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Four in One Co., Inc v. SK Foods

March 19, 2009

FOUR IN ONE COMPANY, INC, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SK FOODS, L.P., INGOMAR PACKING COMPANY, LOS GATOS TOMATO PRODUCTS, RANDALL RAHAL, INTRAMARK USA, INCORPORATED, DEFENDANTS.
BRUCE FOODS CORPORATION, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SK FOODS, LP; INGOMAR PACKING COMPANY, LLC, LOS GATOS TOMATO PRODUCTS, INTRAMARK USA, INC. AND RANDALL LEE RAHAL, DEFENDANTS.
DIVERSIFIED FOODS AND SEASONINGS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SK FOODS L.P., INTRAMARK USA, INC., AND RANDALL LEE RAHAL, DEFENDANTS.
CLIFFSTAR CORPORATION, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SK FOODS, LP, INGOMAR PACKING COMPANY, LLC, LOS GATOS TOMATO PRODUCTS, INTRAMARK USA, INC., AND RANDALL LEE RAHAL, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

These are related class action complaints instituted on behalf of four different purchasers of processed tomato products who allege that defendants improperly engaged in price-fixing and other anti-competitive conduct in violation of antitrust laws. Counsel for Plaintiffs Four In One Company ("Four in One") and Bruce Foods Corporation ("Bruce Foods") filed a Motion for Appointment of Interim Counsel and Liaison Counsel, under Federal Rule of Civil Procedure Rule 23(g),*fn1 on or about February 10, 2009.

The third Plaintiff, Cliffstar Corporation ("Cliffstar"), subsequently filed its Complaint on February 13, 2009, and thereafter joined in the Four In One/Bruce Foods Motion. The remaining Plaintiff, Diversified Foods and Seasonings, Inc. ("Diversified Foods"), opposes the Four In One/Bruce Foods Motion and has filed their own Motion for Appointment of Counsel.

As indicated above, this Court has already determined that the cases are related in the sense that they involve similar questions of fact and of law stemming from the Defendants' alleged anti-competitive conduct in allegedly manipulating the market for processed tomato products. Additionally, by Order dated March 9, 2009, the cases were also consolidated for pre-trial purposes.

STANDARD

Pursuant to Rule 23(g)(3), the Court may designate interim class counsel to represents the interests of the alleged class in initial proceedings, even before determining whether to certify the class as a whole. As the Manual for Complex Litigation recognizes, where a number of overlapping, duplicative or competing suits are present, a number of lawyers may compete for class counsel appointment. See Manual for Complex Litiigation, Fourth, § 21.11, at 246 (Federal Judicial Center 2004) (hereinafter "Manual"). The Manual states:

"In such cases, designation of interim counsel clarifies responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement."

Id. Courts have held that the same standards applicable to choosing class counsel at the time of class certification apply in choosing interim class counsel. See In re Air Cargo Shipping Services Antitrust Litigation, 240 F.R.D. 56, 57 (E.D.N.Y. 2006) ("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 [Fed. R. Civ. P. 23(g)(1)(A) and (B)], which governs appointment of class counsel once a class is certified, apply equally to the designation of class counsel before certification.").

ANALYSIS

Rule 23(g) provides the following guidelines for the appointment of class counsel:

"In appointing class counsel, the court:

(A) 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 ...


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