Lawyer Can't Serve As Named Plaintiff, Says California Appellate Court

Chalk up a win for the defendants in California's tort wars.  In Apple Computer v. Superior Court (Cagney), the Second District Court of Appeal disqualified two law firms from representing a class in a suit against Apple Computer, because a lawyer from one of the firms was the named plaintiff.  The court saw an unresolvable conflicts between what was best for the client-class (a big recovery) and what was best for the lawyers (lots of fees).  Here's a page where you can find the opinion itself and here's a news article.

Any class action lawyers out there?  I am curious as to whether this will be anything more than an inconvenience to plaintiffs lawyers, who usually manage to find a named plaintiff when they need one.  Admittedly, it's more convenient to name a lawyer in your own firm.  It sure makes communicating with the class rep a lot easier; you can chat up the client at the water cooler each morning. 

Also, why didn't the court just strike the named plaintiff and grant some time to find a new class rep?  I wonder if the plaintiffs lawyers offered that as an alternative.

One of the interesting aspects of this ruling is that both firms were disqualified even though the named plaintiff worked for only one of the firms.  The court noted that the firms had worked closely together in numerous class actions, and therefore the DQ taint flowed across law firm boundaries.

Comments

[Ted]

I'm a class action defense attorney, and I'm surprised this case is getting so much commentary. It seems like an elementary application of the "adequate representation" requirement. If it doesn't make much difference, it's only because courts so rarely adequately test the FRCP 23(a)(4) equivalents to ensure that it is the plaintiff, rather than the lawyers, running the litigation--as is plain from the fact that the defendant was able to find ten previous class actions filed by the firm with the same problem.

Also, why didn't the court just strike the named plaintiff and grant some time to find a new class rep?

It's the plaintiff, not the law firm, that brings the action. At least in theory. While securities law provides for the court to name a class representative, that's not the usual case.