Books,
Letters,
Civil Litigation
Oct. 27, 2011
Advice could hurt employers in litigation
A reader responds to "Protecting against class actions: a blueprint for business leaders and their counsel."
Eric B. Kingsley
Partner
Kingsley & Kingsley APC
Labor & Employment
16133 Ventura Blvd #1200
Encino , CA 91436
Phone: (818) 990-8300
Fax: (818) 990-2903
Email: eric@kingsleylawyers.com
Loyola Law School; Los Angeles CA
Eric is the former board chair of the Anti-Defamation League's Los Angeles Region.
Robert Herrington's book excerpt, "Protecting against class actions: a blueprint for business leaders and their counsel" (Oct. 21), showcases sleazy class action defense strategy. In his book "Verdict for the Defense, Fighting Jackpot Justice with Firewall Defense Strategies," he attempts to describe how to easily beat back class action lawsuits. He tries to frame the issue as creating "strategic variability." In other words, he advises potential defendants to make a few things different so that commonality cannot be met. Frankly, I'm not sure his advice is really of much value and could hurt potential employers in litigation. While I understand Herrington's rationale in terms of trying to game class action litigation by manufacturing variance, the fact that this sort of strategy is exercised at all, let alone put to paper, is appalling to me. His philosophy attempts to mislead courts as to the truly common practices at companies by slightly changing the wording of contracts or moving paragraphs around. Very few jurists are likely to be fooled by such gamesmanship.
In determining if a class action should be certified, one must look to see if common issues predominate. This does not mean that common issues have to be identical. If there are potentially six or 10 different contracts with substantially the same information in them, except for some creative rewording or a few paragraphs moved around, a court will see through this and still find that common issues predominate. A jury or court can be given multiple versions of an agreement with substantially the same information in them and sub-classing can be used to certify the class. Herrington seems to think that his strategy will fool lawyers and judges and create some sort of immunity for his clients. If anything, judges will see right through such shenanigans and more likely get angry that defendants were attempting to game the system. Many class cases have been certified in recent years in wage and hour litigation, for example, that deal with multiple job classifications, work sites, and the like. The Brinker case currently before the state Supreme Court to be argued on Nov. 8, involves individuals at Chili's, Macaroni Grill and Maggiano's Little Italy restaurants. In addition to these distinct chains and multiple locations, the class itself consists of hourly employees of various job titles. Thus it seems that the manufactured differences Herrington speaks about in his book are minor in comparison and unlikely to fool the fine judges and justices of the state. On the flip side, his advice will likely cause employers, to the extent they heed his advice, to undo the benefits of uniformity in running a business throughout the state and the country. His book offers poor advice. The way potential defendants can prevent class actions is not based on strategic variance, but on compliance.For reprint rights or to order a copy of your photo:
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