"To Certify This Class …, the Court Must Find That the Named Plaintiffs Have Retained Competent Counsel to Represent the Class"

And the court declines to so find when the proposed class counsel filed a brief containing "a wholesale fabrication of quotations and a holding on a material issue" (presumably stemming from using AI and not adequately checking its output).

An excerpt from a March 10 order by Judge Somnath Raj Chatterjee (Alameda County [Cal.] Superior Court) in Evans v. Execushield, Inc.:

This is a wage and hour putative class and PAGA [Private Attorneys General Act] action regarding employees who worked as security guards for the defendant. Plaintiff filed a motion for class certification on May 31, 2024. The motion in part sought to certify a "Rounding Subclass" for "All members of the Class whose clock-in and clock-out times were rounded from their actual clock-in and clock-out times." The first issue raised in the Opposition was that the plaintiffs "do not assert a 'rounding' claim, nor do they identify any such class in their First Amended Class Action Complaint." They argued that "Denial of class certification for an unplead claim and class is appropriate."

The plaintiffs filed their Reply Brief on November 4, 2024. Their lead argument asserted that the Court should certify their rounding claim even though it was not stated in the complaint. The Reply Brief stated:

While the rounding claim was not explicitly stated in the First Amended Complaint ("FAC"), its certification is not precluded. Courts have routinely held that class certification can be granted for claims that are reasonably related to those in the complaint, especially when they arise from the same set of facts and legal theories. In Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004), the California Supreme Court stated that "courts are not obligated to deny certification where the complaint omits facts that would support class treatment." Furthermore, in Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1537 (2008), the California Court of Appeal held that "the court may consider new claims, constructively adding them to the complaint, so long as their addition does not create prejudice." …

The legal proposition that a court may "constructively" add new claims to a complaint for class certification and thus certify claims not pled was news. It turns out that the quotations in Sav-On and Ghazaryan and the asserted holding in Ghazaryan that counsel represented to be California law simply do not exist. The Court conducted a Westlaw search for the quoted language in those cases but found none in any California or federal case.

Before the hearing on 2/18/25, the Court issued a tentative decision that stated: "The court ORDERS counsel for plaintiff to appear and to be prepared to direct the Court to the relevant pages in Sav-On and Ghazaryan, or to the origin of the phrases if they came from a treatise or some other source."

At the hearing on 2/18/25, Ms. Le appeared for the plaintiffs and acknowledged that the two cases did not include the two direct quotations or stand for the propositions asserted. Counsel stated that she used a "tool" (which the Court understood to mean an electronic program that most likely employed some form of artificial intelligence) to help prepare the Reply Brief.

She stated that a "law clerk" brought to her attention that Save-On and Ghazaryan did not support the assertions in a draft of the Reply Brief and that she agreed with the "law clerk." She stated that she intended to remove those matters from the Reply Brief before it was filed, but for reasons she did not explain, that did not happen. Counsel apparently did not read the brief before she signed and filed it. After the Reply Brief was filed, Ms. Le took no corrective action to fix the misrepresentations before the Court brought the problem to counsel's attention….

A growing, and distressing, body of law addresses whether and how judges respond when counsel not only misconstrues or misinterprets case law that does exist but cites fake cases and legal propositions…. In this Court's view, artificial intelligence assisted software can assist counsel in research and in preparing drafts of documents like any other "tool." But, counsel who sign and submit legal documents must own and take full responsibility for the final product and must ensure that they discharge their obligations under the Rules of Professional Conduct, the Business & Professions Code, the Code of Civil Procedure, and otherwise.

Here, the most pressing issue is class certification as counsel who submitted material misrepresentations to the Court is requesting that the Court appoint that counsel to represent unnamed class members who did not choose them….

To certify this class and to grant the motion, the Court must find that the named plaintiffs have retained competent counsel to represent the class. Under California law, "Adequacy of representation depends on whether the plaintiff's attorney is qualified to conduct the proposed litigation." Under federal law, a court considering appointment of class counsel "must consider … counsel's knowledge of the applicable law" and the court "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."

FRCP 23(g) states the court "must consider "counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action," and "counsel's knowledge of the applicable law" and "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." "A court's experience with a particular counsel … may be relevant to its determination of the counsel's adequacy to represent a proposed class." The court may consider the quality of the briefing. Carson v. Giant Food, Inc. (D. Md. 2002) denied class certification stating: "Ms. Myles' frequent typographical errors, citation errors and clear misstatements of the law in memoranda and during oral argument prove that the interests of the putative class members will not be adequately served by her representation."

The nature of a class action makes the competency of counsel more significant than in regular litigation. "California trial court judges … are charged with 'acting in a fiduciary capacity as guardian of the rights of absentee class members."' In regular litigation, parties may retain counsel of their choice, and they alone suffer the consequences of retaining less than competent counsel. On a motion for class certification, however, the court must make a finding that counsel is competent to represent the class and then appoint counsel to represent unnamed class members without any voluntary assent by them.

Here, the Court does not find that Plaintiffs' counsel are adequate to represent the putative class and declines to appoint them to represent unnamed class members who have not voluntarily retained them. This case does not involve a good faith interpretation of a decision, but a wholesale fabrication of quotations and a holding on a material issue. Counsel's conduct violates, among other things, the Rules of Professional Responsibility, the Business & Professions Code, and the Code of Civil Procedure cited above.

Plaintiffs' counsel knew that the legal representations based on Sav-On and Ghazaryan were wrong. But she signed and filed the brief anyway. She either did not read the brief before she signed and filed it, or worse, she read it, knew that it contained material misrepresentations, and filed it anyway. Just as disconcerting is that she took no corrective action after the brief was filed. That means that she did not read the brief after she filed it, or she read it after it was filed and intentionally allowed the misrepresentations to continue.

Six other lawyers representing the plaintiffs—two at the Clarkson Firm [which seems to have about 25 lawyers -EV] and four at other firms—are named on the moving papers and the Reply Brief, and they also seek to be appointed as class counsel. But none of those lawyers corrected the misrepresentations before the brief was filed, nor did they take any corrective action after the brief was filed to fix the mistake.

This omission is disconcerting because Save-On, a widely cited Supreme Court decision, and Ghazaryan were being cited for odd, unusual, and audacious legal propositions—that a court can constructively add claims to a complaint for class certification purposes and thus certify a class for claims not alleged in the complaint. The nature of the argument would presumably have motivated at least one lawyer in one of the three law firms representing the plaintiffs to check the law on the issue before the brief was filed, particularly given that they claim that they specialize in class action litigation. Over two months elapsed between when Plaintiffs filed the Reply Brief on 11/4/24 and when the Court issued the tentative ruling before the hearing on 2/18/25. It appears that during that period no lawyer at any of the three law firms read the brief critically and checked the assertions of law in the brief because none of them took any corrective action.

Further, no one else in the Clarkson Law Firm took any steps to catch this problem before the brief was filed or took any corrective actions afterwards. That raises concerns regarding lack of training, oversight, and controls at a firm seeking to be appointed as class counsel to prevent this type of misrepresentation. For example, having a seasoned lawyer review a brief before filing could and should have caught this problem. The audacious nature of the proposition for which Save-On and Ghazaryan were cited should have clued any seasoned lawyer that the representation should be checked or at least that Ms. Le should be questioned about it. And, a standard cite-checking procedure routinely done by a legal assistant would have immediately caught the problem that the quoted language simply did not exist.

The Court, and the class, must be able to rely on counsel's representations. Counsel's conduct here calls into question both whether the Court can rely on the veracity of their representations going forward and the quality of their work and representations looking backwards, including their work in preparation for class certification. The Court simply lacks the confidence to do so.

The Court understands that lawyers are human, and all humans make mistakes. All lawyers deserve second chances, and the Court hopes that counsel here will take appropriate corrective measures going forward.

But appointing counsel here to represent the class is problematic. The Court has a fiduciary-like obligation towards those unnamed class members to determine that counsel is competent before appointing them to represent those class members who have no choice in the matter. While sanctioning counsel is one thing (addressed below), appointing counsel to represent unnamed class members is an affirmative step by the Court that creates issues going forward. For example, if the Court appoints these attorneys to represent the class and similar problems occur in the future that damage the class's interest, the Court will have a difficult time justifying its decision to an unhappy class member. Under the totality of these circumstances, the Court cannot appoint plaintiffs' counsel to represent the class.

The court allowed the named plaintiffs time to retain new counsel if they "want to continue prosecuting the case as a putative class action." It also ordered counsel to

[A] Provide a copy of this Order to the Plaintiffs;

[B] Within 30 days, file and serve a copy of this Order in all other actions currently pending in the Alameda County Superior Court in any department in which any one of Plaintiffs' counsel is an attorney of record; and

[C] Review all papers filed in the Alameda County Superior Court in any currently pending action in which Plaintiffs' counsel used the same "tool" that resulted in the misrepresentations here and to file corrected pleadings if necessary by May 1, 2025.

It declined, however, to impose further sanctions on the lawyers, because "[t]here has already been a significant professional and monetary consequence," including that Ms. Le "is no longer with Clarkson Law Firm, P.C." and the three relevant firms "will not get an award of fees from this Court for any of the work they performed in this case."