Wednesday, May 18, 2005

Hypertouch v. Superior Court (Cal. Ct. App. - May 5, 2005)

Those interested in class actions would be well-advised to read this erudite opinion by Justice Klein, which holds that trial courts cannot require unnamed class members to "opt-in" -- as opposed employing typical opt-out procedures -- as a precondition to recovery. And I include in this category of informed readers not only learned counsel eager to expand their knowledge of complex litigation, but also those law students in my first-year civil procedure class, whose final examination is on Friday.

Justice Klein's opinion contains a great (and accurate) analysis of the Supreme Court's opinion in Shutts. His (entirely proper) reversal of the trial court's contrary interpretation of Shutts, which (erroneously) held that the utilization of opt-in procedures was constitutionally compelled, is not only important in its own right, but also demonstrates that even sophisticated judges (e.g., Judge Mittelsteadt here) are capable of misreading and misapplying Supreme Court precedent in this area. It's a tough field. You've got to read the relevant opinions slowly and carefully, and with an appreciation of the policy bases behind the court's holding. Which is exactly what Justice Klein does in the majority opinion. Not bad. For a Yalie.

The opinion is also interesting for a couple of other reasons. First, there's substantial interchange between Justice Klein and Justice Haerle, who writes a concurring and dissenting opinion. My view is that Justice Klein prevails in most (if not all) of these disputes. Regardless, it is interesting -- and enlightening -- to read the responses that Justice Klein makes to Justice Haerle, and vice-versa. Second, in footnote 15, Justice Klein gently slams both the counsel involved in the class action and, more severely, the treatment of this complex litigation by the San Mateo Superior Court, which assigned six different judges to the suit during its history. That ain't right, Justice Klein explains, and may well help explain (at least in part) why the case was so messed up. When you put a new judge in every couple of months, things get ugly. Particularly in difficult cases such as this one.

Counsel for the plaintiff -- who both wins and seems to have a pretty darn good case on the merits -- is John Fallat. (Who should promptly ask the Clerk to amend the opinion so that the name of his law office is spelled correctly.) Joseph Miller and Leslie Mann (both from Epstein Becker & Green), alongside Michigan attorney Daniel Cohen, have the tougher job of representing the defendant. Enjoy the continuing battle!