dissenting in part:
The majority holds that the restrictions imposed by the district court upon communications between potential class members and the plaintiffs and their counsel is reversible error under Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). Because I believe that the restrictions Judge Solomon imposed were justified by the conduct of plaintiffs’ counsel, I find the Gulf Oil violation to be only a technical one. I would not reverse on that basis.
In Gulf Oil, the Supreme Court held that a district court had abused its discretion by imposing communication restrictions on the named plaintiff and his counsel in a class action. The Court apparently adopted a two-prong test to determine the validity of communication restrictions: (1) The court imposing the restrictions must examine the proposed order to see if there are any less onerous means to protect against abuse by plaintiff or plaintiff’s counsel, and (2) there should be “a clear record of specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Id. at 101-02, 101 S.Ct. at 2200-01. But see Williams v. United States District Court, 658 F.2d 430, 435 (6th Cir.) (adopting a three-prong test), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981).
In Gulf Oil, the Court emphasized its frustration with the state of the record when it noted that “[t]he record reveals no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order,” and that “one looks in vain for any indication of a careful weighing of competing factors.” 452 U.S. at 102, 103, 101 S.Ct. at 2200, 2201 (footnote omitted). Here, while there is no clear record of specific findings of the type contemplated by Gulf Oil, nevertheless I find no reversible error because (1) adequate justification is in the record for Judge Solomon’s actions, and (2) it is obvious that he made the type of weighing *1448contemplated by Gulf Oil I would not find reversible error merely because he did not document his mental processes.
A. Conformity with Rule 23 Policies
The Supreme Court in Gulf Oil held that Rule 23 interests were implicated when an order interfered with efforts to inform potential class members of the existence of a lawsuit, or when it hampered the plaintiff’s efforts to obtain information about the merits of the case from the persons sought to be represented. 452 U.S. at 101, 101 S.Ct. at 2200. The Court, however, did acknowledge that some restrictions on communication may be justified by potential abuses associated with communications to class members, such as the “heightened susceptibility of nonparty class members to solicitation amounting to barratry as well as the increased opportunities of the parties or counsel to ‘drum up’ participation in the proceeding,” or by potential for confusion and adverse effects on the administration of justice from “communications to class members that misrepresent the status or effect of the pending action.” Id. at 100 & n. 12, 101 S.Ct. at 2200 & n. 12 (quoting Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782, 790 (E.D.La.1977), appeal dismissed mem., 579 F.2d 642 (5th Cir.1978)).
If any Rule 23 interests were implicated here, there is clear justification in the record. As early as November 28, 1977, Judge Solomon was aware of a predilection on the part of plaintiffs’ counsel to misrepresent the status or effect of the action with an apparent intent to generate participation in the litigation. On that date, the following exchange took place between Mr. Arditi, Domingo’s counsel, and Judge Solomon:
MR. ARDITI: Well, we submitted a proposed form of notice—
THE COURT: Well, I’m not going to give that thing, Mr. Arditi. And you shouldn't ask for such a biased statement. If there is extraneous work based upon this type of presentation, I’m going to assess you with costs. I think there should be a little better way of inquiring of those people.
MR. ARDITI: ... The Defendant wants the claim form to be the first step in a series of contacts with the class members....
THE COURT: Well, how would you do it? You would tell them they’re all entitled to money right now, and they may not be.
MR. ARDITI: I understand that.
THE COURT: Yes.
THE COURT: I’ll tell you that I think that the Defendant’s [claim] form is a lot better than your’s [sic]. But I think it is biased in certain respects, and I’m not going to send out a form which I think either favors or disfavors either the Plaintiffs or the Defendants....
Transcript of Motion, at 12, 15, 17 (Nov. 28, 1977).
His concerns, which were apparently borne out by subsequent events, as this court notes, supra p. 15b n. 8, constitute a valid basis for imposing communication restrictions consistently with Rule 23. See Gulf Oil, 452 U.S. at 100 & n. 12, 101 S.Ct. at 2200 & n. 12.
This case is not one in which the district judge imposed the communication restrictions as a matter of routine compliance with a local rule (here, Local Rule 23(g)). As this court observes, supra p. 15b n. 6, the district court itself acknowledged that the propriety and constitutionality of Local Rule 23(g) was in doubt. I therefore have no difficulty finding that Judge Solomon in fact engaged in the weighing process contemplated by Gulf Oil despite the lack of a specific enumeration of his reasons for imposing the restrictions.
I seriously question whether the policies underlying Rule 23 were frustrated, if at all, to an extent sufficient to justify invalidating many years of complex damages litigation. First, plaintiffs, in their capacity as class representatives, did not need information about the merits of the case at that stage of the proceedings. Second, the order only minimally interfered with plaintiffs’ counsel’s efforts to inform potential class members of the suit, and the interference *1449was not injurious to plaintiffs and the class as a whole.
Plaintiffs had little need, as class representatives, to obtain information about the merits of the case at that stage. At the time of the events complained of, the liability portion of the case already had been concluded in plaintiffs’ favor. Only the damages portion remained, and the district court was for the most part determining damages on an individual rather than a classwide basis.
The interference with plaintiffs’ counsel’s efforts to inform class members of the action was not injurious to either plaintiffs or the class. In Gulf Oil, time was of the essence because the class members were being pressed by Gulf to sign a release of their claims in return for offered backpay. No similar circumstances existed here, so any delay occasioned by the order did not injure plaintiffs.
In addition, plaintiffs do not dispute the adequacy of notice actually sent to class members, but do complain that they were not allowed to assist class members in completing claim forms. It is true that a common problem with orders restricting communication is that they hamper “the quest for a fair resolution of absentees’ claims by prohibiting communications with class members that enable them to make informed decisions about their participation in the pending litigation.” Williams v. United States District Court, 658 F.2d 430, 436 (6th Cir.), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). Here, the notice sent to class members offered potential claimants the assistance of four United States magistrates, one each in Anchorage, Alaska; Sacramento, California; Portland, Oregon; and Seattle, Washington. Moreover, claimants in this ease were given three months to return their forms, which would seem to have been enough time to seek a magistrate’s assistance.
On this record, then, I would hold that the district court structured the proceedings so that the communication restrictions imposed were consistent with Rule 23 policies. The court had a duty to prevent abuse; I cannot say that it overstepped its discretion in choosing the means to do so. See 452 U.S. at 100, 104, 101 S.Ct. at 2200, 2202.
B. Retroactivity of the Gulf Oil Rule
As discussed above, I would hold that the district judge conducted the proceedings below in a manner consistent with Rule 23 policies. In fact, I find that Judge Solomon implicitly took all of the steps prescribed by Gulf Oil, except for leaving explicit written findings that would have made his mental processes unmistakably clear. That may be a violation of Gulf Oil. When Judge Solomon conducted his proceedings, however, Gulf Oil had not yet been decided. I would hold, then, that the Gulf Oil rule of specific findings is a prophylactic rule inappropriate for retroactive application.
Three factors are generally considered in determining retroactivity of a decision: first, whether the decision establishes a new principle of law, either by overruling precedent or resolving an issue in a manner which was not clearly foreshadowed; second, whether retrospective application of the decision would retard the policy behind the decision; and third, whether substantial inequity is produced by retroactive application. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); Wiltshire v. Standard Oil Co., 652 F.2d 837, 841 (9th Cir.1981) (Title VII case).
Here, it is clear that the Gulf Oil decision announced a new rule of law. Gulf Oil invalidated a form of pretrial order that was drawn verbatim from the Manual for Complex Litigation, a book prepared under the auspices of the Federal Judicial Center and relied upon by trial courts across the nation. As to inequity produced by retroac-tivity, the Gulf Oil decision has the potential to vitiate many years’ worth of complex class litigation in this and many other cases. As to effect on policy behind the decision, I see no justification for wholesale reversal of proceedings for failure to comply with what is essentially a prophylactic rule. This court has noted that “it is appropriate to limit to prospective application decisions which announce prophylactic protections *1450without conferring new constitutional rights.” Yellowwolf v. Morris, 536 F.2d 813, 816 (9th Cir.1976). Prophylactic rules frequently have been given prospective application only. See, e.g., Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (per curiam) (rule of automatic habeas if indigent defendant not represented by appointed counsel at trial); Michigan v. Payne, 412 U.S. 47, 55-57, 93 S.Ct. 1966, 1970-72, 36 L.Ed.2d 736 (1973) (“prophylactic” due process protection limitations established by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); Johnson v. New Jersey, 384 U.S. 719, 729-32, 86 S.Ct. 1772, 1778-80, 16 L.Ed.2d 882 (1966) (Miranda and Escobedo rules). I therefore would apply Gulf Oil not to this case, but prospectively only.
C. Plaintiffs’ Free Speech Rights
Since I feel that the district court acted consistently with the letter and the policy of Rule 23, I would find no merit in plaintiffs’ contention that the district court’s actions impermissibly abridged their free speech rights. Rule 23, like the other Federal Rules of Civil Procedure, carries a strong presumption of constitutional validity. As the Supreme Court said, “[T]he court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.” Hanna v. Plu-mer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965).
Plaintiffs have not convinced me that such an error was made. The district court found an imminent danger of abuse of the class action device. Assuming that the communications to class members which the district court forbade constituted speech of a protected variety, such speech still can be restricted if “the substantive evil is extremely serious and the degree of imminence extremely high.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1 (1978) (quoting Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941)); Comment, Judicial Screening of Class Action Communications, 55 N.Y.U.L.Rev. 671, 686-87 (1980). The Supreme Court has recognized that attorney solicitation of clients may be limited when that solicitation “in fact is misleading, overbearing, or involves other features of deception or improper influence.” In re Primus, 436 U.S. 412, 438, 98 S.Ct. 1893, 1908, 56 L.Ed.2d 417 (1978) (footnote omitted). Moreover, “the potential for overreaching is significantly greater when a lawyer, trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person.” Ohralik v. Ohio State Bar Association, 436 U.S. 447, 465, 98 S.Ct. 1912, 1923, 56 L.Ed.2d 444 (1978) (footnote omitted). As demonstrated earlier, the district court found a clear danger of overreaching in claim solicitation. I find no constitutional infirmity.