Mogull v. Pete and Gerry's Organics, LLC

Background

Constance Mogull, individually and on behalf of others similarly situated, moved under Federal Rule of Civil Procedure 23(g)(3) to appoint Bursor & Fisher, P.A. as interim class counsel. Interim class counsel is a lawyer or law firm appointed to represent a proposed class before the court decides whether to certify the case as a class action. The defendant neither supported nor opposed the motion but argued that appointing interim counsel was premature.

The court noted that this case overlapped with a substantially similar class action filed in the Middle District of Florida. The other case involved different counsel, alleged duplicative facts, and asserted similar claims for a proposed class of Florida purchasers. Mogull’s case purported to represent a nationwide class. The court also noted that this case had advanced further: the plaintiff had amended her complaint, survived a motion to dismiss, begun discovery, and participated in multiple discussions with the defendant about discovery and settlement.

Court’s Analysis

Under Rule 23(g)(3), a court may appoint interim counsel before class certification when necessary to protect the proposed class’s interests. Courts generally consider whether proposed counsel has investigated the claims, has experience with class actions and the type of claims involved, understands the applicable law, and has sufficient resources to represent the class.

The court concluded that interim counsel was necessary because of the overlapping action and the substantial work already completed in this case. It also found that appointing counsel would provide certainty about further litigation and facilitate discovery, negotiations, and other interactions involving the proposed class.

The court found Bursor & Fisher adequate under the Rule 23(g)(1)(A) factors. The firm had conducted extensive factual research concerning the defendant’s business structure, agricultural regulations and practices, and marketing materials and practices. It had also successfully defended the proposed class against the defendant’s motion to dismiss. The firm had represented plaintiffs in more than one hundred class actions, including consumer class actions that went to jury trials and produced favorable results for plaintiffs. The firm also had twenty-two attorneys and additional support staff.

Disposition

Judge Briccetti granted the motion to appoint Bursor & Fisher, P.A. as interim class counsel and directed the Clerk to terminate the motion. The opinion addressed counsel appointment and did not decide whether the proposed class should ultimately be certified or whether the underlying claims would succeed.