Archive for September 25th, 2008

The blog Wait A Second!, which covers civil rights issues in the Second Circuit, posted a synopsis today of a recent New York federal court decision in which a class action defendant was sanctioned as a result of communications with class members following a class certification order.   The case, Romano v. SLS Residential, Inc., 07 Civ. 2034 (SCR) (S.D.N.Y.), involves allegations of fraud and mistreatment of patients by a mental health care facility.  According to the synopsis, the court ordered the defendant to pay $35,000 in sanctions due to, among other things, the defendant’s actions in contacting class members and telling them that their mental health records would become part of the public record unless they opted out of the class.  The court also reportedly voided exclusion requests received following the improper contact and ordered corrective notice to be sent to class members.

The case appears to have involved particularly egregious conduct, but it serves as a more general reminder about the dangers of post-certfication contact with class members.  Certain types of contact cannot be avoided, especially where there is an ongoing relationship between the defendant and class members, but post-certification communications between a defendant and class members that involve the lawsuit itself are usually prohibited unless approved in advance by the court.  In fact, during the exclusion period following certification of a Rule 23(b)(3) class, there are certain restrictions even on what the attorneys appointed as class counsel may say to class members as they consider whether to opt out. 

Both Newberg on Class Actions and the Manual for Complex Litigation  provide extensive information on what types of communications with class members are permitted at each phase of a class action.  It is a good idea for a lawyer or party on either side of a class action to consult these sources and the authorities cited in them before undertaking to initiate contact with absent class members.

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