Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54537 Filed 02/03/21 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`In Re Flint Water Cases,
`
` No. 5:16-cv-10444-JEL-MKM
`(consolidated)
`
`Hon. Judith E. Levy
`
`Mag. Mona K. Majzoub
`
`
`
`
`MOTION FOR A PRELIMINARY INJUCTION AND TEMPORARY
`RESTRAINING ORDER
`
`COME NOW, Co-Liaison Counsel for the Individual Plaintiffs and Interim
`
`Co-Lead Class Counsel (collectively “Plaintiffs”), by and through the undersigned
`
`Counsel, move for an Order pursuant to Fed. R. Civ. P. 65(a) and (b) and Fed. R.
`
`Civ. P. 23: (1) enjoining Attorney Loyst Fletcher, Jr. of the law firm Loyst Fletcher
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`Jr., & Associates, 718 Beech Street, Flint, MI 48502 (the “Fletcher Firm”), and any
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`affiliates or agents, from communicating with putative class members and
`
`individually represented plaintiffs regarding matters relating to the proposed
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`Settlement in this matter; (2) requiring Mr. Fletcher to inform this Court and
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`Plaintiffs the names of all individuals who received his January 17, 2021
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`communication; and (3) requiring Mr. Fletcher to inform this Court and Plaintiffs of
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`the names of all individuals who signed the retainer agreement that accompanied the
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`January 17, 2021 letter.
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`
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`
`
`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54538 Filed 02/03/21 Page 2 of 27
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`Dated: February 3, 2021
`
`
`
`
`
` Respectfully submitted,
`
`By: Hunter J. Shkolnik
`Hunter J. Shkolnik
`Napoli Shkolnik PLLC
`270 Munoz Rivera Avenue, Suite 201
`Hato Rey, Puerto Rico 00918
`(787) 493-5088
`hunter@napolilaw.com
`
`
`By: /s/ Corey M. Stern
`Corey M. Stern
`Levy Konigsberg, LLP
`800 Third Avenue, 11th Floor
`New York, NY 10022
`(212) 605-6298
`cstern@levylaw.com
`
`
`
`Co-Liaison Counsel for Individual
`Plaintiffs
`
`
`
`
` By: /s/ Theodore J. Leopold
`Theodore J. Leopold
`Cohen Milstein Sellers & Toll PLLC
`11780 U.S. Highway One
`Suite N500
`Palm Beach Gardens, FL 33408
`(561) 515-1400
`tleopold@cohenmilstein.com
`
`By: Michael L. Pitt
`Michael L. Pitt
`Pitt McGehee Palmer Bonanni & Rivers
`PC
`117 W. Fourth Street, Suite 200
`Royal Oak, MI 48067
`(248) 398-9800
`mpitt@pittlawpc.com
`
`
`Co-Lead Interim Class Counsel
`
`
`
`
`
`
`
`
`
`
`ii
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54539 Filed 02/03/21 Page 3 of 27
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`In Re Flint Water Cases,
`
` No. 5:16-cv-10444-JEL-MKM
`(consolidated)
`
`Hon. Judith E. Levy
`
`Mag. Mona K. Majzoub
`
`
`
`
`
`
`
`
`MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION
`FOR A PRELIMINARY INJUNCTION AND TEMPORARY
`RESTRAINING ORDER
`
`
`
`
`
`
`
`
`
`
`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54540 Filed 02/03/21 Page 4 of 27
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`TABLE OF CONTENTS
`
`
`
`TABLE OF CONTENTS .......................................................................................... ii
`
`TABLE OF AUTHORITIES ................................................................................... iii
`
`STATEMENT OF ISSUES PRESENTED................................................................ v
`
`CONTROLLING AUTHORITY ............................................................................. vi
`
`PRELIMINARY STATEMENT ............................................................................... 1
`
`STATEMENT OF FACTS ........................................................................................ 2
`
`I.
`
`II.
`
` MR. FLETCHER HAS SENT UNSOLICITED LETTERS TO
`REPRESENTED INDIVIDUALS ................................................................ 3
`
` MR. FLETCHER’S MISLEADING COMMUNICATION HAS ALSO
`BEEN SENT TO ABSENT MEMBERS OF THE CONDITIONALLY
`CERTIFIED SETTLEMENT SUBCLASS. ................................................. 5
`
`LEGAL STANDARDS ............................................................................................. 6
`
`ARGUMENT ............................................................................................................. 9
`
`I.
`
`PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. .............. 9
`
`II.
`
` PLAINTIFFS WILL SUFFER IRREPARABLE INJURY IF A
`TEMPORARY RESTRAINING ORDER AND INJUNCTION ARE NOT
`ISSUED .......................................................................................................12
`
`III. MR. FLETCHER WILL NOT BE HARMED BY THE INJUNCTION. ..15
`
`IV. THE INJUNCTION IS IN THE PUBLIC INTEREST. .............................16
`
`CONCLUSION ........................................................................................................17
`
`
`
`
`
`
`
`ii
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54541 Filed 02/03/21 Page 5 of 27
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`TABLE OF AUTHORITIES
`
`Cases
`
`Carlson v. Thomas, 159 F.R.D. 661 (E.D. Ky. 1994) .............................................17
`
`Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535
`(6th Cir. 2007) .......................................................................................................14
`
`Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D. 696 (S.D.
`Ala. 2003) .............................................................................................................19
`
`Gulf Oil Co . v. Bernard, 452 U.S. 89 (1981) ............................................. 14, 15, 23
`
`In re Eagle-Picher Indus., Inc., 963 F.2d 855 (6th Cir. 1992) ................................14
`
`Int’l Bd. of Teamsters Local 651 v. Philbeck, No. No. 5: 19-105-DCR, 2019 U.S.
`Dist. LEXIS 47969 (E.D. Mar. 22, 2019) .............................................................23
`
`Jones v. Jeld-Wen, Inc., 250 F.R.D. 554 (S.D. Fla. 2008) .......................................19
`
`Little Caesar Enterprises, Inc. v. Miramar Quick Serv. Rest. Corp., No. 2:18-CV-
`10767, 2019 WL 3219844 (E.D. Mich. July 16, 2019) ........................................16
`
`Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393 (6th Cir. 1997) 16
`
`Tolmasoff v. Gen. Motors, LLC, No. 16-11747, 2016 WL 3548219 (E.D. Mich.
`June 30, 2016) .......................................................................................................14
`
`U.S. v. Edward Rose & Sons, 384 F.3d 258 (6th Cir. 2004) ...................................22
`
`UAW v. GMC, 497 F.3d 615 (6th Cir. 2007) ...........................................................23
`
`Uniroyal Goodrich Tire Co. v. Hudson, 856 F. Supp. 348 (E.D. Mich. 1994) .......19
`
`United States v. Miller, 624 F.2d 1198 (3d Cir. 1980) ............................................17
`
`Victory Lane Quick Oil Change, Inc. v. Darwich, 799 F. Supp. 2d 730 (E.D. Mich.
`2011) .....................................................................................................................14
`
`Williams v. U.S. Dist. Court., 658 F.2d 430 (6th Cir. 1981) ...................................15
`
`Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) ..............................................22
`
`
`
`
`
`iii
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54542 Filed 02/03/21 Page 6 of 27
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`Statutes
`
`MCR 8.121(B) .........................................................................................................11
`
`Rules
`
`ABA Model Rules of Professional Conduct 4.2, cmt. a ..........................................20
`
`Fed. R. 23(d)(1)(C) ..................................................................................................14
`
`MRPC 4.2 .......................................................................................................... 16, 17
`
`MRPC 7.3 .................................................................................................................16
`
`MRPC 8.4(a) ............................................................................................................16
`
`Other Authorities
`
`3 Newberg on Class Actions § 9:2 (5th ed.) ............................................................18
`
`
`
`
`
`
`
`
`iv
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54543 Filed 02/03/21 Page 7 of 27
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`STATEMENT OF ISSUES PRESENTED
`
`The issues presented in this Motion are:
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`1) Whether a TRO effective for ten (10) days is merited pursuant to
`
`Federal Rule of Civil Procedure 65(b) until hearing on a Preliminary Injunction is
`
`merited pursuant to Fed. R. Civ. P. 65(b).
`
`2) Whether the Court should issue an order restricting Mr. Fletcher’s
`
`communications with absent members of the conditionally certified Settlement Class.
`
`
`
`
`
`
`
`v
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54544 Filed 02/03/21 Page 8 of 27
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`CONTROLLING AUTHORITY
`
`Federal Rule of Civil Procedure 65(b).
`
`Federal Rule of Civil Procedure 23.
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`
`
`vi
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54545 Filed 02/03/21 Page 9 of 27
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`PRELIMINARY STATEMENT
`
`Co-Liaison Counsel for the Individual Plaintiffs and Interim Co-Lead Class
`
`Counsel (collectively, “Plaintiffs”), by and through the undersigned attorneys,
`
`respectfully submit this brief in Support of Motion for a Preliminary Injunction
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`pursuant to Fed. R. Civ. P. 65(a) and Temporary Restraining Order pursuant to Fed.
`
`R. Civ. P. 65(b), to immediately stop Attorney Loyst Fletcher, Jr. and Loyst Fletcher,
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`Jr. & Associates (the “Fletcher Firm”) from engaging in misleading class
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`communications and inappropriate solicitation of represented individuals in Flint.
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`Mr. Fletcher sent letters bearing the Fletcher Firm’s letterhead—at least some
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`of which were unsolicited—to Flint residents concerning the Flint Water Crisis
`
`settlement. This was a maneuver calculated to inject confusion into the Amended
`
`Settlement Agreement, which was the product of years of good faith negotiations
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`and sincere compromise between Plaintiffs and the settling defendants. Mr.
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`Fletcher’s unsolicited letter contains several false and misleading statements that risk
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`Plaintiffs—both represented and those participating as members of the Settlement
`
`Class—making legal decisions based on faulty information. The Rules of
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`Professional Responsibility, as well as the caselaw regarding appropriate limitations
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`on communications with class members, exists precisely to curtail such an
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`eventuality.
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`
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`
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54546 Filed 02/03/21 Page 10 of 27
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`Mr. Fletcher should not be permitted to continue to cause confusion about the
`
`Settlement. Accordingly, Plaintiffs respectfully ask the Court to grant a temporary
`
`restraining order so that it may conduct a fact-finding hearing to determine whether
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`a permanent Order or corrective action is necessary.
`
`STATEMENT OF FACTS
`
`In the past few weeks, seemingly following the Court’s Order granting
`
`Preliminary Approval of the Settlement, Mr. Fletcher began sending letters bearing
`
`the Fletcher Firm’s letterhead to residents in Flint concerning the Flint Water Crisis
`
`litigation. See Exhibit A. On information and belief, at least some of the Flint
`
`residents who received this letter had not requested it. Mr. Fletcher’s letter contains
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`multiple inaccurate statements about the Amended Settlement Agreement, distorts
`
`the opt-out procedures as articulated in the Amended Settlement Agreement (Dkt.
`
`No. 1394-2) and Order on Preliminary Approval (Dkt. No. 1399), improperly solicits
`
`individuals who have been retained by counsel to represent them for their Flint Water
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`Crisis claim, and constitutes a misleading communication with absent members of
`
`the Settlement Class.
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`If not temporarily restrained and preliminarily enjoined by this Court, Mr.
`
`Fletcher will continue his inappropriate communications, in violation of Michigan
`
`Rules of Professional Conduct 4.2 and 7.3, to the putative class and represented
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`individuals in hopes of dismantling the proposed settlement before this Court,
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`
`
`2
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54547 Filed 02/03/21 Page 11 of 27
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`thereby irreparably harming Plaintiffs and putting the integrity of the proposed
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`settlement at risk.
`
`I. MR. FLETCHER HAS SENT UNSOLICITED LETTERS TO
`REPRESENTED INDIVIDUALS
`
`Beginning on or about January 17, 2021, Mr. Fletcher began sending
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`unsolicited packages to members of the putative settlement class and represented
`
`individuals of the Flint community, at least some of which Counsel believe were
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`unsolicited. See Letter from Loyst Fletcher, Jr. to Mr. Mitchell Harris, attached
`
`hereto as Exhibit A. Mr. Harris retained Napoli Shkolnik PLLC (“Napoli
`
`Shkolnik”) on November 1, 2018, and has been in regular communications with
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`Napoli Shkolnik since that time. Additionally, Mr. Harris is included on the list of
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`retained-Plaintiffs attached to the MSA. ECF No. 1319-2 at PageID.40529. The
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`January 17, 2021 package is signed by Mr. Fletcher and enclosed a template opt-
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`out and objection letter addressed to this Court to be signed by Mr. Harris, stating:
`
`I am a resident of the City of Flint. I paid water bills between January
`1, 2017 and June 2019. I acknowledge that I have no medical records,
`nor have I had a lead level test of bone lead test between May 16, 2014
`and August 2016. I have no proof of any damages to my residential
`property as required in Section V., p. 38 and 39 entitled “Property
`Damage and Business Economic Loss Categories.”
`
`As such, given the $1,000.00 maximum limit, I intend to opt out of the
`Settlement Agreement and request of you the 2% relief as filed by my
`Attorney Loyst Fletcher, Jr.
`
`Further, as a water paying adult resident of the City of Flint, I object to
`the Amended Settlement Agreement as being totally unfair to the adults
`that also suffered.
`
`
`
`3
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54548 Filed 02/03/21 Page 12 of 27
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`Exhibit A.
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` The unsolicited January 17, 2021 package also enclosed an Attorney-Client
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`Representation Agreement (“Fletcher Retainer”) to hire the Fletcher Firm to
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`represent Mr. Harris for his Flint Water Crisis Claim.1
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`This Court has the responsibility to ensure that parties in a class and collective
`
`action do not engage in abusive, deceptive, or coercive communications with class
`
`members and represented individuals. But that is exactly what Mr. Fletcher has done
`
`here. The opt-out and objection letter enclosed in Mr. Fletcher’s January 17, 2021
`
`package contained inaccurate and misleading statements concerning the proposed
`
`Amended Settlement Agreement. Specifically, Mr. Fletcher suggests to members of
`
`the putative class and represented individuals that they may request “the 2% relief
`
`as filed by my Attorney Loyst Fletcher, Jr.” See Exhibit A.2
`
`Mr. Fletcher’s opt-out and objection letter is deceptive in that it suggests that
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`eligible Settlement claimants and absent Settlement Class members may choose
`
`between participating in the Settlement or being compensated via the “2% relief”
`
`
`1 In addition to the other issues described herein, the Fletcher Retainer
`impermissibly provides for a 40% contingency fee, in violation of Michigan Rules.
`See Ex. A; MCR 8.121(B) (“The maximum allowable fee for the claims and actions
`referred to in subrule (A) is one-third of the amount recovered.”)
`
`2 It is unclear from the letter what, exactly, Mr. Fletcher is referring to here.
`Plaintiffs have interpreted the reference to coincide with Mr. Fletcher’s statements
`in the reply brief he filed in support of his motion to intervene. See ECF No. 1396 at
`PAGEID.54356.
`
`
`
`4
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54549 Filed 02/03/21 Page 13 of 27
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`referenced in the form letter. But there currently is no Settlement which provides the
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`type of alternate relief reference in this letter, nor can the Court order that such relief
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`be provided. See ECF No. 1399 at PageID.54460 (“The Court does not have the
`
`power or authority to impose additional terms, additional monetary amounts, or a
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`different allocation to an agreement reached between the parties.”).
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`Further, Mr. Fletcher’s letter is intended to chill participation in this proposed
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`settlement by providing unsolicited opt-out and objection letters, discouraging
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`putative class members and represented individuals from joining the proposed
`
`settlement. Mr. Fletcher’s communications are thus deceptive and coercive.
`
`II. MR. FLETCHER’S MISLEADING COMMUNICATION HAS ALSO
`BEEN SENT TO ABSENT MEMBERS OF THE CONDITIONALLY
`CERTIFIED SETTLEMENT SUBCLASS.
`
`On January 21, 2021, the Court preliminarily approved the proposed
`
`Amended Settlement Agreement and, in doing so, conditionally certified a
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`Settlement Class and Subclasses. ECF No. 1399. Consistent with Federal Rule of
`
`Civil Procedure 23(e), the Court also reviewed and approved Notice to members of
`
`the Settlement Class and Subclasses. Id. at PageID.54450-51
`
`In addition to contacting retained individuals, Mr. Fletcher has sent the same
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`misleading packet of information described above to Flint residents who are likely
`
`members of the conditionally certified Settlement Class. See Ex. B. As explained
`
`above, the information contained in Mr. Fletcher’s correspondence inaccurately
`
`
`
`5
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54550 Filed 02/03/21 Page 14 of 27
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`describes the relief available to potential Settlement claimants and deceptively
`
`attempts to dissuade participation in the Settlement. Additionally, the letter wrongly
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`describes the process in which absent class members may opt-out of the proposed
`
`Settlement.
`
`The Court-approved Notice explains that for members of the Settlement Class
`
`to opt out and preserve their right to bring an individual action, they must sign a
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`specific form and submit that form to the Claims Administrator. Moreover, the letter
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`wrongly suggests that absent class members may both object to, and opt-out of, the
`
`proposed Settlement. Wrongly advising absent Settlement Class Members regarding
`
`their legal rights under the settlement could result in class members unknowingly
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`releasing their claims, receiving nothing from the Settlement, and/or failing to object
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`in a manner that can be taken into consideration by the Court. This is precisely why
`
`the Federal Rules and Due Process Clause require Courts to review and approve the
`
`Notice to absent class members that describes these legal rights and how to exercise
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`them.
`
`LEGAL STANDARDS
`
`Courts consider four factors in determining whether to issue a temporary
`
`restraining order and preliminary injunction:
`
`1)
`
`2)
`
`
`
`whether the movant has a strong likelihood of success on the merits;
`
`whether the movant would suffer irreparable injury without the
`injunction;
`
`6
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54551 Filed 02/03/21 Page 15 of 27
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`3)
`
`4)
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`whether issuance of the injunction would cause substantial harm to
`others; and
`
`whether the public interest would be served by the issuance of the
`injunction.
`
`Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
`
`542 (6th Cir. 2007). “These factors simply guide the discretion of the court; they are
`
`not meant to be rigid and unbending requirements.” In re Eagle-Picher Indus., Inc.,
`
`963 F.2d 855, 859 (6th Cir. 1992) (citations omitted); see also Victory Lane Quick
`
`Oil Change, Inc. v. Darwich, 799 F. Supp. 2d 730, 733 (E.D. Mich. 2011).
`
`Regarding Mr. Fletcher’s communications with absent members of a class,
`
`the Court also has authority to enjoin his communications under Rule 23(d) and need
`
`not find that the four preliminary approval factors have been satisfied. Tolmasoff v.
`
`Gen. Motors, LLC, No. 16-11747, 2016 WL 3548219, at *10 (E.D. Mich. June 30,
`
`2016) citing Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1201 (11th Cir.
`
`1985). In the context of a class action, the Supreme Court has held that Courts also
`
`have a “duty to exercise control over a class action and to enter appropriate orders
`
`governing the conduct of counsel and parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89,
`
`99-100 (1981); see also Fed. R. 23(d)(1)(C)(permitting courts to issue orders that,
`
`“impose conditions on the representative parties or on intervenors.”).3 That control
`
`
`3 This authority exists both before, and after, a Court has decided to certify a class.
`See Manual for Complex Litig. at 259 (4th Ed.) (“If class members have received
`
`
`
`7
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54552 Filed 02/03/21 Page 16 of 27
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`includes restricting communications between an attorney and the class where such
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`communications are abusive, deceptive, or coercive. Gulf Oil Co., 452 at 101.
`
`When considering requests to limit communications with absent class
`
`members, the Court and parties must be particularly mindful of potential First
`
`Amendment concerns. Id. at 103-04. As a result, the Supreme Court held that, “an
`
`order limiting communications between parties and potential class members should
`
`be based on a clear record and specific findings that reflect a weighing of the need
`
`for a limitation and the potential interference with the rights of the parties.” Id. at
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`101; see also Williams v. U.S. Dist. Court., 658 F.2d 430, 436-37 (6th Cir. 1981)
`
`(holding restrictions on communications with absent class members must be
`
`premised on legal and/or factual findings of abuse or potential abuse).
`
`Because the arguments supporting Plaintiffs’ request that the Court impose
`
`restrictions on Mr. Fletcher’s communications with absent class members are largely
`
`coextensive with the analysis required in deciding whether to impose a preliminary
`
`injunction, they will be addressed simultaneously. Here, all of the preliminary
`
`junction factors, as well as the caselaw regarding restrictions on communications
`
`with absent class members, weigh in favor of restricting Mr. Fletcher’s misleading
`
`and unsolicited communications.
`
`
`inaccurate precertification communications, the judge can take action to cure the
`miscommunication and to prevent similar problems in the future.”)
`
`
`
`8
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54553 Filed 02/03/21 Page 17 of 27
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`ARGUMENT
`
`I.
`
`PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
`
`In establishing the first TRO and preliminary injunction factor, “it is
`
`ordinarily sufficient if the plaintiff has raised questions going to the merits so serious,
`
`substantial, difficult, and doubtful as to make them a fair ground for litigation and
`
`thus for more deliberate investigation.” Six Clinics Holding Corp., II v. Cafcomp
`
`Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997); Little Caesar Enterprises, Inc. v.
`
`Miramar Quick Serv. Rest. Corp., No. 2:18-CV-10767, 2019 WL 3219844, at *3
`
`(E.D. Mich. July 16, 2019), aff’d, No. 19-1860, 2020 WL 4516289 (6th Cir. June 25,
`
`2020).
`
`At least three rules of the Michigan Rules of Professional Conduct are relevant
`
`here. First, Rule 4.2 of the Michigan Rules of Professional Conduct prohibits a
`
`lawyer from communicating “about the subject of the representation with a person
`
`whom the lawyer knows to be represented in the matter by another lawyer, unless
`
`the lawyer has the consent of the other lawyer or is authorized by law to do so.”
`
`Second, Rule 7.3 of the Michigan Rules of Professional Conduct states that “[a]
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`lawyer shall not solicit professional employment from a person with whom the
`
`lawyer has no family or prior professional relationship when a significant motive for
`
`doing so is the lawyer’s pecuniary gain.” Third and finally, Rule 8.4(a) states that
`
`professional misconduct occurs when a lawyer “violate[s] or attempt[s] to violate
`
`
`
`9
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54554 Filed 02/03/21 Page 18 of 27
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`the Rules of Professional Conduct, knowingly assist or induce another to do so, or
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`do so through the acts of another.” This Court has the inherent authority and the duty
`
`to prohibit or remedy litigation practices which raise ethical concerns or may
`
`constitute ethical violations. United States v. Miller, 624 F.2d 1198, 1201 (3d Cir.
`
`1980); Carlson v. Thomas, 159 F.R.D. 661, 663 (E.D. Ky. 1994).
`
`Although Mr. Fletcher is not a party to the consolidated action before this
`
`Court, Mr. Fletcher has knowingly participated in efforts to engage in improper
`
`communications with represented parties and punitive class members and thus can
`
`be found to have engaged in ex parte communications. See MRPC 4.2(a). The
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`January 17, 2021 package clearly addresses the legal rights of Mr. Harris and other
`
`recipients of the package, specifically their right to opt out and object to the potential
`
`settlement. It is inappropriate for Mr. Fletcher to issue such a letter to putative class
`
`members and represented individuals when he is not class counsel nor represents the
`
`targeted individual.
`
`Unlike most other cases, in this litigation retained plaintiffs are listed in
`
`records maintained by the Special Master as a part of the extensive and ongoing
`
`census. Additionally, the MSA includes exhibits listing individuals who have
`
`retained counsel in this matter. Mr. Fletcher could have easily consulted either of
`
`these sources to avoid contacting those individuals who had retained counsel. That
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`he either did not do so, or moved forward regardless, is troubling and supports
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`intervention by the Court. Moreover, even if some of the individuals Mr. Fletcher
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`solicited had not retained individual counsel, to the extent they are members of a
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`conditionally certified Settlement Subclass, Mr. Fletcher’s communications were
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`improper.4
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`Mr. Fletcher was not authorized by statute, law, Plaintiffs’ counsel, or this
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`Court to engage in these ex parte communications with putative class members and
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`represented individuals. According to the ABA’s Committee on Ethics and
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`Professional Responsibility, a communication is “authorized by law” if “a
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`constitutional provision, statute or court rule, having the force and effect of law . . .
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`expressly allows a particular communication to occur in the absence of counsel.”
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`ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 95-306 (1995). Such
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`communications include “court rules providing for service of process or a statute
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`authorizing a government agency to inspect certain regulated premises.” Id. Mr.
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`Fletcher can point to no provision which would expressly authorize the
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`communication at issue here. Of course, Plaintiffs’ counsel has not authorized any
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`such communication and has, in fact, objected to such communications. Mr.
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`4 See 3 Newberg on Class Actions § 9:2 (5th ed.) (explaining that, “professional
`ethics rules regulate the manner in which attorneys may communicate with absent
`class members” and referencing model rules which restrict solicitation, prohibit ex
`parte communications, and forbid misleading or deceptive communications).
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1409, PageID.54556 Filed 02/03/21 Page 20 of 27
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`Fletcher’s communications are misleading and likely unethical, violating Michigan
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`Rules of Professional Conduct 4.2 and 7.3.
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`Accordingly, Plaintiffs are likely to succeed in their request for an Order
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`limiting Mr. Fletcher’s communications with retained Plaintiffs.
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`Additionally,
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`Courts have limited communications with absent class members where, like here,
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`those communications contained incorrect or misleading information. See, e.g.,
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`Jones v. Jeld-Wen, Inc., 250 F.R.D. 554, 564 (S.D. Fla. 2008) (limiting
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`communications with absent class members designed to encourage opt-outs where,
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`“ has the potential to have a misleading and coercive effect on putative class
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`members.”); Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D.
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`696, 698 (S.D. Ala. 2003) (holding, “communications that coerce prospective class
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`members into excluding themselves from the litigation; communications that contain
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`false, misleading or confusing statements; and communications that undermine
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`cooperation with or confidence in class counsel.”)
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`II.
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`PLAINTIFFS WILL SUFFER IRREPARABLE INJURY IF A
`TEMPORARY RESTRAINING ORDER AND INJUNCTION ARE
`NOT ISSUED
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`Plaintiffs will suffer irreparable harm in the absence of immediate injunctive
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`relief. An injury is irreparable if it is not fully compensable in monetary terms. See,
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`e.g., Uniroyal Goodrich Tire Co. v. Hudson, 856 F. Supp. 348, 356 (E.D. Mich.
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`1994).
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`Here, Plaintiffs have shown a strong likelihood of confusion by showing that
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`Mr. Fletcher’s letter (i) contains false statements and (ii) is directed at persons who
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`are represented by attorneys and are putative class members. In light of the fact that
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`the January 17, 2021 letter contained a retainer agreement to hire Mr. Fletcher for
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`claims arising out of the Flint Water Crisis, there can be little doubt, however, that
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`Mr. Fletcher intended the opt-out/objection letter and proposed retainer agreement
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`to be delivered to absent class members and individuals he knew (or should have
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`known) were represented by counsel. He also knew, or should have known, that the
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`language in that letter could affect the recipients’ legal rights and behavior.
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`One of the main purposes of MRPC 4.2(a) is to protect the integrity of the
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`lawyer-client relationship. Indeed, the comments to ABA Model Rule 4.2 (upon
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`which MRPC 4.2(a) is based) indicate that its central prohibition “contributes to the
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`proper functioning of the legal system” by guarding against “possible overreaching”
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`by lawyers, including whose conduct may “interfere[] with the client–lawyer
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`relationship.” See ABA Model Rules of Professional Conduct 4.2, cmt. a.
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`Mr. Fletcher’s actions here—in addition to prejudicing Plaintiffs’ counsel—
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`have greatly impaired Plaintiffs’ counsels’ relationship with represented clients and
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`the putative settlement class. Indeed, the content of Fletcher’s letter suggests it was
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`his intention to do so. Although Plaintiffs do not know the exact number of clients
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`and putative class members that were sent improper solicitation letters by Mr.
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`Fletcher, early indications suggest the number is likely substantial. Based upon the
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`telephone calls and other inquiries made by Plaintiffs thus far, the communication
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`has already caused distress and confusion among the residents of Flint. Plaintiffs and
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`members of the Settlement Class are understandably confused as to why they are
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`receiving letters and retainer agreements from lawyers they have never heard of nor
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`sought counsel from.
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`Because of Mr. Fletcher’s improper communications, Plaintiffs’ counsel will
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`now be required to participate in needless phone calls and correspondence with
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`potentially thousands of plaintiffs and residents concerned about this letter. Not only
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`will these communications take copious amounts of time, but they will have the
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`effect of making Plaintiffs’ counsel appear ineffective and incompetent—
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`undermining the attorney-client relationship.
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`Worse yet, Plaintiffs may make decisions based on the misinformation
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`contained in Mr. Fletcher’s communication—his letter expressly seeks to have
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`potential claimants refrain from participating in the Settlement in order to partake in
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`a non-existent, alternative “2% relief.” But, as discussed previously, there is
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`currently no alternative to the Settlement that compensates claimants and the form
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`letter provided by Mr. Fletcher does not constitute an effective opt-out and thus does
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`not preserve the signatory’s ability to bring their own claim. Those Plaintiffs who
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`act on the information provided in Mr. Fletcher’s communication could end up
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`without any remuneration or even the ability to bring their own claim.
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`The injuries Mr. Fletcher’s letter threatens to inflict will be irreparable. Some
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`clients may elect to change representation altogether; others may simply lose faith
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`in their attorneys or the process in subtle ways, including by seeking yet other
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`representation apart from their current attorneys or Mr. Fletcher; still others may
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`drop out of the process altogether. If the misinformation prompts large number of
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`opt-outs and objections, it may imperil the settlement.
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`III. MR. FLETCHER WILL NOT BE HARMED BY THE INJUNCTION.
`
`The