We often argue by analogy, and we’ve just spotted an analogous California case that says some things the ought to be said about what makes an inadequate class representative. The case is Bodner v. Oreck Direct, LLC, 2007 WL 1223777 (N.D. Cal. April 25, 2007), and it involved an economic loss only product liability class action. We see these all the time in representing pharmaceuticals and medical device manufacturers, although in our business they often follow in the wake of actual personal injury litigation like a dinghy pulled by a frigate.
Still, no matter what the context, these economic-loss only class actions tend to be lawyer concocted and lawyer driven from beginning to end. That’s why Bodner’s so interesting to us – because it denied class certification for precisely that reason. It found the plaintiff to be an inadequate class representative because:
- He “became a plaintiff in this action by responding to an advertisement by plaintiff’s counsel.” Id. at *1 (sound familiar?).
- He never met his attorney “in person” until “the day before his deposition in this action.” Id. (what else is new?).
- Plaintiff “did not read the complaint before it was filed.” Id. (tell us something we didn’t already know).
- “[V]irtually all of plaintiff’s knowledge regarding this matter has come from his attorneys.” Id. (now there’s a shock).
Not only was the class plaintiff himself an inadequate class representative, but class counsel came in for criticism as well:
- Counsel had filed “similar lawsuits” before that had been dismissed for “fail[ure] to timely move for class certification.” Id. (it happens).
- More interestingly there “ha[d] been some controversy in the past about the firm and its relationship to named plaintiffs.” Id. (this bears looking into).
- It was looked into. There were “10 class actions” where “an attorney from [the firm] or a relative of one of the attorneys was the named plaintiff.” Id. at *2 (relatives as plaintiffs – say it ain’t so!).
- “[C]ounsel constructed this lawsuit before it had a plaintiff. Id. (you mean they filled in the blanks?)
Class certification was inappropriate because of the representative plaintiff’s “undeniable and overwhelming ignorance regarding the nature of this action, the facts alleged, and the theories of relief against defendant.” Id. at *2. The supposed class representative was but a figurehead:
It is clear from the record that plaintiff’s counsel, and not plaintiff, is the driving force behind this action. Such a “cart before the horse” approach to litigation is not the proper mechanism for the vindication of legal rights. Solicitation of clients for the commencement or continuation of a class action is improper, sufficient to warrant denial of class action certification.
Id. (citation and quotation marks omitted). Say what? Solicitation of plaintiffs is grounds for denial of class certification. Does Chief Judge Patel know how many lawyers she’s going to have looking for other work?The court was also critical of how the suit came about. It certainly wasn’t your average plaintiff going into a lawyer’s office to see is s/he had a case. The court found that everything was backwards. “[P]laintiff’s counsel constructed this lawsuit before it had a plaintiff.” Id. at *3. The “firm had the research performed on the product at issue and had a theory about the product’s deficiencies. Then, armed with that information they went in search of a plaintiff, never mind the lack of a fitting plaintiff or the lack of ethical scruples.” Id. The plaintiff himself was only a “stand-in.” Id. “To grant class certification. . .would be to place this court’s imprimatur on litigation practices which it finds abhorrent and inconsistent with the standards of federal class action suits.” Id. In closing the court told us how she really felt. “[T]he conduct in this action does not look good, does not sound good, and does not smell good. In fact, it reeks.” Id. So how do we really feel? Well “Justice Patel” sounds pretty good to us. But seriously, what Bodner discusses is all too common. The opinion describes practices that we’ve seen so often that we’re afraid that we’ve become accustomed, even inured, to them. We’re pleased to see that at least some courts aren’t – and are willing to do something about them. She’s right. It does smell – but when you’ve been in the cesspool long enough, unfortunately you get used to it. Another thing that Bodner shows is that CAFA (Class Action Fairness Act, for non-lawyers) is working. The prior history of the case shows that it only landed in federal court because of CAFA’s special jurisdiction provisions. See Bodner v. Oreck Direct, LLC, 2006 WL 2925691, at *3 (N.D. Cal. Oct. 12, 2006) (traditional diversity jurisdiction fails; CAFA jurisdiction successful). CAFA was passed on the basis that federal courts would enforce class certification requirements more rigorously, and in this case, the intent of Congress was certainly honored. Beyond that, we think that Bodner has implications for discovery. With a federal judge saying that these sorts of practices are in and of themselves fatal to class certification, it’s difficult to argue against the relevance of discovery designed to determine whether this sort of seedy conduct has occurred in any given case. In fact, maybe we’ll have some associates review our standard interrogatories and document requests right now. Good work Chief Judge Patel.