Legal Standards and Remedies for When Defendants Cross the Line with Improper Pre-Certification Communications to Potential Class Members

By Rolando Gutierrez
Trial Attorney

Class action lawsuits help people obtain justice when they cannot afford to sue on their own. When companies underpay workers, charge hidden fees, or mislead consumers, each person might only lose a small amount of money. Filing an individual lawsuit for such small amounts rarely makes financial sense. Class actions allow people with similar claims to combine their cases, split the legal costs, and stand up to powerful companies together. Class actions not only even the playing field, but they also hold companies accountable for widespread misconduct.

The effectiveness of class actions can be threatened, however, when companies inappropriately contact potential class members before a court officially certifies the class. This article examines the rules governing these communications, focusing on coercive tactics some companies use, the rights of potential class members to speak with the lawyers handling the class action, and the measures courts can take to protect the integrity of the legal process.

Legal Framework Governing Pre-Certification Communications.

While ethical rules generally prohibit counsel from communicating directly with an adverse party who is represented by counsel, potential class members, known as “putative” class members, are considered unrepresented parties before a class is certified. See ABA Formal Op. 07-445 (“A client-lawyer relationship with a potential member of the class does not begin until the class has been certified and the time for opting out by a potential member of the class has expired.”). This creates a limited window during which defendants may communicate directly with putative class members. However, courts have established clear boundaries to prevent abuse of this opportunity.

As the United States Supreme Court recognized in Gulf Oil v. Bernard, 452 U.S. 89, 100 (1981), class actions present “opportunities for abuse as well as problems for courts and counsel in the management of cases.” This is especially true with “unilateral communication scheme[s]” because they are “rife with potential coercion.” Kleiner v. The First National Bank of Atlanta, 751 F.2d 1193, 1202 (11th Cir., 1985). For this reason, courts have “both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties.” Gulf Oil, 452 U.S. at 100. This authority includes the power to regulate communications with putative class members when necessary to protect the integrity of the class action process.

Types of Prohibited Conduct in Communications with Putative Class Members

1. Soliciting Opt-Outs from Potential Class Members Before a Class is Certified

Courts have consistently held that obtaining opt-outs before a class has been certified is inherently improper and undermines the class action process.

In Guifu Li v. A Perfect Day Franchise, Inc., 270 F.R.D. 509, 518 (N.D. Cal. 2010), the court explicitly stated that obtaining opt-outs via ex parte unilateral communications before a class has been certified “unquestionably frustrates the purpose of [the class action mechanism].” In addition, pre-certification opt-out declarations barring the release of class member contact information to the plaintiff’s counsel frustrate the plaintiff’s ability to pursue claims on behalf of the putative class. Camp v. Alexander, 300 F.R.D. 617, 625 (N.D. Cal. 2014).

These cases establish that soliciting opt-outs from potential class members before certification is fundamentally improper, as there exists no certified class from which potential class members can opt out from.

2. Threats, Intimidation, or Coercive Communications

Courts have consistently held that communications suggesting potential adverse consequences for participating in class actions are impermissibly coercive and improper, with heightened scrutiny applied in employment contexts where power imbalances are most pronounced.

In Wang v. Chinese Daily News, Inc., 236 F.R.D. 485, 489 (C.D. Cal. 2006), the court invalidated opt-outs submitted by employees because they “were the product of a coercive environment that pressured employees to opt out lest they risk losing their jobs.” The court found that “the opt out period was rife with instances of coercive conduct, including threats to employees’ jobs, termination of an employee supporting the litigation, [and] the posting of signs urging individuals not to tear the company apart[.]” Id. at 491.

In Camp, 300 F.R.D. at 620, the defendants, comprising of a dental practice, sent a letter to employees explaining that the class action litigation would “jeopardize the ongoing viability of the practice[]” and “could result in the closure of this long running business.” The court found this language “highly inflammatory.” Id. at 625. The court emphasized that an employer cannot characterize a coercive communication as “opinion” simply by writing ‘“We believe’ at the beginning of an inflammatory statement… and have it immunized as a noncoercive statement.” Id. at 624.

Communications suggesting that class participation will result in public exposure, reputational harm, or damage to employment relationships constitute particularly egregious forms of coercion. In Wright v. Adventures Rolling Cross Country, Inc., 2012 WL 2239797 (N.D. Cal. June 15, 2012), the court enjoined defendants from communicating with potential class members after finding their communications impermissibly threatening. The defendants had sent letters to putative class members making statements about a “public trial” that “can put your life into a holding pattern for years[,]” and warning them that “[a]ll your past transgressions will become very public… for current and future employers, friends[,] and family to access online.” Id. at *2. The court determined that these statements, along with warnings that participation would leave class members “with tattered reputations,” created a “realistic danger that the communications [would] chill participation in the class action.” Id. at *5.  The court emphasized that the “most problematic” aspects of the defendants’ communications were “the comments about how Plaintiffs’ lives will be subject to public scrutiny as a result of the litigation – including future employers.” Id.

These cases establish that communications suggesting potential adverse consequences, retaliation, exploiting power imbalances, or emphasizing the burdens of litigation are impermissibly coercive when they create a realistic danger of chilling class participation, regardless of whether such communications are made through traditional written correspondence, in-person conversations, emails, text messages, or social media posts.

3. Factual or Legal Misrepresentations

Communications that misrepresent the nature of the case, the rights of putative class members, or the legal consequences of participation are improper.

In County of Santa Clara v. Astra USA, Inc., 2010 WL 2724512, (N.D. Cal. July 8, 2010), the court addressed communications the defendant sent to putative class members offering settlement checks for alleged overcharges under section 340B of the Public Health Service Act in exchange for releases. The court identified several misrepresentations that rendered these communications improper. The defendant’s letter “omitted material information” by failing to provide an explanation of the plaintiffs’ claims, a copy of the civil complaint, plaintiffs’ counsel’s contact information, or accurate information about the case status. Id. at *6. The letter created a misleading impression that its settlement offers had government approval when they did not. Id. The court invalidated the releases obtained from class members through ex parte communications, finding the defendant’s letter “misled the putative plaintiff class about the strength and extent of the plaintiffs’ claims.” Id.

Courts will invalidate releases or opt outs obtained through communications that materially misrepresent either the factual circumstances or the legal rights of the putative class members. The touchstone of the analysis is whether the communication, through misstatement or omission, prevents putative class members from making informed decisions about their legal options.

Putative Class Members’ Right to Communicate with Plaintiff’s Counsel

Pre-certification communications with potential class members by both parties are generally permissible. Mevorah v. Wells Fargo Home Mortgage, Inc., 2005 WL 4813532, at *3 (N.D. Cal. Nov. 17, 2005) (citing Gulf Oil, 452 U.S. at 101.) However, courts have held that ex parte communications by defendants discouraging putative class members from communicating with plaintiff’s counsel are improper. 

In Slavkov v. Fast Water Heater Partners I, LP, 2015 WL 6674575 (N.D. Cal. Nov. 2, 2015), the court invalidated releases that could be perceived as preventing communication with the plaintiff’s counsel, emphasizing that “the critical inquiry is not whether the agreement in fact prohibits any interaction with Plaintiffs’ counsel, but rather whether it would be perceived as doing so, and in turn, whether that perception would cause ‘potential interference’ with the putative class’s rights under Gulf Oil.” Id. at *4 (emphasis in original). Similarly, in Talavera v. Leprino Foods Co., 2016 WL 880550, at *9 (E.D. Cal. Mar. 8, 2016), the court ordered a corrective notice stating that witnesses would “not be charged with perjury for merely talking with the plaintiff’s attorney” after finding that the defendants communications falsely suggested as such.

Courts recognize putative class members’ right to communicate with plaintiffs’ counsel as essential for them to make informed decisions about their legal rights and potential participation in class litigation. Any discouragement offered by a defendant in a class action is improper.

Judicial Remedies for Improper Communications

Courts possess broad discretionary authority to address improper communications with putative class members. Any order limiting such communications, however, must be “based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Gulf Oil, 452 U.S. at 101. Any court-ordered restrictions must be “carefully drawn” to “limit[] speech as little as possible.” Id. at 102.

To obtain judicial intervention, the moving party must present evidence of communications demonstrating their objectively coercive nature, requiring only a showing of a “realistic danger” that such communications would “chill participation in the class action.” Wright,2012 WL 2239797, at *5.

Upon determining that improper communications have occurred, courts may implement several categories of remedies, including (1) the invalidation of opt-outs (2) the invalidation of release agreements, (3) ordering the issuance of corrective notices to the putative class, (4) restrictions on future communications with putative class members, and/or (5) the imposition of sanctions against defendants or their counsel.

Conclusion

In class action litigation, defendants cannot ask putative class members to opt out before class certification is granted, cannot threaten or pressure them from participating in the class action, cannot mislead them about facts or their legal rights, and cannot restrict them from talking to the plaintiffs’ lawyers. These protections preserve the fundamental purpose of class actions—enabling individuals with modest but meritorious claims to pursue collective justice when individual litigation would be economically impractical. When defendants violate these standard rules, courts may exercise their remedial authority by invalidating improperly obtained opt-outs or releases, ordering corrective notices, restricting future communications, or imposing appropriate sanctions. Through consistent enforcement of these protective measures, courts safeguard the class action mechanism as an essential vehicle for accountability and redress, particularly for those whose claims might otherwise remain unaddressed due to financial constraints.

Article Written by Rolando J. Gutierrez.   His practice primarily focuses on complex litigation including consumer class actions, wage & hour class actions, PAGA actions, and personal injury.

DISCLAIMER: This article is provided for informational purposes only and does not constitute legal advice. The information contained herein should not be relied upon as a substitute for legal counsel. This article provides general information about the law, which may differ by jurisdiction and is subject to change. No attorney-client relationship is formed by reading this article or by contacting our firm through this website. Readers should consult with qualified legal counsel before taking any action based on this information.