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    « Cert. Denied in T-Mobile USA, Inc. v. Laster | Main | Tyson Foods Wants Supreme Court to Redefine "Work" »


    La Sala is hardly the end of the story. The recent CashCall decision essentially endorses the theory that a court retains jursidiction over a class, even when the lead plaintiff implodes, and even (as in CashCall) when the lead plaintiff lacked standing at the outset.

    In a consumer class action I am currently handling, the lead plainitff couldn't take the pressure of subpoenas to his relatives and other delightful conduct. He asked to withdraw. The court granted leave to issue a notice to a sample subset of class members, advising them about the action and that it would be dismissed if noone stepped forward to participate.

    Given that such a notice is authorized (or nearly mandated under a trial court's duty to protect the class), it makes almost no sense to say that the attorney can't initiate a communication. The notice is an attorney-initiated communication. It's sophistry to say that the recipient of the notice has to then contact the lawyer and that makes everything fine.

    Yes, it's bad to pay plaintiffs. Yes, it's unethical to promise to share fees to get a class client. We know this. The Milberg debacle is headline-grabbing, but it isn't common practice, especially in the field of wage & hour class actions.

    Of late I notice that, at the trial court level, personal bias is tainting the adjudication of class actions. The certification standards are being repeated in a fairly consistent manner at the appellate level. The trial courts need to accept those opinions and rule accordingly. Of course, the abuse of discretion standard is a license to take license.

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