Antoninetti v. Chipotle Mexican Grill, Inc.

3:06-cv-02671

S.D. Cal.

Apr 21, 2011

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MAURIZO ANTONINETTI, on behalf of himself and others similarly situated v. CHIPOTLE, INC,, et al.

CASE NO. 06cv2671-BTM (WMc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

April 21, 2011

Hon. William McCurine, Jr.

ORDER GRANTING IN PART AND DENYING IN PART CHIPOTLE‘S MOTION TO COMPEL FURTHER ANSWERS TO REQUEST FOR PRODUCTION NO. 12

The general issue before this Court is whether Mr. Antoninetti, the class plaintiff, is an appropriate class representative given his past and present business relationship with class counsel, Ms. Amy Vandeveld, and the brother of class counsel, Mr. Tom Vandeveld, also an attorney. The issue has been presented to the Court in the form of a motion to compel a supplemental answer to Defendant Chipоtle‘s request for production number 12. That request for production seeks “all Documents that evidence, discuss, mention, refer to, reflect or Relatе to the amount of income You receive annually as a result of Your participation in lawsuits involving state or federal disability laws as an expert.” Chipotle contends this information is discoverable because it bears on the adequacy of Mr. Antoninetti as the class plaintiff. Mr. Antoninetti contends this request offends his privacy rights and is also overbroad and burdensome.

Plaintiff‘s claims arise under the Americans with Disabilities Act (42 U.S.C. §12131, et seq.), along with certain other state law claims for relief. Jurisdiction is properly in this Court pursuаnt to 28 U.S.C. Sections 1331 and 1343.

LEGAL STANDARD

Federal Rule of Civil Procedure 23(a)(4) requires “the representative parties will fairly and adequately ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍protect the interests of the class.” Further, Federal Rule of Civil Procedure 26(b) allows “discovery regarding any nonрrivileged matter that is relevant to any party‘s claim or defense – including the existence, description, nature, custody, condition, and location оf any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Today, this Court is not tasked with determining whether Mr. Antoninetti is an adequate class representative; District Judge Barry Ted Moskowitz will ultimately make that determination. Rather, this Court will only decide whether Chiрotle is entitled to a supplemental response to its request for production number 12 in an attempt to determine the adequacy of Mr. Antoninetti as a class representative.

ANALYSIS

One of the key cases dealing with determining the adequacy of a class plaintiff is the Sipper case. Sipper v. Capital One Bank, 2002 WL 398769 (C.D. Cal. 2002). In Sipper, there were two motions before the court. Id. at 1. The plaintiff, the class reprеsentative, brought a motion to certify the class. Id. Defendant Capital One opposed the motion for class certification, bringing its own motion to dеny the class on the primary ground of allegedly inadequate representation by the class representative and class counsel. Id. at 2. Central to Cаpital One‘s theory was the business relationship between class representative Ed Sipper and class counsel Barry Kramer. Id.

Sipper has come to stаnd for the following principle: “The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍existence of a business relationship does not automatically preclude class representation.” Id. at 3 (citing Macarz vs. Transworld Systems, Inc., 193 F.R.D. 46, 52 (D. Conn. 2000)(where the court refused to deny class certification basеd solely on relationship without indication of collaboration to generate fees)(emphasis in original)). Four factors influenced the court in Sipper in dеtermining the class plaintiff was not an adequate representative of class because of his business relationship with class counsel. Sipper, at 3. First, Sipper and Kramer “are business partners in a series of real estate deals.” Id. Second, “according to Sipper, he depends on Kramer for his involvemеnt in these deals because Kramer supplies the money.” Id. Third, “not only are Kramer and Sipper business partners, they have been joint defendants in a California lawsuit.” Id. Fourth, “neither Kramer nor Sipper felt the need to disclose this relationship to the court, his other clients in these matters, or Kramer‘s co-counsel . . . In previous deposition testimony ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and interrogatories Sipper danced around questions that would have required revealing his relationship with Kramer. Nor has Kramer come forward with this information on his own. Why?” Id.

The Sipper court went on to say:

In sum, the court emphatically disagrees with counsel‘s relevance argument and is surprised by class counsel‘s attitude toward a matter of such importance. A central concern of the Rules of Civil Procedure governing class actions is ensuring that the class action format is not hijacked by parties or attorneys to their own ends at the expense of the other class members. Of particular concern, “courts fear that a class rеpresentative who is closely associated with the class attorney would allow settlement on terms less favorable to the interest of absent class members.”

Id. at 4 (citing Susman vs. Lincoln American Corp., 561 F.2d 86, 91 (7th Cir. 1977).

Back to the instant case, Mr. Antoninetti has earned income from an extensive, long-term business relationship with class counsel. Mr. Antoninetti has testified in this case to having worked as an expert or consultant with class counsel in ADA matters approximately 50 times.¹ In that capacity, he charged $120 per hour.² He has a similar, though less extensive, relationship with the second class counsel.³ Mr. Antoninetti worked as an expert with class counsel before the instant lawsuit was filed. He does not currently have any cases with class counsel in which he is serving as a consultant or expert witness. In addition, he may or may not undertake such work with class counsel when the current case has concluded.⁴

Contrary to Sipper, Mr. Antoninetti is not an attorney and has not served as co-counsel with either class counsel. However, the inquiry intо the business relationship between the class representative and class counsel is not limited to those situations where the class representаtive is also an attorney. The relevant inquiry is whether the business relationship between the class representative and class counsel comprоmises ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the ability or willingness of the class representative to faithfully advocate for the interests of the class. Under Sipper, Chipotle has established sufficient basis under Federal Rule of Civil Procedure 26(b)(1) to conduct additional discovery into the past and present business relationship between Mr. Antoninetti and class counsel in support of its claim that Mr. Antoninetti is not an appropriate class representative.

Notwithstanding the above, Chipotle‘s request for production number 12 is overbroad, as it is unlimited as to time and seeks information not relevant to the business or other relationship between Mr. Antoninetti and class counsel. However, despite its overbreadth, the request does seek documents relevant to a determination of Mr. Antoninetti‘s adequacy as a class representative. Therefore, some discovery on this subjеct is warranted. Mr. Antoninetti must produce documents showing any and all income he has received from his work as an expert or consultant for both clаss counsel for the period January 1, 1998 through December 6, 2006, the date the subject complaint was filed.

With respect to Defendant‘s request for copies of Mr. Antoninetti‘s tax returns, there is no special privilege related to tax returns in federal court. Rather, Rule 26 governs the issue of discoverability and relevance is the appropriate standard. See Heathman vs. United States District Court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the Central District of California, 503 F.2d 1032,1035 (9th Cir. 1974). Here, because Chipotlе has not shown Mr. Antoninetti‘s tax returns are relevant or likely to lead to the discovery of admissible evidence, his tax returns are not discoverable. Chipоtle‘s request is overbroad because Mr. Antoninetti‘s tax returns will undoubtedly show income received from a variety of other sources not at all relevant to this litigation, as well as deductions, property owned, etc.

Finally, Counsel should not interpret, or read into this ruling, any suggestion that this court believes class counsel and the class representative have colluded or failed to vigorously assert and protect the interests of the class. Indeed, clаss counsel and the class representative have vigorously represented the interests of the class.

IT IS SO ORDERED.

DATED: April 21, 2011

WMcCurineJr.

Hon. William McCurine, Jr.

U.S. Magistrate Judge

United States District Court

Notes

Deposition of Mr. Antoninetti taken October 4, 2006, pg. 125 [Exhibit 2 to Chipotle‘s moving papers.]

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