By Paul R. Kiesel

I'll let you in on a little secret - the very first class action I ever filed was done purely on instinct, rather than calculated legal analysis. Having said that, not only did a class turn out to be the appropriate vehicle for the case, it became one of the few limited fund, no opt-out 23(b)(1)(b) classes. Here's how it happened: An attorney contacted me to see if I would represent 12 women who used a hair straightening product advertised as all natural and chemical free, but which caused them to lose their hair. Though the product did "straighten" the users' hair, the majority of users experienced burning, cracking of the hair and loss of their hair. Some developed bald patches, while others experienced breaking of the hair, resulting in uneven, thin hair.

The case sounded interesting, so I agreed to get involved. I met with the dozen or so clients who explained the circumstances of their hair loss and the anger and frustration they felt because they used this product. The product was marketed with a glossy infomercial featuring pretty, mostly African American women showing before and after images of hair that had been curly and, after using this "all natural" product, became soft, flowing locks that bounced from side to side. Prior to our firm's involvement, the company issued press releases blaming misapplication by the user, as opposed to the product itself, for the problems. I had two significant problems with the company's theory. First, if the problems were caused by misuse, and many users experienced similar prob- lems, there must be something seriously wrong with the directions; and second, and no less signifi- cant, one of my clients was a model who appeared in the infomercial and had the product applied ONLY by the professional hair stylists used by the company selling the product. So much for the company's arguments.

With 12 clients, my partner and I wondered whether the number of individuals affected was large enough that this case should be filed as a class action. Why not? Within a few days we draft- ed a complaint and were preparing to file. We discussed the appropriateness of having a press con- ference in conjunction with the filing. First, we felt it likely that individuals who were unaware of the danger posed by this product might use it. The Food and Drug Administration took the very unusual step of ordering a recall of this product, but there had been little or no reporting of the recall, so the threat to consumers was quite real. [The FDA recall was so unusual because, believe it or not, the FDA has no regulatory involvement with cosmetics. Hair straighteners are considered cosmetics, not drugs, so do not fall within the FDA ambit] Second, and this was just naivete or stupidity, we felt that by having a press conference, if the case was not certified as a class action, clients would contact and us as a result of the publicity.

Here are a few practice pointers about press conferences. In most circumstances, don't. The exception is when the defendant's action impacts public safety. Otherwise, discretion IS the better part of valor. A press conference will likely result in several unwanted consequences. Among them are other firms throughout the country filing similar cases. Also, your office will be inundated with calls from prospective class members. In this instance, we were unable to make outgoing phone call for at least a week. Within 90 minutes after the press conference, the phone began to ring. Apparently the press conference was broadcast from Los Angeles to New York, from Chicago to Miami, even as far away as Africa. Once the phone began to ring, every phone line lit up like we were a radio station giving away a trip to Hawaii. But there WAS a positive side to the attention ­ the message was out in the community that the product was dangerous and should not be used.

However, the downside to our firm was being overwhelmed for over a month. Since that initiation in to the world of class actions, we've come a long way. We learned to understand the risks and benefits of class litigation and experienced the best and worst of class claims. In determining whether or not a case should be brought as a class or an individual action, here are the legal factors to consider. Class litigation can be a fulfilling area of practice, but go in with your eyes open and understand the unique issues to class litigation. Just remember: think like a class action attorney, feel like a class action attorney, be a class action attorney.

LEGAL OVERVIEW: CLASS PREREQUISITES

In a federal class action, you will rely on Federal Rule of Civil Procedure 23. In California, which incorporates Rule 23, uses Code of Civil Procedure, sec. 382 and Civil Code, sec. 1781, et seq. Code of Civil Procedure, sec.382 has two basic prerequisites to certification: (1) the existence of an "ascertainable class"; and (2) the existence of "a well-defined community of interest in the questions of law and fact involved affect- ing the parties to be represented." Occidental Land v. Superior Court of Orange County (1976) 18 Cal.3d 355, 360.

In 1970, the Legislature embellished California class action procedure by enacting the "Consumer Legal Remedies Act," Civil Code, sec.1750, et seq. ("CLRA") The CLRA spells out the prerequisites of a consumer class action under the Act, and the California Supreme Court has directed trial courts to utilize the procedures prescribed in the CLRA in all class actions. Civil Service Employees Ins. Co. v. Superior Court of San Francisco (1978) 22 Cal.3d 362, 376, Vasquez v. Superior Court of San Joaquin County (1971) 4 Cal.3d 800, 820.

The CLRA [Civil Code, sec.1781(b)] requires the following to certify a class action: (b)The court shall permit the suit to be maintained on behalf of all members of the represented class if all of the following conditions exist: 1)It is impracticable to bring all members of the class before the court. 2)The questions of law or fact common to the class are substantially similar and pre- dominate over the questions affecting the individual members. 3)The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class. 4)The representative plaintiffs will fairly and adequately protect the interests of the class.

The U.S. Supreme Court has offered unambiguous guidance that proponents of class certification are not to be called upon to establish liability before class certification. Eisen v. Carlisle & Jacquelin (1974) 417 U.S. 156, 177-178.

Certification motions are procedural in nature and should be decided primarily on the allegations of the complaint and the declarations of the attorneys. Stephens v. Montgomery Ward (1987) 193 Cal. App.3d 411; Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 134, 142; Budget Finance Plan v. Superior Court (1973) 34 Cal. App. 3d 794, 798-99; Reyes v. Board of Supervisors 196 Cal.App.3d (1987) 1263, 1271-1272; In re Unioil Securities Litigation, 107 F.R.D. 615, 618 (C.D. Cal. 1985) [the trial court "is bound to take the sub- stantive allegations of the complaint as true, thus necessarily making the class order speculative." Los Angeles County Local Rule 15.17(g) is consistent with the foregoing cases and unequivocally prohibits a mer- its inquiry. Accord, Newberg & Conte, Newberg on Class Actions (3d ed. 1992), sec. 3.29, p.3-149 ["It is also settled that the named plaintiff need not demonstrate a probability of success on the merits...."]. The Court should presume that plaintiff can prove the facts alleged in the complaint, as the issue of class certification is primarily a question of law, involving the application of a legal standard to a set of largely undisputed facts. JOINDER OF ALL MEMBERS IS IMPRACTICABLE

Civil Code, sec.1781(b) requires that "[i]t is impracticable to bring all members of the class before the court." Your motion should set forth the impracticability of bringing all of the plaintiffs' claims separately. This can be highlighted by an attorney's declaration. Another basis for impracticability is that joinder of all class members is "impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action." Vasquez, supra, 4 Cal.3d at 808; State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 467.

THE THRESHOLD TO ESTABLISH PREDOMINANCE OF COMMON QUESTIONS OF LAW AND FACT IS NOT HIGH; ONLY A SINGLE ISSUE NEED BE COMMON

The second requirement of Civil Code, sec.1781(b) is that "[t]he questions of law or fact common to the class [be] substantially similar and predominate over the questions affecting the individual members." Controlling case law establishes a balancing test to determine whether a sufficient community of interest exists. The court must weigh the importance of the legal and factual questions common to the case and the class member may be entitled. Individualized measures of damages are not unusual in class action settings, and common questions on liability are not overshadowed by individual damage issues. B. Custom Kitchen v. Owens-Illinois (1987) 191 Cal.App.3d 1341, 1343.

To summarize, the test is predominance of common issues of law and /or fact, and some individual issues will not defeat class certification, so long as they do not predominate. PLAINTIFFS ARE MEMBERS OF THE PROPOSED CLASS, AND THEIR CLAIMS ARE TYPICAL OF THOSE OF THE CLASS

The third requirement is that "[t]he claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class." Civil Code, sec. 1781(b)(3). The "typicality" and "commonality" require- ments tend to merge, and a finding of commonality ordinarily supports a finding of typicality. See, General Telephone Co. of Southwest v. Falcon (1982) 457 U.S. 147, 153, fn.13, 102 S.Ct. 2364. The leading commen- tator on class actions, the late Professor Newberg, summarized the concept of "typicality" as follows: "Typicality determines whether a sufficient relationship exists between the injuries of the named plaintiffs and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff's injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims."

Newberg & Conte, Newberg on Class Actions (3d ed. 1992), sec. 3.13, pp. 3-76 to 3-77 (emphasis added). Numerous cases hold that a representative plaintiff's claim is typical if it arises from the same event, practice or course of conduct that gives rise to the claims of other class members and is based on the same legal theory. See, e.g., In re United Energy Corp. Solar Power Modules Tax Shelter Investments Securities Litigation (C.D. Cal. 1988) 122 F.R.D. 251.

In Day v. NLO (S.D. Ohio 1994) 851 F.Supp. 869, 884, the court rejected defendants' arguments about named representative must be represented by counsel competent and experienced in the kind of litigation to be undertaken. McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450; see, also, Lazar v. Hertz Corporation (1983) 143 Cal.App.3d 128, 142. 863.

PUBLIC POLICY FAVORS CERTIFICATION OF THE PROPOSED CLASS

Class actions are an important component of our legal system. As a unanimous California Supreme Court stated in Richmond, supra, 29 Cal.3d 462, 469, (citations omitted): "Class actions serve an important function in our judicial system. By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litiga- tion."

In a series of decisions over the past 25 years, the California Supreme Court has consistently removed barriers to the using class action procedures. See, e.g., State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460; Richmond v. Dart Industries, Inc., supra; La Sala v. American Sav. & Loan Assoc. (1971) 5 Cal.3d 864; Vasquez v. Superior Court, supra; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695; Occidental Land, Inc. v. Superior Court, supra.

The California Supreme Court specifically encourages consumer class actions. As the unanimous court in the landmark Vasquez, supra, decision stated at 804 in certifying a class action for fraud: "Frequently numerous consumers are exposed to the same dubious practice by the same seller so that proof of the prevalence of the practice as to one consumer would provide proof for all. Individual actions by each of the defrauded consumers is often impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action; thus an unscrupulous seller retains the benefits of its wrongful conduct. A class action by consumers produces several salutary by-products, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims. The benefit to the parties and the courts would, in many circumstances, be substantial."

As explained in State of California v. Levi Strauss & Co., supra, at 471: "California courts have recognized that the consumer class action is an essential tool for the protection of consumers against exploitative business practices. Vasquez challenged the trial courts to develop `pragmatic procedural devices' to `simplify the potentially complex litigation while at the same time protecting the rights of the parties."

California has been among the most innovative jurisdictions in its acceptance and use of the represen- tative suit. In Vasquez, supra, at 807, the Supreme Court noted:

"Thirty years ago commentators, in urging the utility of the class suit to vindicate the rights of stockholders, made this incisive observation: "Modern society seems increasingly to expose men to group injuries for which individually they are in a poor position to meek legal redress, either because they do not know enough or because such redress is disproportionately expen- sive. If each is left to assert his rights alone if and when he can, there will at best be a random and fragmentary enforcement, if there is any at all. This result is not only unfortunate in the particular case, but it will operate seriously to impair the deterrent effect of the sanctions which underlie much contemporary law. The problem of fashioning an effective and inclusive group remedy is thus a major one." (Citations omitted).

California courts have recognized the need for a viable procedure to redress group wrongs and have endorsed the class action procedure as the most efficient means of resolving controversies affecting many per- sons in a wide variety of factual contexts.

THE CLASS ACTION MECHANISM IS SUPERIOR TO ALL OTHER AVAILABLE METHODS FOR FAIRLY & EFFICIENTLY ADJUDICATING THE CONTROVERSY

Class certification is appropriate when incredible duplication of legal and judicial resources will result if the class is not certified. Almost all of the issues of law and fact will be identical for each proposed class member. In the event that each class member was required to bring an individual action against defendants, the common factual and legal issues would have to be litigated and tried over and over at each of several hundred of trials. The repetitive expert testimony and other evidence would be extraordinarily costly and time-consum- ing.

DOUBTS SHOULD BE RESOLVED IN FAVOR OF CERTIFICATION

Once a court makes the appropriate class findings, class certification is mandatory. Hogya v. Superior Court (1977) 75 Cal.App.3d 122 (case limited to CLRA, Civil Code, sec. 1750, et seq.). Accordingly, where "there exists the possibility of repetitious litigation," the California Supreme Court has directed the courts to utilize the class action device to fashion "an effective and inclusive group remedy." Richmond v. Dart Industries, Inc., supra, at 469; Vasquez, supra, at 807.

Because California law and policy favor the fullest and most flexible use of the class action procedure, doubts as to the propriety of class certification should be resolved in favor of certification. Vasquez, supra, at 821; Richmond v. Dart Industries, Inc., supra, at 473; La Sala v. American Sav. & Loan Assoc., supra, at 875. If issues are raised as to the advisability of the litigation proceeding as a class action, these should be resolved in favor of an initial class certification, subject to later modification. Richmond v. Dart Industries, Inc., supra, at 473-475; Newberg & Conte, supra, 7.17-7.22.

Well, there it is. Class actions made (relatively) simple. Have fun, be safe, keep the faith.