California Appellate Court Grants Precertification Discovery

An attorney brought this putative class action against Best Buy alleging charge of illegal restocking fees.  After finding that the attorney could not serve both as class counsel and class representative, the trial court granted the attorney's motion for precertification discovery to find a substitute representative.  The order required Best Buy to send written notice to all customers who were charged a restocking fee in the last six years.  Best Buy appealed, arguing that the letters would constitute solicitation and violate the privacy rights of the recipients; that the attorney would control the litigation even if a new representative were found; and that the judge violated canons of judicial ethics in issuing the order.  Judge Rylaarsdam quickly rejected Best Buy's arguments, finding that the defense failed to prove illegal solicitation; that it was mere speculation to presume that a new class representative would be a plaintiff in name only; and that "the charge of judicial impropriety [was] unsupported by any reasoned legal argument or citation to authority."  The court did slightly alter the proposed letter to ensure that the privacy rights of recipients would be protected.  Best Buy Stores, L.P. V. Superior Court of Orange County, 2006 Cal. App. LEXIS 337 (Cal. Ct. App., Mar. 13, 2006).  - L.C.