Alaska Employment Law

The February 6th meeting of the Alaska Employment Law Section will conclude the Ethics discussion started in December, and will include a short review of the following issue: May defense counsel contact members of a certified class in the interval between certification of the class and distribution of the opt-out notice?  

Shortly after certification of an action under the Alaska Wage and Hour Act, but before the court had resolved the form of the opt-out notice, the employer’s counsel contacted three class members and secured affidavits from them on the merits.  (Defense counsel later affied that Bar Counsel had approved his proposed contact with class members.)   Class counsel then moved for various sanctions.  Fairbanks Superior Court Judge Richard Savell held that such contact violated RPC 4.2.  Savell ordered Defendant to itemize such contact, to post a “Notice to Class Members Regarding Improper Conduct by [Defendant]”, and to pay fees and costs associated with the underlying Motion for Sanctions.  Savell also ordered Plaintiff to mail the Notice to class members.  Savell refused Plaintiff’s request to strike the affidavits on the merits from class members contacted by defense counsel. 

The defendant employer then took a Petition for Review to the Alaska Supreme Court, which denied the Petition.  

The Superior Court’s Order and Notice regarding communications with the class, and excerpts from the underlying pleadings will be available at the Employment Law Section’s website.  

The Supreme Court’s opinion largely affirming trial judge Randy Olsen’s various substantive rulings may be found at Air Logistics v. Throop,  Op. No. 6211  (Alaska Dec. 14, 2007)(reconsideration pending).  The Court did not address the issue of the propriety of defense contact with the class members.

Disclosure: I represent the plaintiff class.

UPDATE: ABA Formal Opinion 07-445 (issued after the briefing and Order in this matter) addresses the propriety of pre-certification order contact.

2nd UPDATE:  An audio recording of the entire 1-hour discussion at the ELS meeting is available at the Bar’s homepage (upper right).