IN RE: DEVA CONCEPTS PRODUCTS LIABILITY LITIGATION

Background

The consolidated, putative class actions concern Deva Concepts LLC’s DevaCurl shampoos, conditioners, and other hair products. Plaintiffs allege that the products were advertised as preserving natural oils but instead caused scalp irritation, excessive shedding, hair loss, thinning, breakage, and balding.

The Southern District of New York consolidated a dozen similar actions for coordinated pretrial proceedings. Plaintiffs’ counsel initially moved under Federal Rule of Civil Procedure 23(g)(3) for interim lead counsel, liaison counsel, and an interim executive committee. The original proposal would have placed thirteen lawyers in leadership roles. Defendant opposed that motion.

At a July 17, 2020 hearing, the court expressed concern that the proposed structure was unnecessarily large and could create extra expenses that would reduce the recovery available to class members. The court then invited supplemental briefing about how plaintiffs’ counsel would control costs. Plaintiffs revised the proposal to request appointment of only four interim co-lead counsel: Gary E. Mason, Charles E. Schaffer, Rachel Soffin, and Melissa Weiner. The revised proposal eliminated liaison counsel and a formal executive committee, while allowing the co-lead counsel to organize informal committees.

Legal Standard

Rule 23(g)(3) allows a court to designate interim counsel for a proposed class before deciding whether to certify the case as a class action. The court evaluates interim counsel under the same general standards used for counsel representing a certified class. Rule 23(g)(1) directs the court to consider counsel’s work investigating the claims, experience with class actions and similar litigation, knowledge of the applicable law, and the resources counsel will commit. The court may also consider other matters relevant to counsel’s ability to represent the class fairly and adequately.

The court also noted its duty to independently review the proposed appointments to ensure that counsel are qualified, responsible, capable of representing all parties on their side, and likely to charge reasonable fees. Appointment of interim lead counsel is within the court’s discretion.

Court’s Analysis

The court found that this case was an appropriate one for interim counsel because it involved numerous overlapping class actions consolidated for coordinated pretrial proceedings.

The court determined that the four proposed co-lead counsel satisfied the Rule 23 factors. They had spent months investigating potential claims, interviewing consumers and potential plaintiffs, and organizing the related lawsuits. The court also found that they had substantial experience with class actions and complex litigation. In addition, each lawyer had access to firm resources, including partners, associates, and paralegals, and the firms were described as well-established and well-capitalized.

The court further found that the lawyers had shown they could represent plaintiffs fairly and adequately. In particular, their prompt restructuring of the leadership proposal addressed the court’s concerns about efficiency and cost. They eliminated the liaison-counsel role and the formal executive committee and demonstrated a willingness to coordinate their work. The court cautioned that it would scrutinize any fee applications at the end of the case.

Disposition

The court granted plaintiffs’ modified motion to appoint interim counsel, with the amendments described in their supplemental briefing. It approved Gary E. Mason, Charles E. Schaffer, Rachel Soffin, and Melissa Weiner as interim co-lead counsel. The Clerk of Court was directed to terminate the motion at Dkt. No. 43.