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One year after the new amendments to Federal Rule 23 became effective on Dec. 1, 2003, courts appear to be implementing the new Rule 23(g) provision relating to appointment of counsel without much fanfare. In class actions governed solely by Fed. R. Civ. P. 23, courts have issued very few reported decisions relating to application of Rule 23(g). However, at least one federal district court has rendered a surprising decision construing the new rule. The pre-Rule 23(g) practice in appointing counsel Prior to enactment of Rule 23(g), the class action rule did not provide for appointment of class counsel. Typically, attorneys would request in the class complaint that the court appoint the attorneys as class counsel. The court’s evaluation of class counsel might be raised during the class certification hearing, as part of adequacy requirement under Rule 23(a)(4). In class certification hearings, the standards courts evolved to address attorney adequacy considered (1) counsel’s experience or expertise in class litigation, (2) resources to undertake a class litigation and (3) conflicts of interest. In the motion for class certification, proposed class counsel typically would recite, in conclusory fashion, satisfaction of these requirements. In support, proposed class counsel might offer self-serving affidavits or attach a law firm profile. Because defense counsel rarely challenged the adequacy of proposed class counsel, courts generally paid cursory attention to the appointment of counsel. The December 2003 amendments added two new subsections: Rule 23(g) and (h). Rule 23(g) addresses the appointment of class counsel and Rule 23(h) addresses attorney fees in class actions. Both provisions are an attempt by the Advisory Committee on Civil Rules to codify existing law. Rule 23(g) is textually detailed and provides for appointment of class counsel at two junctures of the class certification process. Rule 23(g)(2)(A) permits a court to designate interim counsel, to act on behalf of the putative class, before the court determines whether to certify a class action. This implies that a court may appoint one attorney or set of attorneys as interim counsel, but another attorney or set of attorneys as class counsel when the court finally certifies the class. Rule 23(g)(1)(C) sets forth four requirements that a court must consider when appointing class counsel. Fed. R. Civ. P. 23(g)(1)(C)(i). These include: (1) work that counsel has done in identifying or investigating potential claims in the action, (2) counsel’s experience in handling class actions, including other complex litigation, and the claims of the type asserted in the action, (3) counsel’s knowledge of the applicable law and (4) resources counsel will commit to representing the class. Additionally, the court may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(g)(1)(C)(ii). See Lebeau v. U.S., 222 F.R.D. 613, 618-619 (D.S.D. 2004) (class counsel inadequate under Rule 23(g) requirements; appointing class counsel under inherent power Rule 23(d)(1)). Rule 23(g) further indicates that a court may direct any potential class counsel to provide information to the court “on any subject pertinent to the appointment.” Fed. R. Civ. P. 23(g)(1)(C)(iii). See In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 702 (S.D. Fla. 2004) (requesting supplemental information); Kerr v. Holsinger, 2004 U.S. Dist. Lexis 7803, 10 (E.D. Ky. March 25, 2004) (inviting counsel to submit briefs and documentation in support of ability to represent class). The court also may request attorneys seeking appointment to propose terms for attorney fees and reasonable costs. Fed. R. Civ. P. 23(g)(1)(C)(iii). Rule 23(g) relates to the Rule 23(a)(4) threshold requirement concerning the adequacy of class representation. Thus, Rule 23(g)(1)(B) specifies that an attorney whom the court appoints to serve as class counsel must fairly and adequately represent the interests of the class. When there is only one applicant for appointment as class counsel, “the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and (C).” If more than one attorney requests appointment, “the court must appoint the applicant best able to represent the interest of the class.” Fed. R. Civ. P. 23(g)(2)(B). Finally, Rule 23(g) provides that the court may make any further orders in connection with the appointment of counsel, and that the order appointing counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h). Fed. R. Civ. P. 23(g)(C)(iv), (2)(C). Rule 23(g) does not specify the way in which attorneys seeking appointment must make an evidentiary submission to the court. The advisory committee note and at least one federal court have indicated that Rule 23(g) requirements may be satisfied with “materials submitted in support of the motion for class certification.” See Coleman v. Dixon, 220 F.R.D. 64 (M.D. Tenn. 2004). On its face, new Rule 23(g) seems a fairly straightforward attempt to codify pre-existing principles relating to the appointment of class counsel. Indeed, Rule 23(g) would seem least likely to inspire either any confusion or controversy. See e.g., In re Cardinal Health Inc. ERISA Litig., 2005 U.S. Dist. Lexis 520, 8-20 (Jan. 14, 2005); In re Universal Service Fund Tele. Billing Practices Litig., 219 F.R.D. 661 (D. Kan. 2004). However, in its first shakedown year, Rule 23(g) has inspired at least one problematic interpretation. In a surprising construction of Rule 23(g), the New Mexico federal court has determined that assessing whether class counsel will fairly and adequately represent the class is no longer a prerequisite to class certification. See Harrington v. City of Albuquerque, 222 F.R.D. 505, 515, 518 (D.N.M. 2004). Thus, “[t]he obvious implication of the [Rule 23(g)] amendment is that establishing that class counsel will fairly and adequately represent the class members is no longer a prerequisite to class certification.” 222 F.R.D. at 515, 518 (italics added). The district court also construed new Rule 23(g) as setting forth a timing consideration, concluding that “[t]he amended Rule 23 expressly states that only after the class is certified does the Court appoint class counsel.” Fed. R. Civ. P. 23(g)(1)(A) (italics added). In addition, the court surprisingly suggested that appointment of class counsel under Rule 23(g) was disengaged from the adequacy requirement of Rule 23(a)(4). Consequently, “[t]he Defendants arguments regarding the Plaintiffs’ attorneys remain relevant to the appointment of class counsel, Fed. R. Civ. P. 23(g)(1)(B), but no longer bear on the adequacy of representation prerequisite of Fed. R. Civ. P. 23(a)(4).” Id. Finally, the New Mexico court construed new Rule 23(g) as including a presumption that the attorneys who have represented the party moving for class certification up to that point subsequently will be appointed as class counsel. See Harrington, 222 F.R.D. at 520. However, neither Rule 23(g) nor the advisory committee note contains a presumption that interim counsel appointed under Rule 23(g)(2)(A) will enjoy a presumptive appointment as class counsel under Rule 23(g)(1)(B) and (C). Rule 23(g) has its share of ambiguous provisions Rule 23(g) contains no timing provision setting forth when a court should evaluate requests for appointment of class counsel, or whether this inquiry necessarily is prior to a court’s determination of whether to certify a class. The New Mexico court’s surprising set of rulings seems inconsistent with some commentary in the advisory committee note. The note indicates that in cases where multiple attorneys apply for appointment as class counsel, if the court concludes that none would be satisfactory class counsel, then the court “may deny class certification, reject all applications, recommend that an application be modified, invite new applications, or make any other appropriate order regarding selection and appointment of class counsel.” This suggests that a court’s determination of qualified class counsel is part of and precedes the class certification decision, because in absence of qualified applicants, the court may deny certification. Rule 23(g) also is ambiguous concerning whether a court’s assessment of proposed class counsel’s adequacy is disengaged from the Rule 23(a)(4) adequacy inquiry, a requirement that must be satisfied before a court may certify a class. Thus, although the rule states that an attorney who is appointed to serve as class counsel “must fairly and adequately represent the interests of the class,” this provision does not indicate when a court is required to make this determination. See Rule 23(g)(1)(B). Furthermore, the court is not required to consider class counsel’s adequacy: rather, the court permissively may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Rule 23(g)(1)(C)(ii). This provision similarly does not specify when the court may consider such additional information. The advisory committee note is equally ambiguous concerning the relationship of new Rule 23(g) appointment and the preamendment evaluation of class counsel adequacy under Rule 23(a)(4). The note recognizes that until December 2003, courts scrutinized the adequacy of proposed class counsel (as well as class representatives) under Rule 23(a)(4). The Rule 23(g) provision, then, was intended to build on the prior experience of the judicial evaluation of the proposed lawyers for the class. However, the note further indicates that “Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while this [Rule 23(g)] subdivision will guide the court in assessing proposed class counsel as part of the certification decision.” This language suggests that evaluation of the adequacy of proposed class counsel is part of the certification decision, not antecedent to a court’s decision to certify a class. Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy at the University of Texas School of Law. She can be reached at [email protected].

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