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A federal judge has blasted plaintiffs and counsel, breaking with the long-standing reticence of judges to reject class certification based on allegedly improper solicitation of clients, raising hopes among the defense bar that this will spark a trend. Recently, U.S. District Judge Marilyn Hall Patel in San Francisco rejected class certification and castigated the plaintiffs’ lawyer for what she called unethical conduct in allegedly manufacturing a case, then finding a plaintiff in a suit against Oreck Direct LLC, a maker of air purifiers. Although only a scattering of judges around the country in the last two years have accused lawyers of crossing the ethical line, observers in the defense bar hope Patel’s order kicks off a trend. Some suggest it is the movement of consumer class cases out of state courts and into federal courts, under the Class Action Fairness Act of 2005, that is bringing the added attention. “I don’t think it’s a trend yet, but it may presage one,” said Gail Lee, a class action defense specialist with Gibson, Dunn & Crutcher in Los Angeles. “Up until now, judges have looked the other way when a plaintiffs’ lawyer goes out and find a class representative or manufactures a case,” said David Aronoff of Thelen, Reid, Brown, Raysman & Steiner’s San Francisco office, who represented Oreck Direct. “Nationally, particularly in state court, judges are slow to put a foot down,” said Aronoff. ‘In fact, it reeks’ Patel denied class status in the Oreck suit and charged that plaintiffs’ attorney Lawrence Cagney of Westrup Klick in Long Beach, Calif., “constructed this lawsuit before it had a plaintiff.” Using strong language, Patel said the conduct lacked “ethical scruples” and the action did not look good, sound good or smell good. “In fact, it reeks,” she wrote. Bodner v. Oreck Direct, No. C06-4756 MHP (N.D. Calif.). She said the plaintiff responded to a newspaper ad by Westrup Klick. Plaintiff Paul Bodner only met his lawyer the day of his deposition and never read the complaint before it was filed, Patel said. Bodner never tested the machine to see if it worked or knew if he had allergies and left the windows open while running the machine. It was not the first time a judge has taken a swipe at Westrup Klick. In 2005, a California state appeals court disqualified the firm from a class action case against Apple Computer Inc. because Cagney was named lead plaintiff while also working at the firm, Apple Computer Inc. v. Superior Court, 126 Cal. App. 4th 1253 (Cal. 2d Ct. App. 2005). The Apple ruling pointed out that the firm had jointly filed 10 class actions between 2003 and 2005 in which an attorney at the firm or a relative was the named plaintiff. Cagney responded to an interview request by e-mail saying, “We disagree with the views expressed by Judge Patel.” He said the order suggests there is a rule prohibiting attorney advertising to identify people misled by false claims but that is “incompatible with the First Amendment, which protects lawyers’ rights to communicate concerning matters of importance to the public.” He also said the firm believes Patel’s order was based on “erroneous understanding” of the facts and that the firm complied with state ethics rules regarding advertising. The ‘fuzzy line’ Patel’s action has not been isolated. In a Washington state case, a judge in January dismissed a class claim of bait and switch advertising against Fry’s Electronics Inc. because attorney A. Graham Greenlee filed a pro se suit and asked to be named class counsel as well. The judge found the “prevailing view” is that class attorneys may not simultaneously act as sole class representative because it is an inherent conflict of interest. Greenlee was ordered to pay defense attorney fees as well. Greenlee v. Fry’s Electronics, Inc., 136 Wash. App. 1054 (Wash. Ct. App. 1st Div. 2007). Greenlee could not be reached for comment. In 2005, a Delaware trial court ordered a plaintiffs’ lawyer off a case and accused the lawyer and client of wasting the court’s time, filing false pleadings and engaging in “outrageous behavior” in a case against an online payment service caught in the middle of a separate dispute over sale of faulty software. Beck v. Atlantic Coast PLC, 868 A.2d 840 (New Castle Co., Del., Ch.). But killing a class action because plaintiffs’ counsel may act improperly is not easy. Last month, U.S. District Judge E. Richard Webber in Missouri wrote, “Even if plaintiffs’ counsel had acted unethically in obtaining [the plaintiff] as a client, defendants have failed to cite to any case law which supports the conclusion that because a class representative is improperly solicited, they are barred from acting as class representative.” Halbach v. Great-West Life & Annuity Insurance Co., No. 4:05CV02399 ERW (E.D. Mo.). There is a “fuzzy line” when it comes to the way lawyers are permitted to communicate with potential clients in class action cases, according to James Sturdevant, a plaintiffs’ class counsel at the Sturdevant Law Firm in San Francisco. He added that throwing the case out because of a lawyer’s actions effectively provides unwarranted relief to a defendant when the plaintiff is appropriate and has a proper claim against the defendant. Without commenting on the Westrup Klick case, Sturdevant said, in general, “The appropriate remedy is to refer improper solicitation to the state bar association and not throw the case out,” he said. But Michael Lyle, co-chairman of mass tort defense for New York-based Weil, Gotshal & Manges from its Washington office, said, “What you are seeing here is the leading edge of a trend. You are not seeing dozens of cases, but glimpses as more and more cases get reported.”

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