Litigating California Wage & Hour and Labor Code Class Actions

epresentative. That question was answered “yes” in Best Buy Stores, L.P. v. Superior
Court. 445
In Best Buy, a class action attorney was subjected to an allegedly illegal “restocking fee”
when he returned an item to Best Buy. Invoking the Consumer Legal Remedies Act and
the UCL, he sought to represent a class of similarly situated consumers who were charged
the fee. The trial court ruled that he could not simultaneously be class counsel and class
representative. 446 The plaintiff requested that the court order Best Buy to disclose to a third
party administrator the names and addresses of all putative class members, so that the
administrator could advise them of the case and invite them to express interest in serving
as class representative in the lawyer’s stead. When the trial court granted the request,
Best Buy sought a writ of mandate to reverse the decision.
Although the writ petition was granted, the appellate court ultimately affirmed the crux of the
trial judge’s order. 447 The court held that it was indeed appropriate to use the discovery
process to locate a substitute class representative when the original class representative
was found inadequate. 448 It also held that facilitating “recruiting” of a class representative in
this manner was not improper “solicitation” under the Rules of Professional Conduct,
because “solicitation” was limited to in-person or telephonic contact, not a mailing. 449
The result in Best Buy was understandable in that the class representative appeared to be
a proper class representative but for the fact that he also wanted to serve as class counsel.
After all, he did go to Best Buy and was charged a restocking fee, so he otherwise
appeared to have a colorable claim. But what happens when the class representative has
no actual claim against the defendant? For example, could a person simply pick a large
employer for whom he has never worked, sue for Labor Code violations, and, upon being
445
446
447
448
449
137 Cal. App. 4th 772 (2006).
See Apple Computer, Inc. v. Superior Court , 126 Cal. App. 4th 1253 (2005) (attorney in class action may not also act
as class representative).
But see Best Buy, 137 Cal. App. 4th at 778 (court should not have included contact information in letter for plaintiff, but
rather should simply have disclosed to plaintiff contact information of all individuals who returned postcards stating they
were interested in serving as class representative).
Id. at 779; see also Rand v. American Nat’l Ins. Co., 2010 WL 2758720 (N.D. Cal. July 13, 2010) (holding use of class
information to solicit new class representative after previous class representative died permissible). The Best Buy court
cited Budget Finance Plan v. Superior Court, 34 Cal. App. 3d 794, 799 (1973), to reason that a proper purpose of
discovery is to look for a substitute class representative when the original class representative is inadequate, and the
Budget Finance case does state as such. But the Budget case cited no authority for that proposition other than the
conclusory statement that the right to such discovery impliedly flows from the right of a plaintiff to substitute in a new
class representative. See First American Title Ins. Co. v. Superior Court, 146 Cal. App. 4th 1564, 1577-78 (2007)
(noting lack of analysis in Budget Finance’s conclusion concerning right to discovery, and questioning its continuing
validity as precedent).
Id. at 776-77.
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