In Seastrom v. Neways, Inc., ___ Cal.App.4th ___ (Apr. 23, 2007), the Court of Appeal (Fourth Appellate District, Division One) addressed the "adequacy" element of class certification. The two proposed plaintiffs (who were substituted into the case after the original plaintiff lost standing in the wake of Prop. 64) were participants in a pyramid scheme. That scheme sold "an anti-aging dietary supplement" called BioGevity. One ingredient in BioGevity is federally regulated and is supposed to be sold only with a prescription. Slip op. at 2-4.
The Court of Appeal determined that the trial court did not abuse its discretion in holding that the two plaintiffs, who profited from selling the dietary supplement, were not adequate representatives of a proposed class of persons who bought the dietary supplement. Their conflict of interest, the court held, "goes to the very subject matter of the litigation." Id. at 6-7 (quoting Richmond v. Dart Industries, Inc., 29 Cal.3d 462, 470 (1981)). It seems to me that if someone who sold a product in violation of the UCL wished to facilitate a class action to recitify that misconduct, what they should do is notify their customers of the violation and encourage them to retain counsel. The Court of Appeal declined to address whether leave to amend the complaint to add another plaintiff should be granted. Id. at 11 n.2.
This case reminds me of Yoo v. Jho, ___ Cal.App.4th ___ (Feb. 23, 2007), in which the Court of Appeal (Second Appellate District, Division Three) held that two manufacturers of counterfeit designer bags could not bring their contract dispute into the court system and expect equitable relief. What were they thinking?