In class action lawsuits the Defendant and Defendant’s counsel are prohibited from communicating with potential class members in any way that may oppose the certification of the class. Recently the United States District Court for Maryland addressed this issue in The Law Offices of Leonard I. Desser v. Shamrock Communications, Inc. There the court had concerns about potentially improper communications between the Defendant’s counsel and potential class members.
First, Defense counsel had prepared affidavits from repeat customers of the Defendant for the purpose of submitting those affidavits along with a motion to strike. The problem was the affiants were potential class members of the class action and it was unclear whether the Defendant’s counsel had properly informed the affiants of the possible class action before requesting they submit affidavits that would be against their interests as potential class members. The Defendant’s attorney alleged he had never communicated with any of the potential class members. However, the court saw through that argument, noting that while technically the Defendant’s attorney may not have communicated with the potential class members, the attorney’s staff clearly had, as evidenced by the fact that the affidavits were all nearly identical and all had the same filing system indicator.
Second, the court expressed concern that the Defendant’s attorney did not fully explain the litigation, how it could impact the potential members and how submitting an affidavit for the Defense could impede their ability to participate as a class member. Without a proper, fair and neutral explanation of the case, Defense counsel’s communications with the potential class members could be viewed as opposing the certification of the class by inducing potential class members to act in a way that precluded their involvement in the action. Based upon these two factors the court found it appropriate to impose limitations upon contacts by both parties and their attorneys, with the potential class members.
Lebau & Neuworth often represents groups of employees in class and collective action cases for owed wages and overtime. Employers often try to mislead possible members of the action. We take care to ensure no worker is misled about his or her rights.
If potential class members must be contacted, such contact must be neutral, balanced, and complete. Biased, one-sided communication with potential class members is prohibited. For more information, contact us.
