Law Firm represented a certified class of non-exempt employees against Apple in Lawsuit No. 1. Law Firm also represented non-exempt employees in a putative class action against Apple in Lawsuit No. 2. Apple identified a former employee who is an unnamed member of the certified class in Lawsuit No. 1, but who had been promoted to an exempt managerial position responsible for the claims against Apple in Lawsuit No. 2.
Held: Law Firm disqualified. Once the class in Lawsuit No. 1 was certified, Law Firm owed a heightened duty to the unnamed class members, including the duty to avoid conflicts. Law Firm may have to cross-examine the unnamed class member from Lawsuit No. 1, in Law Suit No. 2, thus raising an un-waivable conflict in Law Firm’s duty of loyalty, resulting in automatic disqualification.