Class Actions Brief Blog

In Mitchell v. Smithfield Packing Co. Inc., No. 4:08-CV-182, 2013 WL 3819935 (E.D.N.C. July 23, 2013), Magistrate Judge Gates had to decide how to deal with putative class counsel who were having trouble communicating: “Communications between [co-counsel] appear to have completely broken down, and the court cannot envision any scenario in which they could continue to work together.” In the face of this, the Court had to choose which counsel to appoint as sole class counsel under Rule 23(g). Rule 23(g)(2) provides that “[i]f more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.” In this case, the Court opted for experience, finding that one set of lawyers’ experience “in this area vastly outstrip[s]” the other. In so holding, Judge Gates went against the wishes of the named plaintiffs, which he held “not to be dispositive.”