SILVER BUCKLE MINES, INC. v. USA

Filing 138

*** RE-DOCKETED FOR ADMINISTRATIVE PURPOSES*** UNREPORTED ORDER. Signed by Judge Edward H. Meyers. (py) Service on parties made.

In the United States Court of Federal Claims
No. 13-476
Filed: December 7, 2023
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SILVER BUCKLE MINES, INC.,
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For Itself and as Representative of a
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Class of Similarly Situated Parties,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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________________________________________ )
ORDER
The Court previously certified a class with Frank Siderius of Siderius, Lonergan &
Martin LLP appointed as the class counsel. ECF No. 49 at 30. On November 16, 2023, the
plaintiff filed a motion to substitute Michael Siderius, also of Siderius, Lonergan & Martin LLP,
as attorney of record following the death of Frank Siderius. ECF No. 134. The Clerk’s Office
granted the motion the same day under Rule 83.1(c)(4).
On November 29, 2023, the Government filed an unopposed motion for clarification or,
in the alternative, to construe it as a motion to amend the class certification order to appoint
Michael Siderius class counsel. ECF No. 136. The clarification that the Government and the
plaintiffs seek is whether the substitution of Michael Siderius as counsel of record also means
that he is appointed class counsel. Because RCFC 23(g)(1) requires the “court” appoint class
counsel, the Clerk’s order cannot be read to appoint Michael Siderius as class counsel.
In the alternative, the parties ask the Court to construe the motion to substitute as also
moving to appoint Michael Siderius as class counsel. The Court agrees that the motion to
substitute should also be construed as a motion to appoint Michael Siderius class counsel
following Frank Siderius’s passing. Under RCFC 23(g)(1)(E), the Court “may make further
orders in connection with the appointment.” Courts interpret this provision as allowing the Court
to order the substitution of class counsel when appropriate. See, e.g., C.P. v. New Jersey Dep’t
of Ed., No. 1:19-cv-12807-NLH-MJS, 2023 WL 7103381, at *1 (D.N.J. Oct. 27, 2023) (applying
Fed. R. Civ. P. 23(g)(1)(E), which is identical to RCFC 23(g)(1)(e)).
Michael Siderius is the only attorney that has sought appointment as class counsel after
Frank Siderius’s passing. “When one applicant seeks appointment as class counsel, the court
may appoint that applicant only if the applicant is adequate under RCFC 23(g)(1) and (4).”

RCFC 23(g)(2). Under RCFC 23(g)(1), the Court must consider certain criteria regarding
Michael Siderius.
First, the Court considers “the work counsel has done in identifying or investigating
potential claims in the action.” RCFC 23(g)(1)(A)(i). This consideration weighs heavily in
favor of appointment because Michael Siderius is a partner with Siderius, Lonergan & Martin
LLP, the same firm where Frank Sideris was a partner and that has been representing the class in
this case from its inception. ECF No. 135 ¶ 1. Although not the counsel of record or appointed
class counsel, Michael Siderius has been assisting his brother handling this case over the years.
Id. ¶ 2.
Second, the Court must consider “counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in the action.” RCFC 23(g)(1)(A)(ii).
Again, Michael Siderius has shown experience not just with the types of claims asserted in this
action; his work with his brother shows that he has experience with the specific claims asserted
in this action. Michael Siderius has been practicing law for more than 28 years. ECF No. 135
¶ 3. Michael Siderius and his firm have also represented multiple parties in class actions and
complex litigation, including:
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“[A] class action involving thousands of class members [that] resulted in an estate
tax refund ordered by the Washington State Supreme Court which, including
interest, exceeded $160 million.” Id. ¶ 5 (citing Hemphill v. Dep’t of Revenue,
105 P.3d 391 (Wash. 2005)).

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A securities fraud class action in the Southern District of Florida that Michael
Siderius worked on during an appeal to the Eleventh Circuit. Id. ¶ 6.

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Defending a class action under the Washington Consumer Protection Act, which
included obtaining a reversal on appeal of a judgment in favor of a certified class
of plaintiffs. Id. ¶ 7 (citing Peterson v. KCU, 287 P.3d 27 (Wash. 2012)).

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Counsel for certified class under the Washington Consumer Protection Act that
involved trial and appellate litigation. Id. ¶ 8 (citing McCarthy Finance, Inc. v.
Premera, 328 P.3d 940 (Wash. App. 2014)).

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Counsel for defendant in two class actions regarding improper assessment of fees
that resulted in court-approved settlements. Id. ¶ 9.

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Counsel for defendant in a class action alleging unlawful employment practices
that resulted in a court-approved settlement. Id. ¶ 10.

The Court is convinced that Michael Siderius has appropriate experience to serve as class
counsel.
Third, the Court must consider “counsel’s knowledge of the applicable law.” RCFC
23(g)(1)(A)(iii). Given that Michael Siderius was working with his brother in his prosecution of

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this case over the last ten years, the Court is satisfied that he has sufficient knowledge of the law
applicable here.
Finally, the Court must consider “the resources that counsel will commit to representing
the class.” RCFC 23(g)(1)(A)(iv). Here, the Court recognizes that Michael Siderius is a partner
at Siderius, Lonergan & Martin LLP, where his brother formerly worked. It is clear at this point
that the firm has put resources into representing the plaintiffs in this case over the ten years it has
been pending. And this case appears near to its end. According to Michael Siderius’s
declaration: “The parties have agreed to settlement terms and they intend to execute a settlement
agreement upon the Court’s grant of my motion to appear as class counsel. After execution, the
remaining issues will be preliminary approval of the Settlement Agreement, final approval of the
Settlement Agreement, administration of the class and performance of the obligations of the
Settlement Agreement.” ECF No. 135 ¶ 12. The Court, therefore, concludes that Michael
Siderius “is adequate under RCFC 23(g)(1).” RCFC 23(g)(2).
The Court next turns to RCFC 23(g)(4). Id. The Court need not guess at whether
Michael Siderius will “fairly and adequately represent the interests of the class.” RCFC
23(g)(4). His working with his brother (the prior class counsel) in his litigation of this case
indicates that he will fairly and adequately represent the class, which has already agreed to a
settlement with the Government that needs only to be signed and approved by this Court.
Pursuant to RCFC 23(g)(1)(E), the Court appoints Michael Siderius of Siderius,
Lonergan & Martin LLP class counsel.
It is so ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge

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