FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 19-70522
`
`D.C. No.
`3:16-cv-01421-
`WHO
`
`OPINION
`
`IN RE: WILLIAMS-SONOMA, INC.;
`WILLIAMS-SONOMA ADVERTISING,
`INC.; WILLIAMS-SONOMA DTC, INC.,
`______________________
`
`WILLIAMS-SONOMA, INC., a
`Delaware corporation, DBA Pottery
`Barn, DBA Williams-Sonoma, DBA
`Williams-Sonoma Home;
`WILLIAMS-SONOMA ADVERTISING,
`INC., a California corporation;
`WILLIAMS-SONOMA DTC, INC., a
`California corporation,
`
`Petitioners,
`
`v.
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF
`CALIFORNIA, SAN FRANCISCO,
`Respondent,
`
`WILLIAM RUSHING, Individually
`and on Behalf of all Others Similarly
`Situated,
`
`Real Party in Interest.
`
`

`

`2
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`Appeal from the United States District Court
`for the Northern District of California
`William Horsley Orrick, District Judge, Presiding
`
`Argued and Submitted October 2, 2019
`San Francisco, California
`
`Filed January 13, 2020
`
`Before: Ferdinand F. Fernandez and Richard A. Paez,
`Circuit Judges, and Jennifer Choe-Groves,* Judge.
`
`Opinion by Judge Fernandez;
`Dissent by Judge Paez
`
`SUMMARY**
`
`Writ of Mandamus / Discovery
`
`The panel granted Williams-Sonoma Advertising, Inc.’s
`petition for a writ of mandamus, and ordered the district court
`to vacate a pre-class-certification discovery order that
`directed Williams-Sonoma to produce a list of California
`customers who had purchased certain bedding products.
`
`* The Honorable Jennifer Choe-Groves, Judge for the United States
`Court of International Trade, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`3
`
`William Rushing brought an underlying action
`against Williams-Sonoma to recover damages that he
`allegedly suffered due to Williams-Sonoma’s alleged
`misrepresentations about thread count on bedding he
`purchased. Before a class action was certified, the district
`court determined that Kentucky law governed Rushing’s
`claim and that Kentucky consumer law prohibited class
`actions. The district court granted Rushing’s request to
`obtain discovery from Williams-Sonoma for the purpose of
`aiding his counsel’s attempt to find a California customer
`who purchased similar bedding.
`
`In determining whether to issue mandamus relief, the
`panel applied the Bauman v. U.S. Dist. Court, 557 F.2d 650,
`656-661 (9th Cir. 1977), factors. The panel held that
`Supreme Court authority demonstrated clear error in the
`district court’s decision. The panel held that the Supreme
`Court has determined that seeking discovery of the name of
`a class member (here an unknown person, who could sue
`Williams-Sonoma) was not relevant within the meaning of
`Fed. R. Civ. P. 26(b)(1), which limits the scope of discovery.
`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353
`(1978). The panel concluded that the district court clearly
`erred as a matter of law when it ordered the discovery in
`question, and the balance of factors weighed in favor of
`granting the writ of mandamus.
`
`Judge Paez dissented because in his view the district court
`had not erred, let alone committed the clear error required for
`the extraordinary remedy of mandamus relief.
`
`

`

`4
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`COUNSEL
`
`P. Craig Cardon (argued), Robert J. Guite, and Benjamin O.
`Aigboboh, Sheppard Mullin Richter & Hampton LLP, San
`Francisco, California, for Petitioners.
`
`Kathryn Honecker (argued) and Jonathan Udell, Rose Law
`Group, PC, Scottsdale, Arizona; Amber L. Eck and Robert D.
`Prine, Haeggquist & Eck, LLP, San Diego, California;
`George Richard Baker, Baker Law, PC, Los Angeles,
`California; for Real Party in Interest.
`
`No appearance for Respondent.
`
`Timothy G. Blood and Paula R. Brown, Blood Hurst &
`O’Reardon, LLP, San Diego, California, for Amicus Curiae
`Consumer Attorneys of California.
`
`OPINION
`
`FERNANDEZ, Circuit Judge:
`
`Williams-Sonoma, Inc., Williams-Sonoma DTC, Inc., and
`Williams-Sonoma Advertising, Inc. (collectively “Williams-
`Sonoma”) petition for a writ of mandamus1 ordering the
`district court to vacate a pre-class-certification discovery
`order that directed Williams-Sonoma to produce a list of
`California customers who had purchased certain bedding
`products. The purpose of the discovery was to enable
`opposing counsel to find a lead plaintiff to pursue a class
`
`1 28 U.S.C. § 1651(a).
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`5
`
`action against Williams-Sonoma under California law. We
`grant the petition.
`
`BACKGROUND
`
`William Rushing, a resident and citizen of the State of
`Kentucky, allegedly purchased bedding from Williams-
`Sonoma, and an important reason for his doing so was based
`upon the advertised thread count. Williams-Sonoma said that
`the thread count was 600 threads per square inch, but Rushing
`allegedly later discovered that it was actually much lower
`than that. Thus, he brought an action against Williams-
`Sonoma to recover damages under the law of the State of
`California that he allegedly suffered due to Williams-
`Sonoma’s alleged misrepresentations. He also sought
`damages under California law for a class of consumers who
`bought bedding from Williams-Sonoma due to the selfsame
`alleged misrepresentations.
`
`Before a class action was certified,2 the district court
`determined, inter alia, that Kentucky law governed Rushing’s
`claims and that Kentucky consumer law prohibited class
`actions. Rushing gave notice that he would pursue his
`personal claims under Kentucky law, but sought to obtain
`discovery3 from Williams-Sonoma for the sole purpose of
`aiding his counsel’s attempt to find a California purchaser of
`bedding from Williams-Sonoma who might be willing to sue.
`The district court obliged, and to that end ordered Williams-
`Sonoma to produce a list of all California customers who
`purchased bedding products of the type referred to in
`
`2 See Fed. R. Civ. P. 23(c)(1)(A).
`
`3 See Fed. R. Civ. P. 26, 33.
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`ushing’s complaint since January 29, 2012. Williams-
`Sonoma’s request
`for
`leave
`to file a motion
`for
`reconsideration was denied; this petition followed.
`
`6 R
`
`DISCUSSION
`
`Williams-Sonoma seeks a writ of mandamus to avoid the
`strictures of the district court’s discovery order. In deciding
`whether to issue a writ of mandamus we apply the Bauman
`factors, which we have described as follows:
`
`(1) The party seeking the writ has no other
`adequate means, such as a direct appeal, to
`attain the relief he or she desires.
`
`(2) The petitioner will be damaged or
`prejudiced in a way not correctable on appeal
`. . . .
`
`(3) The district court’s order is clearly
`erroneous as a matter of law.
`
`(4) The district court’s order is an oft-repeated
`error, or manifests a persistent disregard of
`the federal rules.
`
`(5) The district court’s order raises new and
`important problems, or issues of law of first
`impression.
`
`SG Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909, 913
`(9th Cir. 1999) (alteration in original) (citation omitted);
`Bauman v. U.S. Dist. Court, 557 F.2d 650, 656–661 (9th Cir.
`1977). Not all of those factors need to be satisfied, and all
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`7
`
`must be “weighed together” on a case-by-case basis. See SG
`Cowen, 189 F.3d at 913–14; Admiral Ins. Co. v. U.S. Dist.
`Court, 881 F.2d 1486, 1491 (9th Cir. 1989). In considering
`the factors, we keep in mind the drastic and extraordinary
`nature of that remedy, and the fact that Williams-Sonoma has
`the weighty burden of convincing us to prescribe it. See Van
`Dusen v. U.S. Dist. Court (In re Van Dusen), 654 F.3d 838,
`840–41 (9th Cir. 2011); see also United States v. Guerrero,
`693 F.3d 990, 999–1000 (9th Cir. 2012); SG Cowen, 189 F.3d
`at 913.
`
`In any event, “[b]ecause we have held that ‘the absence of
`factor three—clear error as a matter of law—will always
`defeat a petition for mandamus,’”4 we will address that factor
`first. We are mindful that we do not generally find clear error
`when there is no prior Ninth Circuit authority prohibiting the
`district court’s action. See Morgan v. U.S. Dist. Court (In re
`Morgan), 506 F.3d 705, 713 (9th Cir. 2007); cf. Barnes v. Sea
`Haw. Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018)
`(holding that when an “‘important issue of first impression’”
`is raised, the standard is ordinary error).
`
`In the present case, contrary Supreme Court authority
`demonstrates the clear error in the district court’s decision.
`Rule 26(b)(1) limits the scope of discovery to “nonprivileged
`matter that is relevant to any party’s claim or defense.” And
`the Supreme Court has determined that seeking discovery of
`the name of a class member (here an unknown person, who
`could sue Williams-Sonoma) is not relevant within the
`meaning of that rule. As the Court held:
`
`4 Sussex v. U.S. Dist. Court (In re Sussex), 781 F.3d 1065, 1071 (9th
`Cir. 2015).
`
`

`

`8
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`The general scope of discovery is defined
`by Fed. Rule Civ. Proc. 26(b)(1) as follows:
`
`“Parties may obtain discovery
`regarding any matter, not privileged,
`which is relevant to the subject matter
`involved
`in
`the pending action,
`whether it relates to the claim or
`defense of the party seeking discovery
`or the claim or defense of any other
`party . . . .”
`
`The key phrase in this definition—“relevant to
`the subject matter involved in the pending
`action”—has been construed broadly to
`encompass any matter that bears on, or that
`reasonably could lead to other matter that
`could bear on, any issue that is or may be in
`the case. . . .
`
`At the same time, “discovery, like all
`matters of procedure, has ultimate and
`necessary boundaries.” . . . Discovery of
`matter not “reasonably calculated to lead to
`the discovery of admissible evidence” is not
`within the scope of Rule 26(b)(1). . . .
`
`Respondents’ attempt to obtain the class
`members’ names and addresses cannot be
`forced into the concept of “relevancy”
`described above. The difficulty is that
`respondents do not seek this information for
`any bearing that it might have on issues in the
`case. . . . If respondents had sought the
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`9
`
`information because of its relevance to the
`issues, they would not have been willing, as
`they were, to abandon their request if the
`District Court would accept their proposed
`redefinition of the class and method of
`sending notice. Respondents argued to the
`District Court
`that
`they desired
`this
`information to enable them to send the class
`notice, and not for any other purpose. Taking
`them at their word, it would appear that
`respondents’ request is not within the scope of
`Rule 26(b)(1).
`
`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350–53,
`98 S. Ct. 2380, 2389–90, 57 L. Ed. 2d 253 (1978) (footnotes
`omitted). The Court then concluded: “[W]e do not think that
`the discovery rules are the right tool for this job.” Id. at 354,
`98 S. Ct. at 2391 (footnote omitted); see also Reed v. Bowen,
`849 F.2d 1307, 1313–14 (10th Cir. 1988) (power of the court
`should not be used to solicit clients); Douglas v. Talk Am.,
`Inc., 266 F.R.D. 464, 467–68 (C.D. Cal. 2010) (same). There
`are two distinctions between the case at hand and
`Oppenheimer, but both cut against the district court’s
`decision here.
`
`One of those distinctions is that Rule 26(b)(1) was
`amended to its current form after 1978 when Oppenheimer
`was decided. As quoted above, the rule then indicated that
`discovery must be “relevant to the subject matter involved in
`the pending action” that related to a party’s claim or defense.
`Now, the “subject matter” reference has been eliminated from
`the rule, and the matter sought must be “relevant to any
`party’s claim or defense.” Rule 26(b)(1). That change,
`however, was intended to restrict, not broaden, the scope of
`
`

`

`10
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`discovery. See Rule 26(b)(1) advisory committee’s note to
`2000 amendment; see also id. advisory committee’s note to
`2015 amendment; cf. Elvig v. Calvin Presbyterian Church,
`375 F.3d 951, 967–68 (9th Cir. 2004).
`
`The other distinction is that Oppenheimer dealt with a
`case where class certification had already been granted, and
`the moving party sought to obtain a list of members of that
`class. This case is a step removed from that—here counsel is
`without a lead plaintiff for the class issues that counsel
`wishes to pursue, so no class has been certified. It follows
`that the request here is less relevant than the request in
`Oppenheimer. The district court clearly erred as a matter of
`law when it ordered the discovery in question.
`
`Rushing contends that the information sought in
`discovery was relevant to class certification issues, such as
`commonality, typicality, ascertainability, and reliance. That
`does not undercut, or water down, the primary point that
`using discovery to find a client to be the named plaintiff
`before a class action is certified is not within the scope of
`Rule 26(b)(1). Oppenheimer, 437 U.S. at 353, 98 S. Ct. at
`2390. In short, the district court clearly erred when it decided
`otherwise.5
`
`5 By the way, the district court also erred to the extent that it applied
`California discovery rules. It was required to apply the Federal Rules of
`Civil Procedure regarding discovery, which, of course, included the
`restrictions upon granting discovery under those rules. See Fed. R. Civ.
`P. 26(b)(1) (hereafter, Rule 26(b)(1)); id. at 81(c)(1); Gasperini v. Ctr. for
`Humanities, Inc., 518 U.S. 415, 427 & n.7, 116 S. Ct. 2211, 2219 & n.7,
`135 L. Ed. 2d 659 (1996); Bearint ex rel. Bearint v. Dorell Juvenile Grp.,
`Inc., 389 F.3d 1339, 1352–53 (11th Cir. 2004); Vess v. Ciba-Geigy Corp.
`USA, 317 F.3d 1097, 1103 (9th Cir. 2003); Metabolife Int’l, Inc. v.
`Wornick, 264 F.3d 832, 845–46 (9th Cir. 2001).
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`11
`
`As to the first Bauman factor, Williams-Sonoma has no
`other adequate means for relief available to it at this time,6
`and before a direct appeal could be taken and heard, the
`disclosure and damage to its (and its customers’) interests
`would be complete—its claim would be mooted.7 Thus, the
`first and second factors weigh in favor of granting the
`petition.
`
`We are unable to say that the district court’s error was one
`that is oft-repeated, or that it is a novel issue.8 Thus, “the
`fourth and fifth Bauman factors do not weigh in favor of
`granting the petition.” Tillman, 756 F.3d at 1153.
`
`The balance of the factors weighs in favor of granting the
`writ of mandamus. See id.; Hernandez v. Tanninen, 604 F.3d
`1095, 1101–02 (9th Cir. 2010); cf. San Jose Mercury News,
`Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099–1100, 1103 (9th
`Cir. 1999).
`
`Therefore, we grant the petition for a writ of mandamus
`and vacate the district court’s discovery order.
`
`Petition GRANTED.
`
`6 See SG Cowen, 189 F.3d at 913; Admiral Ins. Co. v. U.S. Dist.
`Court, 881 F.2d 1486, 1491 (9th Cir. 1989).
`
`7 See SG Cowen, 189 F.3d at 914.
`
`8 Because the Court has so clearly spoken, we cannot call the issue
`one of first impression. If it were one, it would weigh in favor of granting
`the petition. See United States v. Tillman, 756 F.3d 1144, 1150, 1153 (9th
`Cir. 2014).
`
`

`

`12
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`PAEZ, Circuit Judge, dissenting:
`
`Mandamus is an extraordinary remedy—among “the most
`potent weapons in the judicial arsenal”—and one we must not
`resort to absent clear error. Cheney v. U.S. Dist. Court for
`D.C., 542 U.S. 367, 380 (2004) (quoting Will v. United
`States, 389 U.S. 90, 107 (1967)); see also Bauman v. U.S.
`Dist. Court, 557 F.2d 650, 658–60 (9th Cir. 1977). In my
`view, the district court has not erred, let alone committed
`“clear and indisputable” error. Cheney, 542 U.S. at 381
`(quotation marks omitted). I therefore respectfully dissent.
`
`The majority relies on the Supreme Court’s decision in
`Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), to
`hold that the district court’s discovery order is legally
`incorrect. As I read Oppenheimer, however, it stands for a
`much narrower proposition. The Court held only that once a
`district court certifies a class action, class counsel must rely
`on the class action procedures outlined in Federal Rule of
`Civil Procedure 23—and not the federal discovery rules
`contained in Rules 26 through 37—to notify absent class
`members of certification. Oppenheimer did not hold that
`plaintiffs cannot seek the identities and contact information
`of absent class members for a different purpose before the
`class is certified, as here.
`
`But even if the federal discovery rules do not authorize
`the district court’s order, that still leaves Rule 23, which
`broadly empowers the district court to take measures
`necessary to maintain a class action, protect the interests of
`putative class members, and provide notice to absent class
`members when necessary
`to protect
`their
`interests.
`Oppenheimer certainly did not narrow the scope of Rule 23
`and, indeed, relied on it.
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`13
`
`The majority points to no clear legal error or abuse of
`discretion by the district court. And even if the court’s order
`were questionable, our
`intervention
`is unnecessary.
`Mandamus, under these circumstances, is not warranted.
`
`I.
`
`I begin with Oppenheimer. There, the plaintiffs sought to
`pursue a class action against an investment fund. 437 U.S. at
`342–44. The district court certified the class under Rule
`23(b)(3), which triggered mandatory notice to absent class
`members under Rule 23(c)(2). See id. at 346; Fed. R. Civ. P.
`23(c)(2)(B). The thrust of the dispute was which party must
`pay the costs of identifying and notifying the unnamed class
`members. Oppenheimer, 437 U.S. at 349–64. The district
`court ordered the defendants to do so. Id. at 346.
`
`The Second Circuit reversed. It reasoned that the
`Supreme Court’s decision in Eisen v. Carlisle & Jacquelin
`(Eisen IV), 417 U.S. 156 (1974), required the plaintiffs, and
`not defendants, to pay because “the identification of class
`members is an integral step in the process of notifying them.”
`Oppenheimer, 437 U.S. at 347. On rehearing en banc,
`however, the Second Circuit affirmed the district court’s
`order, holding that Eisen IV did not necessarily govern the
`issue because the plaintiffs could rely on alternative
`procedural rules to obtain the same information: the federal
`discovery rules. Id. (citing Sanders v. Levy, 558 F.2d 636,
`649–50 (2d Cir. 1976) (en banc)). The en banc court
`concluded that the district court had not abused its discretion
`in allocating the costs of notice to the defendants. Id. (citing
`Sanders, 558 F.2d at 646).
`
`

`

`14
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`The Supreme Court disagreed. The Court began by
`emphasizing that Rule 26 only allows a party to seek
`materials “relevant” to the subject matter of any claim or
`defense. Id. at 350–51. The Court reasoned that the
`plaintiffs’ procedural obligation to comply with the Rule
`23(c)(2) notice obligations did not, by itself, relate to the
`subject matter of a claim or defense under Rule 26. Id. at
`352–54. The “critical” issue, according to the Court, was that
`plaintiffs “sought [the information] to facilitate the sending
`of notice rather than to define or clarify issues in the case.”
`Id. at 350. The “proper[]” channel to accomplish this
`purpose, the Court held, was Rule 23(d)—the “natural place
`to look for authority for orders regulating the sending of
`notice.” Id. at 350, 354. The Court reasoned that this rule
`“vests power in the district court to order one of the parties to
`perform the tasks necessary to send notice.” Id. at 354. In
`reversing, the Court expressly left open the possibility that
`Rule 26 could be used to obtain the same information when
`it is relevant to other issues in the case. Id. at 354 n.20 (“We
`do not hold that class members’ names and addresses never
`can be obtained under the discovery rules.”); id. at 353 n.18
`(“The difference between the cases relied on by [plaintiffs]
`and this case is that [plaintiffs] do not seek information
`because it may bear on some issue which the District Court
`must decide, but only for the purpose of sending notice.”); see
`also id. at 351 & n.13 (noting that discovery is not “limited to
`the merits of a case” such as, for example, when “issues arise
`as to jurisdiction or venue”).
`
`The present case is markedly different than Oppenheimer.
`Unlike in Oppenheimer, Plaintiff’s action has not yet been
`certified under Rule 23(c), and Plaintiff does not necessarily
`seek to provide notice. Plaintiff’s counsel instead seeks to
`substitute the named class representative with one who has
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`15
`
`standing under California law. Whether the federal discovery
`rules may be used for this purpose is an open question.
`Indeed, the majority does not point to any case that has
`clearly addressed it. To answer this question, the majority
`asks whether the absent class member names and contact
`information is “relevant”1 to a “party’s” claim or defense.
`Fed. R. Civ. P. 26(b)(1). While the majority reads
`Oppenheimer to hold that it is not, I do not read Oppenheimer
`so strictly. In any event, we need not resolve that question at
`this stage: the sole issue before us is whether the district
`court’s discovery order is so clearly wrong that our
`intervention is necessary. Because neither Oppenheimer nor
`our court’s precedent dictates otherwise, I do not believe that
`it is.
`
`II.
`
`Even if Oppenheimer foreclosed use of the federal
`discovery rules to aid the identification of class member
`names and contact information, its reasoning suggests another
`basis for the district court’s order: Rule 23.
` See
`Oppenheimer, 437 U.S. at 354. Rule 23(d) provides district
`courts with “substantial residual powers” to regulate
`communications with absent class members outside of formal
`notice requirements. William B. Rubenstein, 3 Newberg on
`Class Actions § 9:2 (5th ed.) (citing, among others, Rule
`
`1 Contrary to the majority’s suggestion, relevance continues to have
`a broad meaning, even after the 2000 Amendments to the procedural rules.
`See Alan Wright & Arthur R. Miller, 8 Fed. Prac. & Proc. Civ. § 2008 (3d
`ed.) (“Most courts which have addressed the issue find that the [2000]
`amendments to Rule 26 still contemplate liberal discovery, and that
`relevancy under Rule 26 is extremely broad.”) (quotation marks omitted).
`
`

`

`16
`
`IN RE: WILLIAMS-SONOMA, INC.
`
`23(d)(1)(A)).2 That is because class actions are a form of
`representative litigation, and, before certification, counsel
`“may wish to advise potential plaintiffs of their rights and
`encourage their involvement in a class suit, to seek helpful
`evidence from them, or simply to inform them of the status of
`the litigation.” Id. § 9:6. The ability to communicate with
`members of the class is acutely important given the fiduciary
`duties that class counsel owes unnamed class members.
`6 Newberg on Class Actions § 19:2 (5th ed.); see also Koby
`v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017)
`(acknowledging fiduciary obligations owed to absent class
`members before certification); In re Gen. Motors Corp. Pick-
`Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 801
`(3d Cir. 1995). And “[s]ince identification simply is another
`task that must be performed in order to” communicate to
`potential plaintiffs
`their rights and encourage
`their
`involvement in a class suit, it was reasonable for the district
`court “to require [Williams-Sonoma’s] cooperation” to cull
`that list. See Oppenheimer, 437 U.S. at 355.
`
`Likewise, Rule 23(d)(1)(B)(i) authorizes district courts to
`order that class members be notified of “any step in the
`action” to “protect class members.”3 The district court’s
`ruling that the sole named plaintiff no longer had standing
`under California law is, certainly, a “step in the action.” And
`it is a step that, without some protective measure, would harm
`
`2 Rule 23(d)(1)(A), for example, authorizes a court to issue orders that
`“determine the course of the proceedings or prescribe measures to prevent
`undue repetition or complication in presenting evidence or argument.”
`Fed. R. Civ. P. 23(d)(1)(A).
`
`3 The advisory committee describes the reasons to provide notice
`under Rule 23(d) as “non-exhaustive.” See Fed. R. Civ. P. 23(d)(2)
`advisory committee’s note to the 1966 amendment.
`
`

`

`IN RE: WILLIAMS-SONOMA, INC.
`
`17
`
`class members’ interests in at least one significant way. For
`example, when a class action is filed, putative class members
`enjoy a tolling of the statute of limitations until certification
`is denied or the case is resolved. See Am. Pipe & Constr. Co.
`v. Utah, 414 U.S. 538, 553–54 (1974). In an action that has
`been pending for almost three years, the putative class
`members’ interests in keeping the suit alive would well be
`jeopardized, absent notice.4
`
`The district court thus acted well within its authority by
`facilitating class counsel’s attempts to communicate with
`absent class members and to notify them of important
`developments in the lawsuit. Because the district court’s
`order was a “matter . . . committed to discretion, it cannot be
`said that [Williams-Sonoma’s] right to a particular result is
`clear and indisputable.” See Allied Chem. Corp. v. Daiflon,
`Inc., 449 U.S. 33, 36 (1980) (per curiam) (quotation marks
`omitted). I would thus deny the petition for a writ of
`mandamus. I respectfully dissent.
`
`4 That notice is provided to allow absent class members to intervene
`or otherwise keep the suit alive is hardly controversial. See Rule
`23(d)(1)(B)(iii); Wright & Miller, 7B Fed. Prac. & Proc. Civ. § 1793
`(3d ed.) (“Indeed, it has been held that [Rule 23(d)(1)(B)] may be invoked
`to send notice to putative class members to intervene when the original
`plaintiff representative moves to strike the class allegations and settle his
`individual claim or when the class certification is denied.”); see also
`1 Newberg on Class Actions § 2:17 (“Once a class complaint is filed, but
`certainly following certification, Rule 23 is designed to assure that the
`rights of absent class members are not prejudiced by the voluntary actions
`of the representative plaintiff. Accordingly, when mootness of the named
`plaintiff’s claims occurs after initiation of the suit or certification, the
`procedures inherent in Rule 23 enable some effort to bolster representation
`or to find some suitable substitute class representative, following notice
`to all or part of the class.”).
`
`