Court Expands Holding in Pioneer Electronics to Employer-Employee Relationship and Essentially Grants Class Action Plaintiffs Unrestricted Access to Personal Contact Information of Putative Class Members Prior to Certification of Class Action and Without any Showing of Likelihood that Class Action will be Certified
Plaintiffs filed a labor law class action against their former employer, Belaire-West Landscaping, alleging wage and hour violations. Belaire-West Landscape, Inc. v. Superior Court, __ Cal.App.4th __, 57 Cal.Rptr.3d 197, 198 (Cal.App. 2007). Prior to certification of the litigation as a class action, plaintiffs moved to compel Belaire to produce the names and addresses of all current and former employees; defense attorneys objected on the grounds of the absent class members’ right to privacy under the California Constitution. Id. The trial court granted the motion, and approved a proposed notice to putative class members that required them to affirmatively object in writing to the production of their contact information to plaintiffs, id. The defense sought a writ of mandate, and the Court of Appeal issued an order to show cause why the letter to absent class members should not require an “opt-in privacy notice procedure,” id., at 199-200. Ultimately, the appellate court denied the writ, holding that “the opt-out notice adequately protects the privacy rights of the current and former employees involved.” Id., at 199.
We have previously reported on the recent opinion by the California Supreme Court in Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (Cal. 2007) – that summary, and the text of the Court’s opinion, may be found here. In brief, Pioneer approved of the type of notice at issue in Belaire-West because the class members already had taken the step of affirmatively contacting the defendant and providing their contact information for the express purpose of having someone contact them to redress their concerns. The Court of Appeal summarized the Pioneer decision as holding that “under the circumstances presented, an opt-out notice was sufficient to protect the privacy rights of the DVD purchasers.” Belaire-West, at 200 (citation omitted). The question is whether the facts of Belaire-West are similar to “the circumstances presented” in Pioneer.
The appellate court recognized the significant differences between the cases. For example, the Court of Appeal stated that the Supreme Court “focused on the fact that the consumers in question had voluntarily disclosed their contact information to Pioneer in seeking redress of their grievances concerning a Pioneer DVD player,” Belaire-West, at 200-01, and at page 201 quoted the Supreme Court’s reasoning as follows:
“Pioneer’s complaining customers might reasonably expect to be notified of, and given an opportunity to object to, the release of their identifying information to third persons. Yet it seems unlikely that these customers, having already voluntarily disclosed their identifying information to that company in the hope of obtaining some form of relief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seeks similar relief for other Pioneer customers, unless the customer expressly consented to such disclosure. If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff.” (Citation and italics omitted.)
In this case, by contrast, the only affirmative action taken by putative class members is that they sought employment with the defendant. Nonetheless, the appellate court found that to be sufficient. The court interpreted Pioneer as holding that “disclosure of the consumers’ identifying information with an opt-out notice was not a serious invasion of privacy,” Belaire-West, at 201, though the Supreme Court’s statement was founded on the fact that the class members had “already voluntarily disclosed their identifying information to [defendant] in the hope of obtaining some form of relief” and therefore would not expect their contact information “[to] be kept private and withheld from a class action plaintiff who possibly seeks similar relief for other Pioneer customers, unless the customer expressly consented to such disclosure.” Pioneer, 40 Cal.4th at 372. Thus, the California Supreme Court held that the contact information was not “particularly sensitive” because it “merely called for disclosure of contact information already voluntarily disclosed to Pioneer,” id. (italics added).
The appellate court read Pioneer broadly enough to encompass any complaint designated as a class action. It did this by focusing on the Supreme Court’s statements that the information sought did not “unduly interfere” with the customers’ right to privacy, that contact information of class members is generally discoverable, that class members may be percipient witnesses, and that the class members had the opportunity to request that their contact information not be provided. Belaire-West, at 201 (citations omitted). These generalizations apply to virtually every complaint denominated as a “class action.” Lost in the appellate court’s analysis was the foundational fact that the class members in Pioneer were purchasers of a defective product who had contacted the defendant and provided the defendant with their contact information for the express purpose of obtaining relief. As Pioneer held at page 374, “It makes little sense to make it more difficult for plaintiff to contact them by insisting they first affirmatively contact Pioneer as a condition to releasing the same contact information they already divulged long ago” (second italics added).
Employees, however, do not “volunteer” their contact information to employers in the same way as a customer who complains to a company about a defective product they purchased from the company. The employees divulge their contact information as a condition of employment, not in an effort to obtain relief from the employer. Interestingly, the Court of Appeal acknowledged as much at page 202 as follows:
The contact information for Belaire-West’s current and former employees deserves privacy protection. In fact, the privacy concerns here are more significant than those in Pioneer, where the complaining consumers voluntarily disclosed their information to the company in hope of gaining some relief for their allegedly defective DVD players. Here, the information was given to Belaire-West as a condition of employment. It is most probable that the employees gave their address and telephone number to their employer with the expectation that it would not be divulged externally except as required to governmental agencies (such as the Internal Revenue Service, the Social Security Administration, etc.) or to benefits providers such as insurance companies. This is a reasonable expectation in light of employers’ usual confidentiality customs and practices. (Citations omitted.)
The appellate court brushed aside this difference, however, by concluding that anyone injured would want relief: “Just as the dissatisfied Pioneer customers could be expected to want their information revealed to a class action plaintiff who might obtain relief for the defective DVD players…, so can current and former Belaire-West employees reasonably be expected to want their information disclosed to a class action plaintiff who may ultimately recover for them unpaid wages that they are owed.” Belaire-West, at 202.
The author again notes that if one works from the assumption that the class action has merit and that the class members were injured, then the contact information sought in Belaire-West is obtainable in every class action, simply because it is designated as a class action. Keep in mind that the court has not ruled on the merits of a class certification motion, and has not even made a finding as to the likelihood that the plaintiff will be able to prevail on such a motion. When read in conjunction with the numerous court opinions finding that class actions were initiated for an improper purpose or otherwise failed to meet the criteria for obtaining certification to proceed as a class action, the author is troubled by the seeming insignificance afforded an individual’s right to privacy. We note also that to the extent a class member has percipient knowledge this goes to the merits of the class action claims, and merits discovery is generally prohibited prior to class certification.
NOTE: The proposed letter advised absent class members of the lawsuit and stated that plaintiffs “have sought to obtain your names, addresses and telephone numbers, so that they can communicate with you about the allegations made in the lawsuit.” Belaire-West, at 199. The letter further provided: “The Court has ordered that a letter be sent to you to determine if you would object to Plaintiffs’ counsel receiving your address and telephone number. You may elect not to provide your address and/or telephone number to Plaintiffs’ counsel on the grounds of privacy. [¶ ] Plaintiffs’ counsel would like to have your address and telephone number to help in their investigation. The Plaintiffs’ lawyers would like to contact you to obtain your input as to whether the Plaintiffs’ allegations in their lawsuit are accurate. [¶ ] THEREFORE, IF YOU DO NOT WANT YOUR ADDRESS AND TELEPHONE NUMBER TO BE PROVIDED TO THE PLAINTIFFS’ ATTORNEYS, YOU MUST complete and return THE ENCLOSED POST CARD to the address listed on the postcard.” Id.