B&D Wins Ruling on Right to Interview Putative Class Members in Federal Class Action

A federal judge in Philadelphia issued a published decision clarifying that in proposed class actions brought in federal court, the putative class members are not represented parties and may be interviewed by defense counsel and their investigators. The ruling directly bears on how field investigations in federal class actions are conducted, and expressly holds that federal rules govern class actions and prevail over contrary restrictive state law. Lloyd v. Covanta Plymouth Renewable Energy, LLC, --- F.Supp.3d ---, 2021 WL 1217946 (E.D. Pa. April 1, 2021). The ruling came in a nuisance lawsuit defended by Beveridge & Diamond attorneys James Slaughter (Principal, Washington, DC), Michael Murphy (Principal, New York), and Collin Gannon (Associate, Baltimore).

In granting B&D’s motion, United States District Judge Harvey Bartle III ruled that “[t]he filing of a class action should not automatically bar putative class members from interviews. They are not parties to the lawsuit, may not wish to be a part of any class, and may engage their own attorneys as provided in Rule 23. Moreover, a class may never be certified.”

The opinion resolves ambiguities in prior decisions by Pennsylvania federal courts about the tension between Pennsylvania law that treats putative class members as represented parties, and federal law that treats putative class members as unrepresented parties that can be interviewed. The court held that “the blanket prohibition under Pennsylvania law on contacts with “represented” parties has no bearing on federal putative class members.” Judge Bartle also set forth guidelines for interviews of the potential class members, including requirements to identify the lawsuit and advise the interviewees of their right to decline interviews.

The decision was covered in The Legal Intelligencer and Lexology. B&D Principal James Slaughter commented, “We appreciate the court’s thoughtful, published opinion that will bring clarity to federal class action practice. The ability to interview potential witnesses is a bedrock of American law and a critical component of litigation.”

The ruling allowing witness interviews followed an earlier published decision in Lloyd granting B&D’s motion to dismiss the negligence claim in the case, in which Judge Bartle found that physical injury or property damage were necessary elements of a negligence claim under Pennsylvania law; nuisance allegations were insufficient to state a negligence claim. Lloyd v. Covanta Plymouth, --- F.Supp.3d ---, 2021 WL 365855 (Feb. 3, 2021).

B&D’s Litigation practice spans federal and state trial and appellate courts across the United States. Beveridge & Diamond’s Waste Treatment, Recycling, and Disposal Services practice helps clients across industry sectors to minimize exposure to liability, ensure regulatory compliance, and develop business opportunities. For more information, please contact the authors.