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Class Action Defense Cases-Bodner v. Oreck: California Federal Court Refuses To Certify Class Action And Criticizes Ethics Of Plaintiff’s Counsel Westrup, Klick

Federal Court Refuses to “Participate in Scheme” by Class Action Plaintiff Law Firm to Formulate Theory for Class Action Lawsuit and then Solicit “Stand-In Plaintiffs” to Serve as Class Representatives

Plaintiff filed a class action against Oreck Direct alleging unfair business practices in the advertisement and sale of its air purifiers. Bodner v. Oreck Direct, LLC, ___ F.Supp.2d ___, (N.D. Cal. April 25, 2007) [Slip Opn., at 1]. Plaintiff’s lawyer moved the court to certify the lawsuit as a class action and for appointment of lead plaintiff and lead counsel; defense attorneys opposed the motion. Id. The district court denied the motion, criticizing plaintiff’s law firm for formulating a class action lawsuit and then going in search of a class action plaintiff regardless of “the lack of a fitting plaintiff or the lack of ethical scruples.” Id., at 4.

Plaintiff alleges that he suffers from allergies and purchased an Oreck air purifier in reliance on defendant’s infomercial claiming that the product “would remove allergens, bacteria, dirt and dust from the air”; the thrust of his class action complaint is that the air purifier did nothing to alleviate his allergies. Bodner, at 1-2. The district court noted, however, that plaintiff did not even know what he was allergic to, had never been diagnosed or treated for allergies, frequently left open the window to his apartment, and was “exposed to allergens in other locations throughout the day,” id., at 2. Moreover, plaintiff’s air purifier was never tested to determine whether it performed as represented, id. The federal court also detailed that the class action had been formulated by plaintiff’s law firm before the firm “found” plaintiff, summarizing at page 2:

Regarding plaintiff’s role in this litigation, plaintiff acknowledges that he became a plaintiff in this action by responding to an advertisement by plaintiff’s counsel, Westrup Klick, LLP, in the San Francisco Bay Guardian…. Plaintiff testified that plaintiff’s counsel told him “they were going to have a lawsuit,” and that they were looking for a representative for a class action suit…. Plaintiff met his attorney in person for the first time the day before his deposition in this action…. Plaintiff did not read the complaint before it was filed…. By all appearances, virtually all of plaintiff’s knowledge regarding this matter has come from his attorneys. (Italics added.)

The district court held that plaintiff’s “undeniable and overwhelming ignorance” of the case defeated the typicality or adequacy requirements of Rule 23(a). Bodner, at 3. “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.” Id. (italics added and citation omitted). The federal court further noted, “the Westrup Klick firm has had trouble regarding its choice of plaintiffs in the past” and characterized this class action as “one more example of plaintiff’s counsel’s improper approach to consumer litigation.” Id.

The federal court found the class action offensive, concluding at page 4:

That plaintiff’s counsel constructed this lawsuit before it had a plaintiff cannot be denied. This fact is borne out not only by plaintiff’s own admissions, but by plaintiff’s counsel’s previous abortive attempt to bring a seemingly identical lawsuit in another district. Indeed, counsel himself admitted at the hearing that he or his 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. The instant action is nothing more than Westrup, Klick bringing its show to the Northern District and continuing its practice of selecting stand-in plaintiffs, even ones who are inappropriate. To grant class certification in such circumstances 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.

In short, the conduct in this action does not look good, does not sound good, and does not smell good. In fact, it reeks. The court will not participate in this scheme by certifying a class.

NOTE: Federal district court judge Marilyn Hall Patel – a jurist with considerable class action experience – is known for demanding that attorneys appearing before her practice with honesty and integrity. Judge Patel does not play “favorites” – she is equally unforgiving of unethical conduct from plaintiff and defense attorneys. Paraphrasing an opinion by Judge Patel issued almost 20 years ago, her order denying class certification in Bodner should serve as a reminder that credibility is one of the arrows in an attorney’s quiver, and once shot it is difficult to retrieve.

Download PDF file of Bodner v. Oreck Direct