Antitrust Law Daily Wrap Up, ADVERTISING—MDPa: Interim Counsel Appointed in Shop–Vac Marketing Case, (Jan 21, 2013)

By Jody Coultas, J.D.

The federal district court in Harrisburg, Pennsylvania, has appointed interim counsel in a multidistrict litigation on behalf of numerous purchasers, alleging that Shop-Vac Corporation and/or Lowe’s Companies Inc. misrepresented the horsepower of Shop-Vac’s wet/dry vacuums (In re Shop-Vac Marketing and Sales Practices Litigation, January 17, 2013, Kane, Y.).

A number of the initial purchasers to file were represented by Milberg LLP, Lax LLP, and Faruqi & Faruqi LLP, Dilworth Paxson LLP, Lite DePalma Greenberg LLC, Baron & Herskowitz, Reese Richman LLP, and PinilisHalpern LLP (the Milberg Group) while the purchaser that filed other actions in various federal courts were represented by Levin Fishbein Sedran & Berman and Munley, Munley & Cartwright (the Schaffer Group).

The Judicial Panel on Multidistrict Litigation (JPML) transferred six cases to the court for coordination of pretrial proceedings. Both the Milberg Group and the Schaffer Group filed motions to be appointed interim counsel.

Federal Rule of Civil Procedure 23(g)(3) allows courts to designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. Courts must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Counsel’s ability to fairly and adequately represent the interests of the class may also be factored in. The court may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs.

Although both groups had sufficient experience, adequate knowledge of the applicable law, and sufficient resources to adequately represent the putative class, the court granted the Milberg Group’ interim counsel status. The Milberg Group had conducted more significant work in identifying and investigating potential claims, and had already successfully coordinated the efforts of counsel in multiple courts. Many attorneys had done some investigative work, none predated the Milberg Group’s work. The Schaffer Group argued that it had the support of a majority of the plaintiffs and law firms involved in this case. However, the number of attorneys supporting a given candidacy is not included among the factors set forth in Rule 23(g).

The case is No. 4:12-md-2380.

Attorneys: Brian F. Fox (Levin, Fishbein, Sedran & Berman) for Emanuele DiMare. Michael Lawrence Mallow (Loeb & Loeb LLP) for Shop-Vac Corporation.

Companies: Shop-Vac Corporation; Lowe’s Companies, Inc.

Cases: Advertising PennsylvaniaNews