Klug v. Watts Regulator Company, et al

Filing 47

ORDER denying Plaintiff's 37 Motion to Appoint Interim Class Counsel. Ordered by Magistrate Judge Thomas D. Thalken. (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CURTIS KLUG, LAWRENCE
NOVER, and NELS ROE, on behalf
of themselves and all others
similarly situated,
Plaintiffs,

8:15CV61
ORDER

vs.
WATTS REGULATOR COMPANY,
Defendant.
This matter is before the court on the plaintiff’s, Curtis Klug (Klug), Motion to
Appoint Interim Class Counsel (Filing No. 37). Klug filed a brief (Filing No. 38) and
exhibits (Filing Nos. 38-1 and 38-2) in support of the motion. The defendant, Watts
Regulator Company (Watts), filed a brief (Filing No. 39) in opposition. Klug did not file a
brief in reply.

BACKGROUND
The plaintiffs seek to bring a class action on behalf of similarly situated
individuals and entities who own or have owned flexible braided stainless steel
FloodSafe® Auto-Shutoff Connectors (FloodSafe Connector)1 manufactured or sold by
Watts, or have owned homes or other structures physically located in the United States,
in which FloodSafe Connectors are or were installed.

See Filing No. 41 - First

Amended Complaint. As relevant to Klug, approximately one year after he installed a
FloodSafe Connector, Klug discovered the FloodSafe Connector fractured and caused
flooding in his bathroom, kitchen, two bedrooms, and several rooms on the floor below
the source of the flood. Id. The plaintiffs assert claims for declaratory relief, strict
liability, negligence, negligent failure to warn, breach of express and implied warranty,
unjust enrichment, and violation of various states’ consumer protection acts. Id. Five

1

According to Klug, FloodSafe Connectors are used to supply water to common household fixtures and
appliances including faucets, toilets, washing machines, dishwashers, and icemakers. See Filing No. 41 First Amended Complaint.

law firms are listed as representing Klug, Lawrence Nover, Nels Roe and prospective
class members. Id.
Klug, pursuant to Fed. R. Civ. P. 23(g)(3), seeks to appoint Cafferty Clobes
Meriwether & Sprengel LLP and Berger & Montague, P.C. (interim class counsel) as
interim class counsel for Klug and the proposed class. See Filing No. 37 - Motion. Klug
argues interim class counsel have done extensive work identifying and investigating
potential claims in this action and are experienced and well-versed in complex class
action lawsuits. See Filing No. 38 - Brief. Watts contends there is no reason for the
court to intervene and appoint interim class counsel. See Filing No. 39 - Response.

ANALYSIS
Federal Rule of Civil Procedure 23 provides “[t]he court may designate interim
counsel to act on behalf of a putative class before determining whether to certify the
action as a class action.”

Fed. R. Civ. P. 23(g)(3).

“If more than one adequate

applicant seeks appointment, the court must appoint the applicant best able to
represent the interests of the class.” Fed. R. Civ. P. 23(g)(2). Rule 23(g)(3) provides no
criteria for selecting interim counsel. However, Rule 23(g)(1)(A), which addresses the
appointment of class counsel, provides:
In appointing class counsel, the court must consider:
(i) the work counsel has done in identifying or
investigating potential claims in the action;
(ii) counsel’s experience in handling class actions,
other complex litigation, and the types of claims
asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to
representing the class.
Fed. R. Civ. P. 23(g)(1)(A); see also Brown v. Access Midstream Partners, L.P., No.
CIV.A. 3:14-0591, 2015 WL 1471598, at *3 (M.D. Pa. Mar. 31, 2015) (“The same factors
governing the appointment of class counsel apply when appointing interim class
counsel.”); In re Navistar Maxxforce Engines Mktg., Sales Practices & Products
Liab. Litig., No. 14-CV-10318, 2015 WL 1216318, at *1 (N.D. Ill. Mar. 5, 2015) (same);
Crocker v. KV Pharm. Co., No. 4:09-CV-198 (CEJ), 2009 WL 1297684, at *1 (E.D. Mo.
May 7, 2009) (same).
2

While Klug asserts counsel have done significant work in this case and are
experienced class action litigators, Klug has not identified any overlapping, duplicative,
or competing suits pending in other courts or other lawyers competing for lead counsel
to necessitate naming interim class counsel. Unlike in Crocker, one of the cases Klug
cited, there is no competing firm vying for class counsel. Although a court may appoint
interim class counsel in the absence of such competition,2 counsel appear to be
cooperating in the management of this case and Klug has not set forth a sufficient
reason for the court to intervene. Accordingly,

IT IS ORDERED:
The plaintiff’s Motion to Appoint Interim Class Counsel (Filing No. 37) is denied.

Dated this 31st day of July, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

2

See Se. Mo. Hosp. v. C.R. Brand, Inc., No. 1:07CV0031TCM, 2007 WL 4191978, at *2 (E.D. Mo. Nov.
21, 2007) (noting more than one firm is named in the pleadings as representing the putative class).
3