Finding a Class Representative

Last week, in Best Buy Stores, L.P. v. Superior Court, the 4th District Court of Appeal upheld an Orange County Superior Court order authorizing discovery in a class action case to locate a suitable class representative in cases where the existing class representative has been found to be unsuitable or, in this case, while the court is in the process of determining the suitability of the putative class representative.

In Best Buy, the trial court (Judge Jonathan Cannon) issued an order to show cause why the case should not be dismissed due to the putative class representative's joint status as class counsel. After last year's published opinion in Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, it is well established that a conflict of interest prohibits a lawyer from serving both as class representative and as counsel for the class." Class counsel responded with a "motion compelling precertification discovery to seek class representatives," which proposed to send a notice to the class informing them of the existence of the lawsuit, and inviting them to participate as class representatives. Judge Cannon granted the request and the defendant appealed by filing a petition for a writ of mandate.

Best Buy argued four points: (1) that the contemplated contact between class counsel and the potential substitute plaintiffs would constitute prohibited solicitation; (2) even if another plaintiff was found, class counsel would continue to control the litigation; (3) Judge Cannon violated the canons of judicial ethics by "conspiring with [counsel] to facilitate an illegal solicitation"; and (4) the letter to be sent to Best Buy’s customers violated their privacy rights.

Each ground was rejected. The Rules of Professional Conduct do not prohibit written communications soliciting clients for representation in legal matters. Only phone and in-person contact is barred. Class counsel would be no more likely to control the litigation on behalf of a new plaintiff than any counsel representing any plaintiff. With respect to the privacy issue, the court ordered the letter revised for the further protection of the recipients’ privacy, so that only those who responded with interest in joining the suit would have their names disclosed to class counse. As to the accusation against Judge Cannon, the appellate court wrote "We not only reject the proposition that the trial court violated the canons of judicial ethics, but caution counsel against making such a serious, unsupported allegation."

The case did not involve employment issues, but should be of interest to wage and hour class action attorneys because the issue of representative suitability is often used by defense counsel to try to turn class actions into individual lawsuits. However, it is well-established (even if trial courts sometimes disregard the obligation) that “should the trial court conclude that plaintiff cannot suitably represent the class, it should afford [him] ‘the opportunity to amend [his] complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative.’  [Citation.]”  (Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d 582, 596.)

The full text of Best Buy can be read here in pdf or Word format.