Notwithstanding the wide variation in skill levels within the plaintiffs’ class action bar, denials of class certification based on inadequacy of proposed class counsel are relatively rare. The Seventh Circuit’s recent decision in Gomez v. St. Vincent Health, Inc., 649 F.3d 583 (7th Cir. 2011) caught my eye because there the only ground for denial of certification was inadequacy of class counsel. The district judge had found counsel inadequate because, in a prior putative class action on the same issue brought by the same attorney, he was not diligent, the court had issued an order compelling discovery against his client and imposed costs, and counsel had not developed a full record on a summary judgment motion. In Gomez, plaintiffs’ counsel pursued the same arguments as in the prior case and again was subject to an award of costs on a motion to compel. The Seventh Circuit affirmed, finding that plaintiffs’ counsel had made no persuasive argument for why the district court abused its discretion in denying certification on this ground.
In my view, adequacy of proposed class counsel is something courts should take quite seriously because, if a class is certified, the rights of thousands of absent class members will be in the hands of class counsel, whom the absent class members had no role in choosing. Although absent class members can opt out if the class is a (b)(3) class (but not if it is a (b)(1) or (b)(2) class), few of them would want to spend the time trying to determine if class counsel is competent. The standard should not be that any lawyer who files a putative class action will be suitable to represent the class if he or she does a minimally adequate job prior to certification and does not have a disciplinary record. Substantial trust is being placed in the hands of proposed class counsel, much more than in the typical small individual suit, and the standard for adequacy should be higher. Except where there are battles over appointment of lead counsel, which typically occurs only in securities class actions or other high-profile class actions, it is rare that courts dig very deeply into the adequacy of counsel. Defense lawyers also in many instances do not pursue this issue with much fervor, perhaps because it would seem unseemly to “attack” opposing counsel, particularly if defense counsel has other cases against them or is likely to litigate against them in the future, or if the local bar is a collegial one. While there are certainly some cases where the adequacy of proposed class counsel cannot be questioned, in other situations defense counsel should dig into the history of prior class actions brought by plaintiffs’ counsel, and take some discovery on the adequacy of counsel. You never know what you might stumble upon.