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Altara Michelle v. Arctic Zero

March 1, 2013

ALTARA MICHELLE,
PLAINTIFF,
v.
ARCTIC ZERO, INC.,
DEFENDANT.



The opinion of the court was delivered by: Hon. Gonzalo P. CURIELUnited States District Judge

ORDER GRANTING PLAINTIFF MICHELLE'S MOTION TO CONSOLIDATE CASE AND TO APPOINT INTERIM CO-LEAD CLASS COUNSEL AND DENYING PLAINTIFFS GERTLER FREEMAN KAPLAN AND HILLER'S CROSS-MOTION TO APPOINT INTERIM LEAD COUNSEL AND APPROVE LEADERSHIP STRUCTURE [Dkt. Nos. 21, 29.]

Before the Court are Plaintiff Michelle's motion to consolidate and appoint interim co-lead class counsel and Plaintiffs Gertler, Freeman, Kaplan and Hiller's cross-motion for appointment of interim class counsel and approval of leadership structure. (Dkt. Nos. 21, 29.) The motions are submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court GRANTS Plaintiff Michelle's motion to consolidate cases and motion to appoint Duckor Spradling Metzger & Wynne and Paris Ackerman & Schmierer, LLP as interim co-lead class counsel; and DENIES Plaintiffs Gertler, Freeman, Kaplan and Hiller's cross-motion for appointment of interim class counsel and approval of leadership structure.

Procedural Background

On August 21, 2012, Plaintiff Altara Michelle filed a class action complaint against Defendant Arctic Zero, Inc. concerning deceptive and unfair advertising, promotion and sale of its line of Arctic Zero "low calorie" frozen desserts in case no. 12cv2063. On September 18, 2012, Plaintiff Brenda Freeman filed a similar class action complaint in case no. 12cv2279. On September 19, 2012, Plaintiff Lori-Ann Gertler filed a similar class action complaint in case no. 12cv2284. On October 19, 2012, Plaintiff Judy Kaplan filed a similar class action complaint in case no. 12cv2544. On October 24, 2012, Plaintiff Susane Hiller filed a similar class action complaint in case no. 12cv2593. On October 31, 2012, Plaintiff Zoya Kai filed a similar class action complaint in case no. 12cv2647.

On October 29, 2012, Plaintiff Michelle filed a motion to consolidate and a motion to appoint Duckor Spradling Metzger & Wynne, ALC ("DSMW") and Paris Ackerman & Schmierer, LLP ("PAS") as interim co-lead class counsel. (Dkt. No. 21.) On November 19, 2012, Plaintiffs Lori-Ann Gertler, Brenda Freeman, Judy Kaplan and Susane Hiller filed an opposition. (Dkt. No. 28.) They also cross moved to appoint Bursor & Fisher, P.A. ("B&F") as interim lead class counsel; Scott䧊, LLP as Liaison Counsel; and the firms of Faruqi & Faruqi, LLP, Stephen Zouras LLP and Lexington Law Group as members of an executive committee.

Plaintiffs Gertler, Freeman, Kaplan and Hiller's agree that consolidation is appropriate. On November 19, 2012, Defendant filed a statement of non-opposition to motion to consolidate and appoint interim co-lead counsel. (Dkt. No. 30.) Defendant supports consolidation of all six cases as it will further judicial economy and conserve party resources. (Id.) Defendant also takes no position as to the Plaintiffs' request to appoint "interim class counsel." (Id.)

On December 3, 2012, Plaintiff Michelle filed a reply and opposition to Plaintiff Freeman, Gertler, Kaplan and Hiller's cross-motion to appoint interim lead class counsel. (Dkt. No. 32.) On January 4, 2013, Plaintiffs Gertler, Freeman, Kaplan and Hiller filed a reply to their cross-motion for appointment of interim class counsel. (Dkt. No. 37.)

Discussion

I. Motion for Appointment of Interim Lead Class Counsel

Prior to class certification, the Court may designate an interim counsel on behalf of a putative class. Fed. R. Civ. P. 23(g)(3). "Instances in which interim class counsel is appointed are those in which overlapping, duplicative, or competing class suits are pending before a court, so that appointment of interim counsel is necessary to protect the interests of class members." White v. TransUnion, LLC, 239 F.R.D. 681, 683 (C.D. Cal. 2006) (citing Manual for Complex Litigation § 21.11 (4th ed. 2004)). While Rule 23(g)(1) applies to class counsel and does not address interim class counsel, courts look to Rule 23(g)(1) factors to appoint interim class counsel. See Parkinson v. Hyundai Motor Am., No. CV06-345AHS(MLGX0, 2006 WL 2289801, at *2 (C.D. Cal. 2006); In re Air Cargo Shipping Servs., Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006).*fn1

In making this determination, the court considers: "(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). In addition, the Court "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B).

If a number of lawyers compete for class counsel appointment, "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." Manual of Complex Litigation § 21.11. If the parties do not stipulate to class counsel, the court will need to select and designate class counsel. Id.

A. Identifying or Investigating Potential Claims

Since August 2012, DSMW and PAS have worked cooperatively, efficiently dividing the research and work among counsel. They conducted pre-filing due diligence; public source investigation; and interviewed Plaintiff, other consumers and other witnesses. They also engaged a laboratory to ...


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