Imagine the following scenario: You are newly engaged to represent a client in a putative class or collective action. Naturally, you want to gather information in order to learn more about the claims and potential defenses in the litigation—so why not begin by conducting interviews of the putative class or collective action members?

Despite the desire to be proactive, attorneys do not have an unlimited ability to speak with putative collective and class action members. Counsel's communications will be governed by the Supreme Court's decision in Gulf Oil v. Bernard, which held that an order limiting communication between attorneys and prospective class members "should be based on a clear record and specific findings reflecting a weighing of the need for a limitation and the potential interference with the parties' rights. … [S]uch a weighing should result in a carefully drawn order that limits speech as little as possible, consistent with the parties' rights. … The mere possibility of abuses in class-action litigation does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Federal Rules," in Gulf Oil, 452 U.S. at 90.

Each circuit has interpreted Gulf Oil differently—and although Gulf Oil was decided in 1981, courts in 2019 are still providing new interpretations of the Supreme Court's decision. For example, in July 2019, the U.S. District Court for the Central District of California held that defense counsel who obtained release agreements from putative class members before class certification had acted improperly because the releases did not reference the class action. Accordingly, the court allowed class members the option to revoke their agreements, in Lopez v. Liberty Mutual Insurance, in July 2019.

The complexity involved in contacting putative class or collective action members may be best illustrated by Weller v. Dollar General, which is currently pending in the U.S. District Court for the Eastern District of Pennsylvania. Specifically, in March 2019, a magistrate judge analyzed defense counsel's behavior, balancing Pennsylvania law, the Pennsylvania Rules of Professional Conduct and the Fair Labor Standards Act, to ultimately hold that defense counsel should have sought court authorization or requested information through the discovery process before speaking to putative class members in Weller, in March 2019.

Yet, in an unexpected turn of events, the district judge, in response to objections to the magistrate judge's decision, ordered that an evidentiary hearing be conducted pursuant to Gulf Oil because, as he explained in a two-and-a-half-page footnote, the magistrate judge, in finding that the putative class members are protected as represented parties, improperly relied on Pennsylvania state law. Specifically, the court explained that, pursuant to Standard Fire Insurance v. Knowles, putative class members are not considered represented parties while a motion for class certification is pending.

This holding is in contrast to Pennsylvania law, Pa. R. Civ. P. 1701(a), under which putative class members are considered parties while a motion for certification is pending. The court further explained that, given that the case is a class action venued in federal court, federal procedural law governs, and as such, the state law rules that govern conduct with represented parties are inapplicable.

Therefore, it is clear that interviewing putative collective or class action members without risking court rebuke is not a cut-and-dried issue. Before proceeding with any such communications, it is imperative to review the requirements and legal precedent in the applicable jurisdiction in order to determine whether such interviews are allowed. Any named plaintiff is a party who is undoubtedly represented and is off limits. See Model Rule of Professional Conduct 4.2. However, as highlighted by the Weller case, interviewing putative class or collective members before certification may potentially be allowed. But due to the evolving interpretation of Gulf Oil, a plan to communicate with putative members of a class or collective should be approached cautiously. Defense counsel should expect that any communications with putative members of a class or collective may be scrutinized by the court and plaintiffs counsel. Accordingly, it is imperative to craft a clear communication plan, which does not mislead the interviewees.

Finally, it is impossible to prohibit communications between a putative collective or class action member and his or her current employer. Accordingly, any representatives of the employer should be thoroughly briefed on how to properly communicate with current employees who are putative collective or class action members. Any communications should be solely work-related and should avoid any statements that could be seen as coercive.

By considering legal precedent and basic principles of legal ethics—and employing common-sense interview techniques—it is possible to zealously represent your client in a class or collective action without violating collective or class rights.

Christina Tellado is a partner and co-head of Holland & Knight's national wage and hour group. Deisy Castro and Dana Feinstein are associates at Holland & Knight.