After class certification was denied in Experian Information Solutions, Inc. v. Superior Court, ___ Cal.App.4th ___ (Mar. 30, 2006), the trial court granted the plaintiff's motion for permission to use class member contact information previously obtained through discovery to "mail a proposed letter to [them] notifying them that they might have claims subject to running statutes of limitations and requesting each recipient's consent to be contacted by [plaintiff's] counsel to determine whether he or she has evidence relating to the issue of [plaintiff's] damages." Slip op. at 5. The Court of Appeal (Fourth Appellate District, Division Three) affirmed this order in part.
First, the court observed that while "[t]here is ample precedent for precertification communication by the plaintiff with potential class members," "court approval of communications after a class-certification motion has been denied involves a different analysis ... ." Slip op. at 9. The court reversed the part of the trial court's order permitting the plaintiff to notify the former putative class members of their possible claims, holding that "there is no legal basis to permit such a communication." Id. at 9-10. And that was about the sum of the court's analysis; it cited no authority for its conclusion, other than the idea that it is "not the court's role" to facilitate such communications. Of course there's nothing wrong with such an analysis; that's what the court must do when deciding a question of first impression. The court concluded: "[A]fter class certification has been denied by a trial court, court-ordered notifications to former, potential class members that they might have legal claims against a defendant are impermissible." Id. at 10-11.
However, the court approved communication with former putative class members for purposes of discovery, with several caveats designed to protect privacy:
We approve of the use of a neutral third party in cases such as this to lessen the extent of any infringement on the recipients’ privacy rights. Our approval of this procedure is consistent with a panel of this court’s recent decision in Best Buy Stores, L.P. v. Superior Court, supra, __ Cal.App.4th at page __ [2006 Cal.App. Lexis 337, at pages *10-11], holding the use of a neutral third party to facilitate precertification communications aids in the effort to protect the recipients’ privacy rights.Slip op. at 14. Both this case and Best Buy were decided by the same District and Division, but a slightly different panel.
The letter, however, must do more to protect the recipients’ privacy rights. .... A[n] ... acceptable means of establishing the recipients' consents to be contacted is through a written, signed authorization. (Accord, Best Buy Stores, L.P. v. Superior Court, supra, __ Cal.App.4th at page __ [2006 Cal.App. Lexis 337, at pages *10-11] [requring written authorization to be contacted by counsel signed by recipient of precertification communication].) The letter must also include a statement that the recipient's failure to submit a signed authorization means the recipient will not be contacted by [plaintiff's] counsel. These additional protections must be incorporated to the letter.
The interplay between communications with class members (before and after certification) and the class members' right to privacy is a hot topic right now. In addition to the recent Best Buy decision (my original post on which is here), the Supreme Court is now reviewing Pioneer Electronics (USA), Inc. v. Superior Court, 128 Cal.App.4th 246 (2005), which involved precertification communications. (My original post on Pioneer Electronics is here.)