DURSO v. SAMSUNG ELECTRONICS AMERICA, INC.
Filing
47
OPINION. Signed by Judge Dennis M. Cavanaugh on 8/5/13. (gmd, )
ROBERT N. DURSO, SUZANNE FAST,
CATHIE COKE and DOUGLAS WALKER,
Individually and on Behalf of All Other Persons
Similarly Situated,
Civil Action No. 2:12-cv-5352
(l)NIC)(JAD)
Plaintiffs,
V.
SAMSUNG ELECTRONICS AMERICA, INC.,
Defendant.
JEANNE SPERA AND BETHANY MIZELL on
behalf of themselves and all others similarly
situated,
Civil Action No. 2: 12-cv-5412
(DMC)(JAD)
Plaintiffs,
V.
SAMSUNG ELECTRONICS AMERICA,
Defendant.
CHAD AND JESSICA CHOWNING on behalf of
themselves and all others similarly situated,
Civil Action No. 2:12-cv-5440
(DMC)(MF)
Plaintiffs,
V.
OPINION
SAMSUNG ELECTRONICS AMERICA,
Defendant
DENNIS M. CAVANAUGH, US.D.J.
This matter comes before the Court upon two
motions
to consolidate, filed in
separate class actions, namely (i) cross-motion by plaintiffs Robert N. Durso, Suzanne Fast,
Cathie Coke and Douglas Walker, individually and on behalf of all other persons similarly
situated (the “Durso Plantiffs”), to consolidate and appoint interim class counsel in Durso. et al.
v. Samsung Elecs. Am., Inc., Civ. A. No. 2:12-cv-5412 (DMC)(JAD) (the “Durso Class
Action”)
(ECF No, 31); and (ii) motion by plaintiffs Jeanne Spera and Bethany Mizell. on behalf of
themselves and all others similarly situated (the “Spera Plaintiffs”) and plaintiffs Chad and
1
Jessica Chowning (“Chowning Plaintiffs”), to consolidate the Spera, et al. v Samsung Elecs.
Civ. A. No. 2:12-cv-5412 (the “Spera Class Action”) and Chowning et al v. Samsung
Electronics America, Civ. No, 2:12-cv-05440 (the “Chowning Class Action”) and to appoint
interim class counsel to both as a consolidated matter. (ECF No. 12, Civ. A. No. 2:12-cv-5412).
Pursuant to Rule 78 of the Federal Rules of Civil Procedure, no oral argument was heard. In a
separate opinion already issued, the Honorable Joseph A. 1)ickson denied the cross-motion to
consolidate tiled in the Durso Class Action and granted the motion to consolidate the pci:a and
Chowning Class Actions under the master caption In re: Samsung Front Loading Washer Mold
Litigation. (Opinion, ECF No. 44, Civ. A. No. 2:12-cv-5412; ECF No.34, Civ. A. No. 2:12-cv5412; ECF No. 28, Civ. A. No, 2:12-cv-5440). Upon consideration of the parties’ submissions,
and for the reasons stated below: (i) the Durso Plaintiffs’ cross—motion to appoint interim counsel
is granted in part as Nagel Rice is appointed as interim counsel for the Durso Class Action: and
(ii) the Chowning and Spera Plaintiffs’ motion to appoint interim counsel is granted and Careila
Byrne, Seeger Weiss LLP, and Complex Litigation Group LLC are appointed to the newly
consolidated In re: Samsung Front Loading Washer Mold Litigation, Civ. A. No. 2: 12-cv-544.
I.
BACKGROUND
Currently pending in this Court are three separate class actions that all involve claims
concerning Samsung front-loading washing machines (the “Samsung Washers” or the
Washers”). (Br. Opp. Cross-Motion Consolidate 1, ECF No. 37, Civ. A. No. 2:12-cv-5352).
The Durso Class action was filed first, on August 24, 2012. alleging that the Samsung
Washers contained many defects, from the Washer’s inadequate cleaning of clothes to the
premature failing of the Washers’ pump. (Am. Compi.
¶
2, ECF No. 12, Civ. A. No. 2:1 2-cv-
53 52). The Durso Plaintiffs asserted six causes of action against Samsung, including violation of
2
the New Jersey Consumer Fraud Act. N.J.S.A.
§
56:8-2. et
(the “CFA”). violation of the
Texas Deceptive Trade Practices Act, Tex. Bus. & Comm. Code
§
17.41. ct
gq,
fraudulent
concealment. breach of implied warranties, breach of express warranties and negligent
misrepresentation.
The Spera Class Action was filed next on August 28, 2012, alleging that the Samsung
Washers had a single “inherent defect which causes them to develop mold and mildew” (“Mold
Defect”). (Br.
Opp. Cross-Motion Consolidate
1, ECF No. 37, Civ. A. o. 2:l2-cv-5352). The
Spera Plaintiffs asserted five causes of action against Samsung, including violation of the CIA.
violation of the Missouri Merchandising Practices Act, Mo. Rev. Stat.
§
407.0 10, et c.. breach
of express warranty. breach of the implied warranty of merchantability and unjust enrichment,
The Chowning Class Action was the final action, filed on August 29, 2012, and is nearly
identical to the Spera Class Action as it also only alleged the Mold Defect. The Chowning
Plaintiffs asserted the same causes of action as the Spera Plaintiffs, except it made a claim under
the Colorado Consumer Protection Act, Co. St.
§
6-1-1 01, et gçj., as opposed to the Missouri
Merchandising Practices Act.
On December 7, 2012, counsel for the Durso Plaintiffs requested leave to file a motion to
consolidate the Durso Class Action with the Spera and Chowning Class Actions. (12/7/2013
Letter, ECF No. 11, Civ. A. No. 2:12-cv-5352). The Spera and Chowning Plaintiffs then filed a
motion to consolidate the Spera and Chowning Class Actions without including the Durso Class
Action (Mot. Consolidate, ECF No. 12, Civ. A. No. 2:12-cv-5412). and, thereafter. the Durso
Plaintiffs’ filed a cross-motion to consolidate all three actions (Cross-Motion Consolidate, ECF
No. 31, Civ. A. No. 2:12-cv-5352).
3
The Durso Plaintiffs sought the appointment of Nagel Rice LLP as interim counsel, while
the Spera and Chowning Plaintiffs sought the appointment of Carella Byrne, Seeger Weiss LLP,
and Complex Litigation Group LLC as interim co-counsel.
As stated above, the cross-motion to consolidate filed in the Durso Class Action was
denied and the motion to consolidate filed in the Spera Class Action was granted in a separate
opinion issued by the Honorable Joseph A. Dickson on July 24. 2013. This Court
flO\V considers
the parties’ respective applications for appointment of interim class counsel,
II.
LEGAL STANDARD
Rule 23 of the Federal Rules of Civil Procedure provides that a 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).
“Although neither the federal rules nor the Advisory Committee Notes expressly so state.
it appears to be generally accepted that the considerations set out in Rule 23(g)(1)(C), which
govern the appointment of class counsel once a class is certified, apply equally to the designation
of interim class counsel before certification.” In re Air Cargo Shipping Servs. Antitrust Litig..
240 F.R.D. 56, 57 (E.D.N.Y. 2006); Waudby v. Verizon Wireless Services, Inc., 248 F.R.D. 173,
1 75-76 (D.N.J. 2008) (finding that courts choosing interim class counsel can apply the same
factors that apply in choosing class counsel at the time of certification of the class. i.e.. the
standards set forth in Rule 23(g)(1)).
The factors to be considered are: (i) [t]he 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 counsel will commit to representing the class.
4
Bernhard v. TD Bank, N.A.. Civ. No. 08-4392, 2009 U.S. Dist. LEXTS 92308. at *14 (i).N.J.
Oct. 5, 2009) (citing FED. R. Civ. P. 23(g)(l)(A)). The Court must decide which candidate is
best qualified, holding dispositive no single factor. FED. R. Civ. P. 23(g)(2)(B). The Court also
has the discretion to appoint more than one firm to act as co-lead counsel. g. çg., In re Air
Cargo Shipping. 240 F.R.D. 56, 5 8-59 (E.D.N.Y. 2006) (appointing four law firms as co-lead
counsel); Nowak v. Ford Motor Co., 240 F.R.D, 355 (E.D. Mich. 2006) (appointing two law
firms as interim co-lead counsel).
In addition to the mandatory factors enumerated in Rule 23(g)(l)(A). “the Court may also
consider any other matter pertinent to counsel’s ability to fairly and adequately represent the
interests of the class and may, if it deems it necessary, direct the proposed class counsel to
provide information on any subject pertinent to the appointment.” In re Terazosin
Hydrochloride, 220 F.R.D. 672, 70 1-02 (S.D. F;a. 2006); see FED. R. Civ. P. 23(g)(i )(C)(ii)-(iii).
The Third Circuit Task Force Report on Selection of Class Counsel set forth several
additional considerations in choosing lead counsel, including: (1) whether counsel’s client has
the ability and motivation to monitor counsel’s work for the class; (2) whether counsel represents
a plaintiff with a significant economic stake in the litigation; (3) whether counsel has a good
sense of what the case is about and what its value might be (4) whether counsel has prosecuted
the lawsuit to this point with greater energy and to better effect than other contestants by creating
work product that will be useful in the future of the litigation: and (5) whether the court has
previous experience with counsel that is relevant to counsel’s likely performance in this action.
Report: Third Circuit Task Force on Selection of Class Counsel, 208 F.R.D, 340, 4 19-20 (3d Cir.
2002).
III.
DISCUSSION
5
A.
Durso Interim Counsel
Nagel Rice meets the required factors set out in Rule 23(g)( I )(c) to support their
appointment to interim counsel for the Durso action. First, Nagel Rice has worked to identify a
number of potential claims regarding defects, such as the production of pot metal leaving black
specks on clothes and clogging drains, problems with the
spin
cycle, including inadequate
draining and shaking of the machine, defective gaskets and mildew and odor problems. (Br.
Supp. Cross-Motion Consolidate 14, ECF No. 31-3, Civ. A. No. 2: 12-cv-5352), Furthermore,
Nagel Rice has investigated these claims by interviewing class members, researching the claims
and engaging experts. (Id.), Second, counsel has experience handling class actions, having
served as lead, co-counsel or in Executive Committee positions in numerous State and Eederal
class actions, and has experience in complex litigation. (Id. at 1 5). Third, Nagel Rice has
experience with the applicable law relating to defective consumer products, consumer fraud and
breach of warranty. (Id.). Fourth. counsel at Nagel Rice has the resources to staff and finance
this action and has already spent significant time and energy in pursuing these claims.
Two of the factors laid out by the Third Circuit Task Force Report also weigh in favor of
appointing Nagel Rice as interim counsel. First, counsel’s clients have been very involved in the
litigation, with Robert Durso’s personal attorney actively participating in the case.
(j at 21).
Second, counsel’s experience in class action litigation qualifies them to evaluate the worth and
risks involved in pursuing this case. (Id.). Based on these considerations and the Rule
23(g)(l)(c) factors, this Court will appoint the Nagel Rice as interim counsel for the Durso Class
Action.
B.
Spera and Chowning Interim Counsel
6
The proposed lead counsel for the newly consolidated In re: Samsung Front Loading
Washer Mold Litigation of Carella Byrne, Seeger Weiss LLP, and Complex Litigation Group
LLC. (“Mold Litigation Proposed Lead Counsel”) meet the required factors set out in Rule
23(g)(l)(c). First, Mold Litigation Proposed Lead Counsel filed detailed and comprehensive
complaints specifically regarding the claimed Mold Problems caused by alleged design defects in
the Samsung Washers. (Br. Supp. Mot. Consolidate 11. ECF No. 12-1. Civ. A. No. 2: 12-cv5412). Second, lawyers at each of proposed counsel’s firms have served or currently serve as
counsel in approximately one dozen consumer class actions in this district, including three
consumer class actions involving front loading washing machines with design defects that
promote mold, mildew, and bioflim. (Id. at 12). Third, based on Mold Litigation Proposed Lead
Counsel’s aforementioned experience with consumer class actions, they have the requisite
knowledge on the applicable law. Fourth, counsel has the necessary resources to commit to the
class, as Carella Byrne’s attorneys perform hourly paid legal work that helps fund its
advancement of class action claims, Seeger Weiss has already assembled a team of attorneys to
work on this litigation and Complex Litigation Group also possesses the resources to properly
staff the case. (Id. at 1 4- 1 5).
Two of the Third Circuit Task Force Report factors also weigh in favor of appointing
proposed lead counsel. First, counsel has comparable experience with front loading washing
machine litigation and has familiarity with the many issues presented by that manner of
litigation. (Id. at 16). Second, counsel has already retained experts and spent significant time
and expense investigating and researching the claims.
(Jh at
16-17).
Nagel Rice objected to naming Complex Litigation Group as interim co-lead counsel,
citing the alleged professional and personal issues of Complex Litigation Group attorney Paul
7
Weiss’ and a fee dispute between Mr. Weiss and Mr. Durso. (Br. Supp. Cross-Motion
Consolidate 14, ECF No, 3 1-3, Civ. A. No. 2:12-cv-5352). However,
since
Mr. Weiss is not a
counsel of record in this case, the fee dispute concerns an unrelated case. and Complex Litigation
Group has satisfied the requirements for appointment as interim counsel. (Br. Opp. CrossMotion Consolidate, 10, ECF No, 25, Civ. A. No. 2:12-cv-5412).
Based on the Rule 23(g)(l)(c) and Third Circuit Task Force factors. this Court fInds will
appoint proposed class counsel as interim co-counsel for the consolidated Spera and
oving
Class Actions, In re: Samsung Front Loading Washer Mold Litigation.
IV,
CONCLUSION
For the reasons set forth above, the Durso Plaintiffs’ cross-motion to appoint interim
counsel (ECF No. 31, Civ. A. No. 2:l2-cv-5352)
is
granted in part
as
Nagel Rice is appointed
as interim counsel for the Durso Class Action; and (ii) the Chowning and Spei’a Plaintiffs’
motion to appoint interim counsel (ECF No. 12, Civ. A. No. 2:12-cv-5412) is granted and
Carella Byrne, Seeger Weiss LLP, and Complex Litigation Group LLC are appointed to the
newly consolidated In re: Samsung Front Loading Washer Mold Litigation, Civ. A. No. 2: 1 2-cv544.
)1 , 3
cc:
DENNiS M.CAVANGH.U.S.D.J.
Hon. Joseph A. Dickson
Hon. Mark Falk
Counsel of Record
File
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?