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May class counsel contact absent class members to survey their interest in joining a proposed class action, or to compile a list of grievances to present to a court during a class certification hearing? May class counsel communicate with potential class members to solicit additional people to join a class? May defense counsel contact absent class members to survey their lack of interest in pursuing relief, or to inform these prospective class members of the defendant’s view of the situation? Are absent class members clients of class counsel? Exactly what is the scope of communications that attorneys may have with absent class members, and when? The subject of permissible contacts with absent class members is one of the murkier and unsettled — although extremely important — areas of class action jurisprudence. Counsel on both sides of class action litigation often have a high interest in communicating with potential class members. Whether attorneys may do so is determined by class action decisional law and the requirements of various codes of professional responsibility. In addition to any general provisions relating to communications with represented persons, state law may contain specific provisions relating to permissible contacts with potential class members. Also, the timing of such communications has bearing on the legitimacy of such contacts. Plaintiff’s class counsel may seek to communicate with putative class members simply to ascertain whether there are sufficient numbers of claimants to satisfy Rule 23(a)’s numerosity requirement. Contacts with potential class members therefore might provide an evidentiary basis for numerosity, rather than a mere conclusory assertion of numerosity. Also, class counsel might, prior to class certification, seek to communicate with potential class members to educate them as to the pending class action, the nature of the claims, the potential for classwide relief, the claimant’s rights and the opportunity to join a class litigation, as well as to assist in establishing the elements necessary for class certification. Defense counsel, on the contrary, might seek to contact putative class members prior to class certification to survey whether such potential class members are truly interested in pursuing legal relief, especially through a class action. Defense counsel might be interested to discover whether, in truth, potential class members actually have a grievance. Defense counsel also might desire to contact putative class members to educate potential class members as to the defendant’s views of the litigation, alternative remedial avenues, settlement proposals, possible consequences of litigation, and to assist in refuting the necessary certification requirements. This article deals with the problems relating to defendants’ contacts with potential class members, prior to class certification. THE SPECIAL COMPLICATIONS SURROUNDING CLASS ACTIONS In class action litigation, questions surrounding permissible contacts with absent class members are complicated because class action litigation is representational litigation. In ordinary one-on-one litigation, the rules concerning communications with a represented client are fairly straightforward. Once an attorney represents a client, then opposing counsel may not contact the client without the opposing counsel’s knowledge and consent. Usually it is fairly evident when counsel has undertaken representation of a client. Class action jurisprudence is complicated by timing considerations and is equivocal about who the client is, and when an attorney undertakes the representation. Under one theory, the class counsel represents only an individual client — the class representative — until a court certifies the proposed class action. In this view, potential class members are not yet clients and are not yet represented, and therefore anyone may freely contact these persons. Under a different theory, the filing of the class action complaint triggers a fiduciary, legal representation among the class counsel and all potential class members. Therefore, it is illegitimate for defense counsel to contact potential class members once a class complaint has been filed. The subject of communications with class members is somewhat clearer once a court certifies a class action. At this point, the class action is subject to the court’s supervisory powers, and communications with class members may be subjected to supervision and control by judicial order. Fed. R. Civ. P. 23(d). However, many courts have also deemed a class action to be subject to the court’s supervisory powers, as soon as the class complaint is filed. Although both plaintiff and defense counsel frequently desire to communicate with absent class members, Fed. R. Civ. P. 23 contains no specific provisions relating to communications with class members prior to class certification. Moreover, there is not a very expansive body of decisional law dealing with this subject. In addition, the scant case law often does not answer unique problems of particular attempted communications. As such, questions relating to permissible communications with putative class members is an evolving jurisprudence and communications issues often arise in complicated fact situations. SANCTIONS FOR ‘MISLEADING PORTRAYALS OF FACT’ There is conflicting decisional law concerning whether and to what extent defendants may attempt to contact or may actually contact putative class members. Although there is disagreement concerning whether defendants’ counsel may contact putative class members prior to class certification, the treatises agree that if defendants are permitted to contact absent class members, such communications must not provide false or misleading information, or attempt to influence class members in making their decision whether to join or remain in a class. SeeManual for Complex Litigation (Third) at � 30.24 (2000); see generallyMoore’s Federal Practice � 23.68[2][a](3d ed. 2000). Indeed, a court may impose sanctions on defense counsel for employing “misleading portrayals of fact” to secretly solicit members of a certified class to opt out of the class litigation. See Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1199 (11th Cir. 1985). Moreover, to prevent abuses, federal district courts have supervisory authority to impose limitations on a defendant’s communications with putative class members. See e.g., In re Domestic Air Transportation Antitrust Litig., 1992 WL 357433 at *1 (N.D. Ga. 1992). Numerous federal and state courts have held, however, that it is not improper or inappropriate for defendants to communicate with persons who fall within a proposed class action, for the purposes of settlement proposals or negotiations. See e.g., Jenifer v. Delaware Solid Waste Auth., 1999 U.S. Dist. Lexis 2542, 7 (D. Del. 1999); Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206, 213 (2d Cir. 1987); Jankousky v. Jewel Companies, Inc., 538 N.E.2d 689, 691 (Ill. App. Ct. 1989). Additionally, a rule supporting communications with putative class members may be stronger if there exists a prior and continuing business relationship between the defendant and putative class members. See e.g., Burrell v. Crown Central Petroleum, Inc., 176 F.R.D. 239 (E.D. Texas 1997); In re Winchell’s Donut Houses L.P. Securities Litig., 1988 WL 135503 (Del. Ch. Dec. 12, 1988). Although some federal and state courts permit defendants to contact class members prior to certification, other courts do not. For example, the federal court for the Eastern District of Pennsylvania recently endorsed the view that putative class members are parties to the litigation upon the initiation of a class lawsuit, and therefore the Pennsylvania rules of professional conduct prohibited defense attorneys in federal individual litigation from contacting potential class members in a parallel state class action. See Dondore v. NGK Metals Corp., 2001 U.S. Dist. Lexis 4267 (E.D. Pa. April 3, 2001); Pa. R. Prof. Conduct 4.2. (“In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”) In Dondore, plaintiffs’ counsel instituted individual tort lawsuits in federal courts arising out of the plaintiffs’ alleged chronic beryllium disease as an alleged consequence of the defendants’ emission of beryllium dust and other particulate matter. The same plaintiffs’ attorneys also filed a parallel state class action based on the same claims and legal theories. During discovery in the individual federal lawsuits, the defendants learned the names of potential witnesses — neighbors and relatives — with knowledge and information relating to the plaintiff’s exposure claims. A defendant manufacturing company then filed a motion to confirm its right to engage in informal discovery from these witnesses. RULE FORBADE CONTACT WITH POTENTIAL CLASS MEMBERS The federal district court denied the defendant’s motion, concluding that Pa. R. Prof. Conduct 4.2 prohibited the defense counsel from contacting or interviewing persons who were potential class members in the state class action without the consent of class counsel. The court held that the potential witnesses whom the defense counsel sought to interview were represented by counsel in the state class action. The court stated that in the federal context, a class action is a truly representative suit, and that a class action representation belongs to all parties, “even asserted class members who are unaware of the proceedings brought in their interest.” Id., 2001 U.S. Dist. Lexis 4267, *6, citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). Moreover, “putative class members stand at least in a fiduciary relationship with class counsel.” Id., citing In re Gen Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d Cir. 1995). Under Pennsylvania law as well, putative class members were properly characterized as parties to the action and were entitled to the protections of Pa. R. Prof. Conduct 4.2. Even though the Pennsylvania state court had not decided the class certification issue, “as a practical matter a court cannot decide the class certification issue immediately upon the filing of the complaint.” Dondore, id., 2001 U.S. Dist. Lexis 4267, *9. Therefore, in the interim, certain benefits must be afforded the putative class members. Although the court denied the defendant the right to informal discovery of the potential witnesses with regard to the state class action, the federal court did not limit the defendant’s ability to seek discovery of these witnesses in connection with the individual federal lawsuits. Moreover, the federal court held that the defendant was not limited in its contacts with these potential witnesses in the event that the Pennsylvania state court did not certify the class action, and the witnesses were not represented by counsel. Finally, the ability of class counsel, either on the plaintiff’s or the defendant’s side, to communicate with absent class members potentially implicates First Amendment speech concerns. Counsel’s ability to raise a plausible First Amendment theory in support of such communication ultimately rests on whether such communication constitutes protected commercial speech. Nonetheless, the Manual for Complex Litigation recognizes this proposition, as well: “Because First Amendment principles are implicated…the court should not restrict communications between the parties or their counsel and actual or potential class members, except when justified to prevent serious misconduct.” Manual for Complex Litigation (Third) at � 30.24 (1995). Linda Mullenix is the Ward Centennial Professor at the University of Texas School of Law. She is the author of ” State Class Actions: Practice and Procedure” (CCH 2000).

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