* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.
A third subclass was subsequently established, but it is not relevant to the Hernandez appeal.
The order refers to section “170.39B(4),” an obvious typographical error.
By respondents to the Hernandez appeal, we refer to defendant Vitamin Shoppe, which filed a respondent’s brief, and plaintiffs Janine Perry, Tom Vitrano, and the conditionally certified class, which filed a joinder to that brief.
Vitamin Shoppe’s briefing to the trial court stated only that the Estel case “has been largely stayed . . . pending the outcome of the settlement approval proceedings herein.”
The court cited Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 704; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801-1802 (Dunk).
To be clear, appellant does not raise any issues about the propriety of the court’s conditional certification of the class.
We again note that nothing in the court’s order prevented Spencer from seeking court approval for any communications he might have desired to have with class members in the future.
Furthermore the appellate court in Atari noted that the trial court could limit communications from a defendant or a named plaintiff to potential class members upon application for a protective order, “which probable circumstances may make appropriate.” (Atari, Inc. v. Superior Court, supra, 166 Cal.App.3d at p. 873.)
Rules of Professional Conduct, rule 3-510(B) states, “As used in this rule, ‘client’ includes a person who possesses the authority to accept an offer of settlement or plea, or, in a class action, all the named representatives of the class.”
In appellants’ reply brief, Hernandez argues that rule 2-100 permits a represented party “to initiate communication with any counsel of their choosing, including Spencer regarding the case,” and that the court’s injunction improperly barred such communications. Arguments raised for the first time in the reply brief are considered untimely and may be disregarded by the reviewing court. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2008) 78 Cal.App.4th 847, 894-895, fn. 10.) Accordingly, we disregard the argument.
Accordingly, we need not discuss the parties’ arguments about such rights in any further detail. We do not discuss such arguments as the contours of Spencer’s purported free speech rights and whether his communications were solely commercial speech, whether his solicitation was so misleading as to be unprotected by commercial free speech law and in violation of Rules of Professional Conduct, rule 1-400, and regarding the court’s authority to issue orders regarding Spencer’s conduct in a pre-certification context.
According to Hernandez, the settlement was based on a one-year statute of limitations.
Notices had been sent to 262 class members, of whom 81 filed timely claims, 16 dropped out, and one objected. A total of 16 notices had been returned and found to be ultimately undeliverable. The administrator found the percentage of claims (about 30 percent) and percentage of undeliverable mail (less than 6 percent) to be within the range of her company’s experience for wage and hour class actions.
They also pointed out that gap subclass claimants were to be compensated as though a three-year statute applied.