I have very high regard for Judge Patel of the NDCA. Not only did she once rule for my client in a somewhat complex Williams Act case, she wrote U.S. v. Stepney, a wonderful opinion on joint defense privilege, which I use in class.
I also enjoyed her scathing opinion (Download PatelOrickDirect.pdf) in Bodner v. Oreck Direct, LLC, which I found via the WSJ law blog. The gist of the opinion was that plaintiff's counsel came up with the idea for a B&P 17200 claim against an air filter manufacturer, worked up the case, and then found a plaintiff (via a newspaper ad), who (i) met counsel only on the day of the class rep deposition; (ii) had never read the complaint; and (iii) knew nothing about the case.
Judge Patel writes: "It is clear from the record that plaintiff’s counsel, and not plaintiff, is the driving force behind this action. Such a “cart before the horse” approach to litigation is not the proper mechanism for the vindication of legal rights," and concludes "the conduct in this action does not look good, does not sound good, and does not smell good. In fact, it reeks. The court will not participate in this scheme by certifying a class."
I used to defend this sort of case, so my heart is with Judge Patel. But my head is not so sure these are good reasons to deny class certification.
I think it must be very common for counsel to work up a theory first and then find a plaintiff. Potential securities class actions, for example, can be recognized at least as well by counsel as by plaintiffs, who might know only of price movements and not disclosures. Individual investors who serve as class reps know very little about the litigation, and certainly would not control it in any meaningful way. (This has changed somewhat with the greater participation of institutional investors following the PSLRA.) Probably the same would be true of many consumer class actions.
I don't think it follows from such facts that the case should not proceed as a class. Suppose the putative class rep had read the complaint, recounted its allegations, and otherwise sounded knowledgeable. He probably would not have exercised any more control over the case than he would on the facts as alleged. It was bad form for counsel to have done so little to prepare him, and perhaps such carelessness bespeaks a cavalier attitude toward the class, but I would bet it is a matter of form, not substance.
DM