By Craig M. Freeman , John Randall Whaley , and Richard J. Arsenault

Abstract

[a.1] Putative class members occupy a unique role in class action litigation before a class action is certified. The putative class members are not parties to the litigation and are not required to do anything while litigation affecting their rights proceeds without them. The United States Supreme Court and other courts have stated that courts overseeing class actions have a duty to protect the interests of absent class members.

[a.2] Defendants often desire to communicate with putative class members and settle their claims before a case is certified. Because of the unequal positions of the parties, such communication can hinder the proper administration of justice. Under existing law, courts have no way to be made aware of any communication until after the problematic communication has occurred. Courts, therefore, cannot protect absent class members from objectionable communication but must react after-the-fact if such communications are ultimately detected.

[a.3] The Supreme Court in Gulf Oil held that courts cannot issue orders regarding pre-certification communication without evidentiary findings of actual or threatened abuse. This puts courts in the awkward position of having the duty to "protect" absent class members from harmful communication of which the courts are unaware.

[a.4] Gulf Oil Court unduly limited trial courts in their duty to protect putative class members. A solution to the problem of improper communication can be had by applying established First Amendment jurisprudence regarding lawyer's speech and lawyer advertising. The attached essay outlines the problem, explains the solution and highlights the cases evidencing the need for the proposed solution.

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Table of Contents

I. INTRODUCTION

II. CLASS ACTION PROCEDURE AND THE COURT'S RULE 23 AUTHORITY

III. GULF OIL

IV. THE PROBLEM WITH GULF OIL

V. APPLICABLE FIRST AMENDMENT JURISPRUDENCE

VI. PROPOSAL FOR PRE-CERTIFICATION JURISPRUDENCE

VII. THE PROPOSAL IS CONSTITUTIONAL

VIII. CASES FOLLOWING GULF OIL SHOW A NEED FOR THE PROPOSAL

IX. CONCLUSION

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