Attorney and Clients Sanctioned after Emails to Class Members

• Author: R'iele J. Sims
• Pages: 9-9

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

by any means or stored in an el ectronic database or r etrieval system w ithout the expre ss written cons ent of the American Bar A ssociation.

n a federal class a ction, a court

sanctione d an attorney and her cli-

ent for failure to ad here to rules on

communicatio ns with class mem-

bers. ABA Litig ation Section lead-

ers explain that ed ucating clients as

to the rules and stayi ng abreast of

client activit y are key steps in

avoiding missteps.

In Mullen v. GLV, Inc., several par-

ents f‌iled a clas s action lawsuit against

a youth volleyball prog ram, alleging

that its owners and operators con-

cealed a histor y of sexually abusing

girls in the progra m. At a status hear-

ing following class certif‌ication, the

plaintis’ counsel raised suspicions

regarding company rep resentatives

emailing class members to encour-

age them to opt out of the l awsuit.

Defense couns el denied the allega-

tions, explain ing to the court that

any emails from the c ompany had

responded to em ail inquiries from

class members and always indicated

that the company cou ld not comment

on the pending l awsuit.

The plaintis s ubsequently learned

that the company cont inued to com-

municate with class members about

the suit and that the co mpany’s coun-

sel emailed a cla ss member without

conf‌irming whe ther or not the class

member was represented by counsel.

The class memb ers moved for sanc-

tions against th e defendants pursuant

to Federal Rule of Civ il Procedure 23

for interferin g with the class notif‌i-

cation process and against defense

counsel for directly communicating

with represented class members and

misrepresenti ng the company’s own-

ers’ conduc t during the status hearing.

While the motion fo r sanctions was

pending, the c ompany moved for sum-

mary judgm ent. Although the court

ultimately granted m ost of the defen-

dants’ summa ry judgment motion,

it also granted the cl ass members’

sanctions mo tion. The court held that

the company’s owne rs’ conduct vio-

Attorney and Clients Sanctioned

after Emails to Class Members

lated Rule 23 bec ause it was willful,

potentially coercive, and under-

mined the class notif‌ication process.

Consequently, the company and

both business own ers paid the class

members’ le gal costs for bringing the

motion and were san ctioned in the

amount of $5, 000 each.

The court also h eld that defense

counsel violate d ABA Model Rules

3.3 and 4. 2. Model Rule 3.3 p rohib-

its attorneys from k nowingly making

false represen tations to the court.

Counsel argu ed that her statement to

the court that he r client was not com-

municating with class members about

the lawsuit did not run a foul of Model

Rule 3.3 be cause it was not knowingly

false. She ad mitted that she received

the emails prio r to making represen-

tations about th em to the court but

said she “simpl y neglected to scroll

down far enough to s ee it.” The court

held that willfu l blindness to a client’s

behavior is no excuse fo r knowingly

making a false re presentation and

ordered counse l to complete twice

the required am ount of professional

responsibilit y hours for her next con-

tinuing legal e ducation cycle.

Model Rule 4 .2 prohibits attorneys

from directly con tacting represented

parties. Th e court explained that once

a class is certif‌i ed, class members

who have not opted out are re garded

as clients of clas s counsel. Although

defense counse l conceded that she

communicated w ith a class mem-

ber, she contended th at her com-

munication to the cl ass member did

not violate Mode l Rule 4.2 because

she did not initiate th e conversa-

tion. The cour t disagreed. It does

not matter which p arty initiated the

communicatio n, the court explained;

the lawyer’s dut y is to “immediately

terminate communication.” Counsel

violated the rule by res ponding and

asking the class m ember for informa-

tion. Moreover, she ha d not oered

any evidence that the i ndividual had

By R’iele J. Sims , Litigation News Contributing Editor

already opted out o r that counsel

took any steps to determi ne that indi-

vidual’s class status before sending

the email communication.

Practitioner s should avoid mak-

ing def‌initive state ments to the court

without f‌irst con f‌irming the veracity

of those statements, counsels Michael

S. LeBo, Newpo rt Beach, CA,

cochair of the Sec tion’s Professional

Liability Litiga tion Committee. It is

better practic e to state that you are

not aware of any client mis behavior

and ask the cour t for time to discuss

the issue with your cli ent, advises

Emily J. Kirk, O ’Fallon, IL, cochair

of the Section’s So lo & Small Firm

Committee.

Kirk also warns th at once the class

is certif‌ied , an attorney must make

sure that an indivi dual has opted out

of the class before at tempting to

contact him or h er. “When possi ble,

the best practi ce is to refer people to

the notif‌ication we bsite or the class

administrator b ecause they are a neu-

tral party,” Kirk su ggests. Meanwhile,

LeBo stresse s the importance of

learning the rules regarding class

actions, whi ch vary from single-

plainti litigation .

Defense couns el should educate

clients on how to han dle class

member communications and consis-

tently remind clie nts not to commu-

nicate with class me mbers, according

to Kirk. “Attorneys have to know

what their client i s doing,” he con-

tinues. “Th e attorney should have

counsele d the client on determining

whether this is a bu siness communi-

cation and wheth er they should com-

municate with the cla ss member,”

LeBo concludes.

AMERICA N BAR ASSOCIATION FALL 2021 • VOL. 47 N O. 1 | 9