The Constitutional Right to Solicit Potential Class Members in a Class Action

Vance G. Camisa, The Constitutional Right to Solicit Potential Class Members in a Class Action, 25 Gonz. L. Rev. 95 (1989).

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The solicitation of potential class members in a class action by plaintiffs’ attorneys is, in many cases, an important requisite for successfully maintaining the suit. Requirements of a minimum number of plaintiffs, opt-in rules, and the high cost of maintaining a class suit combined with small awards all necessitate solicitation of potential class members. Further, with laws varying from state to state, forum shopping creates the potential for inequitable results in similar cases. Recognition of a right to such solicitation based on the first amendment would permit the needed uniformity by allowing for solicitation in those contexts where practical considerations require it.

The Supreme Court, in Gulf Oil Co. v. Bernard, had the opportunity to address the issue of soliciting potential members in a class action within the context of the first amendment.By rendering a narrow decision based on the underlying policies of Rule 23 of the Federal Rules of Civil Procedure, the Court left in place a plethora of state and federal standards, and in so doing perpetuated confusion.” In a later decision, Zauderer v. Office of Disciplinary Counsel, the Court seems to have rectified this problem. While the factual situation in Zauderer differs from that in Bernard, the latter opinion touches on very similar issues and, as this Article shall develop, Zauderer was in fact a more difficult case to decide constitutionally than was Bernard. The Court’s decision in Zauderer provides a sound constitutional basis for the right to solicit potential class members.

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