Brigiotta's Farmland Produce and Garden Center, Inc. v. United Potato Growers of Idaho, Inc. et al

Filing 107

ORDER GRANTING MOTION FOR APPOINTMENT OF INTERIM CLASS COUNSEL, granting 91 Motion and memorandum in support of Appointment of Interim Lead Counsel Pursuant to FRCP 23(g)(3). The Court appoints a Plaintiffs Executive Committee (PEC) consisting of t he following firms: Hausfeld LLP; Bernstein Liebhard LLP; Freed Kanner London & Millen; Girardi I Keese; Labaton Sucharow LLP; Pearson Simon Warshaw Penny LLP; Robbins Geller Rudman & Dowd LLP; Spector Roseman Kodroff & Willis PC; Steyer Lowenthal Bo odrookas Alvarez & Smith LLP; and Weinstein Kitchenoff & Asher LLC. The Court appoints Hausfeld LLP to serve as Chair of the Committee. The Court appoints Gordon Law Offices as Plaintiff's liaison counsel. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Brigiotta's Farmland Produce and Garden Center, Inc. v. United Potato...rs of Idaho, Inc. et al

Doc. 107

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

B R IG IO T T A 'S FARMLAND P R O D U C E AND GARDEN CENTER, IN C ., on behalf of itself and all others s im ila rly situated, Plaintiffs, v.

C a s e No. 4:10-CV-307-BLW O R D E R GRANTING MOTION F O R APPOINTMENT OF I N T E R I M CLASS COUNSEL

U N IT E D POTATO GROWERS OF ID A H O , INC.; et al, Defendant.

T h e Court has before it Plaintiff Brigiotta's Farmland Produce and Garden Center, In c 's Motion for Appointment of Interim Class Counsel pursuant to Federal Rule of Civil P ro c e d u re 23(g)(3) (Dkt. 91). The motion is unopposed. F e d e ra l Rule of Civil Procedure 23(g)(3) provides that the Court "may designate in te rim counsel to act on behalf of a putative class before determining whether to certify th e class." Fed. R. Civ. P. 23(g)(3). "[D]esignation of interim counsel clarifies re s p o n s ib ility for protecting the interests of the class during precertification activities . . . . " In re Municipal Derivatives Antitrust Litigation, 252 F.R.D. 184, 185-86 (S.D.N.Y. 2 0 0 8 ) (citing Manual For Complex Litigation (Fourth) § 21.11 (2004)). Courts generally

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look to the same factors used in determining the adequacy of class counsel under Rule 2 3 (g )(1 )(A ) when appointing interim counsel. Id. at 186. Rule 23(g)(1)(A) provides that th e Court must consider: (i) the work counsel has done in identifying or investigating p o te n tia l claims in the action; (ii) counsel's experience in h a n d lin g class actions, other complex litigation, and the types o f claims asserted in the action; (iii) counsel's knowledge of th e applicable law; and (iv) the resources counsel will commit to representing the class. Id . The Court may also "consider any other matter pertinent to counsel's ability to fairly a n d adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B). Further, c o u rts have appointed more than one firm to act in a leadership capacity. Four In One C o ., Inc. v. SK Foods, 2009 WL 747160 at *3 (E.D.Cal 2009). Courts have also a p p o in te d an executive committee to assist in carrying out the fulfillment of leadership d u tie s. In Re Rail Freight Surcharge Antitrust Litig., 2008 WL 1883447 at *3 (D.D.C. 2 0 0 8 ). B e c a u s e of the complex issues in this case and the number of defendants, proposed in te rim counsel propose a plaintiff's executive committee ("PEC") comprised of 9 m e m b e rs and 1 chair. Counsel suggest that approval of the proposed interim leadership s tru c tu re will allow for, inter alia, (1) the coordinated preparation and filing of any a m e n d e d complaint; (2) the efficient prosecution of this action and appointment of p e rm a n e n t class co-counsel; and (3) the facilitation of any potential settlement discussions w h ic h may occur in the future.
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Counsel also suggest that the presence of geographically diverse supporting firms w ill provide more putative class members local and accessible attorneys with whom to c o n s u lt. Counsel state that the PEC will enable plaintiff's counsel to organize and d e v e lo p a plan for conducting the litigation on behalf of the class, to consult and employ e x p e rts, to coordinate briefing and argument of motions, and prepare, file and serve o p p o sitio n briefs initiated by defendants. The PEC will also enable coordination of d is c o v e ry proceedings, including preparation of joint written interrogatories and requests f o r the production of documents, and to coordinate the selection of counsel to act as s p o k e s p e rs o n s at hearings or pretrial conferences. Counsel also suggest that creation of th e PEC will allow the class to benefit from the work and insight of firms that have been in v o lv e d in this litigation since its inception. At the same time, by placing the PEC under th e direction and authority of Co-Lead Counsel, Counsel suggest that the Court and the c la s s can be assured there will be no unnecessary duplications of work. The Court agrees w ith counsel's assertions. With respect to the first factor under Rule 23(g)(1)(A) ­ work counsel has done in id e n tif yin g or investigating potential claims in the action ­ proposed interim counsel e x p la in that the PEC in this case has filed a comprehensive, 80-page Complaint detailing p la in tif f 's allegations and claims. Counsel further explain that the Complaint is the result o f a significant, independent investigation that was developed over the course of nearly a ye a r and a half. Counsel have engaged in substantial research related to the potato

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industry, including speaking with confidential witnesses and researching news articles, p u b lic reports and statements of the defendants, the alleged nature of the defendants' a llia n c e s and business dealings, and performing preliminary economic analysis on the im p a c t of the alleged conspiracy on pricing. Counsel suggest that they have expended s u b s ta n tia l attorney time on this matter in the course of investigation and development of le g a l theories, and are extremely well-versed in the relevant legal issues. Based on this in f o rm a tio n , the Court finds that the first factor ­ the work counsel has done in id e n tif yin g or investigating potential claims in the action ­ weighs in favor of appointing in te rim counsel as proposed. W ith respect to the second and third factors ­ counsel's experience in handling c la s s actions, other complex litigation, and the types of claims asserted in the action, and c o u n s e l's knowledge of the applicable law ­ counsel assert that the firms constituting the p ro p o s e d PEC are experienced in efficiently litigating complex commercial cases and h a v e extensive knowledge of the applicable law. Counsel note that Hausfeld LLP, p ro p o s e d chair of the PEC, is widely acknowledged to be one of the nation's most notable p la in tif f 's class action firms, and its attorneys possess wide-ranging expertise in class a c tio n litigation which they will bring to bear in this matter. Counsel point out that H a u s f e ld attorneys have been repeatedly recognized as leaders in the class action bar by p u b lic a tio n s such as The New York Times and The Wall Street Journal. Specifically, M ic h a e l D. Hausfeld's career has included large class actions in the fields of consumer

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protection, antitrust law, and human rights. This experience demonstrates Hausfeld L L P 's qualifications to serve as Chair of the PEC in this case. P ro p o s e d liaison counsel, Philip Gordon, has been liaison counsel for many s e c u ritie s fraud class actions before this Court. His firm's practice specializes in a wide ra n g e of class actions litigation, including securities, consumer products, anti-trust, in s u ra n c e , taxation and human rights. The additional proposed PEC members (Bernstein L ie b h a rd LLP; Freed Kanner London & Millen; Girardi | Keese; Labaton Sucharow LLP; P e a rs o n Simon Warshaw Penny, LLP; Robbins Geller Rudman & Dowd LLP; Spector R o s e m a n Kodroff & Willis, P.C.; Steyer Lowenthal Boodrookas Alvarez & Smith LLP; a n d Weinstein Kitchenoff & Asher LLC) are similarly well-experienced in complex class a c tio n and antitrust law having served in leadership positions in dozens of cases. Accordingly, the second and third factors ­ counsel's experience in handling class a c tio n s, other complex litigation, and the types of claims asserted in the action, and c o u n s e l's knowledge of the applicable law ­ also weigh in favor of appointing interim c o u n s e l as proposed. A s to the final factor ­ the resources counsel will commit to representing the class ­ counsel assert that they have the staffing and resources necessary to aggressively p ro s e c u te this case. Counsel indicate that in addition to their lawyer professionals, the p ro p o s e d firms also maintain staffs with dozens of paralegals, investigators, litigation s u p p o rt staff, and others. These firms have prosecuted and financed large civil litigation

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in the United States. Based on this information, the Court finds that the final factor also w e ig h s in favor of appointing counsel as proposed. A c c o rd in g ly, the Court will appoint an Executive Committee of the above-listed f irm s , appoint Hausfeld as Chair of the Committee, and appoint Gordon Law Offices as L ia is o n Counsel. ORDER N O W THEREFORE IT IS HEREBY ORDERED that Plaintiff's motion is G R A N T E D as follows: T h e Court appoints a Plaintiffs Executive Committee ("PEC") consisting of the f o llo w in g firms: Hausfeld LLP; Bernstein Liebhard LLP; Freed Kanner London & M ille n ; Girardi I Keese; Labaton Sucharow LLP; Pearson Simon Warshaw Penny, LLP; R o b b in s Geller Rudman & Dowd LLP; Spector Roseman Kodroff & Willis, P.C.; Steyer L o w e n th a l Boodrookas Alvarez & Smith LLP; and Weinstein Kitchenoff & Asher LLC. T h e PEC will be responsible for the overall conduct of the litigation on behalf of the class p la in tif f s . T h e Court appoints Hausfeld LLP to serve as Chair of the Committee. The Chair o f the Committee shall have the following responsibilities: 1. to designate plaintiff's counsel to act as spokespersons at pretrial c o n f e ren c es; 2. to call meetings of plaintiff's counsel when appropriate;

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3.

to assign work among interested plaintiff's counsel, in consultation w ith the PEC, in order to facilitate the orderly and efficient p ro se c u tio n of this litigation and to avoid duplicative or u n p ro d u c tiv e effort;

4.

to collect funds from plaintiff's counsel as needed to defray the c o m m o n costs incurred in the prosecution of this litigation;

5.

to require and collect from plaintiff's counsel periodic reporting of th e ir time and expenses incurred in the litigation;

6.

to coordinate and communicate with defendant's counsel with re s p e c t to matters addressed in this paragraph; and

7.

to allocate any fees in consultation with the PEC.

T h e PEC, under the direction of the Chair of the Committee, shall have the f o llo w in g responsibilities: 1. 2. to organize and develop a plan for conducting the litigation; to coordinate briefing and argument of motions and preparation, s e rv ic e and filing of opposing briefs in proceedings initiated by other p a rtie s ; 3. 4. to initiate and conduct discovery proceedings; to negotiate with defense counsel with respect to settlement and o th e r matters;

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5. 6. 7.

to conduct trial and post-trial proceedings; to consult with and employ experts; to perform such other duties and undertake such responsibilities as th e y deem necessary or desirable; and

8.

to coordinate and communicate with defendants' counsel with re s p e c t to matters addressed in this paragraph.

T h e Court appoints Gordon Law Offices as plaintiff's liaison counsel which shall h a v e the following responsibilities: 1. to receive orders, notices, correspondence, and telephone calls from th e Court on behalf of all plaintiffs; 2. to maintain up-to-date service list of all counsel for distributing copies of orders, notices, and other documents to plaintiff's counsel; and 3. to perform any other task assigned by the PEC.

DATED: October 4, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge

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