In Hernandez v. Best Buy, a federal magistrate judge in Southern California denied Best Buy's motion to impose sanctions on a plaintiff's attorney who used putative class member contact information to solicit individuals for permissive joinder in an individual action against the retailer.
After a former Best Buy employee filed a putative class action alleging misclassification of store managers as exempt, his attorney collected contact information for all putative class members, but then decided not to pursue class certification. Instead, he sought to join 30 individuals, whose contact information he received as part of the certification process, as named plaintiffs. Best Buy asked the court to sanction plaintiffs' attorney for allegedly violating the protective order and discovery order in the case, and the rules of legal ethics. The magistrate judge refused, finding that neither order expressly prohibited the use of such contact information to solicit, and that there was insufficient evidence of an ethical violation.
The case is a reminder that wage/hour and other employment class actions can allow counsel to gain access to potential litigants within an organization, even if efforts to certify a class fail.
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