In other words, who gets to fire whom when the relationship sours between the class representative and the lawyer for the as-yet-uncertified class?
A judge is faced with that conundrum in a suit by former Rutgers quarterback Ryan Hart against video game maker Electronic Arts over use of his likeness and that of other college athletes.
Hart fired Timothy McIlwain of Hoboken as his attorney in Hart v. Electronic Arts and replaced him with his former law partner, Keith McKenna, now with a Montclair firm, and Dennis Drasco, of Roseland’s Lum Drasco & Positan.
Hart also asked the court to disqualify McIlwain.
McIlwain refuses to be fired and has moved for permission to withdraw as Hart’s attorney and amend the complaint to replace him with three other former college football players: Douglas Corcoran, also of Rutgers; Myron Rolle, of Florida State University; and Jackson Rice, of the University of Oregon.
The falling out arose from a settlement that would resolve not just the Hart case but two similar suits in the Northern District of California, as well as one in New Jersey filed by Shawne Alston, who played for West Virginia University.
Hart claims McIlwain told him in early September that he had brought in the Lanier Firm of Houston—famous for large asbestos and Vioxx verdicts—for a Sept. 10 mediation in California.
McIlwain texted Hart from California on Sept. 10 and 11 that the case was not settled but “we should know something in a week.”
Hart says he heard nothing further until Sept. 26, when he read on The Wall Street Journal website that a settlement had been reached.
The amount was not supposed to be disclosed until it was filed with the court for approval, but Electronic Arts disclosed in a quarterly earnings report issued Tuesday that the settlement is about $40 million.
Hart says McIlwain denied knowledge of the settlement and, in a Sept. 27 conference call, Eugene Egdorf of the Lanier Firm said he knew of it but described it only in general terms and refused to provide specifics.
Subsequently, Hart claims he had a hard time getting his lawyers to call him back, leading him to fire McIlwain and the Lanier Firm and retain new lawyers.
Hart says the Lanier Firm refused to sign a substitution of counsel or turn over its files in the case and, on Oct. 4, joined with McIlwain in the motion for leave to file a new complaint with new plaintiffs.
The movants told the court that they had helped reach a “potentially historic settlement in principle for a significant amount of money” to resolve Hart’s case and others but that Hart “no longer adequately represents the class” and “irreconcilable differences” had developed.
They accused Hart of failing to cooperate and making their representation more difficult by refusing to communicate except through his father-in-law, a nonlawyer.
That showed “Hart’s narrow personal interests now conflict with the absent class members” and Corcoran, Rolle and Rice would be better class plaintiffs, they argued.
The Lanier Firm bowed out on Oct. 16, filing a notice that withdrew its appearance “as counsel to any and all current or putative Plaintiffs.”
Hart’s Oct. 21 opposition and motion to disqualify McIlwain contend that he lacks grounds and standing to replace him.
He says McIlwain was at fault for failing to advise him of settlement offers or seek his approval, and thus deprived him of his “right to provide meaningful input and oversight” during the settlement process.
Hart further argues that prior to class certification, the plaintiff attorney can only represent the named parties and has no attorney-client relationship with unnamed members of the putative class.
On Oct. 22, U.S. District Judge Freda Wolfson asked for briefing on Third Circuit case law regarding the precertification obligations of would-be class counsel and stayed the case until the motions are decided.
McKenna says he and Hart still know nothing more about the settlement than what they have read on the Internet and that Hart isn’t necessarily opposed but needs the specifics.
Of McIlwain’s effort to oust Hart, McKenna says, “fundamentally, our court system is driven by the parties, not the lawyers. That’s the disconnect here.”
McIlwain calls the dispute “much ado about nothing” and says he communicated with Hart “more than any [client] in my professional career,” through emails, texts and dinners.
Electronic Arts’ New Jersey attorney, Bruce Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park, declines comment.
Egdorf says he understood “Hart no longer wanted us to represent him and we acted accordingly. We stand by what we did for the class.”
Steven Berman, of Hagens Berman Sobol Shapiro in Seattle, who represents the California plaintiffs and Alston, says he assumed the Lanier Firm had Hart’s approval to settle and was “flabbergasted” to learn otherwise.
He adds he is working with Electronic Arts to present a settlement without Hart so Hart can proceed on his own.
Electronic Arts’ attorney in the California litigation, Adam Lauridsen of Keker & Van Nest in San Francisco, did not return a call.