Are You Talking to Me? Communicating with Class Members Before, During, and After Class Certification

Tuesday, May 20, 2008

TeleConference

Confusion abounds among class counsel, defense counsel, courts, and putative class members as to the scope and appropriateness of communications with absent class members before, during, and after class certification. Our teleconference and audio webcast will provide guidance on who can talk to whom, when, and about what.

This program will discuss everything relating to communications with class members, including:

• Pre-filing communications, seeking plaintiffs via websites, and the effect of any website advertising to obtain plaintiffs
• What communications are permissible between filing the complaint and class certification, i.e., are the class members considered represented or not? Can discovery be propounded to the absent class members? What about questionnaires?
• Is there a different standard where the non-named plaintiffs have called plaintiffs' counsel directly and asked to be a part of the case but are not named plaintiffs?
• What if a defendant has an ongoing business or employment relationship with the putative class? What's allowed and when? Must any communications be approved by the court or plaintiffs' counsel?
• If communications are made, can any questionnaires that are used by class counsel or defense counsel to the class be used as evidence? What if they are unsigned or the class member's name is redacted?
• What about post-certification before any opt-out period expires? What effect does the ABA’s recent Ethics Opinion (No. 07-445) have on such communications? Is it contrary to many courts?
• Post-certification and opt-out period expiration: what's the scope of discovery from absent class members? Is it allowed? When? How?

• Fred B. Burnside (Moderator)
  Davis, Wright, Tremaine, LLP, Seattle, WA
• Beth Burch
  Assistant Professor of Law, Cumberland School of Law, Samford University, Birmingham, AL
• Lisa Rodriguez
  Trujillo, Rodriguez & Richards, LLC, Haddonfield, NJ
• Chris Murphy
  McDermott, Will, & Emery, Chicago, IL

1.5 hours of CLE credit in 60-minute states/1.8 hours of CLE credit in 50-minute states have been requested in states accrediting ABA Teleconferences and Live Audio Webcasts*.

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 total NY CLE credits.

*States currently not accrediting ABA Teleconferences: DE, IN, PA, KS, OH