Even before certification of a class under Rule 23(a)-(b), the district court has authority to appoint "interim counsel" under Rule 23(g)(3) "to act on behalf of a putative class before determining whether to certify the action as a class action." However, as the District of New Jersey recently explained, "neither the federal rules nor the Advisory Committee Notes expressly" state the analysis used to determine when "interim counsel" should be appointed and which counsel might be appropriate.
Nevertheless, several federal courts have used the same analysis that applies under Rule 23(g)(1) regarding the post-certification appointment of actual class counsel. This includes consideration of:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
These factors are not exhaustive, and the district court may consider "any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Santos, 2017 WL 215969, at *1.
As the court explained, the appointment of interim counsel typically occurs in cases "in which a large number of putative class actions have been consolidated or are otherwise pending before a single court." Thus, if "the lawyer who filed the suit is to be the only lawyer seeking appointment as class counsel, appointing interim class counsel may be unnecessary." Id. at *2.
In Santos, the district court ultimately declined to appoint interim counsel regarding a putative class that challenged alleged kickbacks as to force-placed hazard insurance because it was apparent that the plaintiff's counsel was not, in fact, seeking to streamline management of the alleged class through such an appointment. Instead, they were seeking to use appointment as interim counsel to increase their leverage in opposing efforts to settle overlapping, competing putative class actions pending in other federal district courts.
The court held this was improper: "Appointment of interim class counsel is not the proper vehicle by which to oppose settlement." Id. at * 3. There were other more appropriate, direct avenues available for plaintiff's counsel to challenge the attempted settlements in the overlapping, competing actions pending in other federal jurisdictions – seeking appointment as interim counsel was not the appropriate relief.
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