- First, they "obtain[ed] material from [a fax broadcaster’s] files on the basis of a promise of confidentiality that concealed the purpose of obtaining the material, a purpose inconsistent with maintaining confidentiality and likely to destroy [the broadcaster’s] business.” Creative Montessori, slip op. at 6. This case was not the only such breach of confidence. According to the opinion, the same firm brought “more than 50 similar class action suits based on information” from the same source. Id. at 6.
- Second, once the firm identified the fax recipients, it solicited their participation in the class action suit by “implying in the letter to [the would-be plaintiff] that there already was a certified class to which the [plaintiff] belonged.” This “would constitute misconduct . . . because the communication was misleading.” Id. at 6-7.
The district court ignored these incidents in deciding to certify the class, holding that the alleged misconduct was properly the province of “bar authorities.” Creative Montessori, slip op. at 7. The lower court went on to hold that “only the most egregious misconduct” by would-be class counsel “could ever arguably justify denial of class status.” Id. at 2. The Seventh Circuit, in a unanimous decision by Judge Posner, vehemently disagreed. Any serious allegation of misconduct by class counsel undercuts the adequacy of their representation:
Misconduct by class counsel that creates a serious doubt that counsel will represent the class loyally requires denial of class certification. . . . A serious or, equivalently, a “major” ethical violation, should place on class counsel a heavy burden of showing that they are adequate representatives of the class.
Id. at 10-11 (citations omitted). A lesser standard, without the burden being on class counsel to justify their adequacy in such circumstances, is merely an invitation to class action lawyers to profit from their own ethical misdeeds:
To rule that only the most egregious misconduct “could ever arguably justify denial of class status,” as the court went on to hold, would if taken literally condone, and by condoning invite, unethical conduct.
Id. at 10 (emphasis original).