Court Refuses to Certify Class Due to Lack of Adequacy of Class Counsel

by BakerHostetler
Contact

Class action litigation is not for amateurs

We’ve commented before in this blog on cases in which courts declined to certify employment actions due to adequacy of class counsel. A recent case reflects that some courts will look not only to the presence or absence of conflicts or litigation misconduct but also to the plaintiffs’ counsel’s experience in other class action cases.

In Goers v. L.A. Entertainment Group, Inc., Case No. 2-15-dv-412-FtM-99CM (M.D. Fla., Jan. 9, 2017), the plaintiffs described themselves as former exotic dancers who worked at an adult night club in Fort Myers, Florida. They claimed that they, the other exotic dancers and possibly other club employees were misclassified as independent contractors and thus failed to receive the minimum wage and overtime. They sought to certify a class under state law under federal Rule 23, and also sought certification of a collective action under section 16(b) of the Fair Labor Standards Act.

The district court initially refused to certify the class due to the conflicts between having a Rule 23 class and a section 16(b) collective in the same case. After the court issued that opinion, however, the Eleventh Circuit determined in a different case, Calderone v. Scott, 838 F.3d 1101 (11th Cir. 2016), that the two were not incompatible, and the case was remanded for further consideration.

On remand, the district court in Goers found that the class did satisfy the requirement of superiority under Rule 23(b)(3). It found, however, that the plaintiffs had failed to demonstrate the adequacy of class counsel under Rule 23(a)(4). More specifically, the court reviewed the considerations for adequacy of counsel under Rule 23(g)(1)(A), which were:

(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel’s experience in handling class actions and other complex litigation and the types of claims asserted in the action;

(iii) counsel’s knowledge of the applicable law; and

(iv) the resources counsel will commit to representing the class.

The court also noted that it could, under Rule 23(g)(1)(B), consider “any . . . matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”

The court found several of these factors wanting. It reviewed the plaintiffs’ counsel’s past experience and found that they were relative newcomers to class action practice, having filed most of their class action claims only within the prior two years. It noted their failure to comply with certain court deadlines and an apparent disconnect between the class definition in the complaint and the class for which certification was sought. It also cited questions about the resources the plaintiffs’ counsel could bring to bear on the case. Combining these factors, the court concluded that the attorneys were not adequate class representatives and denied certification under Rule 23.

Goers is an example of a court taking the requirements of adequacy of representation seriously, and it likely points up the need for plaintiffs’ counsel to demonstrate the requisite experience and focus. Notably, however, the court also found that as adequacy is not a factor under FLSA section 16(b), its finding did not affect the collective action allegations. Thus, the same lawyers could still continue to pursue the FLSA section 16(b) collective, although it would presumably be a significantly narrower case given the opt-in requirement and different functioning of the statute of limitations rules.

The bottom line: Adequacy of representation under Rule 23 may require examination of plaintiffs’ counsel’s skill and experience in handling the present and prior class litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.