Chen v. Target Corporation

Background

The plaintiffs brought a proposed class action alleging that Target Corporation knowingly sold consumers Apple iTunes gift cards that had been tampered with before sale. They alleged that third parties could obtain concealed activation codes, use those codes to take funds loaded onto the cards, and that Target knew or should have known about the risk. They further alleged that Target failed to take adequate measures to prevent tampering and failed to warn consumers that the cards might have been tampered with.

The plaintiffs asked the court to appoint Sharon S. Almonrode of The Miller Law Firm, P.C. as interim lead counsel for the plaintiffs and proposed class. They also asked the court to appoint Almonrode as chair of an interim plaintiffs’ steering committee consisting of David Cialkowski, Craig Heidemann, and Bilal Essayli. The plaintiffs argued that appointment would protect the plaintiffs and potential class members, avoid confusion about representation, and promote efficient handling of the case.

Target opposed the request as premature. It argued that there was no apparent need to protect the class because the lawyers had not shown rivalry or uncertainty, and that additional lawsuits and competing counsel were only speculative.

Legal standard

Federal Rule of Civil Procedure 23(g)(3) allows a court to designate interim class counsel before deciding whether to certify a class. The court explained that appointment is discretionary and is particularly suited to complex cases. Courts generally consider the same factors used to evaluate class counsel under Rule 23(g)(1)(A): the lawyers’ work investigating potential claims, experience with class and complex litigation and the claims involved, knowledge of applicable law, and available resources. The court may also consider any other matter relevant to the lawyers’ ability to fairly and adequately represent the class. No single factor controls.

Ruling

The court granted the plaintiffs’ motion to appoint interim class counsel under Rule 23(g)(3). It found no downside to appointing counsel at that stage and concluded that appointment would improve efficiency by consolidating filings from the more than thirty plaintiffs. The court also found that the proposed leadership team satisfied the Rule 23(g)(1)(A) factors because its members and firms had devoted substantial time and resources to investigating the claims and had the necessary experience and knowledge to provide adequate and fair representation. The court additionally noted that the team reflected the diversity of the proposed nationwide class.

The order appointed Sharon S. Almonrode as interim lead counsel for the plaintiffs and proposed class and as chair of the interim plaintiffs’ steering committee. The committee consists of David Cialkowski of Zimmerman Reed LLP, Craig Heidemann of Douglas, Haun & Heidemann PC, and Bilal Essayli of Essayli & Brown. The order did not decide whether the class would ultimately be certified.