IN RE: S.C. JOHNSON & SON, INC. WINDEX NON-TOXIC LITIGATION ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Master File No. 20-cv-03184-HSG 8 IN RE: S.C. JOHNSON & SON, INC. ORDER DENYING APPLICATION TO APPOINT INTERIM CO-LEAD 9 WINDEX NON-TOXIC LITIGATION COUNSEL 10 Re: Dkt. No. 28 11 This Document Relates To: All Actions 12 13 14 Pending before the Court is the application to appoint interim class counsel filed by 15 Plaintiffs Michelle Moran and Monica Waddell. See Dkt. No. 28. Plaintiffs seek to appoint four 16 attorneys from four different law firms as interim class counsel: (1) Ryan Clarkson from Clarkson 17 Law Firm, PC; (2) Christopher Moon from Moon Law, APC; (3) Michael Reese from Reese LLP; 18 and (4) Spencer Sheehan from Sheehan and Associates, PC. Id. The Court held a hearing on 19 October 8, 2020. For the reasons detailed below, the Court DENIES the motion. 20 Under Federal Rule of Civil Procedure 23(g)(3), a court “may designate interim counsel to 21 act on behalf of a putative class before determining whether to certify the action as a class action.” 22 Fed. R. Civ. P. 23. A court should “designate interim counsel during the pre-certification period if 23 necessary to protect the interests of the putative class.” See Wang v. OCZ Tech. Grp., Inc., No. C 24 11-01415 PSG, at *4 (N.D. Cal. June 29, 2011) (citing Fed. R. Civ. P. 23). Although Rule 25 23(g)(3) does not provide a standard for appointment of interim counsel, courts typically look to 26 the factors used in determining the adequacy of class counsel under Rule 23(g)(1)(A). See, e.g., In 27 re Seagate Tech. LLC Litig., No. 16-CV-00523-RMW, 2016 WL 3401989, at *2 (N.D. Cal. June 1 (1) the work counsel has done in identifying or investigating potential 2 claims in the action; (2) counsel’s experience in handling class actions, other complex 3 litigation, and the types of claims asserted in the action; (3) counsel’s knowledge of the applicable law; and 4 (4) the resources that counsel will commit to representing the class. 5 6 Fed. R. Civ. P. 23(g)(1)(A). The Court may also consider “any other matter pertinent to counsel’s 7 ability to fairly and adequately represent the interests of the class.” See Fed. R. Civ. P. 8 23(g)(1)(B). 9 Although counsel credibly address the four factors under Rule 23(g)(1)(A), they fail to 10 explain, as a threshold matter, why the appointment of interim counsel is necessary at this stage to 11 protect the interests of the putative class. “Where there are no competing lawsuits or firms, courts 12 in this district have been unwilling to appoint interim class counsel.” See In re Seagate, 2016 WL 13 3401989 (collecting cases). As counsel acknowledged during the hearing, they have all worked 14 together cooperatively and share a unified strategy regarding how this action should proceed. All 15 four firms seek to represent Plaintiffs together as co-lead counsel, and thus, the appointment of 16 interim counsel is not necessary to address any live conflict among counsel or to clarify their 17 respective roles in the litigation. See, e.g., Imran v. Vital Pharm., Inc., No. 18-CV-05758-JST, 18 2019 WL 1509180, at *10 (N.D. Cal. Apr. 5, 2019) (denying appointment of three firms as co- 19 interim class counsel where there was no rivalry among the firms). 20 During the hearing on the motion, counsel indicated that there is a related action in state 21 court, and that the ongoing settlement discussions in that case may involve at least one Windex 22 product also at issue in this case. But despite the Court’s repeated questioning, counsel could not 23 explain why the existence of the state court action required an appointment of interim counsel in 24 this case. All four firms in this case could still reach out to discuss the state court action with 25 counsel in that case, as they appear to have done already. And to the extent such a settlement is 26 finalized in the state court action, Plaintiffs in this action may decide whether to opt out as 27 necessary. Counsel also raised the specter of competing law firms from future “copycat” cases. 1 with the benefit of briefing from any such additional, competing law firms. Accord Imran, Inc., 2 No. 18-CV-05758-JST, 2019 WL 1509180, at *10 (N.D. Cal. Apr. 5, 2019). The Court’s duty 3 under Rule 23(g) is to protect the interests of the putative class, not those of counsel. 4 In sum, the Court finds that counsel did “not present the ‘special circumstances’ that 5 warrant appointment of interim counsel at this stage.” See, e.g., In re Nissan N. Am., Inc. Litig., 6 No. 18-CV-07292-HSG, 2019 WL 4601557, at *2 (N.D. Cal. Sept. 23, 2019) (quoting In re Nest 7 Labs Litig., No. 14-CV-01363-BLF, 2014 WL 12878556, at *1 (N.D. Cal. Aug. 18, 2014)). 8 Accordingly, the Court DENIES the motion without prejudice. Plaintiffs are directed to file the 9 consolidated amended complaint within 30 days of the date of this order as agreed in their 10 stipulation to consolidate actions. See Dkt. No. 24 at 3. 11 IT IS SO ORDERED. 12 Dated: 13 ______________________________________ HAYWOOD S. GILLIAM, JR. 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27