Tuesday, June 12, 2018

The legality of pre-certification communications with potential class members

Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

Our rules of legal ethics prohibit us from communicating with represented parties. But they also make clear that putative class members (that is, pre-certification individuals who could be included in the future class) are not yet represented. They only become represented if the class is certified, or if the collective action is certified and they opt in.

For this reason, it’s been nearly three decades since the Supreme Court ruled that defense counsel is permitted to contact putative class members before a class is certified. Indeed, courts only limit these pre-certification communications to class members if:
  • the communications to class members misrepresent the status or the effect of the pending action; or
  • They have an obvious potential for confusion and/or adversely affecting the administration of justice. 

Following these rules, courts have permitted communications that:
  • sought affidavits from employees to oppose class certification (here)
  • advised employees to contact the company’s attorney with questions about the pending case (here)
  • attempted to resolve the specific damage claims of each potential class member (here)

Courts only prohibit or otherwise limit defense counsel’s pre-certification communication with putative class members if there is a specific showing that the communications attempted to coerce putative members into excluding themselves from the class, undermined cooperation with or confidence in plaintiffs’ counsel, or suggested retaliation for participating in or assisting the class.

Thus, if you are sued in a class action lawsuit, consider implementing reasoned pre-certification communications with your employees as part of your defense strategy.

* Photo by terimakasih0 on Pixabay