Cook v. Applause App Quality, Inc., et al. (Lawyers Weekly No. 09-007-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION NO. 2016-3293-BLS 2 WALTER COOK, Plaintiff vs. APPLAUSE APP QUALITY, INC., DORON REUVENI, and CHRISTOPHER MALONE, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION In this putative class action, the plaintiff Walter Cook, individually and on behalf of others similarly situated, alleges violations of the Massachusetts Wage Act, G.L.c. 149 §149, 150, and the Massachusetts Minimum Fair Wage Act, G.L.c. 151 §§1A-1B. The Complaint was filed in October 2016 and, after an effort to settle the case through mediation, the parties proceeded with discovery. On August 10, 2017, the defendants requested extensions of various deadlines, to which the plaintiff assented. Under the revised tracking order, class-based discovery is to be complete by October 20, 2017, with a motion for class certification to follow. The case is now before the Court because the defendant Applause App Quality, Inc. (Applause) on September 8, 2017 sent a document to putative class members entitled “Option Cancellation Agreement.” The document was sent in connection with a proposed merger between Applause and another company, Vista Equity Partners. On page six of the ten-page, single spaced document is language purporting to release Applause from the claims asserted in the instant case. Plaintiff’s counsel had no advance notice of the merger, and learned of the Option Cancellation Agreement only when an employee of Applause contacted him about it. 2 On September 11, 2017, plaintiff filed an Emergency Motion for a Temporary Restraining Order challenging Applause’s communications with potential class members. Rather than proceeding on an ex parte basis, this Court scheduled a hearing for September 14, 2017. After hearing, the Court issued a Temporary Order which among things prohibited Applause from any further communications and required it to withdraw the Option Cancellation Agreement pending further hearing. That further hearing was held on September 21, 2017, at which time defendant moved to terminated the Temporary Order. Based on the reasons set forth herein, this Court now extends that earlier order as a Preliminary Injunction and DENIES the defendant’s Motion. LEGAL ANALYSIS Although the issues presented by this motion are new to this judge, the applicable legal principles are not. It has long been recognized that a court has inherent power to regulate and control the conduct of parties and their legal representatives if that is necessary to protect the integrity of the judicial process. Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir. 1984) and cases cited therein. Where suit has been brought as a putative class action, that authority is made explicit in Rule 23(d), Mass. R.Civ. P., which states that the court may “impose such terms as shall fairly and adequately protect the […]