Darisse v. Nest Labs, Inc.

Filing 34

Order Denying, Without Prejudice, 29 Motion to Appoint Interim Class Counsel. Signed by Hon. Beth Labson Freeman on 8/18/2014.(blflc2, COURT STAFF) (Filed on 8/18/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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Case No. 14-cv-01363-BLF

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IN RE NEST LABS LITIGATION

ORDER DENYING, WITHOUT
PREJUDICE, MOTION TO APPOINT
INTERIM CLASS COUNSEL
[Re: ECF 29]

United States District Court
Northern District of California

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This is a putative consumer class action involving defendant Nest Labs, Inc.’s allegedly

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misleading advertisement of its “Nest” thermostat product. Before the Court is the motion by

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plaintiffs Justin Darisse and Joshua Beloff (collectively, “Plaintiffs”) to appoint law firms Bursor

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& Fisher, P.A. and Cafferty Clobes Meriwether & Sprengel LLP (“Cafferty Clobes”) as “co-lead

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interim class counsel.” (Pl.’s Mot., ECF 29) Defendant opposes this appointment as premature.

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(Def.’s Opp., ECF 30) Having reviewed the parties’ respective written submissions, the Court

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finds this matter appropriate for submission without oral argument and hereby VACATES the

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hearing scheduled for September 4, 2014. For the following reasons, Plaintiffs’ Motion to

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Appoint Interim Class Counsel is DENIED, without prejudice.

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Under Federal Rule of Civil Procedure 23(g)(3), the district court may appoint interim

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counsel to act on behalf of a putative class before determining whether to certify a class. The

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appointment of interim class counsel is discretionary and is particularly suited to complex actions,

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as explained in the Manual for Complex Litigation (Fourth):

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If the lawyer who filed the suit is likely to be the only lawyer
seeking appointment as class counsel, appointing interim class
counsel may be unnecessary. If, however, there are a number of
overlapping, duplicative, or competing suits pending in other courts,
and some or all of those suits may be consolidated, a number of

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lawyers may compete for class counsel appointment. In such cases,
designation of interim counsel clarifies responsibility for protecting
the interests of the class during precertification activities . . . .

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Manual for Complex Litigation (Fourth) § 21.11 (2004). Further, the commentary to Rule 23

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notes that “[i]n some cases . . . there may be rivalry or uncertainty that makes formal designation

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of interim counsel appropriate.” Fed. R. Civ. P. 23 advisory committee’s note (discussing former

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subdivision (g)(2)(A), now renumbered to (g)(3)).

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This is not the type of case that warrants appointment of interim class counsel. This action

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originated as two separate cases with similar complaints. (See Darisse v. Nest Labs, No. 5:14-cv-

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01363-BLF (Compl., ECF 1); Beloff v. Nest Labs, No. 5:14-cv-01697-BLF (Compl., ECF 1)). On
plaintiff Beloff’s motion, this Court related the two cases then granted Plaintiffs’ stipulation to

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United States District Court
Northern District of California

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consolidate the two actions into one. (See Related Case Order, ECF 22; Consolidation Order, ECF

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24) Thus, at present, there is only one consolidated action with one consolidated complaint. (See

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Consolidated Class Action Compl., ECF 28) Though Plaintiffs allude to potential other “tag-

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along” lawsuit on the horizon, they have not identified any complaints actually filed, let alone any

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actions that are likely to be consolidated with this one. (Pl.’s Reply 3, ECF 32) This action as it

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currently stands therefore does not present special circumstances warranting the appointment of

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interim class counsel. See Donaldson v. Pharmacia Pension Plan, No. CIV. 06-3-GPM, 2006 WL

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1308582, at *1-2 (S.D. Ill. May 10, 2006) (noting that typical situation requiring appointment of

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interim class counsel is one “where a large number of putative class actions have been

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consolidated or otherwise are pending in a single court”).

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“[N]or is there a gaggle of law firms jockeying to be appointed class counsel,” Parrish v.

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Nat’l Football League Players Inc., No. C 07-00943 WHA, 2007 WL 1624601, at *9 (N.D. Cal.

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June 4, 2007), as the only two law firms on the case seek appointment as co-interim class counsel.

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There does not appear to be any rivalry between the two firms, nor any uncertainty as to their

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respective roles. In fact, Plaintiffs note that the two firms have been coordinating and

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collaborating to prosecute the consolidated actions efficiently. (see Pl.’s Mot. 7-8; Persinger Decl.

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¶ 11, ECF 29-1) As such, greater efficiency and clarity can only be realized if the Court appoints

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one firm as interim class counsel. Plaintiffs’ motion, however, does not request that the Court
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choose one over another. The Court thus finds that it is not necessary to appoint interim class

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counsel merely to maintain the status quo.

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For the foregoing reasons, Plaintiffs’ Motion to Appoint Interim Class Counsel is
DENIED, without prejudice.
IT IS SO ORDERED.
Dated: August 18, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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