 PM EDT (9:02 AM PDT), Gonzalez received another call from Prado, which Gonzalez again missed. (Gonzalez Decl. ¶ 7.) Gonzalez called Prado that same afternoon at 12:39 PM EDT (9:39 AM PDT), and reached him. (Gonzalez Decl. ¶ 7; Prado Decl. ¶ 3.) It is undisputed that Gonzalez identified himself as an attorney for Defendant. (Prado Decl. ¶ 3.) Defendant contends that, in accordance with the script, Gonzalez introduced himself and, before engaging in settlement discussions, asked Prado if he was represented by counsel. (Def.'s Opp'n at 4; Gonzalez Decl. ¶ 7.) Defendant contends that Prado said that he was not represented, so Gonzalez continued with the conversation. Ids. During the course of the six minute and twenty-nine second conversation, Prado stated that he sat for his deposition and that he wanted the case to be over. (Gonzalez Decl. ¶ 7.) Based on these comments, Gonzalez claims to have again asked if Prado was represented by counsel and Prado again denied being represented. Id. Prado's initial declaration did not address whether he was asked if he was represented, but his second declaration filed in support of Plaintiffs' reply brief states that he was questioned about the case after having informed Gonzalez that he had his own attorney. (See, generally, Prado Decl.; 2d. Decl. of Saul Prado, “2d. Prado Decl., ” Dkt. No. 251-1 at 14 ¶ 3.)

         While Gonzalez was speaking with Prado, Chris Parkin, Vice President of Litigation for The Chefs' Warehouse, was reviewing the spreadsheet and noticed that Prado was called. (Gonzalez Decl. ¶ 8.) Parkin immediately notified Gonzalez that Prado was a named plaintiff who should not have been contacted under any circumstances. Id. Upon hearing this, Gonzalez immediately discontinued the call. Id. Gonzalez claims that he did not know that Prado was a named plaintiff prior to being informed by Parkin. (Def.'s Opp'n at 4; Gonzalez Decl. ¶ 8.) Later that day, Prado called Gonzalez again, but Gonzalez declined further discussions, and the phone call lasted less than one minute. (Gonzalez Decl. ¶ 9, Ex. B.) Defendant contends that neither it nor anyone working for it, including outside counsel or contract attorneys, has contacted Prado or any other named plaintiff since. (Gonzalez Decl. ¶ 9; Def.'s Opp'n at 4.)

         On June 21, 2019, Gonzalez called former driver Jonathan Villegas and left a voicemail message. (Def.'s Opp'n at 4; Gonzalez Decl. ¶ 10.) Villegas did not call back, so, on June 22, 2019, Gonzalez sent a pair of emails to Villegas, one through Adobe EcoSign containing a proposed settlement agreement and the second from his own email account explaining the Adobe EcoSign email in both English and Spanish and to assure the recipient that it was not spam. (Gonzalez Decl. ¶ 10.) Later that day, due to a purported technical error, Gonzalez sent Villegas two emails at 9:46 PM EDT and 9:48 PM EDT. Id. All of the emails Villegas received were in both English and Spanish. Id. On June 24, 2019, Gonzalez spoke with Villegas, and ascertained that he spoke fluent English. (Gonzalez Decl. ¶ 10.) During the call, Villegas asked for Plaintiff's counsel's contact information, which Gonzalez provided. (Def.'s Opp'n at 5.)

         On June 24, 2019, Plaintiffs' counsel Stephen Ilg contacted Gonzalez to discuss the settlement offered to Prado. (Gonzalez Decl. ¶ 11.) Gonzalez told Ilg that he was a contract attorney for the Chefs' Warehouse and confirmed that he spoke with Prado the previous week. Id. Shortly thereafter, Ilg called Gonzalez again and asked what he had discussed with Defendant's outside counsel Michele Beilke. Id ...


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