Razo v. AT&T Mobility Services, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS M. SALAS RAZO, on his own No. 1:20-cv-00172-NONE-HBK behalf and on behalf of all others similarly 12 situated, 13 Plaintiffs, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 14 v. PLAINTIFF’S MOTION TO APPOINT INTERIM CLASS COUNSEL 15 AT&T MOBILITY SERVICES, LLC, (Doc. Nos. 24, 42, 44) 16 Defendant. 17 18 Pending before the court is plaintiff’s motion to appoint interim class counsel under 19 Federal Rule of Civil Procedure 23(g) (“Rule 23(g)”). (Doc. No. 24). Plaintiff seeks the 20 appointment of his counsel, Bradley/Grombacher, LLP, as interim class counsel in this action in 21 order to protect the rights of the putative class members. (See generally id.). Plaintiff asserts that 22 a competing action, Wallack et. al v. AT&T Mobility, No. CIVSB2117915 (“Wallack”), filed in 23 San Bernardino Superior Court, is a reverse auction aimed at “gutting this case” thus necessitating 24 the appointment of interim Class counsel to protect the rights of the putative class. (Id. at 7). 25 Among other things, plaintiff highlights the fact that he has been explicitly carved out of the 26 settlement in Wallack, meaning that normal avenues by which he might object to that settlement 27 are likely unavailable or at the very least uncertain. (See id. at 21–22.) The pending motion is 28 opposed by defendant. (Doc. No. 29.) On October 15, 2021, the assigned magistrate judge 1 issued findings and recommendations recommending that the motion be granted and ordered that 2 any objections were to be filed within seven days in light of an imminent hearing regarding 3 approval of the settlement in Wallack. (Doc. No. 42.) Defendant timely filed objections and a 4 related request for judicial notice. (Doc. Nos. 43, 44.)1 Pursuant to 28 U.S.C. § 636(b)(1)(B) and 5 Eastern District of California Local Rule 302, the court has reviewed the motion de novo. For the 6 reasons set forth below, the findings and recommendations will be adopted in full and the motion 7 to appoint interim class counsel will be granted. 8 In brief, after reviewing the factual and procedural history of this case, salient aspects of 9 related cases, and the applicable standard under Rule 23(g), the findings and recommendations 10 concluded that appointment of Bradley/Grombacher, LLP is necessary to protect the interests of 11 the putative class. (See generally Doc. No. 42.) The recommendation acknowledged that in 12 certain circumstances courts have refused to appoint interim class counsel unless all competing 13 class claims have been consolidated before the court hearing the Rule 23(g) motion. (See id. at 7– 14 9.) But, as the findings and recommendations pointed out, the facts presented here are somewhat 15 unique because the Wallack settlement specifically carves out the named plaintiff in this action. 16 (See id. at 10.) 17 The findings and recommendations also correctly pointed out that this very issue was 18 discussed in detail by District Judge William H. Orrick of the Northern District of California in 19 Torliatt v. Ocwen Loan Servicing, LLC, No. 19-cv-04303-WHO, 2020 WL 10964876 (N.D. Cal. 20 Oct. 2, 2020). There, Judge Orrick declined to limit the reach of Rule 23(g) only to those cases 21 where there is rivalry among competing class counsel (or some other inadequacy related to 22 counsel) in the case before the district court hearing the Rule 23(g) motion. Id. at *3. Put 23 simply, at its core, “Rule 23 allows the court to designate interim counsel ‘during the pre- 24 certification period if necessary to protect the interests of the putative class.’” Id. at *4 (citing 25 Fed. R. Civ. Proc. 23 Advisory Comm. Notes). The decision in Torliatt specifically refused to 26 27 1 The request for judicial notice presents court records from other cases, which are properly the subject of judicial notice. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). 28 Accordingly, the request will be granted. 1 follow the line of cases cited here by defendant in its objections, including White v. TransUnion, 2 LLC, 239 F.R.D. 681, 684 (C.D. Cal. 2006), in which the district court denied a motion to appoint 3 class counsel where there were “ample mechanisms for dissatisfied class plaintiffs to object to a 4 class action settlement.” See Torliatt, 2020 WL 10964876 at *4. Judge Orrick emphasized that 5 the competing settlement specifically carved out Torliatt and other named plaintiffs, meaning that 6 “Torliatt is himself unable to object to the settlement.” Id. “In these circumstances, it is 7 reasonably likely that interim class counsel is necessary to ‘protect the interests of the putative 8 [California] class.’” Id. As the magistrate judge did here, the undersigned finds the reasoning of 9 Torliatt to be applicable and persuasive and the cases cited by defendant in its opposition and 10 objections to be distinguishable. 11 The undersigned finds the remainder of defendant’s objections to be either unpersuasive 12 or largely irrelevant to the Rule 23(g) analysis. For example, defendant discusses—over 13 numerous pages—the various reasons why it believes the settlement in Wallack is reasonable. 14 (See generally Doc. No. 24.) But, the reasonableness of Wallack’s settlement is not before this 15 court. To the extent those arguments are presented to demonstrate that counsel in Wallack is 16 sufficiently capable of protecting the class’ interests, that issue is not a factor in the Rule 23(g) 17 analysis either. See Gallagher v. Bayer AG, No. 14-CV-04601-WHO, 2015 WL 4932292, at *7 18 (N.D. Cal. Aug. 18, 2015) (These factors are: “(i) the work counsel has done in identifying or 19 investigating potential claims in the action; (ii) counsel’s experience in handling class actions, 20 other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge 21 of the applicable law; and (iv) the resources that counsel will commit to representing the class.”). 22 Moreover, the extent to which granting this motion will facilitate plaintiff’s ability to participate 23 in the Wallack case is not before the undersigned and is not dispositive of the Rule 23(g) inquiry. 24 CONCLUSION 25 Accordingly, for the reasons set forth above: 26 (1) The findings and recommendations issued on October 15, 2021 (Doc. No. 42), are 27 ADOPTED IN FULL; 28 ///// 1 (2) Plaintiff's motion to appoint interim class counsel under Rule 23(g) (Doc. No. 24) is 2 | GRANTED; and 3 (3) The related request for judicial notice (Doc. No. 44) is GRANTED. 4 | IT IS SO ORDERED. a “ 5 Li. wh F Dated: _ October 27, 2021 wea rE 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28