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.

Practitioners on the defense and plaintiff sides of class action cases debate when in a litigation potential class members are represented by plaintiff counsel and even debate the appropriateness of post-class-certification communications with absent class members. Some practitioners and courts deem plaintiff counsels’ representation of potential class members to begin with the filing of a class action complaint while others deem it to begin with class certification. Debate exists also over the appropriateness of defendants’ communications with potential and actual class members.

Court rulings and class certification decisions are often influenced by class member declarations. As a result, class member communications and efforts to restrain them bear close study strategically as well as ethically. Such communications can ultimately affect the course of class certification and class trial. Putative class counsel take on obligations to a potential class from the outset of the suit. Early, pre-certification appointment of interim class counsel under Federal Rule of Civil Procedure 23(g) and state court equivalents formalize such pre-certification obligations and may include court–approved communications to educate potential class members and counsel.

Defendants’ communications with class members generally seek to assist the defendant to defend against claims brought on behalf of the potential class members, whereas plaintiff side communications generally seek to advance the interests of the people being communicated to. However, defendants and plaintiffs often also disagree about what is in the class’s interest. Regardless of which side of a case counsel is on, a transcendent rule shared by all states and courts is that no one may communicate misleading or false information to potential class members.

Keywords: litigation, class actions, derivative suits, class action books, ABA Survey of State Class Action Law, ethics rules

Fabrice N. Vincent and Jahan C. Sagafi – September 19, 2013