Thus, while the court concludes that the communications in
question were improperly disruptive and misleading, they were not
unethical as communications with represented parties.
D. APPROPRIATE REMEDY
As noted above, the court finds that the Much Shelist
solicitations are disruptive of the orderly class action process
and do little to advance the rights of individual class members
at this juncture in the litigation. The court is particularly
troubled by the distribution of a "notice" not authorized by the
court and by the assembly-line pre-authorization of class "opt
outs." Moreover, the solicitations inadequately disclosed the
risks inherent in pursuing a remedy as an individual, rather than
as a class member, including the possibility of higher attorneys'
fees and being subject to discovery. There is no identification
of lead counsel or information about the court's supervision of a
class action, particularly, its control of the certification
process and payment of fees to counsel.
In light of these findings, the court believes it is necessary
both (1) to remedy any misleading statements that have already
been made; and (2) to prevent any repetition of such conduct.
Turning to the remedy for what has already happened, the court
believes that it is necessary to provide curative notice to
solicited class members, so that they are not confused about the
nature of the notice that they received from the soliciting
attorneys. The notice should be particularly careful to describe
the process for certification of a class and the right to opt
out. The notice should also provide that any plaintiff who
retained Much Shelist on the basis of the mass solicitation may
void his or her retention agreement. This is necessary to protect
the rights of Much Shelist clients who were unwittingly led to
believe that they must be represented by Much Shelist to preserve
their claims against McKesson. The court sees no other way to
avoid irreparable harm to those putative class members.
The court will also require Much Shelist to make certain
disclosures in any future advertisements. Advertisements must be
prominently marked as such. There must be no confusion with
court-authorized notices. There must be up-front disclosure of
the status of the class action and the class certification
Finally, the court believes that it is necessary to prevent the
mass opting out of a class that has not yet been certified. The
court therefore makes known its intention to allow recission of
any solicited attorney/client agreement that purports to opt out
the client before certification.
The court holds that this approach, requiring full disclosure
and ensuring that plaintiffs are not "opting out" of the class by
rote, is much more narrowly drawn than the absolute solicitation
prohibition requested by lead plaintiff. Nor does the court's
approach require Much Shelist to, in effect, advertise the
services of lead counsel, as lead plaintiff appears to advocate.
Such an approach complies with the First Amendment, and is
appropriate under the Gulf Oil standard articulated by the
Supreme Court. See 452 U.S. at 102, 101 S.Ct. 2193 (requiring
"carefully drawn" order balancing interests of regulated speaker
and interests of class members); see also Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct. 2265, 85
L.Ed.2d 652 (1985) (holding in attorney advertising case that
"disclosure requirements trench much more narrowly on an
advertiser's interests than do flat prohibitions on speech").
Importantly, the approach that court adopts today does not impair
putative class members' right to retain individual counsel; they
may do so, but only if they have the information necessary to
make a fully informed decision.
E. EXPERT DECLARATIONS
The Much Shelist firm has submitted three declarations from law
professors opining on the ethical propriety of the various
solicitation tactics that the firm employed, a purely legal
declarations offer few facts or any admissible expert opinions,
instead proffering various and sundry conclusions of law. The
Ninth Circuit has held that expert affidavits on questions of law
are improper, and that they should be stricken. See, e.g., G.F.
Co. v. Pan Ocean Shipping Co., 23 F.3d 1498, 1507 n. 6 (9th Cir.
1994) (striking expert affidavit that offered opinion on question
of law as "impermissible," even though it was "written in the
form of a legal document, complete with subdivisions for
discussion of the issues, the law, and the conclusions.");
accord United States v. Unruh, 855 F.2d 1363, 1376 (9th Cir.
1987) (condemning "the practice of attempting to introduce law as
evidence.") Accordingly, the court will strike the declarations
of Professors Simon, Hazard, and Johnson.*fn7
The court hereby enters the following order:
1) Lead plaintiff is entitled to distribute a curative notice and
a notice of the right to rescind any retention agreement to all
recipients of the Much Shelist solicitations. The notice should
be fair, accurate, and consistent with this order. The printing
and mailing costs of the curative notice shall be borne by the
Much Shelist firm. The notice may indicate that it has been
authorized by the court.
2) Lead plaintiff is directed to submit a draft to the court for
review before it is distributed. The Much Shelist firm may file
a response of not more than ten (10) pages one week after the
draft is submitted to the court. Lead plaintiff will have one
week thereafter to respond.
3) The court hereby enjoins further solicitation by Much Shelist,
its officers, agents, servants, employees, and attorneys, and
those persons in active concert or participation with them who
receive actual notice this order by personal service or
otherwise from engaging in further solicitation that fails to
address the concerns expressed in this order. Specifically,
Much Shelist is precluded from
(a) attempting to obtain any pre-certification opt
(b) failing to include a prominent designation that
any solicitation is an "Attorney Advertisement — Not
An Official Notice — No Obligation To Respond";
(c) failing to advise recipients that they are under
no obligation to act until the court has certified a
class, and that they may consult an attorney of their
choice before contacting the soliciting firm;
(d) failing to include a notice that "The federal
court hearing the McKesson cases has issued an order
regulating attorney advertisements directed at
potential class members. The complete text of the
order can be found at
http://securities.stanford.edu/ . . .," with a
direct link to the page containing an HTML version of
(e) implying that the court has authorized the
(f) failing to provide the full caption of the case
including its case number and the court in which it
is proceeding, as well as the name, address, and
phone number of lead counsel; and
(g) failing to provide basic information about the
class action process and the potential discovery
responsibilities of plaintiffs in an individual
4) The foregoing order does not enjoin any expression of an
opinion, negative or otherwise, about any order of this court
or any action of any litigant (or its counsel) in this case.
5) The proffered expert declarations [Docket Numbers 292, 293,
and 294] are stricken from the record.