In Best Buy Stores, L.P. v. Superior Court, ___ Cal.App.4th ___ (Mar. 13, 2006), the trial court issued an order to show cause why the case should not be dismissed because the putative class representative was also an attorney seeking to act as class counsel. In so doing, the trial court cited Apple Computer, Inc. v. Superior Court, 126 Cal.App.4th 1253 (2005), "which held that a conflict of interest prohibits a lawyer from serving both as class representative and as counsel for the class." (Slip op. at 2.) The class representive responded by filing a motion to compel the defendant to pay for a written notice to the putative class, providing an opportunity for a new putative class representative to come forward. The trial court granted the motion, and the defendant filed a petition for a writ of mandate.
The Court of Appeal (Fourth Appellate District, Division Three) affirmed the order, holding that "[d]iscovery to ascertain a suitable class representative is proper." (Slip op. at 8.) It rejected the defendant's argument that the order would facilitate attorney "solicitation" prohibited by the Rules of Professional Conduct, as well as the argument that the attorney would improperly control the litigation if the class representative were obtained in this manner. However, the Court of Appeal ordered that the notice should be modified to protect the putative class members' privacy:
Of course we are mindful that the privacy rights of Best Buy’s customers must be protected. The use of a third person to communicate with these customers, as provided in the order, aids this purpose, but more is required. The letter must state that recipients are free to ignore the letter and that, if they do so, the sender will not disclose their identities to [the attorney]. The letter should not identify [the attorney] by name, should not provide that the recipient contact [the attorney] in the first instance, and should not contain any information that would facilitate such direct contact. The court should instruct the sender of the letter to disclose to [the attorney] the identity of only those persons who affirmatively request this be done in a writing signed by the person.(Slip op. at 7-8.) The defendant's privacy argument was initially predicated on Pioneer Electronics (USA), Inc. v. Superior Court, 128 Cal.App.4th 246 (2005) (see my original post on that decision here), involving pre-certification class notices. As the Court of Appeal pointed out, however, the Supreme Court granted review in that case in July of last year, so it is no longer citable.
I think this type of pre-certification class notice would be most useful in cases in which something unexpected happens to disqualify the original class representative. For example, it could be especially useful in UCL cases if the Supreme Court ultimately holds that Prop. 64 applies retroactively to pending actions, but that leave to amend to add an affected plaintiff may be granted. If that happens, pre-certification class notices might be employed to locate substitute class representatives in cases in which the original plaintiff was unaffected.