Communicating with Putative Class Members Prior to Class Certification: Important Reminders (or New Lessons) for Federal Court Practice

Many class actions are won or lost at the class certification stage. Because FRCP 23(c) requires a district court to determine whether a class action is to be maintained (i.e., certified) “[a]t an early practicable time after a person sues,” both sides often engage in a flurry of activity to gather evidence either to support or oppose class certification. Frequently, this involves communication with potential class members.

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