Every few weeks, I catch up with a friend over drinks. Let's call him Hayden Rush, and say he runs his late grandfather's eponymous law firm, Edmunds Frolick. We discuss the files we're handling, our cases -- the goings-on in different courts, lawyer war stories and whatnot: basically stuff interesting only to fellow lawyers, and court reporters, who often have some pretty good stories themselves to tell.
The Class Action Racket
Hayden's lately been defending companies in the consumer product sector against a variety of proposed class actions brought across the country on behalf of consumers acting as private attorneys general. The common thread is typically some alleged violation of a state law or a regulatory infraction -- often a statutory disclosure or "notice" requirement of some sort that no one but America's plaintiffs' class-action bar seems to care much about. It is stuff that dulls the senses and strains credulity, ultimately leading one to despair over the declining state of law's fictional "reasonable person."
These Robin Hoods take an entrepreneurial approach to law enforcement that is supposed to be anathema to elected attorneys general and other prosecutors. They or their agents troll company websites and store shelves for the use of certain product descriptors on labels or related advertising, or the absence of some piece of information, that offends their interpretation of a particular statute or regulation. Then they manufacture a nominal plaintiff for purposes of filing a class action. Hayden says the realm of e-commerce can be the worst of it, especially for company's doing business in California, where the state legislature is endlessly telling business how to do business.
It all got him lamenting the sorry state of things -- how often he found himself defending clients against allegations of alleged wrong-doing, where the gist is that a named plaintiff seeks to represent a class of "similarly situated" individuals, who generally want others to think and care more about their lives and choices than they've ever done or do themselves. He was pretty certain his grandfather never would have cottoned such nonsense.
"Mankind is doomed," he muttered.
Watching him pull a piece of paper from the inside-pocket of his blazer, I knew better at this point than to try to get a word in edge-wise. So I pulled on my drink, and nodded. Hayden said it was his draft answer to a demand letter a client had received, in what he called the threatened Panicum effusum class action. Before I could ask for clarification, Hayden plunged ahead, volunteering that he was changing facts and common names for purposes of privilege and confidentiality, and to make his story more interesting.
The Threatened Panicum Effusum Class Action
In this demand letter, a California lawyer said his client had purchased an automatically renewing membership in the "Great 'Client Alerts' of the Month Club," and thereafter supposedly noticed that the terms and conditions of defendant's offer were not displayed in a "clear and conspicuous" enough manner, contrary to California's "auto-renewal" statute. Though apparently not unhappy at all with his monthly installment of "Great 'Client Alerts,'" this lawyer claimed that his client was nevertheless left feeling aggrieved by the discovery (exactly when and how left unsaid) that the automatically renewing membership he purchased would in fact automatically renew -- unless he cancelled it.
According to this lawyer's telling, Hayden's client had failed to call sufficient attention to the terms and conditions of its automatically renewing membership offer -- by putting it "in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding test of the same size, or set off from the surrounding text of the same size by symbols or other marks," as required by California's strict liability auto-renewal law. Having thereby supposedly failed as a matter of law to obtain the consumer's "explicit consent" to automatic renewal of his membership at the end of definite term for a subsequent term, the company was said to be obligated to treat this fellow's "Great 'Client Alerts' of the Month Club" membership, every "Great 'Client Alert'" shipped to him, as an "unconditional gift" under the statute. Absent "a confidential pre-filing resolution of the case," this Robin Hood threatened prosecution of a class action for restitution of all monies received by Hayden's client.
It seemed a bit too strange for words, frankly. I wanted to yell, "Who cares?" (Maybe I was tired, or maybe it was the Bordeaux.) But I didn't. For starters, I wanted to know what Panicum effusum meant. And knowing that my friend instinctively played to strength with characteristic bluntness in the face of silliness, I wanted to hear how he answered this demand letter, which sounded like something from the files of Jarndyce v. Jarndyce -- the interminable chancery suit at the heart of Dickens' Bleak House.
So, I took the document from Hayden's hand. In answer to plaintiff's turgid, four-page demand letter -- identical, he advised, in substance to another he had received from a different lawyer with the same complaint, except in relation to his client's "Bass Lure of the Month Club" membership -- under the words "DRAFT," Hayden Rush wrote:
[Edmunds Frolick Letterhead]
Los Angeles, CA [REDACTED]
Re: [REDACTED] Demand Letter
Dear Mr. [REDACTED]:
This answers your letter of 3 February 2016.
Customer satisfaction is our client's business. So, while it's quite pleased not to hear of any dissatisfaction with the quality of the "Great 'Client Alerts'" Mr. [REDACTED] purchased, it nevertheless profoundly regrets any unintentional confusion about the terms of his purchase.
In an effort not to disappoint Mr. [REDACTED] further, and to avoid costly litigation, I've been instructed to advise that [REDACTED] has issued your client a full refund, by reversing the renewal charge made to his credit card for the contested purchase. Unless he decides to renew membership in our client's "Great 'Client Alert' of the Month Club" or its other offerings, he will not see any additional charges posted to his credit card by our client -- for automatic renewal or otherwise.
He can keep all the "client alerts" he receives in connection with his contested purchase "as an unconditional gift" and "use or dispose" of them "in any manner he … sees fit."
Very truly yours,
* * *
Still laughing, and consequently spraying myself with Bordeaux, I said, "You've never been one to beat about the bush much, buddy. But where are you going with the refund? Didn't the Supreme Court kill that mootness play recently in Campbell-Ewald, by putting plaintiffs in the driver's seat?"
My friend corrected me, explaining that Campbell-Ewald decided only that an offer of complete relief is insufficient to moot a case, without saying that payment of complete relief leads to the same result. So, Hayden had his client reverse the charges made to this would-be plaintiff's credit card for automatic renewal of his "Great 'Client Alerts' of the Month Club" membership in order to seek dismissal of his individual claims for mootness based on actual payment of complete relief: to push the point that a plaintiff who won't take "yes" for an answer has no call upon a court's resources. His client then decided to offer refunds to all "similarly situated" individuals as a gesture of customer appreciation, which Hayden thought might also enable him to argue, among other things, that any class claims should fail as a matter of law for that mechanism's lack of superiority in the circumstances as a vehicle for dispute resolution under Rule 23(b)(3).
Finally, Hayden told me that Panicum effusum, commonly known as "hairy panic" was how his grandfather always described "client alerts." It's the scientific name for a species of grass native to parts of Australia that produces nuisance levels of tumbleweeds when it dries.