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.