Employee Rights and Employment Policy Journal

"Silence Like a Cancer Grows" or "You Talk too Much?" Ethical and Strategic Issues in Communications by Plaintiff's Counsel with Putative Class Members

Abstract

By
Ellen J. Messing, James S. Weliky, and Jessica A. Cunningham

For a variety of reasons, counsel for plaintiffs in employment class actions frequently seek to communicate with the defendant's employees prior to class certification. Defendant-employers tend to object to plaintiffs' counsel's communications with their employees, and disputes over the propriety of such communications regularly arise. Unfortunately, although plaintiffs have frequently succeeded in safeguarding their ability to engage in communications with putative class members, there is not a coherent body of analysis on the subject. The courts have struggled with the interplay among the Federal Rules of Civil Procedure, the Rules of Professional Conduct, and the First Amendment rights of interviewees, leaving plaintiffs and their counsel with little guidance as to how to maximize their right to free and open communication. This article outlines an analytical framework for opposing restrictions on communications with class members when they are sought by defendants.