FEDERAL COURTS LAW REVIEW -- 2006 Fed. Cts. L. Rev. 2KNOWLEDGE IS POWER:
A PRACTICAL PROPOSAL TO PROTECT PUTATIVE CLASS MEMBERS FROM IMPROPER PRE-CERTIFICATION COMMUNICATION
By Craig M. Freeman , John Randall Whaley , and Richard J. Arsenault
[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.