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Class Action Defense Cases: Appointment Of Experienced Class Action Lawyer, Instead Of Plaintiffs’ Lawyer, To Represent Absent Members in Class Actions Not Appealable Second Circuit Holds

District Court Exercise of Discretion to Select Class Action Attorneys Best Able to Represent Absent Class Members is Generally Not Subject to Appellate Review

Class action defense attorneys may attack the adequate representation requirement of Rule 23 by challenging the qualifications, experience and ability of the plaintiff’s lawyer to represent the interests of absent class members. Because the role of lead plaintiff lawyer in class action cases directly impacts attorneys’ fees, it is not a minor matter. In Cullen v. New York State Civ. Serv. Comm’n, 566 F.2d 846 (2d Cir. 1977), the Second Circuit held that the district court’s determination that plaintiff’s lawyer was not qualified to represent absent members in the class action lawsuit and its decision to appoint an experienced lawyer to represent the absent class members was not an appealable order.

In Cullen, the district court granted plaintiffs’ motion for class action certification in a civil rights case, but expressed concern that plaintiffs’ lawyer did not have sufficient experience to represent adequately the interests of absent class members. Cullen, at 847. Following a hearing on the matter, the court appointed a lawyer “exceptionally well-qualified in civil rights litigation” to represent the absent members in the class action and to work “in conjunction with the named plaintiffs’ attorney,” id. Plaintiffs’ lawyer appealed.

The Second Circuit dismissed the appeal holding that the order did not “fall[] within ‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’” Id., at 848 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1226 (1949)). “Adequate representation” is central to class action certification, not a collateral issue, and so absent “exceptional circumstances, not present here, the exercise of discretion should be left untouched by the appellate court.” Id., at 849.

NOTE: The Second Circuit noted that plaintiffs had not been denied their right to be represented by the lawyer of their choice, “They have simply been prevented from imposing their choice on the absent class members.” Cullen, at 849.