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Best Buy v. Superior Court: Class Action Lawyer Permitted, Over Defense Objection, Precertification Discovery To Identify Substitute Class Action Representative California Court Holds

Plaintiff Lawyer, not Allowed to be Class Counsel and Class Representative, Rewarded with Discovery to Find New Class Action Plaintiffs

Class action case law in California “prohibits a lawyer from serving both as class representative and as counsel for the class, ” Best Buy Stores, L.P. v. Superior Court, 137 Cal.App.4th 772, 774 (Cal.App. 2006) (citing Apple Computer, Inc. v. Superior Court, 126 Cal.App.4th 1253 (Cal.App. 2005). On February 6, 2004, a plaintiff’s lawyer sought to do just that, filing a putative class action to his own name against Best Buy for alleged violations of the CLRA (Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq.), unfair competition, unjust enrichment based on the theory that the “restocking fee” Best Buy charged for returned merchandise was illegal. Best Buy, at 774. Defense attorneys moved to dismiss the case, and the trial court issued an order to show cause why the motion should not be granted. Id.

The plaintiff lawyer requested that the court compel Best Buy (through a third party) to send a letter to a sampling of members of the putative class so that he could find a new class representative: the trial court granted the motion. Best Buy, at 775. Best Buy filed a petition for writ of mandate in the California Court of Appeal. The defense opposed this class action discovery order as a form of “illegal solicitation”; the appellate court disagreed with this characterization. Id., at 777. The Court agreed, however, that the privacy rights of Best Buy customers needed additional protection. Accordingly, at page 778 it held as follows:

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 [plaintiff lawyer] Boling. The letter should not identify Boling by name, should not provide that the recipient contact Boling 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 Boling the identity of only those persons who affirmatively request this be done in a writing signed by the person.

Except as so modified, the writ of mandate was denied. Best Buy, at 780.

NOTE: Defense attorneys accused the trial judge of violating the canons of judicial ethics by permitting plaintiff lawyer to have the letter sent to customers because it thereby “facilitated” “illegal solicitation.” Best Buy, at 776. This is always a dangerous tactic, and the appellate court addressed the issue not once, but twice. First the Court stated, “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.” Id. The Court later held that this was, “A serious charge indeed and solely based on the court granting Best Buy’s opponent’s motion. The charge of judicial impropriety is unsupported by any reasoned legal argument or citation to authority and we reject it out of hand.” Id., at 779.

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