Commentary and analysis of issues relating to the ability of plaintiffs’ attorneys to communicate with class members in class action litigation under Rule 23. Judicially-imposed limitations are motivated by issues of misrepresentation, improper class solicitation, the stirring-up of litigation, and the broader impact of class litigation on a corporate defendant’s image and business affairs. The leading Supreme Court decision dealing with class communications is Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), acknowledging the broad authority to control the conduct of parties and counsel in class actions, and setting forth standards governing judicial orders regulating class communications. The article explores the relationship of the plaintiffs’ attorneys’ duties to the class and Rule 23(a)(4)’s requirement for adequate representation. How may class attorneys carry out their duties of adequate representation if their ability to communicate with the class is limited? Does the First Amendment to the Constitution prohibit courts from issuing gag orders against discussing a proposed action with putative class members? Communication with class members is a major concern in class action management, governed by Rule 23(d). Provisions of the MANUAL FOR COMPLEX LITIGATION also offer standards and best practices rules for class counsel in communicating with class members.
Linda S. Mullenix, Master Class--Class Communications, National Law Journal, Oct. 15, 2001, at B11.