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| 1 minute read

"Blitzing" doesn't just occur in football, it's also a recognized class action strategy.

Ever heard of "blitzing"? It's talked about all the time on football Saturdays and Sundays. It is also a term that describes the practice of defense counsel communicating with members of a putative class before the class is certified. Plaintiffs' counsels hate this and will usually object when it occurs. Which begs the question, is "blitzing" allowed under the law?

By way of background, when a class action gets filed the law is clear that plaintiffs' counsel represents the named representative plaintiffs. But when it comes to the members of the putative class, the law is less clear on  whether plaintiffs' counsel represents them too. In the state courts, there is a split of authority on this point. Under federal law, however, plaintiffs' counsel does not represent putative class members until a class is certified. This would seem to suggest that in cases governed by Rule 23 of the federal rules of practice and procedure, defense counsels are free to "blitz-away," and interview and otherwise communicate with members of the putative class without plaintiffs' counsel being present. But that isn't how it works in practice. Most courts believe there is a need to balance interviews with putative class members with the potential for abuse in allowing an adverse party unfettered communication. 

In this case, Lloyd v. Covanta Plymouth Renewable Energy, LLC, 2:20-cv-04330-HB, (E.D. Pa. Apr. 1, 2021), the  Court does a good job of explaining how that balance should be achieved and provides helpful guidance to safeguard against abuse, while still allowing defense counsel to interview putative class members prior to certification. I recommend it to any defense lawyer before they decide to "blitz" in a class action.

[C]ounsel for a named representative plaintiff “does not speak for those he purports to represent” and “cannot legally bind members of the proposed class before the class is certified.” ... Additionally, ... while counsel for the named representative plaintiff owes some generalized fiduciary duty to putative class members, counsel does not possess a “traditional attorney-client relationship” with them.


litigation, class actions