At the ABA 2007 Annual Meeting in San Francisco in August, the Ethics and Professional Responsibility Committee’s presentation concerned ethical issues associated with ex parte communications with putative class members in employment class actions. Roberta Steele, a partner with Goldstein, Demchak, Baller, Borgen & Dardarian, moderated this lively debate among panelists regarding when counsel may contact putative class members in employment class actions, one of the fastest growing areas of labor and employment law.

Steven Moore, a partner at Baker Hostetler who regularly represents large employers in class litigation and a former Employer Chair of the Ethics and Professional Responsibility Committee, explained the various interests that parties have with respect to communicating with unnamed class members before a class is certified, including a defendant’s need to gather facts to defeat a motion for class certification and to reach settlements with unnamed class members who have no interest in being represented by class counsel. Mr. Moore discussed how such communications are generally permitted before a class is certified, but explained that, once a class is certified, courts consider an unnamed class member to be a represented party, that is, represented by class counsel.

Jahan Sagafi, an associate with Lieff, Cabraser, Heimann & Bernstein, LLP, discussed, however, that some defense counsel engage in coercive and misleading communications with putative class members and that, in those situations, trial courts issue orders regulating defense counsel’s communications with unnamed class members where there has been a showing of improper conduct. Mr. Sagafi, who regularly represents employees in class litigation, discussed numerous case holdings throughout the country where courts have issued such curative orders.

Evangelina Hernandez, an EEOC trial attorney in San Francisco, furthered the discussion by explaining these concepts in the context of EEOC enforcement actions where the EEOC pursues relief for claimants on a class basis. In these types of cases, the EEOC is not required to obtain certification of the action under Rule 23 of the Federal Rules of Civil Procedure. Without a Rule 23 certification stage in the proceedings, there does not exist the bright line as to when a class member is considered be represented party, particularly in actions under Title VII of the Civil Rights Act of 1964. Ms. Hernandez explained how courts have ruled on the these issues in various different contexts depending if the claim is brought under Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act.

This article was prepared by Steven W. Moore of Baker & Hostetler LLP, Denver, Colorado.