Khan v. Board of Directors of Pentegra Defined Contribution Plan
- Philip Halpern
- 7:20-cv-07561
- U.S. District Court · Southern District of New York
- 6
In Khan v. Board of Directors of Pentegra Defined Contribution Plan, Judge Halpern granted Schlichter Bogard & Denton interim lead class counsel and denied Capozzi Firm’s cross-motion.
The order affected the proposed class of Pentegra Defined Contribution Plan participants and beneficiaries, the Schlichter Firm, and the Capozzi Firm. Schlichter Bogard & Denton, LLP was appointed interim class counsel, while the Capozzi Firm was not appointed as interim class counsel or co-counsel.
What happened
In Khan v. Board of Directors of Pentegra Defined Contribution Plan, two groups of plaintiffs brought related proposed class actions involving the Pentegra Defined Contribution Plan. The court consolidated the cases, and the Schlichter Firm and Capozzi Firm competed to represent the proposed class.
Both firms argued that they should be appointed interim class counsel, and the Capozzi Firm alternatively sought appointment as co-counsel. The court found that both firms had investigated the claims, had relevant complex-litigation experience, and knew the applicable law. It also found that the Schlichter Firm had greater attorney resources in the relevant practice area and had begun preparing for the defendants’ anticipated motion to dismiss.
Judge Halpern granted the Schlichter Firm’s motion to be appointed interim class counsel and denied the Capozzi Firm’s cross-motion to be appointed interim class counsel or co-counsel. The court appointed Schlichter Bogard & Denton, LLP under Federal Rule of Civil Procedure 23(g)(2) and (3).
The detailed version
- Khan v. Board of Directors of Pentegra Defined Contribution Plan · No. 7:20-cv-07561
- Philip Halpern
- Feb. 19, 2021
Background
Imran Khan and Joan Bullock filed the Khan Case individually and as representatives of a proposed class of participants and beneficiaries of the Pentegra Defined Contribution Plan for Financial Institutions. Richard Greenberg, Gregory S. Digsby, Lindsey Clark, and Chrystal Lewis later filed the Greenberg Case, another proposed class action against some of the same defendants. The court consolidated the cases and directed the filing of a Consolidated Amended Complaint. The defendants later received permission to file a motion to dismiss, but that motion was not decided in this order.
Competing Counsel Motions
The Schlichter Firm, which represented the Khan Plaintiffs, moved to be appointed interim lead class counsel. The Capozzi Firm, which represented the Greenberg Plaintiffs, filed a competing motion seeking appointment as interim lead class counsel or, alternatively, as interim co-counsel.
Federal Rule of Civil Procedure 23(g) permits a court to appoint interim class counsel before deciding whether to certify a class. The court considered the firms’ work investigating the claims, experience with class actions and complex litigation, knowledge of the applicable law, and resources available to represent the proposed class. When competing applicants are adequate, Rule 23(g)(2) requires appointment of the applicant best able to represent the class.
Court’s Analysis
The court found that both firms had devoted substantial time and effort to identifying and investigating the claims. It also found that both had significant experience with complex class-action litigation and knowledge of the applicable law.
The court concluded, however, that the Schlichter Firm had greater attorney resources in the relevant practice area. The Schlichter Firm had a fully dedicated team of thirteen attorneys in its retirement litigation practice group, while the Capozzi Firm described a fiduciary practice group consisting of three partners, two associates, and five support staff, with additional attorneys available from its Pennsylvania offices. The court also noted that only the Schlichter Firm had responded to the defendants’ pre-motion letters and had begun preparing to address the anticipated motion to dismiss.
The court rejected a co-counsel arrangement because of what it described as the firms’ fundamental historical and philosophical differences. It found that appointing a single firm would be more efficient while protecting the proposed class’s interests.
Disposition
Judge Philip M. Halpern granted the Schlichter Firm’s motion to be appointed interim class counsel. He denied the Capozzi Firm’s cross-motion to be appointed interim class counsel or co-counsel. The court appointed Schlichter Bogard & Denton, LLP as interim class counsel under Federal Rules of Civil Procedure 23(g)(2) and (3), and directed the Clerk to terminate the pending motion.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.