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The Legality of Pre-certification Communications With Potential Class-action Members

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Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

Our rules of legal ethics prohibit us from communicating with represented parties. But they also make clear that putative class members (that is, pre-certification individuals who could be included in the future class) are not yet represented. They only become represented if the class is certified, or

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