Comment on Frieman and UCL Class Actions
Yesterday's Daily Journal contained an article (available by paid subscription only) entitled "Court Insists That Class Actions Actually Be Beneficial," which discusses Frieman v. San Rafael Rock Quarry, Inc., ___ Cal.App.4th ___ (Feb. 24, 2004), mentioned in my post dated February 25.

I have to say that I am constantly surprised to see defendants so harshly criticize the concept of UCL class actions, as the article does. Certification of a UCL claim actually helps the defendants as much as the plaintiffs.

The most important benefit to the defendant is that certification ensures that the judgment will be binding on the class. A non-certified UCL action (arguably) does not, because it does not mandate the notice procedures that satisfy the due process rights of those affected by the judgment. This leaves the defendant exposed to multiple actions for the same misconduct. A certified UCL class action avoids this problem entirely.

Defendants also benefit because class certification requires an affected plaintiff with traditional standing, whose claims are "typical" of those of the class. A UCL representative action does not. You would expect to see defendants arguing that under Corbett, UCL claims should be required to be certified. Indeed, I have seen defendants make that precise argument in UCL representative actions brought by unaffected plaintiffs, hoping to knock out the entire case. Resisting certification does not make the UCL claim go away; all it does is make it easier for any plaintiff, affected or not, to bring suit.

In my opinion, it is always better to bring a UCL claim with an affected plaintiff and to seek class certification. That is not because I think broader remedies are available. Rather, it is to avoid the due process arguments many defendants raise in representative UCL actions. Also, class certification ensures better notice to the class, which means that more people will participate in the action and see their injuries rectified. Evidently, the plaintiffs in Frieman were focused on other goals--and saw their class certification motion denied as a result.

- posted by Kim Kralowec @ 9:56 AM