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In re Cardinal Health, Inc. ERISA Litig. - 225 F.R.D. 552 (S.D. Ohio 2005)


Selection of lead counsel is a duty often left to the court if the parties cannot decide amongst themselves. Courts should consider the following factors when appointing lead counsel: experience; prior success record; the number size, and extent of involvement of represented litigants; the advanced stage of proceedings in a particular suit; and the nature of the causes of action alleged.


The ERISA Plaintiffs sued Cardinal Health, Inc. ("Cardinal Health") on behalf of the Cardinal Health Profit Sharing, Retirement and Savings Plan ("Cardinal Plan") and the Syncor International Corporation Employees' Savings and Stock Ownership Plan ("Syncor Plan"). Because of the large number of parties in the case, efficient management of the action mandated the selection of lead counsel and liaison counsel. Each firm had an impressive resume and was qualified to be lead counsel. Five of the Plaintiffs moved to appoint Lead Counsel and Liaison Counsel. 


Can the court appoint the lead counsel if the parties cannot decide amongst themselves?




The District Court held that although each firm was qualified to be lead counsel, it found that McKeehan plaintiffs' proposed counsel, Schatz & Nobel and Stull, Stull & Brody will best be able to represent fairly and adequately the class because of their extensive experience in ERISA litigation. They had been appointed lead or co-lead counsel in several major ERISA litigations and had an established relationship with one another. The doubts expressed by other plaintiffs regarding the competency of the selected counsel were undermined by the fact that the proposed co-counsel of those plaintiffs, asked one of the selected counsel to be its co-lead counsel in the case subjudice, but the proposed counsel paired with another firm when the selected counsel declined the invitation. The selected counsel also demonstrated a commitment to identifying and investigating potential claims in the action.

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