E.E.O.C. v. McDONNELL DOUGLAS CORP., (E.D.Mo. 1996)
948 F. Supp. 54
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. McDONNELL DOUGLAS
CORPORATION, Defendant.
No. 4:95 cv 01414 SNL.
United States District Court, E.D. Missouri, Eastern Division.
December 12, 1996.

  Robert G. Johnson, C. Felix Miller, Jr., S. Robert Royal,
Supervising Trial Atty., Alice M. Craft, E.E.O.C., St. Louis,
MO, for plaintiff.

  Michael P. Burke, Thomas E. Wack, Ann B. Davis, Bryan Cave,
St. Louis, MO, for defendant.

                              ORDER

  LIMBAUGH, Senior District Judge.

  This matter is before the Court on the Plaintiff's Motion for
a Protective Order (#28). The Plaintiff wants to prohibit the
Defendant from directly communicating settlement offers to the
aggrieved parties for whom the Plaintiff is seeking relief. The
Plaintiff contends that it is the aggrieved parties' de facto
counsel. See EEOC v. HBE Corp. d/b/a Adam's Mark Hotel, 64 Fair
Empl.Prac.Cas. (BNA) 1518, 1994 WL 376273 (E.D.Mo. 1994)
(finding communications between the EEOC and the aggrieved
parties for whom it is seeking relief subject to the
attorney-client privilege); Bauman v. Jacobs Suchard, Inc., 136
F.R.D. 460, 461 (N.D.Ill. 1990) (same). Accordingly, it argues
that the Defendant's direct communications are unethical and
improper under Rule 4.2 of
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the Missouri Supreme Court Rules of Professional Conduct and
Disciplinary Rule 7-104 of the Model Code of Professional
Responsibility.

  The Defendant maintains that the communications were
initiated by its business executives, not its attorneys. It
argues that nothing in the rules of professional conduct
prohibits one party to a litigation from making direct contact
with another party to the same litigation. Finally, it contends
that allowing these communications furthers the public policy
in favor of the voluntary settlement of employment
discrimination disputes.

  The Court notes that the Defendant has agreed not to
communicate directly with the aggrieved parties who have filed
a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC").[fn1] Accordingly, the only
issue before the Court is whether the Defendant should be
allowed to communicate directly with those former employees who
never filed a charge of discrimination and have not otherwise
sought the EEOC's representation.

  Upon review of the rules of professional conduct, the Court
concludes that there is nothing that prohibits one party to a
litigation from making direct contact with another party to the
same litigation. See e.g., Missouri Supreme Court Rules of
Professional Conduct Rule 4.2 cmt. (". . . parties to a matter
may communicate directly with each other.). These rules are
designed to regulate the conduct of lawyers, and simply do not
apply to the conduct of nonlawyers. Massiah v. United States,
377 U.S. 201, 210-11, 84 S.Ct. 1199, 1205-06, 12 L.Ed.2d 246
(1964) (White, J., dissenting). Therefore, since the only
evidence before the Court indicates that the direct
communications were initiated by the Defendant, and not by its
attorneys, the Court concludes that these communications are
permissible under the rules of professional conduct.

  Nevertheless, numerous courts have prohibited the defendant,
and its attorneys, from directly communicating with aggrieved
parties in the class-action context. See e.g., Kleiner v. First
National Bank of Atlanta, 751 F.2d 1193, 1206-07 (11th Cir.
1985); In re Federal Skywalk Cases, 97 F.R.D. 370, 376-77
(W.D.Mo. 1983). These decisions are grounded not in the rules
of professional conduct, but in Rule 23(d) of the Federal Rules
of Civil Procedure. The Court, however, finds these cases
distinguishable.

  Unlike a class-action plaintiff, the EEOC does not sue in a
representative capacity. General Telephone Co. v. EEOC,
446 U.S. 318, 327-29, 100 S.Ct. 1698, 1704-06, 64 L.Ed.2d 319
(1980). To the contrary, it sues on its own authority to
vindicate the public interest. Id. In fact, the United States
Supreme Court has stated that Rule 23 does not apply to
"pattern-or-practice" suits brought by the EEOC. Id. Moreover,
as stated above, these former employees never filed a charge of
discrimination and have not otherwise sought the EEOC's
representation. Accordingly, they are markedly dissimilar from
Rule 23 class members who must affirmatively seek class
participation and representation.

  Even if Rule 23 did apply, the communications at issue would
not warrant a protective order. See Great Rivers Co-op v.
Farmland Industries, Inc., 59 F.3d 764, 766 (8th Cir. 1995)
["i]n a class-action lawsuit, a district court may not order
restraints on speech under Fed.R.Civ.P. 23(d) except when
justified by actual or threatened misconduct of a serious
nature."). Although the communications adamantly protest the
Defendant's innocence and speculate as to the EEOC's ultimate
chance of success, they are not misleading or unduly coercive.
Instead, the communications contain pertinent and accurate
information that may assist the aggrieved parties in deciding
whether to accept the Defendant's settlement offer.

  Therefore, because the EEOC is acting on its authority and
not as the aggrieved parties' chosen representative, the Court
concludes that the former employees who never filed a charge of
discrimination and have not otherwise sought the EEOC's
representation are entitled to all relevant information that
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may assist them in deciding whether to accept the Defendant's
settlement offer.

  Accordingly,

  IT IS HEREBY ORDERED that the Plaintiff's Motion for a
Protective Order (#28) is DENIED.

[fn1] The Defendant maintains that only 129 of the 431 former
employees for whom the EEOC is seeking relief ever filed a
charge of discrimination. The Plaintiff has not refuted this
assertion.
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