McAuliffe et al v. Vail Corporation, The

Filing 60

ORDER granting #41 Motion to Appoint Counsel ; denying #42 Motion to Appoint Counsel ; denying #43 Motion to Appoint Counsel ; denying #44 Motion to Appoint Counsel ; denying #18 Motion to Appoint Counsel by Judge R. Brooke Jackson on 10/15/20.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lead Civil Action No. 1:20-cv-01121-RBJ
Consolidated with 1:20-cv-01881-RBJ-KLM; 1:20-cv-01134-RBJ; 1:20-cv-01163-RBJ-KLM;
1:20-cv-01176-RBJ; 1:20-cv-01468-RBJ-KLM; 1-20-cv-01475-RBJ; 1-20-cv-01529-RBJ; 1-20cv-01585-RBJ-KLM; and 1-20-cv-01364-KLM
BERNARD HAN,
Plaintiff,
v.
VAIL RESORTS, INC.,
Defendant.

ORDER: APPOINTMENT OF LEAD COUNSEL

This case is a consolidation of ten purported class actions in which season ticket (“Epic
Pass”) holders at Vail Resorts complain that they were not offered partial refunds of their ticket
price for the 2019-20 seasons when the resort was forced to close by gubernatorial order due to
the COVID-19 pandemic. The resort was required to close on or about March 15, 2020,
meaning that approximately one month of a five-month ski season, more or less, was unavailable
due to the pandemic.
Five separate motions have been filed concerning which law firm or firms should be
designated as “lead counsel” for the ten cases. The criteria to be considered by the Court in
making this decision are provided by Rule 23(g)(1)(A) and (B) of the Federal Rules of Civil
Procedure. The Court must consider (1) the work counsel has done in identifying or
investigating potential claims; (2) counsel’s experience in handling class actions, complex
litigation, or similar types of claims; (3) counsel’s knowledge of applicable law; and (4) the
resources counsel will commit to representing the class. The Court may also consider any other
matter pertinent to counsel’s ability to fairly and adequately represent the class.
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The first bid was submitted jointly by counsel in the Clarke (No. 20-cv-01163-RBJKLM) and Han (No. 20-cv-01121) cases. They request that the Court designate as “interim colead counsel” lawyers from the law firms of Hagens Berman Sobol Shapiro LLP of Phoenix
(Robert Bruce Carey) and Milberg Phillips Grossman LLP of New York (Jennifer KrausCzeisler). ECF No. 18. The motion explains that the proposed interim co-lead counsel have
been contacted by dozens or putative class members; that they have thoroughly researched the
Epic Pass program, Vail’s offer of a partial discount towards the purchase of a pass for the 20202021 season, various media reports, and defendant’s position in the market. Id. at 6. They add
that they are aware that several putative class members purchased “Pass Insurance,” and they are
prepared to broaden the litigation to include claims against Beecher Carlson Insurance Services,
United Specialty Insurance Company, and American Claims Management arising out of their
alleged deceptive marketing of insurance policies and their failure to pay COVID-19 related
claims. Id. They cite their extensive class action experience and assure the Court that they will
commit the necessary resources to the task. Id. at 4-12. They point out that Mr. Robert Carey
and Stuart Paynter tried the DaVita case in this Court, and that Mr. Carey has also tried cases
before Judges Blackburn and Nottingham in this district. Id. at 9.
Second, counsel in the McAuliffe case, 20-cv-1176-RBJ, propose that lawyers from the
law firms of Cafferty Clobes Meriwether & Sprengel LLP of Chicago and Sherman & Howard
L.L.C. of Denver be designated respectively as lead and liaison counsel. ECF No. 41. They
suggest that, especially in a relatively small and non-complex case like this one, having two
firms serving as interim lead counsel (as in the Han/Clark proposal) is a bad idea in terms of
efficiency. Id. at 6-7. They, too, claim to have been contacted by numerous putative class
members. They, too, have researched the issues including potential claims against the insurance
companies. Id. at 8. And, they, too, will bring substantial class action experience (Cafferty) and
trial experience (Sherman & Howard) to the project. Id. at 8-14. Their bid is supported by

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counsel in the Bellafatto case (20-cv-1585-RBJ-KLM) and the Connolly case (20-cv-1881-RBJKLM). Id. at 14.
The third motion was filed by counsel in the Faydenko case, Hellmuth & Johnson of
Edina, Minnesota. ECF No. 42. This motion argues that appointing the Hellmuth firm as lead
class counsel, or alternatively as co-lead with another law firm, would achieve efficiency and
fairness to the parties. Id. at 2. This motion is supported by plaintiff’s counsel in the DiPirro
case (20-cv-01468-RBJ-KLM). The motion cites the Hellmuth firm’s “extensive work” to
investigate the case; it represents 10 of the 22 named plaintiffs in the consolidated cases, and it is
already working with a nationally recognized economist on damages methodology. Id. at 6-7.
Like the other motions, counsel cites the Hellmuth firm’s experience in class actions and
complex litigation, id. at 7-9, and the resources it will devote to the case. Id. at 9-10.
Fourth, counsel in the Rarick case, 20-cv-1364-RBJ-KLM, request that the Court appoint
its lawyers from the Bursor & Fisher, P.A. firm of Walnut Creek, California and the Mason Lietz
& Klinger LLP firm of Washington, D.C. as co-lead interim class counsel. ECF No. 43. The
motion notes that Gary Mason of the latter firm participated in the Helmer class action case that
was tried in this Court. Id. at 1. Counsel suggest that the investigative and analytical efforts of
counsel, one of the Rule 23(g)(1) factors, can be a deciding factor, and they list the many
investigative actions that the two firms have taken to the date of the motion. Id. at 6-7. They
note that Bursor & Fisher filed the first case against Vail Resorts, namely, Hunt v. The Vail
Corporation, No. 3:20-cv-00319 (N.D. Cal.) and cite cases indicating that the first-filed rule
supports their application (or does it support the Han motion, which was the first of the 10 cases
at issue here?). Id. at 7-8. The motion recites Bursor & Fisher’s extensive history of litigating
consumer class actions. Id. at 9-10. They cite Judge Rakoff of the Southern District of New
York who, in appointing the firm as class counsel in a New York case in 2014, stated that “the
firm has been appointed in dozens of cases in both federal and state courts, and has won multi-

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million dollar verdicts or recoveries in [six] class action jury trials since 2008.” Id. at 9. The
motion also relates the Mason firm’s “decades of class action experience.” Id. at 10-12. Finally,
these plaintiffs note that Rick D. Bailey of Denver, counsel for the plaintiff in the Gasman case,
20-cv-01475-RBJ-KLM, and who was lead counsel in the Helmer class action case tried in this
Court, supports their motion. Id. at 14. They suggest that he be named as liaison counsel. Id.
Fifth, and finally, the Gibbs Law Group of Oakland, California, counsel for the plaintiff
in the Malachowsky case, 20-cv-001529-RBJ-KLM, asks that it be appointed either as the sole
interim class counsel or as co-counsel with counsel for the Han plaintiffs. ECF No. 44. The
firm was recognized by “Law360” as having one of the top four plaintiff class action practice
groups in the country. Id. at 2. This recognition and the recognition of its founding partner’s as
one of the 500 leading plaintiff’s consumer lawyers by “Lawdragon,” stems from its history of
advocacy on behalf of consumers. See id at 3-4. The firm has experience in similar contractrelated cases. Id. at 4-5. It will commit the firm’s founding partner, Eric H. Gibbs, plus two
partners, an associate, and a team of non-lawyer professionals to the case. Id. at 5-7. Like the
other competing law firms, Gibbs has done considerable investigation of skier complaints and
potential claims and defenses, but the firm also knows how to avoid spending time and energy on
unnecessary work, such as filing early motions that clog the Court’s docket. Id. at 7.
The Court finds that each of the five competing bids has been made by counsel who
satisfy the requirements of Rule 23(g)(1). Counsel for all these plaintiffs have done their
homework, would bring extensive class action experience to the case, are knowledgeable of
class-action law and either are or will become knowledgeable of applicable Colorado law; and
are prepared to devote what it takes in terms of human and monetary resources to do the job. I
note that several of the lawyers have successfully litigated cases in my court and in other courts
in this district. However, I am satisfied that any of the applicants could and would do an

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excellent job in this case. It is unfortunate that the several law firms could not agree amongst
themselves on who best could represent the group in this case.
On the other hand, the Court does not regard this case as complex. Particularly in its
present configuration, pitting the Epic Pass holders against the Resort, it appears to be a likely
case for class certification. The addition of insurance defendants could affect those impressions.
It appears to be a case that could and should settle. It also appears to be a case where a single
legal defense could be at the front and center of the case early on. It does not appear to be a case
of the size or complexity that warrants co-lead counsel. The parties have not clearly identified
the respective roles of “lead” and “liaison” counsel, but perhaps there could be a useful and
distinct role for both.
Having carefully considered all the motions, the Court grants the motion of the McAuliffe
plaintiffs and appoints Cafferty Clobes Meriwether & Sprengel as interim lead counsel. The
Court appoints Sherman & Howard as liaison counsel. The Court has no doubt that the Cafferty
firm, like others in this case, has the experience, ability and resources necessary to handle the
job. The Court finds that there is value in having a regional law firm that similarly has
substantial resources and experience, and that the Court knows well and respects, serving in the
liaison role. The two law firms are already working together. All things considered, the Court
finds that this combination of lead and liaison counsel is the best among multiple good options.
ORDER
1. ECF No. 41 is GRANTED.
2. ECF Nos. 18, 42, 43 and 44 are DENIED.
Dated this 15th day of October, 2020.

BY THE COURT:

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___________________________________
R. Brooke Jackson
United States District Judge

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