The Second Appellate Division, Division Seven, has had its hands full with class action-related decisions. In this post, I listed some of the significant decisions to issue from that Division, including Puerto v. Superior Court (2008) 158 Cal.App.4th 1242 and Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554. As luck would have it, Division Seven was asked to decide yet another matter involving the right of putative class members to obtain identity and contact information for putative class members, in Crab Addison, Inc. v. Superior Court (Martinez) (December 30, 2008).
This case is of interest because it includes an extra twist on the basic issue of class member identity discovery. The Petitioner, Crab Addison, Inc. (“CAI”), contended that the trial court should have used, if anything, an “opt-in” notice because it had provided forms to each employee regarding the release of their contact information in non-specific situations to non-specific third parties:
“[CAI] argued that its employees had a heightened expectation of privacy as to their contact information based on forms they signed regarding release of their contact information. Based on this heightened expectation of privacy, CAI claimed, if the court were to consider disclosure of the employees’ contact information, it should do so subject to an “opt in” notice requirement. That is, the employees would be contacted and only those who chose to “opt in” to the lawsuit would have their contact information disclosed to Martinez.
(Slip op., at pp. 3-4.) Noted by the Court at one point in its discussion, these “releases” were not signed by employees at the time they were first hired. They were provided by CAI to its employees after the plaintiff had propounded discovery seeking the identity of the putative class members. (Slip op., at pp. 16-17.) In any event, after recapitulating its Puerto decision in great detail, the Court turned to the last question before it:
“This brings us to the key question in this case: the effect of the release forms. CAI argues that these forms gave their employees a heightened expectation of privacy in their contact information, requiring that the contact information be given greater protection and making an “opt in” notice procedure proper. We are unconvinced by this argument.
(Slip op., at p. 13.) To answer that question, the Court relied heavily upon the policy pronouncements in Gentry v. Superior Court (2007) 42 Cal.4th 443.
“Gentry highlights the importance placed on the rights of employees to bring class action lawsuits to enforce their statutory rights to overtime pay. So high is the importance of these rights that courts may invalidate contractual provisions that infringe upon them.
Gentry also highlights the dangers of placing in the employer’s hands the responsibility for notifying employees of the pending litigation and requiring employees to opt in to the litigation. Current employees may decline to opt in to the litigation for fear of retaliation by their employer. This in turn could immunize the employer from liability for violation of statutory wage and overtime requirements. This would violate the public policy protecting employee rights.
(Slip op., at pp. 15-16.) The Court essentially declared release forms like that used by CAI unconscionable. Finally, the Court compared the circumstances before it to the facts in Alch v. Superior Court (2008) 165 Cal.App.4th 1412, review denied October 28, 2008, noting that, if anything, the privacy intrusion in Alch was noticeably greater. (Slip op., at pp. 18-19.)
Although it probably won’t, this decision, coupled with those before it, should signal to defendants that the issue of discoverability of class member identity and contact information is settled. Instead, it is more likely that we will see experiments with variations of the Release form used in this case to see if there is any way to thread the needle and force an “opt-in” notice procedure.
A thorough discussion of this decision can also be found at the UCL Pracitioner.