United States District Court Judge Susan Illston (Northern District of California) concluded that letters to putative class members seeking a new plaintiff were neither in violation of the Court's prior order governing class member contact nor a violation of California Rule of Professional Conduct 1-400, which governs solicitation. Rand v. American National Insurance Company, 2010 WL 2758720 (N.D. Cal July 13, 2010).
In an earlier Order in that matter, the Court, in an effort to ensure protection of putative class members' privacy rights, instructed plaintiff's counsel to:
inform each policyholder at the outset of the initial contact that he or she has a right not to speak with counsel and that if he or she chooses not to speak with counsel, counsel will immediately terminate contact and not contact them again. Additionally, counsel will inform the policyholder that his or her refusal to speak with counsel will not prejudice his or her rights as a class member if the Court certifies a class. Finally, counsel is to keep a record for the Court of policyholders who make it known that they do not wish to be contacted.
Slip op., at 1. After the death of the plaintiff, plaintiff's counsel sent a letter containing a first paragraph with substantially compliant language in the first paragraph. The letter then went on to encourage contact to discuss the circumstances of annuity purchases. The Court concluded that the inclusion of the disclaimer language in the first paragraph satisfied the Court's prior Order and was not an improper solicitation:
The Court also finds that the letter complies with California Rule of Professional Conduct 1-400. That rule defines “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment....” Cal. R. Prof. Conduct 1-400(A). The rule defines “solicitation” as “any communication ... concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and ... [w]hich is: (a) delivered in person or by telephone.” Id. at 1-400(B)(1)-(2). The rule generally prohibits “solicitations.” Id. at 1-400(C). As plaintiffs note, the letter was sent by mail, and thus it is not a “solicitation.” Defendant argues that because the letter invited policyholders to contact plaintiff's counsel by telephone, the letter is a “solicitation.” The Court disagrees, as the plain language of Rule 1-400(B) states that a solicitation is a communication “delivered” in person or by telephone. Here, the communication was delivered by mail. See Parris v. Superior Court, 109 Cal.App. 4th 285, 298 n. 6 (2003) (neither mail notice nor web site was “solicitation” under Rule 1-400(B)).
Slip op., at 2.