Master Class: Making Contact

Abstract

Commentary and analysis of the ability of defense counsel to communicate with class members during Rule 23 class action litigation. In particular, the article deals with the question whether defense counsel may survey class members about their interests in joining a proposed class action, or to compile lists of grievances to present to the court during class certification proceedings. May defense 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 the 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 areas of class action jurisprudence. This article surveys various federal and state court decisions that have grappled with these questions concerning the permissible scope of defense communications with class members both before and after class certification, and decisions permitting and forbidding such communications