What's a Court's Responsibility on Class Certification Where the Defendant Defaults?
Last week I read a short article in Law 360 that piqued my curiosity. A state trial court in San Bernadino, California had certified a class of all purchasers in California of Lichi Super Fruit Weight Management Products. The attached order was all of a page-and-a-half. It merely parroted the language of the class action requirements. And, strikingly, it foisted onto the defendant all of the notice costs: "Defendant . . . is hereby ordered to pay costs that will be incurred by the Class administrator in giving notice to the Class and administration of any settlement." Settlement? Surely that was a bit cheeky, no?
I then looked at the date of the order: February 7, 2012. I scratched my head, reaching for the complaint, which was dated roughly two months before: December 9, 2011. I checked to make sure it wasn't merely an "amended" complaint. But no, it was the initial filing. So the suit had gone from filed to certified in less than 2 months. How?
I remember the pre-CAFA days of drive-by certifications, when Southern courts would certify classes ex parte on the day the complaint was filed. But this is 2012. We employ "rigorous scrutiny" of the class certification requirements now. Plaintiffs not only must plead a class action properly, they actually bear the burden of proving -- with evidence -- that the class certification prerequisites are met.
So I asked myself, was the Lichi defendant a victim of a run-by fruiting as Pierce Brosnan had been in the movie "Mrs. Doubtfire"?
Well, yes and no. A docket search reflects that service of process was made on the defendant right before the holidays, on December 19. Plaintiff filed her motion for class certification on January 9, 2012. Plaintiff moved for a default judgment on January 23, which was entered that day. The motion for class certification was heard on February 7 at 8:30 a.m., and no one showed up for the defendant. Hence, the class certification motion was unopposed, and granted that same day.
Now here's the question for you, dear readers. Where a defendant has defaulted and the plaintiff seeks class certification, what are the court's responsibilities? Remember that this is an "all purchasers" class alleging the product does not work. Does the "rigorous analysis" requirement still apply? Should the order reflect the fact that it was entered without the defendant posing an opposition? Do the court's obligations to absent class members become more or less important where the defendant is absent from the class certification process?
Discuss.
Post Script: My only time through San Bernadino County was during a 1993 drive of Route 66 from Chicago to Santa Monica. In Victorville, I was honored to meet a Route 66 legend: Miles Mahan. Mr. Mahan, who was in his 90's at the time, had created "Hulaville," a wonderful "half acre" of kitsch carved out of the desert, the crowning glory of which was a hula girl that had been on the sign of a Hawaiian restaurant. He had spirit trees covered with colored bottles, books of his own poetry, and a million stories of his life as a carney. He's gone now, of course. But I think of him every time I hear "Kingman, Barstow, San Bernadino . . ."
Courts have an obligation to ensure their own jurisdiction, so in this case IMHO the court has to conduct some type of review to ensure the class it certified doesn't exceed its subject matter jurisdiction. Other than, class certification is merely a rule of procedure, not substance, and the court is not obliged to manufacture a procedural objection for a defendant that didn't bother to show up. If, while presenting their damages (as they still have to do in a non-liquidated default), some issue arises as to the actual losses incurred by some class members, the class can be adjusted then.
FWIW, I don't doubt that, if the defendant makes any reasonable effort to appear, they'll succeed in striking the default and will be allowed to challenge the certification.
Another interesting aspect to this case is, based on the facts you describe, that a default judgment on the merits was entered on January 23, but the class was certified on February 7. One-way intervention anybody? See Fireside Bank v. Superior Court, 40 Cal. 4th 1069 (2007).