Parties have an absolute right – even a constitutional right – to communicate freely with putative class member employees prior to a class action being certified. Two of the leading cases in California on this topic are Parris v. Superior Court (2003) 109 Cal.App.4th 285 and Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867.
In Parris v. Superior Court, the court held that a blanket requirement of prior judicial approval for parties’ communication with potential class members in a wage and hour class action before certification of the class action is a prior restraint of free speech. In Parris, the plaintiff sought to mail a notice to potential class members, and the court held that it did not have to approve the communications between plaintiff and the class members. The court stated:
In concluding that, absent specific evidence of abuse, an order prohibiting or limiting precertification communication with potential class members by the parties to a putative class action is an invalid prior restraint, we find persuasive the reasoning of the United States Court of Appeals for the Fifth Circuit, which has held an order "restricting communications by named plaintiffs and their counsel with actual and potential class members not formal parties to the suit … violated the First Amendment to the Constitution."
The court noted that it could only intervene in exceptional cases, not merely because “fear of potential abuse” could occur from the communications.
Likewise, in Atari, Inc. v. Superior Court the court held that the trial court erred when it permitted plaintiffs to communicate with other potential class members, but at the same time, restricted the employer from communicating with the same employees. The Atari court stated:
We conclude that the evidence of record does not justify denying any party equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties.
The court said that absent the showing of threatened or potential abuse, both sides should be allowed to investigate the case fully, which necessarily entails speaking with witness-employees.
Underlying this issue is usually the Plaintiff’s law firm motivation to spread their contact information to potential class members. They will usually raise the objection that the employer is spreading false information about the lawsuit, and therefore a "neutral" notice should be mailed out to employees. They always propose that this notice contain their firm’s phone number.