Metropolitan News-Enterprise


Tuesday, March 14, 2006


Page 3


C.A.: Letter Seeking Class Representative Was Properly Ordered


By DAVID WATSON, Staff Writer


An Orange County judge acted properly in ordering retailer Best Buy to facilitate sending a letter to some of its customers asking if they would be interested in participating in a class action against the company, the Fourth District Court of Appeal ruled yesterday.

Orange Superior Court Judge Jonathan H. Cannon issued the order after ruling that attorney Mark Boling could not serve as both counsel and class representative in a suit challenging the retailer’s policy of charging customers a restocking fee if they returned items without their original packaging.

At Boling’s request, Cannon ordered Best Buy to provide a third party with a list of customers who had been assessed the fee so that they could be advised of the litigation and the need to find a new class representative in order for it continue.

Writing for Div. Three, Justice William F. Rylaarsdam rejected Best Buy’s contention that the letter would amount to an unethical solicitation. But the appellate court ordered changes in the letter which it said were necessary to protect the privacy of the recipients.

Boling’s pro per suit charged Best Buy with unfair competition, unjust enrichment, and violating the Consumer Legal Remedies Act. Citing Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, Cannon ruled it would be a conflict of interest for Boling to be both client and lawyer in the litigation.

Boling responded with a motion for precertification discovery with the avowed purpose of locating a substitute class representative. Citing Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, Cannon granted the motion on the condition that the letter include the facts that Boling would be class counsel and that he would seek attorney fees.

The proposed letter would have explained why a new class representative was needed and advised customers interested in “assisting the prosecution” of the case to contact Boling by telephone.

Best Buy sought writ relief, contending that the letter would violate State Bar conduct rules, that Cannon violated judicial ethical canons in ordering it, that even if another class representative were found Boling would improperly retain control of the litigation, and that the letter and order violated the privacy rights of the customers who would receive it.

Rylaarsdam said the letter did not constitute a solicitation prohibited by Rules 1-400(B)(1), (B)(2)(a), and (C) of the California Rules of Professional Conduct.

Rule 400(C), the jurist noted, provides that the ethical prohibitions do not apply to solicitations protected by the U.S. or California Constitutions.

“Even were we to interpret rule 1-400(B) to include the proposed communication, the limitation in rule 1-400(C), based on ‘abridgement by the Constitution of the United

States,’ creates an exception to any rule that would prohibit it,” Rylaarsdam declared, citing Shapero v. Kentucky Bar Assn. (1988) 486 U.S. 466 and Bates v. State Bar of Arizona (1977) 433 U.S. 350. “The state may not bar lawyers from sending truthful letters soliciting legal business for pecuniary gain.”

The justice said it was “mere speculation” for Best Buy to assert that Boling, rather than any class representative, would control the litigation if it were allowed to proceed.

“Should such a situation develop, it would be the responsibility of the trial court to take appropriate action,” he explained, adding:

“We will not presume that any substitute plaintiff will, in the words of petitioner, be a ‘plaintiff in name only,’ that Boling will act improperly as class counsel, or that the trial court will fail to carry out its responsibility to supervise the class action process.”

Noting that Best Buy accused Cannon of conspiring with Boling to facilitate an improper solicitation, Rylaarsdam pointed out that the company’s filings asserted the judge was guilty of “impartiality and favoritism.”

The justice commented:

“The accusation of ‘impartiality’ should upset no judge; but in context we assume the writer made a mistake and meant ‘partiality.’ 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.”

 He cautioned the firm’s appellate attorneys, Roman M. Silberfeld and Gregory N. Karasik of the Century City firm of Robins Kaplan Miller & Ciresi, against “making such a serious, unsupported allegation.”

But Rylaarsdam agreed with Best Buy that changes in the letter were necessary. It “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,” he said, explaining:

“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.”

The letter should also explicitly state that recipients are free to ignore it and that, if they do so, their identities will not be revealed to the attorney, Rylaarsdam said.

Justices Eileen C. Moore and Richard D. Fybel joined in the opinion authored by Rylaarsdam.

The case is Best Buy Stores, L.P. v. Superior Court (Boling), G035672.


Copyright 2006, Metropolitan News Company