Litigating California Wage & Hour and Labor Code Class Actions
Litigating California Wage & Hour and Labor Code Class Actions Litigating California Wage & Hour and Labor Code Class Actions
therefore the trial court acted within its discretion when it granted the defendant’s motion to deny class certification rather than wait for the plaintiffs to file a motion for certification. 424 XV. Discovery Issues in Class Actions A. Disclosure of Class Member Names and Addresses to Allow Access to Potential Witnesses An ongoing dispute in Labor Code class actions revolves around the disclosure of the names, addresses, and telephone numbers for potential class members prior to class certification. Plaintiffs typically argue they need this information to assist them in prosecuting their case, and to alleviate any inherent advantage the defendant has in contacting potential class members. In cases reaching back to Atari v. Superior Court, 425 California courts have recognized the principle that both sides in litigation should have equal access to potential class members, as they are often key witnesses. Plaintiffs typically seek names and addresses of potential class members in order to send them some sort of communication describing the plaintiffs’ case or to invite them to assist the plaintiffs’ counsel in investigating the claims asserted. Of course, a defendant employer has a duty to maintain the confidentiality of the personal information of its current and former employees. Courts must strike a balance between these interests. In 2003, the Second District Court of Appeal weighed these considerations in Parris v. Superior Court. 426 In Parris, the plaintiffs filed a putative class action alleging that they were misclassified as exempt employees. 427 The plaintiffs moved to compel the disclosure of potential class member names and addresses, and for leave to communicate with potential class members. The trial court denied the motions. The appellate court held that plaintiffs have a constitutional right to free speech, which includes the right to communicate with potential class members. 428 Requiring court approval of such communications would constitute an impermissible prior restraint on free 424 425 426 427 428 BCBG, 163 Cal. App. 4th at 262-63. 166 Cal. App. 3d 867 (1985). 109 Cal. App. 4th 285 (2003). Id. at 290. Id. at 296-99. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 94
speech. 429 Therefore, the court held the trial court should have dismissed the plaintiffs’ motion for leave to communicate with the class because no such motion was required. 430 Regarding the disclosure of potential class member names and addresses, the Parris court held that it was “appropriate for the court to consider ‘the possibility of abuses in classaction litigation’” in determining whether to order disclosure of potential class member information. 431 Without expressing any opinion on the propriety of ordering disclosure in the case before it, the court remanded the case to the trial court to make that determination. Although this decision plainly restricted a trial court’s ability to stop plaintiffs’ counsel from communicating with class members once plaintiffs’ counsel located them, it did not address whether plaintiffs may typically obtain discovery of the putative class members’ names and personal contact information. The California Supreme Court directly addressed this issue, albeit within the consumer class action context, in Pioneer Electronics (USA), Inc. v. Superior Court. 432 The plaintiff in Pioneer filed a discovery motion seeking to compel the defendant to disclose the names and addresses of customers who complained about a defective DVD player. Ruling for the plaintiff, the Court instructed Pioneer to send a notice of the suit to all potential class members allowing them to object to the release of their names and contact information to the plaintiff. The Court ordered the defendant to release the names of those who did not respond to the notice and affirmatively object to disclosure. The first published appellate decision to apply Pioneer to the wage and hour context was Belaire-West Landscape, Inc. v. Superior Court. 433 In that case, the appellate court went even further than Pioneer, requiring the defendant to release the addresses and personal telephone numbers of all current and former employees who did not affirmatively opt out in response to a pre-certification class notice. Moreover, in contrast to the plaintiff in Pioneer, who sought information only on those putative class members who had affirmatively complained about the product at issue, the Belaire-West plaintiff sought personal information of all current and former employees within the putative class. Two decisions that followed in the wake of Belaire-West have extended its holding to broaden the plaintiffs’ rights to contact information. Indeed, the decisions have led many plaintiffs’ lawyers to contend that they always have the right to the putative class members’ 429 430 431 432 433 Id. Id. at 299-300. Id. at 300 (citing Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) and Howard Gunty Profit Sharing Plan v. Superior Court, 88 Cal. App. 4th 572 (2001)). 40 Cal. 4th 360 (2007). 149 Cal. App. 4th 554 (2007). Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 95
- Page 45 and 46: In the appeal of Chau, the appellat
- Page 47 and 48: years before the lawsuit, or for an
- Page 49 and 50: imposition of penalties, 194 routin
- Page 51 and 52: In one such class action, Elliot v.
- Page 53 and 54: First, there has been a substantial
- Page 55 and 56: Recent court decisions have begun t
- Page 57 and 58: of her hours was paid at a rate of
- Page 59 and 60: the limitations period for a penalt
- Page 61 and 62: passage, then the employee could st
- Page 63 and 64: all, but rather simply to proceed w
- Page 65 and 66: Shortly thereafter, another Divisio
- Page 67 and 68: and the ability to bring a collecti
- Page 69 and 70: XIII. Class Action Fairness Act of
- Page 71 and 72: the plaintiff is “master of her c
- Page 73 and 74: alleged conduct or any related cond
- Page 75 and 76: Initially, the decisions were split
- Page 77 and 78: XIV. Class Certification A. General
- Page 79 and 80: expectations and the realistic requ
- Page 81 and 82: In the immediate wake of Sav-On, th
- Page 83 and 84: Similarly, employers may argue that
- Page 85 and 86: A 5 to 4 ruling reversed the Ninth
- Page 87 and 88: facility to the next, or variations
- Page 89 and 90: employer’s defense arsenal, and t
- Page 91 and 92: In reaching this conclusion, the Co
- Page 93 and 94: party who seeks the same relief, pr
- Page 95: is to be so maintained.” This det
- Page 99 and 100: Puerto, or Crab Addison cases would
- Page 101 and 102: epresentative. That question was an
- Page 103 and 104: CashCall to disclose the identities
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- Page 107 and 108: Initially, there appeared to be a v
- Page 109 and 110: the case. As any one of these class
- Page 111 and 112: have any great impact on class sett
- Page 113 and 114: plaintiff’s attorney and putative
- Page 115 and 116: the California Supreme Court issued
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- Page 119 and 120: The plaintiffs attempted to justify
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speech. 429 Therefore, the court held the trial court should have dismissed the plaintiffs’<br />
motion for leave to communicate with the class because no such motion was required. 430<br />
Regarding the disclosure of potential class member names <strong>and</strong> addresses, the Parris court<br />
held that it was “appropriate for the court to consider ‘the possibility of abuses in classaction<br />
litigation’” in determining whether to order disclosure of potential class member<br />
information. 431 Without expressing any opinion on the propriety of ordering disclosure in the<br />
case before it, the court rem<strong>and</strong>ed the case to the trial court to make that determination.<br />
Although this decision plainly restricted a trial court’s ability to stop plaintiffs’ counsel from<br />
communicating with class members once plaintiffs’ counsel located them, it did not address<br />
whether plaintiffs may typically obtain discovery of the putative class members’ names <strong>and</strong><br />
personal contact information.<br />
The <strong>California</strong> Supreme Court directly addressed this issue, albeit within the consumer<br />
class action context, in Pioneer Electronics (USA), Inc. v. Superior Court. 432 The plaintiff in<br />
Pioneer filed a discovery motion seeking to compel the defendant to disclose the names<br />
<strong>and</strong> addresses of customers who complained about a defective DVD player. Ruling for the<br />
plaintiff, the Court instructed Pioneer to send a notice of the suit to all potential class<br />
members allowing them to object to the release of their names <strong>and</strong> contact information to<br />
the plaintiff. The Court ordered the defendant to release the names of those who did not<br />
respond to the notice <strong>and</strong> affirmatively object to disclosure.<br />
The first published appellate decision to apply Pioneer to the wage <strong>and</strong> hour context was<br />
Belaire-West L<strong>and</strong>scape, Inc. v. Superior Court. 433 In that case, the appellate court went<br />
even further than Pioneer, requiring the defendant to release the addresses <strong>and</strong> personal<br />
telephone numbers of all current <strong>and</strong> former employees who did not affirmatively opt out in<br />
response to a pre-certification class notice. Moreover, in contrast to the plaintiff in Pioneer,<br />
who sought information only on those putative class members who had affirmatively<br />
complained about the product at issue, the Belaire-West plaintiff sought personal<br />
information of all current <strong>and</strong> former employees within the putative class.<br />
Two decisions that followed in the wake of Belaire-West have extended its holding to<br />
broaden the plaintiffs’ rights to contact information. Indeed, the decisions have led many<br />
plaintiffs’ lawyers to contend that they always have the right to the putative class members’<br />
429<br />
430<br />
431<br />
432<br />
433<br />
Id.<br />
Id. at 299-300.<br />
Id. at 300 (citing Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) <strong>and</strong> Howard Gunty Profit Sharing Plan v. Superior Court,<br />
88 Cal. App. 4th 572 (2001)).<br />
40 Cal. 4th 360 (2007).<br />
149 Cal. App. 4th 554 (2007).<br />
Seyfarth Shaw LLP | www.seyfarth.com <strong>Litigating</strong> <strong>California</strong> <strong>Wage</strong> & <strong>Hour</strong> <strong>Class</strong> <strong>Actions</strong> (12th Edition) 95
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