Counsel seeking to certify a class must demonstrate to the court, among other things, counsel's own adequacy as a representative of the class. As a recent Seventh Circuit opinion instructs, counsel seeking such a finding would do well to avoid alienating the court even before the certification stage.
In Gomez v. St. Vincent Health, the Seventh Circuit affirmed the denial of class certification on the sole ground that proposed class counsel was inadequate. The underlying action involved a healthcare system's failure to provide employees who left their jobs with timely COBRA notices regarding their right to extend their health insurance coverage at their own cost.
The plaintiffs' counsel had previously filed a similar lawsuit, on behalf of different named plaintiffs, in the Southern District of Indiana. The district court in the previous case declined to certify the class for multiple reasons, including the inadequacy of class counsel. Rather than pursue an appeal, the same counsel used the list of beneficiaries provided by the defendant during discovery, recruited new named plaintiffs, and brought the Gomez action, alleging similar facts and seeking to certify a similar class. The Gomez case also was filed in the Southern District of Indiana, but was assigned to a different judge.
In Gomez, the district court based its determination that counsel was inadequate on his conduct in both lawsuits. In the first lawsuit, the judge had found that counsel was not diligent in prosecuting the case, had engaged in faulty discovery efforts, had been subjected to orders to compel and awards of cost, and had failed to develop a full record for summary judgment consideration. In Gomez, the district court found that counsel had brought a nearly identical case with no new arguments and had been ordered to pay expenses in conjunction with the defendant's motions to compel. The court added that the attorney's "questionable work" in the first lawsuit and his decision to re-litigate the same issues in a second lawsuit showed "a lack of regard for scarce judicial resources."
On appeal, in addition to arguing his competence generally,
class counsel contended that the district court's consideration
of his conduct in the first lawsuit was improper. The Seventh
Circuit said that because counsel had moved the district court to
allow his use of discovery materials from the first lawsuit, his
argument was "absurd," adding that counsel himself had
asked the court to consider his certification as class counsel in
another case as evidence of his competence.
The court concluded with a stinging criticism of the attorney's
performance on appeal: "If counsel wished to convince us that
the district court abused its discretion by finding him inadequate
to represent the proposed class, his demeanor on appeal has not
helped his cause." The panel faulted counsel for
"misrepresent[ing] fundamental facts," using
"hyperbole in the place of persuasive argument," and
"failing to refute the district court's
reasoning."
While it is rarely wise to inflame the presiding judge, Gomez is an object lesson about the particularly severe consequences of doing so when class certification is at stake.
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