Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 133 the express purpose of asking them if they would be willing to be a substitute class representative. That question was answered “yes” in Best Buy Stores, L.P. v. Superior Court.773 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.774 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.775 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.776 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.777 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 held inadequate (because he never was an employee), obtain a court order for a mailing to assist him recruit a “proper” class representative? 773 137 Cal. App. 4th 772 (2006). But see In Re Williams-Sonoma, 947 F. 3d 535 (9th Cir. 2020) (holding that Rule 26 does not permit discovery to locate a new class representative prior to class certification). 774 See Apple Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253 (2005) (attorney in class action may not also act as class representative). 775 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). 776 Id. at 779; see also Rand v. American Nat’l Ins. Co., 2010 WL 2758720 (N.D. Cal. July 13, 2010) (permitting use of class information to solicit new class representative after previous class representative died). The Best Buy court cited Budget Fin. 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 case does state as much. 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 Am. Title Ins. Co. v. Superior Court, 146 Cal. App. 4th 1564, 1577-78 (2007) (noting lack of analysis in Budget’s conclusion concerning right to discovery, and questioning its continuing validity as precedent). 777 Best Buy, 137 Cal. App. 4th at 776-77.
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