Sheinberg v. Sorensen (606 F.3d 130, 2010 U.S. App. LEXIS 10922 [3d Cir. May 28, 2010]) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] explores the relationship between Federal Rule of Civil Procedure Section 23(g), concerning appointment of counsel, and Federal Rule of Civil Procedure Section 23(a)(4), concerning the adequacy of representation requirement for class certification, Georgene Vairo, a Professor of Law and William M. Rains Fellow at Loyola Law School, Los Angeles, says in this Emerging Issues Analysis. She writes:
"In Sheinberg, the majority of a Third Circuit panel held that the question of adequacy of class counsel should not be considered in deciding whether to certify a class, because Rule 23(g) requires that a district court's certification decision must precede the appointment of class counsel. The dissent believed that under an abuse of discretion standard, the district court order decertifying the class should have been affirmed because of the inadequate counsel provided by class counsel."The plaintiffs, former employees of the defendant, sought damages for violation of the Fair Labor Standards Act, ERISA, and other federal and state statutes. The district court initially certified the action as a class action, but five years later decertified the class, citing numerous errors by class counsel in conducting the action, including the failure to send class notice. After obtaining new counsel, the plaintiffs moved to recertify the class, but the district court denied this motion, finding that the new counsel had continued the pattern of errors and omissions. The plaintiffs then brought this interlocutory appeal under Rule 23(f). . . ."The majority began by noting that questions concerning the adequacy of class counsel were traditionally analyzed under the 'adequate representation' requirement of Rule 23(a)(4) - that is, the court considered the adequacy of both the class representatives and class counsel in determining whether to certify a class. However, Rule 23(g), added to the class action rule in 2003, requires that 'a court that certifies a class must appoint class counsel.' Thus, the majority ruled, the plain language of Rule 23(g) requires that a district court's decision to certify a class must precede the appointment of class counsel."Rule 23(g) lists four factors that must be considered once a district court proceeds to the stage of appointing class counsel. . . ."
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