Ethical Breach by Class Counsel Does Not Defeat Certification
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An ethical breach by class counsel does not automatically render counsel inadequate under Federal Rule of Civil Procedure 23(g)(1)(B). To preclude certification, class counsel’s misconduct must either prejudice the class or undermine the integrity of the judicial proceedings, according to the U.S. Court of Appeals for the Seventh Circuit.Reliable Money Order, Inc. v. McKnight Sales Co.
The Original Class Actions
A law firm filed four class actions alleging violations of the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. Plaintiffs were recipients of unsolicited fax advertisements; defendants were the companies advertised on the faxes.
During discovery in the class actions, plaintiffs’ counsel subpoenaed the records of Business to Business Solutions (B2B), the marketing company that sent the faxes on behalf of the class action defendants. B2B’s initial document production contained a list of recipients of the advertisements commissioned by the original four class action defendants.
Plaintiffs’ counsel subsequently sought all B2B transmission data, representing that it would only view data related to the original four class actions. In connection with the discovery negotiations, counsel sent B2B a copy of the protective order from one of the class actions, the terms of which prohibited disclosure to third parties.
Read original articleTags: Class Actions, Class Counsel
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