September 19, 2013 Articles

Book Excerpt: Communications with Putative Absent Class Members

An excerpt from the introduction to the 2013–2014 edition of the ABA Survey of State Class Action Law.

By Fabrice N. Vincent and Jahan C. Sagafi

Editors' note: The following article is an edited excerpt from the introduction to the 2013–2014 edition of the ABA Survey of State Class Action Law. For the first time, the 2013–2014 edition will discuss the propriety of communications with putative absent class members.

For the first time, the 2013–2014 edition of the ABA Survey of State Class Action Law includes discussions of each state’s law and ethical rules governing communication with class members. The question of when and how an attorney or party may communicate with class members pre- or post-certification is complex and important. In individual actions, an attorney-client relationship commences when a client retains an attorney. In class actions, on the other hand, identifying the parties represented and the attendant ethical rules that attach can be more complex. Furthermore, the procedural context has implications beyond the ethical restrictions for parties to a class action communicating with class members.

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