"Talking to class members takes balance"

When a company is threatened with multiple class actions, it is not enough to stake out and execute legal defenses. The company also needs to protect its relationships with customers or employees by opening lines of communication and providing reassurances. Problems can arise, however, when the target audience contains putative class members. 

One recent example involves Volkswagen, currently facing hundreds of class actions relating to their diesel engines. Audi, Volkswagen’s subsidiary, emailed purchasers, including a named plaintiff in a California class action, describing findings by environmental protection agencies and assuring purchasers that it intended to remedy the situation. The plaintiff’s attorneys, who happen to be vying for a role as lead counsel in the class action, responded by seeking a temporary restraining order to prevent Volkswagen from engaging in any unsolicited communication with named plaintiffs and distributing misleading communications to putative class members. While the judge determined Audi’s communications were proper and denied plaintiffs’ application for a TRO, this example highlights a prevalent issue in class action litigation: To what extent may class action defendants contact members of a putative class, and what should they be allowed to say?


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