Are absent members of an uncertified class or Fair Labor Standards Act (FLSA) collective action “parties” and thus “represented” by plaintiff’s counsel? If so, is defense counsel prohibited from speaking with absent class members? At first glance, the answer would appear to be no, for two reasons. First, “a nonnamed class member is [not] a party to the class-action litigation before the class is certified.” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 593 (2013). And “[u]nder the FLSA, employees become parties to a collective action only by filing written consent” with the court after receiving court-approved notice. Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Second, district courts cannot restrict parties or counsel in an alleged class action from communicating with putative class members unless the speech restriction is “justified,” generally because of abuse or other misconduct. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 104 (1981).

A federal magistrate judge, however, ruled defense counsel violated Pennsylvania Rule of Professional Conduct 4.2, which prevents attorneys from communicating with represented persons about the subject matter of the representation, by speaking with and obtaining declarations from defendants’ employees, who were potential members of the uncertified class and collective action. Weller v. Dollar General Corp., No. 17-2292 (E.D. Pa.). The magistrate judge did not find that defense counsel acted in bad faith. As a sanction, however, the magistrate judge allowed plaintiff’s counsel to depose the interviewed employees and ordered the defendant to pay the plaintiff’s costs and expenses for the depositions.

In holding defense counsel violated Rule 4.2, the magistrate judge’s memorandum relied on two concepts. First, the memorandum stated that under Pennsylvania Rule of Civil Procedure 1701, which defines a “class action” under Pennsylvania law, absent members of an uncertified class are parties to the action. Second, the plaintiff’s case “feature[d] a potential Fed. R. Civ. P. 23 class for state law claims.” In other words, the memorandum supplanted federal procedural law with a state procedural law, for an action that would or would not be certified under federal law. Traditionally, however, federal courts must apply federal procedural rules and principles even when deciding state law claims. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

While the magistrate judge’s memorandum is notable and is being challenged, it raises at least two issues. The first is that communications with absent class members should be well-planned. As noted above, the magistrate judge did not find bad faith, most likely because of the safeguards the defendant took in conducting the interviews. For example, the interviews were preceded by a written disclosure (that was read aloud to the employees) explaining the lawsuit, and the employees initialed each paragraph of the disclosure to confirm their understanding. In addition, defense attorneys stated that they represented the defendant (not the employee), that plaintiff sought to represent them, the purpose of the interviews, that participation was optional, that no employment action would arise from participating (or not) and that the interviews could end whenever the employee chose. The second issue is whether defense counsel, out of an abundance of caution, should consider first obtaining leave before communicating with absent class members. While absent class or collective action members in federal court are not “represented,” and Bernard warns that restricting such communications may violate the First Amendment, communications can be restricted if “justified.” Thus, defense counsel should consider whether the court, given the facts or circumstances of the case, may find that some control or limitation in communications is warranted. What is clear, however, is that communications with absent class members should be well-planned, documented, not misleading or coercive, and conducted with an eye toward a challenge by opposing counsel.