Berndt et al v. California Department of Corrections et al

Filing 399

REPORT AND RECOMMENDATION REGARDING CLASS COUNSEL'S ADEQUACY re 360 Order on Motion to Certify Class,. Signed by Magistrate Judge Bernard Zimmerman on 12/16/2010. (bzsec, COURT STAFF) (Filed on 12/16/2010)

Berndt et al v. California Department of Corrections et al

Doc. 399

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel for plaintiffs are Pamela Y. Price, Esq., John L. Burris, Esq., and Charles S. Ralston, Esq. 1
Dockets.Justia.com
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MARTHA BERNDT, et al., Plaintiff(s), v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendant(s).

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No. C03-3174 VRW (BZ) REPORT AND RECOMMENDATION REGARDING CLASS COUNSEL'S ADEQUACY

On September 16, 2010, the Honorable Vaughn R. Walker's referral for a report and recommendation on the issue of whether plaintiffs' counsel are adequate to represent the interests of the class was randomly assigned to me.1 No. 360. As instructed, I scheduled a conference for At this conference, Docket

September 28, 2010 to discuss the issue.

defendants explained that the thrust of their allegation was that plaintiffs' counsel's conduct in litigating the action

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showed that they were inadequate.

Docket No. 382 at 13.

After considerable discussion, I ORDERED defendants to select the plaintiff they thought was most knowledgeable about this issue, who would then testify at a hearing. Docket No. 365.

Defendants were put on notice that if they failed to make a sufficient showing at this hearing, it might be unnecessary for there to be any other proceedings.2 39; 51-52. Docket No. 382 at 38-

Defendants chose plaintiff Marta Hastings, and she

testified at an evidentiary hearing on December 3, 2010. Having considered her testimony, the arguments of counsel, and the documents and exhibits submitted by the parties at the hearing, the following are my proposed findings and recommendations. Judge Walker's referral specifically asked me to evaluate class counsel's adequacy under FRCP 23(g)(1)(A). This rule

requires courts to consider the following four factors in assessing class counsel: "(1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel's knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class." On the first factor, I find that plaintiffs' counsel have adequately identified and investigated the potential claims. This is consistent with Judge Walker's referral which contemplated that the magistrate judge would only conduct hearings and other proceedings "as necessary" to make the needed findings. Docket No. 360 at 4. 2
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Hastings testified that plaintiffs' counsel have met with her numerous times to discuss her claims, and she has been in contact with counsel throughout the case.3 Hastings receives

regular updates, and she and the other plaintiffs have participated in multiple phone conferences with their counsel. While Hastings does not specifically remember the scope of her counsel's investigation and she cannot speak on the behalf of other named plaintiffs, defendants have not persuaded me that they have a legitimate concern. Moreover, before this lawsuit

was filed, plaintiffs' counsel were already familiar about the types of claims in the case because they were the attorneys for plaintiff in Freitag v. California Department of Corrections, et al.., C00-2278; 468 F.3d 528 (9th Cir. 2006). In Freitag, a female correctional officer prevailed on similar claims, represented by plaintiffs' counsel. Id. The

combination of plaintiffs' counsel's background knowledge SS gained from Freitag SS about the claims, their work with the clients in this case, and counsel's statements on the record denying defendants' accusations, leaves me satisfied that plaintiffs' counsel meet the requirements of this first factor.4 I also find that plaintiffs' counsel meet the remaining requirements of FRCP 23(g)(1)(A). From counsel's multiple

appearances before this Court and others, counsel have Hastings testified that she did not remember many of the specific details about her representation by counsel due to the passage of time. In Freitag, Judge Henderson referred to me the issue of counsel's claimed supplemental fees and costs. 3
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experience in handling class actions and other complex civil rights and employment litigation. Freitag again assures that And

plaintiffs' counsel have knowledge of the applicable law.

plaintiffs' counsel confirmed at the evidentiary hearing that they not only have the resources to try this class action, but are also willing to commit these resources to the case. Defendants have not presented any evidence or argument to the contrary regarding these remaining factors. Accordingly, I

find that under the FRCP 23(g)(1)(A) factors that courts must consider when appointing class counsel, plaintiffs' counsel are adequate. Judge Walker also asked me to consider six specific questions regarding the adequacy of plaintiffs' counsel.5 Docket No. 360 at 4-5. Summarizing and grouping these

questions together, I must decide the following: (1) whether plaintiffs or plaintiffs' counsel initiated this lawsuit and decided to pursue it as a class action; (2) what steps the class representatives took to ensure plaintiffs' counsel investigated their claims and are capable of handling class actions; and (3) whether plaintiffs considered using other counsel. Id.

On the first question, defendants have stated that they are "not necessarily contending" that plaintiffs' counsel initiated this lawsuit. See Docket No. 382 at 13. And

defendants have not presented any concrete evidence to support

Under FRCP 23(g)(1)(B), courts are permitted to evaluate any other factors that are pertinent to class counsels's ability to adequately represent the class. 4

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any such claim.

At the hearing, Hastings testified that she

personally contacted Price after being informed about the lawsuit from a fellow female correctional officer who was also a plaintiff. Hastings also testified that she wants to

prevent the inmates' offensive behavior SS which she was forced to experience SS from affecting other women. I

construe this testimony to mean that Hastings desires the class of all female correctional officers to benefit from this lawsuit. Given this testimony, and defendants failing to

produce persuasive evidence to the contrary, I find that plaintiffs have pursued this class action lawsuit on their own volition.6 Regarding the second and third question, Hastings testified that she never doubted the capabilities of her counsel in this class action because she believed in them and they had prevailed in Freitag. Due to her confidence in

experienced counsel, she does not recall taking any specific steps to ensure that counsel were thoroughly investigating her claims or were capable of handling class actions. For the

same reasons, Hastings never considered retaining other Plaintiffs' counsel sent letters to various correctional officers' associations notifying them about the class action and asking for female officers that face similar problems to contact counsel. Even if I were to consider these letters to be solicitation letters rather than investigatory letters, California Rule of Professional Conduct 1.400 and Model Rule of Professional Conduct 7.3 do not prohibit attorneys from writing such letters because they are not communications made in person or by telephone. Moreover, attorneys are generally permitted in class actions "to communicate with potential class members for the purpose of investigating and preparing the action." See Vapnek, Tuft, Peck & Wiener, Rutter Group Prac. Guide: Cal. Prof. Resp. § 2:333.10 (The Rutter Group 2009). 5
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counsel. Based on the above findings, I conclude that defendants' claim that plaintiffs' counsel are not adequate to represent the interests of the class is unfounded. I also recommend not

finding that class counsel is inadequate simply because the class representatives failed to consider other attorneys. Defendants have suggested no reason why a plaintiff would want anyone other than the lawyers who had prevailed in Freitag after many years of litigation. After the evidentiary hearing, defendants objected that they did not have the opportunity to review some of the documents they subpoenaed because plaintiffs' counsel identified them as privileged. Docket No. 396. Defendants

also requested that evidentiary hearings be held for each named plaintiff and that defendants be permitted to conduct discovery, including depositions, for each of these class representatives. Id. These objections and requests do not

affect my findings or recommendations regarding the adequacy of class counsel. Defendants have not presented any arguments

as to what the privileged documents may possibly reveal that will corroborate any of their moving allegations against plaintiffs' counsel's adequacy. I reviewed plaintiffs'

privileged documents before the evidentiary hearing, and while I did not agree that all documents were privileged, none of them caused me concern about the adequacy of plaintiffs' counsel. Rather, the documents corroborated that plaintiffs' There is no need for additional I also do not

counsel are adequate.

discovery or further responses to subpoenas. 6

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recommend taking testimony from other plaintiffs, inasmuch as defendants chose Hastings as their best witness on this issue. I expect that the testimony of other plaintiffs is likely to be substantially similar and will not change my findings or recommendations regarding class counsel's adequacy. Finally, Judge Walker noted that defendants are concerned that plaintiffs' counsel "let the claims at issue languish for great lengths of time." Hastings shares this concern; however

she repeatedly blamed defendants for the delay, citing a variety of procedural moves, such as seeking Judge Henderson's removal, which she believes are designed to avoid or delay a consideration of the merits of the class claims. Plaintiffs' I find

counsel cited this proceeding as another such delay.

that no evidence was presented to me that suggests that plaintiffs' counsel have delayed this case. Dated: December 16, 2010 Bernard Zimmerman United States Magistrate Judge
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