It’s bad enough that a plaintiff’s attorney loses a motion to certify a class – it must be even worse when the reason the motion is denied is the attorney’s own failure to plead his case properly.  A recent California court of appeals decision affirmed the denial of a California meal and rest break class in part because it found that the plaintiffs’ attorney could not adequately represent the class.  Interestingly, the court cited errors made by the attorney during certification briefing in support of this finding. 

In Chaaban v. Wet Seal, Inc., Super Ct. No. 07CC01290 (Cal. 4th App. Dist. April 4, 2012), the plaintiffs appealed an order denying their motion to certify a class action against their former employer, Wet Seal.  They alleged various violations of California’s Labor Code and the applicable wage order, including claims for unpaid meal and rest periods.   They filed their motion for certification in June 2010 along with 67 exhibits.  In what the court described colorfully described as “evidentiary bloodletting,” the trial court found the vast bulk of this evidence to be inadmissible.  After clearing away the “deadwood,” the trial court denied plaintiffs’ motion based on their failure to make the well-established showings of commonality and typicality, as well as its determination that the plaintiffs’ counsel could not adequately represent the proposed class.       

In affirming the trial court’s decision, the court found that the plaintiffs had not established commonality because they had failed to show how they could prove that Wet Seal had not provided meal and rest breaks to its employees on a class-wide basis.  The plaintiffs’ evidentiary failures aside, the court noted that they had failed to explain how allegations of missed meals and breaks could be determined for the class as a whole without resorting to numerous individual inquiries.  The court found the plaintiffs’ reporting time and split-shift payments to be “even more complex problems” in terms of class treatment. 

As for typicality, the court found that the potential class representatives did not establish through admissible evidence that they had claims against Wet Seal.  Rather, the plaintiffs’ declarations contained unfounded assertions such as “I was never paid an additional hour of pay for any missed rest break” without explaining what foundation they used to establish this.  Thus, because the plaintiffs had not shown they had claims against Wet Seal, they failed to demonstrate that they had claims against Wet Seal that were typical of the class they proposed to represent. 

Running the risk of piling on, the court then cited the plaintiffs’ counsel’s certification briefing missteps to support its conclusion that class counsel was unable to handle a large class action properly.  The court found that the plaintiffs’ counsel’s inability to offer admissible evidence, overruled objections to West Seal’s expert declaration, and inability to prepare an adequate reply brief did “not install confident in appellants’ counsel’s qualifications to be class counsel.”  Perhaps sensing a sinking ship, the court also noted that more experienced plaintiff class action lawyers had already dissociated themselves from the case.  The court concluded that plaintiffs’ counsel’s relative lack of experience and questionable resources to handle a case with potentially 10,000 class members provided “ample” support for the trial court’s ruling.      

The bottom line:  While this case provides some guidance for a possible inadequacy of representation argument based on poor lawyering, practically this will likely be a moot issue since errors that could give rise to such a defense are also likely to result in the plaintiffs producing a losing certification motion.