1.9.1 What Makes a Client a Good Class Representative?
Before deciding to represent any plaintiff in a class action, counsel should carefully interview, evaluate, and educate the individual seeking to be a class plaintiff.188 One requirement for class certification is that the named plaintiff will “adequately” protect the interest of the class.189 The role of a class representative is in the nature of a fiduciary for the class. The named plaintiff must possess the personal characteristics and integrity necessary to act in that capacity.190 A class representative must not have interests antagonistic to those of the class, must be willing to put aside individual interests they may have, and must act in the best interest of the class. However, the fact that a representative may have an additional claim against the defendant relating to the same or even a previous transaction—or vice versa—does not necessarily make the plaintiff an inadequate representative. The class representative should understand the nature of a class action and the named plaintiff’s responsibilities as a class representative and should generally know the reason the lawsuit was filed and the remedy that is being sought, but they need not understand all of the legal issues involved.191 For a review of the law governing the adequacy of individuals as class representatives, see § 10.3.4, infra.
Reliable class representatives are essential because they must be available throughout the case to respond to discovery, to give depositions, and to testify at trial. The representative will also need to be readily available to confer with counsel on settlement offers and sometimes to sign a release if the case settles. A class representative should be able to withstand pressure. Typical defense tactics include an exhaustive deposition of the named plaintiffs about the claims in the case and their duties as a class representative. The class representative should have enough interest in the case to read all of the documents sent for review by class counsel.
The plaintiff’s attorney should pay special attention to the facts underlying the claims of the named plaintiff. The court will necessarily focus its attention on the facts relating to the class representatives when ruling on all aspects of the case. The egregiousness of these facts and harm to the class representative, if any, will often be determinative of the court’s willingness both to certify a class of the breadth requested and to grant appropriate relief to the class. However, named plaintiffs with perfect facts may be difficult or impossible to find, and some suffer no pecuniary harm.
For example, in a class action against a finance company and a related used car dealer for a “revolving repossession” or “churning” scheme,192 damages might be sought based on a failure to conduct commercially reasonable resales of secured property as required by former section 9-507 of the Uniform Commercial Code. A plaintiff’s case would be nearly ideal if (1) the finance company held an unadvertised “public sale” that was not attended by any bidders other than the finance company, (2) the finance company sold the car to itself for a small fraction of the price paid by the plaintiff just a few months prior to the repossession sale and the car was in the same condition as it was at the time of purchase, (3) the finance company sought a large deficiency from the plaintiff, (4) the car was later transferred to the same used-car dealer that had originally sold the car to the plaintiff, and (5) the dealer resold the car to another consumer for nearly as much as the plaintiff had originally paid for it. The facts would be even more compelling if the named plaintiff defaulted because of a sudden job layoff, was married with children, and needed the car to drive to a new job or to obtain new employment.
188 Failure to fully investigate the putative class representative and the facts of their potential case against the named defendant(s) will put counsel at risk for possible sanctions under the provisions of Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, or other state or federal rules and statutes intended to curb improper behavior by trial attorneys.
A case in point is Jensen v. Phillips Screw Co., 2007 WL 3104625 (D. Mass. Sept. 26, 2007), in which the district court imposed sanctions based on findings that the plaintiffs’ law firm had unreasonably and vexatiously multiplied the proceedings in a class action by proffering four successive putative class representatives who subsequently withdrew from the case (the first because an accord and satisfaction apparently already existed before the filing of the action, the second because the individual did not want to sue but preferred a private accommodation, the third because they had not, in fact, used the product that was the subject of the litigation, and the fourth who withdrew for no stated reason).
The court of appeals subsequently vacated the sanctions order on technical bases and remanded the matter to the district court for further proceedings with a stern warning to the law firm. Jensen v. Phillips Screw Co., 546 F.3d 59 (1st Cir. 2008).
189 Fed. R. Civ. P. 23(a)(4).
190 United Food & Commercial Workers Union v. Chesapeake Energy Corp., 281 F.R.D. 641, 653 (W.D. Okla. 2012).
191 The test is not one of legal sophistication. Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 556 n.15 (E.D. Va. 2000). See also William B. Rubenstein, Alba Conte & Herbert B. Newberg, 1 Newberg on Class Actions § 3:67 (5th ed. 2011), updated at www.nclc.org/library.
192 This term refers to repeated repossession and resale of a single automobile through self-dealing between the car dealer and the finance company. See National Consumer Law Center, Repossessions § 11.1 (9th ed. 2017), updated at www.nclc.org/library.