Patrick LaCross et al v. Knight Transportation Incorporated et al, No. 2:2015cv00990 - Document 348 (D. Ariz. 2024)
Court Description: ORDER granting in part and denying in part Blackstone Law's Motion and Application for an Order Substituting Blackstone Law as Counsel of Record for Representative Plaintiffs Robert Lira and Matthew Lofton, Appointing Blackstone Law as Class C ounsel, Compelling Marlin & Saltzman to Transmit a Copy of its Entire Case File to Blackstone Law, and Granting a Continuance of all Deadlines 291 . IT IS FURTHER ORDERED denying Plaintiff Patrick LaCross's Ex Parte Motion for Issuance of a T emporary Restraining Order and Setting an Order to Show Cause Why Respondents Should not be Constrained from Interfering with the Prosecution of this Matter 293 . IT IS FURTHER ORDERED that Marlin & Saltzman, LLP shall remain class counsel in this matter. IT IS FURTHER ORDERED that, by February 9, 2024, Plaintiffs and class representatives Robert Lira and Matthew Lofton shall notify the Court whether they elect Blackstone Law, APC or Marlin & Saltzman, LLP as their counsel in this matter. I T IS FURTHER ORDERED that, upon the filing of Lira's and Lofton's election of counsel, and at the latest by February 23, 2024, Marlin & Saltzman shall transmit the case files to Blackstone Law only pertaining to the Plaintiffs the latter f irm will represent. IT IS FURTHER ORDERED that the previously set case deadlines remain in effect pending entry of the Court's forthcoming Order addressing the choice of law issues. [347.] See document for complete details. Signed by Judge John J Tuchi on 1/23/24. (KLG)
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Patrick LaCross et al v. Knight Transportation Incorporated et al 1 Doc. 348 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Patrick LaCross, et al., 10 Plaintiffs, 11 v. 12 Knight Transportation Incorporated, et al., 13 No. CV-15-00990-PHX-JJT ORDER Defendants. 14 15 At issue are two Motions: 1) Blackstone Law’s Motion and Application for an Order 16 Substituting Blackstone Law as Counsel of Record for Representative Plaintiffs Robert 17 Lira and Matthew Lofton, Appointing Blackstone Law as Class Counsel, Compelling 18 Marlin & Saltzman to Transmit a Copy of its Entire Case File to Blackstone Law, and 19 Granting a Continuance of all Deadlines (Doc. 291), to which Plaintiff Patrick LaCross 20 (Doc. 306) and Defendant Knight Transportation Inc. (Doc. 299) filed Responses, and 21 Blackstone Law filed a Reply (Doc. 310); and 2) Plaintiff Patrick LaCross’s Ex Parte 22 Motion for Issuance of a Temporary Restraining Order and Setting an Order to Show Cause 23 Why Respondents Should not be Constrained from Interfering with the Prosecution of this 24 Matter (Doc. 293), to which Blackstone Law filed a Response (Doc. 301) and Patrick 25 LaCross filed a Reply (Doc. 315). 26 The Court held an evidentiary hearing and oral argument on the Motions on 27 October 17 and 19, 2023. (Docs. 321, 330; Doc. 341, 10/17/23 Hr’g Tr.; Doc. 342, 28 10/19/23 Hr’g Tr.) Dockets.Justia.com 1 I. BACKGROUND 2 This lawsuit began almost ten years ago, on March 3, 2014, when Plaintiffs Patrick 3 LaCross, Robert Lira, and Matthew Lofton—all represented by James Trush of the Trush 4 Law Office, APC and Brennan Kahn and Todd Harrison of the law firm of Perona, Langer, 5 Beck, Serbin, Mendoza & Harrison, APC (“Perona Firm”)—filed a Class Action 6 Complaint in the Superior Court of California. (Doc. 1-3 at 5–39, Compl.) Plaintiffs seek 7 damages against the companies for which they operated trucks, Knight Transportation, Inc. 8 and Knight Truck and Trailer Sales, LLC (collectively, “Knight”), for what they claim are 9 multiple wage and hour violations. 10 On April 18, 2014, Knight removed this action to the United States District Court 11 for the Central District of California (Doc. 1). That District Court remanded the action to 12 California Superior Court, but the Ninth Circuit Court of Appeals reversed that decision. 13 On May 28, 2015, that District Court granted Knight’s Motion to Transfer Venue and 14 transferred the action to this Court (Doc. 60). By that time, Plaintiffs were represented by 15 Messrs. Trush, Kahn, and Harrison, as well as Stanley Saltzman, Christina Humphrey, and 16 Lesley Joiner of the law firm Marlin & Saltzman LLP (“Saltzman firm”). (Docs. 65, 66, 17 67, 79, 80, 104 (Motions for Admission pro hac vice).) 18 Plaintiffs filed the First Amended Complaint (FAC), the operative pleading, eight 19 years ago, on January 22, 2016. (Doc. 102.) On September 22, 2016, the Court entered an 20 Order (Doc. 148) granting Knight’s Motion to Compel Arbitration and Stay Action 21 (Doc. 111). The Court denied Plaintiffs’ subsequent Motion to Certify its decision for 22 interlocutory appeal (Doc. 155) and the Ninth Circuit Court of Appeals denied Plaintiffs’ 23 Petition for Writ of Mandamus (Doc. 157 at 3). In the parties’ first Status Report during 24 the stay, filed on April 17, 2017, Plaintiffs represented that they were “presently 25 considering the current posture of the case” (Doc. 157), and the Court extended the stay of 26 this matter for six more months. (Doc. 158.) In the next Status Report on October 27, 2017, 27 Knight represented that it was willing to confer to discuss arbitrators for Plaintiffs’ 28 arbitrations, and Plaintiffs’ counsel reported it was “follow[ing] important developments -2- 1 in the shifting field of the propriety of arbitration clauses in the employment context, which 2 have also made their way to the United States Supreme Court.” (Doc. 161.) Considering 3 that the parties had not advanced in the arbitration process in over a year, the Court set a 4 hearing for January 23, 2018, at which it ordered the parties to select arbitrators by 5 April 23, 2018. (Docs. 162–63.) The parties selected one arbitrator by that date (Doc. 165), 6 and the Court continued the stay and to monitor the parties in their selection of arbitrators. 7 (Docs. 167, 169–70.) By October 2018—two years after the Court stayed this matter and 8 ordered arbitration—the parties stated they were awaiting the Supreme Court’s decision in 9 a related case, New Prime v. Oliveira, and the Court continued the stay of this matter on 10 the parties’ request. (Docs. 173–74.) The Supreme Court issued its decision in New Prime 11 on January 15, 2019 (Doc. 175), and on August 12, 2019, the parties agreed that, under that 12 decision, this action should proceed in this Court as opposed to arbitration. (Doc. 177.) 13 On August 26, 2019, the Court ordered Knight to file a responsive pleading to the 14 FAC by September 12, 2019—which Knight timely accomplished—and set a deadline for 15 Plaintiffs to file a Motion for Class Certification of April 13, 2020. (Docs. 178–79.) On the 16 day Plaintiffs’ Motion was due, the parties filed a Stipulation requesting an extension to 17 the briefing deadlines because (1) Plaintiffs’ counsel Saltzman was diagnosed with Stage 18 4 prostate cancer in September 2019, the treatment for which had resulted in extreme 19 fatigue; (2) the Governors of California and Arizona had issued “stay at home” orders due 20 to the COVID-19 pandemic; and (3) the parties had agreed to attempt mediation. 21 (Doc. 184.) The Court extended the Motion for Class Certification deadline by seven 22 months, to November 6, 2020, and again upon further requests of the parties to March 12, 23 2021, and then May 12, 2021. (Docs. 185, 189, 192.) Attorney Paul Cowie appeared on 24 behalf of Knight on March 10, 2021, and attorney Karen Gold, then of the Saltzman Firm, 25 appeared on behalf of Plaintiffs around March 17, 2021. 26 Plaintiffs finally filed their Motion for Class Certification May 12, 2021 (Doc. 195), 27 which stated that the proposed class consisted of 183 Plaintiffs represented by the existing 28 Plaintiffs’ counsel. (Doc. 195.) Knight filed its Response on September 7, 2021 (Doc. 210), -3- 1 and Plaintiffs filed their Reply on October 4, 2021 (Doc. 221). All the while, the parties 2 requested that the Court resolve multiple discovery disputes, which disputes continue to 3 this day. 4 On January 11, 2022, the Court entered an Order granting Plaintiffs’ Motion for 5 Class Certification (Doc. 230), and the Ninth Circuit denied Knight’s petition to appeal 6 that Order (Doc. 232). On October 19, 2022, the Court granted the parties’ Stipulation for 7 an Order directing Notice to class members. (Doc. 235.) On the Court’s further Order, the 8 parties submitted briefs on the choice of law to be applied in this case on January 23, 2023 9 (Docs. 248, 251), which briefs are currently pending before the Court. The Court entered 10 an Order (Doc. 347) resetting the current dispositive motion deadline to thirty days after 11 its Order resolving the choice of law issue, which it enters simultaneously with this Order. 12 That brings the case to the present Motions before the Court. First, Gold, who 13 previously worked at the Saltzman Firm and is now an attorney at Blackstone Law, APC, 14 has filed a Motion purportedly on behalf of Plaintiffs and Class Representatives Lira and 15 Lofton as well as three additional individual Plaintiffs, Alejandro Patino-Garcia (“Patino”), 16 Ernest Carter, and Guillermo Rosete. (Doc. 291.) In that Motion, Gold represents that 17 Saltzman—Plaintiffs’ longtime counsel in this matter—passed away in early 2023, and she 18 then left the Saltzman Firm. (Doc. 291 at 2.) She requests (1) that she be named counsel of 19 record for Messrs. Lira, Lofton, Patino Garcia, Carter, and Rosete; (2) that her new firm, 20 Blackstone Law, be named class counsel in this matter; (3) that the Court order the 21 Saltzman Firm to transmit the case file to Blackstone Law; and (4) that the Court continue 22 the remaining case management deadlines. 23 Plaintiff and Class Representative LaCross, still represented by the Saltzman Firm 24 and the counsel with which it has associated—Trush Law and the Perona Firm—opposes 25 Gold’s Motion (Doc. 306), as do the Knight Defendants (Doc. 299). LaCross then filed his 26 own Motion requesting that the Court enjoin Gold and Blackstone Law from interfering 27 with the other Plaintiffs’ counsel’s prosecution of this matter. (Doc. 293.) In the Motion, 28 -4- 1 LaCross argues Gold and Blackstone Law engaged in unprofessional conduct and 2 interfered with the relationship between Plaintiffs and their counsel. 3 II. CLASS COUNSEL 4 In the Order certifying the class, the Court made two statements regarding Plaintiffs’ 5 counsel. The Court acknowledged that “[t]he proposed class includes 183 drivers, all of 6 whom are individually represented by Plaintiffs’ counsel.” (Doc. 230 at 2.) Additionally, 7 in evaluating adequacy under Federal Rule of Civil Procedure 23(a)(4), the Court noted 8 that class representative plaintiffs and class counsel must not have conflicts with other class 9 members and must prosecute the action vigorously on behalf of the class, and nothing 10 before the Court indicated the class representatives—LaCross, Lira and Lofton—or their 11 counsel were not competent to represent the class. (Doc. 230 at 7 (citing Evon v. Offs. of 12 Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012)).) When discussing class counsel, the 13 Court did not distinguish between Plaintiffs’ counsel—the Saltzman Firm, Trush Law and 14 the Perona Firm—because those firms worked in association with each other since the case 15 was transferred to this Court in 2015. Indeed, the parties also drew no distinction between 16 these firms in terms of the level of their representation of Plaintiffs. 17 The issue of appointing class counsel is now before the Court because a fourth law 18 firm and newcomer to this action, Blackstone Law, wishes to be named class counsel by 19 virtue of obtaining signed Substitution of Attorney forms from five of the 183 class 20 members—two class representatives and three other Plaintiffs. The Court will address the 21 propriety of Blackstone Law’s conduct—mainly through the actions of Gold—in obtaining 22 the five Substitution of Attorney forms, in Section III infra. But it begins by evaluating 23 which of the four firms representing Plaintiffs is most suited to be appointed class counsel 24 at this point in the litigation. 25 26 Rule 23(g)(1)(A) provides that, in appointing class counsel, the Court must consider: 27 28 (i) the work counsel has done in identifying or investigating potential claims in this action; -5- 3 (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. 4 Under Rule 23(g)(1)(B), the Court may also consider “any other matter pertinent to 5 counsel’s ability to fairly and adequately represent the interests of the class.” 1 2 6 With regard to the first factor, the “work counsel has done” to identify and 7 investigate the potential claims in this action, Trush along with Kahn’s Perona Firm have 8 been involved in this lawsuit since its inception in 2014. (Doc. 306-2, Kahn Decl. at 4; 9 Doc. 306-3, Trush Decl. at 3.) The Saltzman Firm with which they then associated has been 10 developing Plaintiffs’ claims since 2015, when the case came to this Court. Blackstone 11 Law has only been involved with this case for a few months, and there is no evidence it 12 had anything to do with identifying and investigating claims in this action. Here, Gold 13 asserts accurately that she has been involved in working on the case for several years, albeit 14 while associated with the Saltzman Firm. (E.g. Doc. 291 at 3.) But Plaintiffs’ claims are 15 embodied in the First Amended Complaint (Doc. 102, “FAC”)—the operative pleading— 16 which Saltzman and his associate, Humphrey, filed on behalf of the Saltzman Firm on 17 January 22, 2016, four years before Gold ever did any work on this case. The Saltzman 18 Firm and the counsel with which it has associated in this matter—Trush on behalf of his 19 own law practice and Kahn on behalf of the Perona Firm (collectively, “Associated 20 Counsel”)—were entirely responsible for identifying and investigating Plaintiffs’ claims 21 in this matter.1 In sum, the first factor weighs heavily in favor of the Saltzman Firm and 22 Associated Counsel. 23 The next two Rule 23(g)(1)(A) factors, regarding counsel’s relevant experience and 24 legal knowledge, favor neither Blackstone Law on the one hand nor the Saltzman Firm and 25 Associated Counsel on the other. Blackstone Law and Gold show that they have experience 26 1 27 28 The Court notes that while the attorneys who filed the FAC are no longer involved with the matter—Saltzman having passed last year and Humphrey having left the Saltzman Firm shortly thereafter, the firm has identified several attorneys who have assumed responsibility for the matter, albeit more recently. And in any event, Associated Counsel have been involved in and responsible for this matter since its inception. -6- 1 handling class actions, including some involving wage and hour disputes like this case, and 2 therefore know the applicable law, at least in California. (Doc. 291-1, Gold Decl. at 6–8; 3 Doc. 291-2, Genish Decl. at 1–3.) Likewise, Attorney Cody Kennedy on behalf of the 4 Saltzman Firm shows that he has experience handling class actions, including a case 5 involving more than 100 allegedly misclassified truck drivers similar to this case, and 6 knows the applicable law, particularly in California. (Doc. 306-1, Kennedy Decl. at 2–3.) 7 In addition to his involvement in this case since 2014, Kahn states that he took a complex 8 case involving Fair Employment and Housing, discrimination, retaliation, and harassment 9 claims from inception to a $464 million trial verdict. (Kahn Decl. at 3.) Trush, who has 10 also worked on this case since 2014, albeit as a sole practitioner, stated at the hearing that, 11 since 1992, his “practice has been in class actions to co-counsel with skilled and 12 experienced lawyers that I trust and that I know are excellent advocates.” (10/19/23 Hr’g 13 Tr. at 241.) He also has tried cases solo, including a five-week jury trial “in a complicated 14 employment case against a corporate defendant.” (10/19/23 Hr’g Tr. at 242.) Considering 15 all the statements regarding counsels’ experience and knowledge, the second and third Rule 16 23(g)(1)(A) factors do not favor Blackstone Law or the Saltzman Firm, even considering 17 the experience and knowledge of its Associated Counsel with respect to this case. 18 The attorneys’ statements regarding the fourth Rule 23(g)(1)(A) factor—the 19 resources counsel will commit to its class representation—were particularly contentious as 20 they apply to the Saltzman Firm. In her brief and at the hearing, Gold, who left the Saltzman 21 Firm months before filing her Motion, stated that the firm has financial difficulties and is 22 planning to wind down its operations. (Doc. 291 at 4.) Kennedy stated that the Saltzman 23 Firm has not decided at this time to wind down or shut down and plans to continue to 24 litigate every case in its profile. (10/19/23 Hr’g Tr. at 239.) In response, Gold stated 25 Kennedy was not being forthcoming because he was not under oath. (10/19/23 Hr’g Tr. at 26 252–53.) But the Court need not put officers of the Court under oath when they make 27 representations to it, because they are under a duty to be honest in their statements under 28 the rules of professional responsibility. The Court accepts Kennedy’s representation that -7- 1 the Saltzman Firm presently plans to continue to litigate this case using all its resources. 2 (10/19/23 Hr’g Tr. at 239.) 3 Blackstone Law also said it would commit its firm’s resources to representing the 4 class in this case. The fourth Rule 23(g)(1)(A) factor is thus neutral as it pertains to 5 Blackstone Law as compared to the Saltzman Firm alone. But the Court also considers the 6 statements of the Associated Counsel Trush and Kahn that they each would be willing and 7 able to serve as class counsel in this case. (10/19/23 Hr’g Tr. at 240–45.) The three firms 8 have associated since the inception of this lawsuit, and the Court is satisfied that if the 9 Saltzman Firm did wind down its operations—which the Court notes infra is a possibility 10 at some point in the future—either Trush or the Perona Firm could seamlessly step in as 11 class counsel. This factor favors the Saltzman Firm and Associated Counsel. 12 Under Rule 23(g)(1)(B), the Court may consider “any other matter pertinent to 13 counsel’s ability to fairly and adequately represent the interests of the class,” and the Court 14 will address, infra, the other matters raised by LaCross’s counsel, and in particular, whether 15 Gold and Blackstone Law adhered to the rules of professional responsibility in this matter. 16 For the purposes of the class counsel determination, the Court does not find the Saltzman 17 Firm or Associated Counsel are shown to have engaged in unethical conduct in this matter, 18 and Gold’s conduct does not help her or Blackstone Law’s case to be named class counsel, 19 as set forth more fully in Section III.C infra. 20 The Court also acknowledges that Knight filed a brief opposing Blackstone Law’s 21 request to be named class counsel. (Doc. 299.) In the hearing, Cowie made clear that Knight 22 opined on the Court’s appointment of class counsel not because one firm or the other would 23 be more beneficial to Knight’s interests—Cowie emphasized the extreme contentiousness 24 between his firm and the Saltzman Firm during the past nine years of this case—but rather 25 because the Saltzman Firm has worked on this case since its inception and in Cowie’s view 26 Gold has engaged in unprofessional behavior by misleading two class representatives into 27 believing that Knight and the Saltzman Firm are somehow colluding in this matter. 28 (10/19/23 Hr’g Tr. at 247–48.) -8- 1 For all these reasons, the Court concludes the Saltzman Firm (supported by 2 Associated Counsel), which is counsel for class representative LaCross and at least 178 of 3 the 183 Plaintiffs in total, shall continue to be class counsel in this matter. Blackstone Law 4 has not demonstrated that it is more qualified than the Saltzman Firm to act as class counsel 5 in this case, and its challenge to the status quo thus fails. 6 7 THE RULES OF PROFESSIONAL RESPONSIBILITY AND BLACKSTONE LAW’S REPRESENTATION OF CERTAIN PLAINTIFFS 8 In his Motion, and based on Gold’s and Blackstone Law’s alleged conduct, LaCross 9 III. seeks a Temporary Restraining Order prohibiting Gold and her new firm from: 10 - “interfering with Class Counsel’s prosecution of this matter”; 11 12 - “communicating with any members of the Certified Class regarding the subject of this litigation”; and 13 14 - “directly or indirectly making any false, misleading and/or disparaging statements about Class Counsel to any members of the Certified Class.” 15 16 17 (Doc. 293 at iii.) LaCross also seeks an Order: 18 - rescinding the substitutions of attorney for Lofton, Lira, Garcia, Rosette and Carter; 19 - “banning [Gold and Blackstone Law] from practicing law in the State of Arizona with respect to this litigation”; and 20 21 - imposing sanctions on Gold and Blackstone Law for violations of the Arizona Rules of Professional Responsibility. 22 23 (Doc. 293 at iii.) 24 The gravamen of LaCross’s complaint is alleged violations by Gold and Blackstone 25 Law of the applicable Arizona Rules of Professional Conduct2 and the Local Rules of 26 27 28 LaCross’s counsel also provides some analysis of the California Rules of Professional Conduct, but the Court will not ground its analysis of duties under those rules for purposes of determining violations here. While the California Rules always will bind California lawyers and may be a basis for disciplinary action before the California Bar 2 -9- 1 Practice for the District of Arizona. LaCross charges Gold and her firm violated Arizona 2 Rules of Professional Conduct 4.2, 7.3 and 8.4(c). The Court will examine each claim in 3 turn. 4 A. 5 ER 4.2 of the Arizona Rules of Professional Conduct provides that 6 Rule 4.2 [i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. 7 8 9 10 ER 4.2 (2003). LaCross asserts that Gold’s communications with Patino, and later with 11 Lofton, Lira, Carter, Rosete and him in the late August and early September 2023 12 timeframe, violated ER 4.2.3 13 Movant and Respondents agree that Gold left the Saltzman Firm on or about 14 June 14, 2023 and was withdrawn from representation of any person in the Knight class 15 action. She did not speak with any class member or representative thereafter until late 16 August when, as Patino testified, he called her to ask about the case, and then the following 17 day called again to ask her to represent him in the matter. After a brief delay, Gold agreed 18 outside the confines of the matter before this Court, Local Rules of Practice and Procedure of the U. S. District Court for the District of Arizona (“Local Rules”) make clear that attorneys purporting to practice and represent clients before this Court are held to the Arizona Rules of Professional Conduct. LRCiv 83.2(e). Thus, the Court will evaluate all conduct under the Arizona rules for purposes of determining LaCross’s Motion, and will consider California ethics rules and opinions only for their persuasive value. 19 20 21 The Court construes LaCross’s charges of professional responsibility violations also to encompass Patino’s communications with and solicitations of two other class members—Roger Yanez and Francisco Noriega—each of whom executed declarations in support of LaCross’s Motion and testified at the evidentiary hearing on the Motion. Neither Yanez nor Noriega agreed to shift their representation in this matter to Gold and Blackstone Law after speaking with Patino, and Gold did not communicate with either of them about shifting representation. LaCross asserts in his Motion that Patino communicated with and solicited Yanez and Noriega at the direction of Gold. Assuming arguendo this is true, the Court’s analysis under ERs 4.2, 7.1, 7.3 and 8.4 as to Yanez and Noriega would lead to the same conclusions regarding whether Gold violated any of these rules as it would regarding Gold’s direct communications with Lofton, Lira, LaCross, Carter and Rosete. See, e.g., ER 7.3(a) (“‘Solicitation’ or ‘solicit’ denotes communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”) 3 22 23 24 25 26 27 28 - 10 - 1 to represent Patino in this matter. Between that time and September 5, 2023, Gold spoke 2 with LaCross, Lofton, Lira, Carter and Rosete, each of whom at least initially agreed to 3 retain Gold and Blackstone to also represent them in the matter. 4 4 1. Gold’s August 2023 Communications with Patino 5 As an initial matter, the Court concludes Gold did not violate ER 4.2 in her 6 communications with Patino. In late August 2023, at the time Gold and Patino spoke, Gold 7 did not represent anyone in the matter, having withdrawn as counsel for the class more than 8 two months prior. She therefore did not meet the first qualifier of ER 4.2, which only 9 prohibits communications by a lawyer “in representing a client.” While Gold’s 10 communications with Patino and others still must be evaluated for propriety under client 11 solicitation and other ethical rules, ER 4.2 does not apply to her contacts with Patino once 12 she had no role as counsel—and therefore no client—in the matter. 13 2. Gold’s Subsequent Communications with Other Class Members 14 In the week or two after Gold and Blackstone Law accepted representation of Patino 15 in the instant matter, Gold communicated with LaCross, Lira, Lofton, Carter and Rosete— 16 all class members and or representatives. While at that point Gold and Blackstone were 17 representing a class member in the matter, it is not at all clear that Gold’s communications 18 with these five individuals were “in representing a client”—their only client then being 19 Patino. For purposes of this analysis the Court assumes at that point the purpose of Gold’s 20 communications with each of Lofton, Lira, LaCross, Carter and Rosete was to solicit their 21 changing counsel, or to at least explore the possibility. But the Court still cannot conclude 22 that such discussions were in the service of Patino’s interests, and therefore “in 23 representing him.” Rather, such solicitation would be overwhelmingly or solely in Gold’s 24 and Blackstone’s interest, because if successful, they would stand to increase their share of 25 fees were the class to prevail in its action against Knight. The first qualifier of ER 4.2 thus 26 27 28 4 LaCross shortly thereafter rescinded his election to change counsel and remains with the Saltzman Firm and Associated Counsel. - 11 - 1 still does not appear to apply to Gold’s and Blackstone’s contact with LaCross, Lira, 2 Lofton, Rosete and Carter. 3 Put another way, the prohibitions of ER 4.2 appear to be an ill fit to the 4 circumstances before the Court, where all counsel in conflict—Gold and Blackstone Law 5 on the one hand and the Saltzman Firm and Associated Counsel on the other—seek to 6 represent persons “on the same side of the ‘v.’”—class members and or the plaintiff class 7 itself. Comment 1 to ABA Model Rule 4.2, upon which the Arizona Supreme Court’s 8 ER 4.2 is based, provides that the prohibition’s purpose is to protect a person who has 9 obtained counsel in a matter against “possible overreaching by other lawyers who are 10 participating in the matter” and “the uncounseled disclosure of information relating to the 11 representation.” ABA Model Rules of Professional Conduct, ER 4.2, cmt. 1 (2023). 5 The 12 drafters’ focus appears to be on protecting represented persons from attorneys representing 13 adverse interests—in the case of a plaintiff, either a defendant or a co-plaintiff whose 14 interests may not align. 15 The history and application of Arizona’s ER 4.2 is consistent with this 16 interpretation. Each of the four comments to Arizona’s rule contemplates only contact by 17 lawyers representing a client with an interest adverse to the party they contacted, and of 18 the eleven reported Arizona cases applying the rule, each addresses contact of a represented 19 person by counsel for an adverse party. Indeed, all of the caselaw LaCross cites from 20 foreign jurisdictions on this issue applies to contact by a lawyer for an adverse party, save 21 one case—Hernandez v. Vitamin Shoppe Indus., Inc., 174 Cal. App. 4th 1441 (2009). 22 In Vitamin Shoppe, current and former employees brought three putative class 23 actions against Vitamin Shoppe for federal and California state wage and hour violations; 24 Comment 1 also identifies as a purpose of the rule protection against “interference by those lawyers with the lawyer client relationship.” Id. This general purpose is negated, however, when a lawyer’s communication with a represented person is “authorized by law” as provided in Rule 4.2. And as set forth infra in Section III.B of this Order, the Court notes that such authorization appears to exist in ERs 1.4, 1.16, 7.3 and the State Bar of Arizona Ethics Opinions interpreting those rules. See Ethics Op. 10-02 (“[W]hen a lawyer who is working on a client matter leaves a firm, the lawyer ‘has an ethical obligation, under ER 1.4, to advise his or her clients of the impending departure, so that clients may decide who they want to continue the representation”) (citing Ethics Op. 99-14)). 5 25 26 27 28 - 12 - 1 for one of those classes the trial court had granted a preliminary settlement approval and 2 conditionally certified the class for settlement purposes. An attorney representing some 3 plaintiffs in two of those actions contacted class members whom he did not represent, 4 urging them to opt out of the settlement in that action, join another of the three class actions 5 as plaintiffs, and retain him as their lawyer. The California Court of Appeal found that 6 California’s version of ER 4.2, which is substantially similar in text to Arizona’s version, 7 prohibited a plaintiff’s attorney from contacting plaintiff class members represented by 8 other counsel for purposes of solicitation after certification of the class and approval of the 9 notice. 174 Cal. App. 4th at 1458. 10 As Vitamin Shoppe is a California state case interpreting California’s professional 11 responsibility rule limiting attorney contact with represented persons, LaCross cites it only 12 for its persuasive value in the Court’s interpretation of Arizona’s rule. And for that purpose, 13 the Court cannot agree that the holding is persuasive. The Court can find nothing in the 14 limited comments to Arizona’s rule, or in the eleven cited federal and Arizona cases 15 interpreting Arizona ER 4.2, to demonstrate it was intended to address the situation now 16 before the Court, where all counsel involved seek to represent plaintiffs whose interests are 17 aligned and the conflict is between the economic interests of counsel only. Put briefly, the 18 facts of this matter do not present an ER 4.2 issue. Rather, as set forth below, the client 19 solicitation rules, and particularly ER 7.3, fit and meet this situation, addressing the 20 relevant concerns. 21 B. 22 LaCross next asserts that Gold and Blackstone Law violated ER 7.3 by improperly 23 24 25 26 27 28 Rule 7.3 soliciting him, as well as Patino, Lofton, Lira, Carter and Rosete as clients. ER 7.3 provides in relevant part: (b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or firm’s pecuniary gain, unless the contact is with a [] person who has a [] prior [] professional relationship with the lawyer or the firm. - 13 - 1 (c) A lawyer shall not solicit professional employment or knowingly permit solicitation on the lawyer’s behalf even when not otherwise prohibited by paragraph (b) if: (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. 2 3 4 5 6 ER 7.3(b), (c) (2019). LaCross argues that a significant motive for Gold’s and Blackstone’s 7 solicitations of him and the other class representatives and members was for pecuniary gain 8 and therefore violates ER 7.3(b). 1. 9 ER 7.3(b) 10 No litigant disputes that for purposes of analyzing professional responsibility issues, 11 the client is the client of the firm, and that when Gold terminated her employment with the 12 Saltzman Firm on June 14, 2023, and her Notice of Withdrawal was filed in this matter 13 shortly thereafter, she ceased to represent any class member or representative. Gold 14 thereafter had no contact with any class member or representative for approximately two 15 months, until Patino called her near the end of August 2023. 16 As to Patino, the Court finds no ER 7.3 violation has been demonstrated. According 17 to all competent evidence presented—the testimony and declarations of Patino and Gold— 18 Gold did not solicit Patino as her and Blackstone’s client; rather, Patino asked Gold if she 19 would represent him. LaCross has offered no evidence to the contrary and the Court has 20 seen none. The Court need go no further in the ER 7.3 analysis regarding Gold’s contact 21 with Patino. 22 The analysis as to LaCross, Yanez and Noriega, however, is different, as all three 23 provided declarations stating that Patino contacted them “on behalf of” Gold. The Court 24 therefore could find, if it credited the above statements, that Gold had solicited employment 25 from LaCross, Yanez and Noriega, and inferring from that pattern and the resulting changes 26 in counsel, that she had solicited Lofton, Lira, Carter and Rosete as well. Although the 27 Court finds reliability issues exist with the testimony of many of the class member 28 witnesses at the hearing, and that those issues abound with nearly all declarations submitted - 14 - 1 by either side—a point the Court will return to later in this Order—it concludes that at 2 some point Gold and Blackstone Law did solicit at least the three class representatives and 3 Messrs. Carter and Rosette in the course of Gold’s August and or September 2023 4 communications with them. 5 The fact of solicitation, however, is not dispositive of an ethical violation. As noted 6 above, ER 7.3 provides an exception for solicitation where the contact is with a person 7 “who has a [] prior []professional relationship with the lawyer[.]” ER 7.3(b). Gold argues 8 that this exception applies because as an associate for the Saltzman Firm until June 2023 9 and for the two to three years prior, she represented each of the class members and 10 representatives at issue and had personal contact with Patino, Lira, Lofton, LaCross, Yanez, 11 Noriega, Carter and Rosete in the form of representing them at proceedings and 12 communicating with them on behalf of the firm to update them on the status of the matter. 13 Gold asserts she thus had a “professional relationship” with them. 14 LaCross counters that Gold’s work on the case while with the Saltzman firm, 15 although consistent, was not substantial enough to create the professional relationship 16 necessary to trigger the exception of Rule 7.3(b). The Court disagrees as to the class 17 representatives and Patino, Yanez and Noriega. From 2021 to mid-2023, the evidence 18 reflects that Gold had as much contact with those six clients as any attorney at the Saltzman 19 Firm, and likely more than any attorney still at that firm. The contact was substantive as 20 well: it included representing at least Patino, Yanez, Lofton and Lira at their depositions 21 and providing updates on the matter to all six, both in writing and in telephone calls. The 22 Court concludes that Gold’s prior professional relationship with Patino, Yanez, Noriega, 23 Lira, Lofton and LaCross was substantial enough to trigger the “professional relationship” 24 exception of ER 7.3(b) and allow her to solicit legal employment from those six 25 individuals, absent any other rule violation. See Ethics Op. 10-02 (“Whether the client 26 needs to be informed of the lawyer’s departure and reminded of the client’s right to choose 27 counsel depends on whether, viewed from the perspective of the client, the client’s decision 28 - 15 - 1 about who should continue the representation might depend on the continued involvement 2 of the departing lawyer.”) 3 There is less direct evidence to conclude such a substantial professional relationship 4 existed between Gold and either Rosete or Carter. No evidence was presented at the hearing 5 or in support of the briefs as to the relationship between Gold and these two class members, 6 beyond Gold’s general averment that she would have sent them letters on behalf of class 7 counsel. Nonetheless, the Court finds sufficient circumstantial evidence to conclude that 8 they are similarly situated to Noriega at least, in that Gold, as the Saltzman Firm’s “minder” 9 attorney for the class action between 2021 and June 2023, had telephonic and mail 10 communication with many or all class members to update them about the matter’s status. 11 2. ER 7.3(c) 12 Of the clients Gold solicited or potentially solicited, one—LaCross—has alleged 13 coercion, harassment, or that that Gold continued to attempt communication with him after 14 he made known his desire not to be solicited, any of which actions are prohibited under 15 ER 3.7(c). In his declaration, LaCross asserted that: 16 17 18 19 - on September 5, 2023, once he decided to revoke his retention of Gold and Blackstone Law to represent him, he authorized Kahn to tell Gold and Blackstone Law not to communicate with him further, but despite knowledge of this directive, Gold called him again; 20 21 22 23 24 25 - during that call, after LaCross told Gold he did not want to talk to her any more, she continued to “pressure” him to allow her and Blackstone Law to represent him; LaCross did not relent and Gold ended the call; - shortly after that call ended, Jonathan Genish of Blackstone Law called LaCross and tried to “pressure” and “badger” LaCross to stay with Blackstone. 26 27 (Hr’g Ex. 117 (“LaCross Decl.”) ¶¶ 27-30.) If credited, the statements form a basis for a 28 finding that Gold and Blackstone Law at least continued to solicit LaCross after he made - 16 - 1 clear he did not wish to be solicited. In light of LaCross’s testimony at the hearing, 2 however, the Court is left with significant doubt about the accuracy of these statements in 3 his declaration because on cross-examination at the hearing, he abandoned several other 4 statements he had made in that declaration. For example, La Cross also stated in his 5 declaration that Patino “was calling me on behalf of Karen I. Gold.” (LaCross Decl. ¶ 5.) 6 Yet when asked if that statement in his declaration was true, LaCross testified, “No. He 7 didn’t use the term, ‘on behalf of Karen Gold.’” (10/17/23 Hr’g Tr. at 32.) 8 The issue of whether Patino was contacting LaCross and other class members on 9 behalf of Gold was central to the ER 4.2 and 7.3 analysis—a subject that is peculiarly the 10 focus of lawyers rather than lay fact witnesses—and the term’s uniform inclusion in the 11 declarations of LaCross, Yanez and Noriega reflects the heavy involvement of attorney 12 drafters in the declaration, as do other statements in the declaration.6 That and the readiness 13 with which LaCross abandoned his prior statement in the declaration despite his near- 14 immediately previous testimony at the hearing that everything in his declaration was true 15 (10/17/23 Hr’g Tr. at 30) leaves the Court with doubts about the accuracy of the above 16 statements and their susceptibility to shaping and steering by drafting counsel. The Court’s 17 doubts are significant enough that absent corroboration, it cannot find harassment or 18 improper communication by Gold after LaCross revoked his decision to retain her new 19 firm.7 20 For example, the LaCross Declaration also states that “Ms. Gold never told me she had any financial interest in bring[ing] the case to her new firm.” (LaCross Decl. ¶ 10.) 6 21 22 23 24 25 26 27 28 The Court does not single out LaCross’s declarations and testimony among all class member declarant-witnesses. To some degree all counsel on both sides of this dispute have treated class members who submitted declarations and or testified at hearing like ping pong balls, calling into question the extent of the credibility of their statements and requiring the Court to make factual determinations thereon for the limited purpose of deciding these motions. The Court could as easily highlight portions or Patino’s and Lira’s declarations that failed to withstand cross-examination at the hearing. And one counsel called into question the accuracy of the testimony of Messrs. Yanez and Noriega due to their facility with the English language, while another counsel cast doubt on LaCross’s cognitive abilities now compared to several years ago. Various counsel may have perceived short-term advantage in 1) having the witnesses adopt these declarations, 2) discrediting witnesses in cross-examining them on their declarations, and or 3) questioning the witnesses’ communication abilities or the clarity of their thinking and memory, in order to prevail on the short-term issue of who would represent class members and representatives. 7 - 17 - 1 3. ERs 1.4, 1.16 2 Gold and Blackstone have advanced a related argument that Gold’s contact with and 3 solicitation of all class members with whom she had contact is permissible under an 4 extended analysis of ER 1.4(a)(3) and ER 1.16(d). Those rules speak, respectively, to an 5 attorney’s duties to communicate with her clients to keep them reasonably informed about 6 the matter and to take steps to protect their interests upon withdrawal. 7 In furtherance of this argument, Gold and Blackstone cite Arizona and foreign 8 jurisdiction ethics opinions providing that upon the departure of an attorney from a firm 9 serving a client, where that attorney has performed substantial work for the client, the 10 departing attorney and the firm should apprise the client of the lawyer’s departure and 11 inform the client of the option to remain with the firm or go with the departing attorney,8 12 explaining this option in a fair and neutral manner.9 The Court is persuaded by these 13 opinions that such a communication by a departing attorney and a firm to a client is 14 appropriate and even required under Arizona’s rules and therefore “provided by law” for 15 purposes of the other ethical rules in qualifying circumstances. See FN 5 supra. But 16 17 18 19 20 21 22 23 24 But with respect to the longer view, the Court has concerns about the damage such decisions taken by various counsel for plaintiff class members may have done to their clients’ interest in the ultimate outcome of the matter, in that defense counsel may now be armed with impeachment as to witness credibility should testimony at trial ever be necessary. See Ethics Op. 99-14 (providing that “a lawyer has an obligation to advise the client of his or her impending departure ‘to permit the client to make informed decisions regarding the representation’”; Ethics Op. 10-02 (“[W]hen a lawyer leaves the employment of a law firm [,] both the lawyer and the firm he or she is leaving have ethical obligations to the firm’s clients and must work together as necessary to ensure that the lawyer’s departure does not prejudice any of the clients for whom the lawyer was working. . . . the client, not the lawyer or law firm, chooses which lawyer will continue to represent the client.”) 8 See Ethics Op. 99-14 (“[C]ommunications by the departing lawyer with the prospective clients must not be misleading or overreaching”); ABA Formal Opn. No. 99414 (notice to client of lawyer departure should be provided in a manner that enables the client to make a “reasonable, informed decision about who should carry on with the representation,” and joint notice is preferable to unilateral notice by either the lawyer or the law firm alone because it is “a better way in which to protect clients’ interests.”); see also State Bar of Cal. Formal Opn. No. 2020-201 at 8 (“Each lawyer should also refrain from making any false or misleading comments about the other when communicating to the client.”) 9 25 26 27 28 - 18 - 1 because the Court has concluded Gold did not clearly violate ER 7.3, it need not reach this 2 related alternate argument.10 3 C. 4 ER 8.4(c) provides in relevant part that it is “professional misconduct for a lawyer 5 to . . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”11 6 LaCross asserts that in her communications with class members, Gold made several 7 misrepresentations and dishonest statements about the Saltzman Firm and the status of the 8 case, among them: False Statements 9 10 - that the Saltzman Firm was “going to dissolve due to Stan Saltzman’s death and that no one else was at the Saltzman firm any more” and “there were no attorneys left on the Knight class action to handle the case and make sure it kept going forward” (LaCross Decl. at 8); - that Gold was “the only attorney who had been working on the Knight class action who knew what was going on and who was capable of continuing with the case” (LaCross Decl. at 8); 11 12 13 14 15 16 17 The Court notes, however, that both sets of attorneys’ arguments for the application of the ethics opinions are problematic. The Saltzman Firm acknowledges that it never informed the class members about Gold’s departure or gave them the choice to stay or go with Gold. It takes the position that such an advisory was unnecessary in this matter because Gold’s work on the matter while she was at the Saltzman Firm was not substantial enough to justify notice to the clients. But the Court has already rejected that position in its analysis in Section III.B.1 supra. On the other hand, once Gold communicated with class members about representing them, her communications were hardly neutral advisements prescribed by Ethics. Ops. 99-14 and 10-02, as the Court discusses infra in Section III.C, and that slanted communication could risk impairing the ability of the client to make accurately informed decisions in their best interest. On this analytical point the Court would find significant shortcomings in all the attorneys’ efforts to safeguard the interests of the class members. 10 18 19 20 21 22 23 24 In his Motion, LaCross also cites ER 7.1’s prohibition against a lawyer making a false or misleading communication about the lawyer or the lawyer’s services. This rule would not apply to those statements LaCross complains of that pertain solely to original class counsel, as such statements do not implicate representations about the lawyer seeking to market her services—here Gold and her new firm, Blackstone Law. The Rule would, however, pertain to the statements complained of that refer to Gold’s own abilities or actions as counsel, and the Court will so analyze them. In any event, the analysis of false or misleading statements or communications under ER 7.1 or ER 8.4(c) is materially the same. 11 25 26 27 28 - 19 - 1 - that “certified class counsel can’t be trusted” (Doc. 294-2 (“Noriega Decl.”) ¶ 7); and - that class members who signed up with Gold would recover at least $1,000 per workweek (Doc. 293 at 14). 2 3 4 5 The Court questioned counsel Kennedy and Gold closely on each of these 6 representations and the basis (or absence) therefore at the continuation of the hearing. It 7 considers counsel’s responses and citations to the record, in addition to the declarations 8 and the fact witness testimony adduced at the first day of hearing in making its 9 determinations. 10 As to Gold’s representations to several class members that the Saltzman Firm was 11 “going to dissolve” and there would be “no one left to handle the case,” the Court finds the 12 statements were misleading at least in part and constituted an overstatement. To be clear, 13 Gold’s statement that the Saltzman Firm was “going to dissolve” had some basis. Gold set 14 forth in her declaration and at the hearing that upon Saltzman’s death, the firm’s subsequent 15 management was paring staff and advised all employees that the firm was in significant 16 debt, the response to which was layoffs. Gold also stated management had told the layoff 17 victims “they didn’t have the money to keep the firm afloat.” (10/19/23 Hr’g Tr. at 11.) 18 The Court then asked Kennedy several questions about why Gold’s statements were 19 untrue, ultimately inquiring, “is it the intention of Marlin & Saltzman to continue to be a 20 going concern or is there a wind-down contemplated?” Kennedy responded in part, 25 At this time, we are continuing to, well, one, we continue to litigate every case in our profile, and two, there has been no decision made for any shut-down date or any wind down. You know, I’m not going to limit Marlin & Saltzman’s options in the future because it depends on how these next few years work out, how, you know, the firm continues to grow and move forward.” 26 (10/19/23 Hr’g Tr. at 44-45.) The Court appreciates counsel’s care not to mislead it in his 27 response and credits him for it. But the response can only be read to imply that a wind- 28 down of the Saltzman Firm has been contemplated and is not off the table, and at a 21 22 23 24 - 20 - 1 minimum lends credibility to Gold’s account of what management told her and the 2 conclusions she drew from that information. While Gold’s statement that the firm was 3 “going to dissolve” may have constituted some overreach in its concreteness and 4 suggestion of imminence, it was not without basis. 5 On the other hand, Gold’s companion statement that “there were no attorneys left” 6 on the Knight class action to handle it was insupportable. Even if Gold’s prediction that 7 the Saltzman Firm would close proved true, she knew that Trush’s and Kahn’s firms 8 continued to work on and provide continuity in the matter. This statement was misleading. 9 Gold’s statement to LaCross and others that she was “the only one who had been 10 working on the Knight case who knew what was going on and who was capable of 11 continuing with the case” is at least partly problematic for the same reason. The evidence 12 before the Court suggests that Gold and her colleague, Melissa Mayhood, were performing 13 most or all day-to-day handling of the Knight class action matter until their respective 14 departures from the Saltzman Firm in summer 2023. But simply because Gold and 15 Mayhood were the only attorneys handling the matter day-to-day does not mean that once 16 Mayhood stepped away, Gold was the only one who knew what was going on with it. The 17 record indicates that upon Saltzman’s passing, Kennedy and Lazar both undertook a 18 supervisory role and Gold reported to them periodically on the matter. More importantly 19 for purposes of evaluating Gold’s state of knowledge on this issue, Trush and Kahn both 20 continued to be “read in” on the matter, as they had been for years. Gold’s statements about 21 Trush, at least, support that she felt he was competent and diligent in his representation of 22 the class. That necessarily would include “knowing what is going in” with the matter. 23 Gold’s statement that she was the only one who knew what was going in with the case was 24 therefore misleading and untrue. 25 The Court does not conclude the remainder of Gold’s statement—that she was the 26 only one “who was capable of continuing with the case”—was factually misleading. That 27 statement, like her statement that “certified class counsel can’t be trusted”—is opinion, and 28 would clearly be recognized as such by any prospective client. As such, while the - 21 - 1 statements cause the Court to question the judgment of counsel uttering them in the client 2 context, they are not false or misleading for purposes of ERs 7.1 or 8.4(c). 3 Finally, the Court cannot attribute to Gold Patino’s statements to other class 4 members that those who signed up with Gold and Blackstone “would recover at least 5 $1,000 per workweek.” Patino testified that Gold never told him that, and the source for 6 his numbers was his independent research into another similar case. Importantly, upon 7 cross-examination, Noriega acknowledged that he never heard such a representation from 8 Gold and his understanding came only from Patino. (10/17/23 Hr’g Tr. at 49-51.) In his 9 argument, LaCross casts doubt upon the credibility of Patino’s assertion that Gold never 10 made such a promise. But there is no evidence detracting from Patino’s testimony on this 11 point and the Court finds it plausible at least. The Court cannot conclude on such a record 12 that Gold made a false or misleading statement guaranteeing or promising a result in the 13 matter. 14 The Court concludes that Gold did mislead some class members in her statements 15 that after she left the Saltzman firm there was no one left who knew what was going on 16 with the matter and who could and would carry it forward. It also harbors concerns about 17 the judgment Gold and Blackstone Law exercised in making some of the other statements 18 discussed above, whose utility to the class members is very questionable. Ultimately, 19 however, the Court will not disqualify Gold or Blackstone from representation of 20 individual Plaintiffs, whose right to choose their counsel in light of all information is to be 21 honored. 22 IV. CERTAIN PLAINTIFFS’ SUBSTITUTION OF ATTORNEY NOTICES 23 Plaintiffs and current class representatives Lira and Lofton, as well as Plaintiffs 24 Patino, Carter, and Rosete, have signed Substitution of Attorney forms to name Blackstone 25 Law as their counsel in this matter. Now that the Court will deny Blackstone Law’s request 26 to be named class counsel, a conflict has arisen with regard to Messrs. Lira and Lofton’s 27 roles as class representatives. Rule 23(a)(4) requires that “representative parties will fairly 28 and adequately protect the interests of the class,” which includes the requirement that the - 22 - 1 class representatives and their counsel have no conflicts of interest with other class 2 members. Evon, 688 F.3d at 1031. An inherent conflict exists between Lira and Lofton on 3 one hand, and LaCross on the other, because they are presently represented by different 4 counsel. Before the Court requires the withdrawal of Lira and Lofton as class 5 representatives, the Court will give them the opportunity to elect to be represented by class 6 counsel in this matter—the Saltzman Firm. If they decline, the Court will require their 7 withdrawal as class representatives in this matter. 8 Blackstone Law also requests that the Court order the Saltzman Firm to transmit a 9 copy of the entire case file to Blackstone Law. Because the Court will deny Blackstone 10 Law’s request to be class counsel, a transfer of the case file is only appropriate as it pertains 11 to the Plaintiffs that Blackstone Law will now represent. Once Lira and Lofton make their 12 election of counsel, the Saltzman Firm shall transmit the case files to Blackstone Law only 13 pertaining to the Plaintiffs the latter firm will represent. 14 15 For the same reason, the Court will deny Blackstone Law’s request to continue the case deadlines in this matter. 16 IT IS THEREFORE ORDERED granting in part and denying in part Blackstone 17 Law’s Motion and Application for an Order Substituting Blackstone Law as Counsel of 18 Record for Representative Plaintiffs Robert Lira and Matthew Lofton, Appointing 19 Blackstone Law as Class Counsel, Compelling Marlin & Saltzman to Transmit a Copy of 20 its Entire Case File to Blackstone Law, and Granting a Continuance of all Deadlines 21 (Doc. 291). Blackstone Law may represent any or all of the five Plaintiffs who have filed 22 Substitution of Attorney forms and who elect to remain with Blackstone Law, but its 23 Motion is otherwise denied. 24 IT IS FURTHER ORDERED denying Plaintiff Patrick LaCross’s Ex Parte 25 Motion for Issuance of a Temporary Restraining Order and Setting an Order to Show Cause 26 Why Respondents Should not be Constrained from Interfering with the Prosecution of this 27 Matter (Doc. 293). 28 - 23 - 1 2 IT IS FURTHER ORDERED that Marlin & Saltzman, LLP shall remain class counsel in this matter. 3 IT IS FURTHER ORDERED that, by February 9, 2024, Plaintiffs and class 4 representatives Robert Lira and Matthew Lofton shall notify the Court whether they elect 5 Blackstone Law, APC or Marlin & Saltzman, LLP as their counsel in this matter. If they 6 elect not to proceed represented by Marlin & Saltzman, the resulting conflict under Rule 7 23(a)(4) will require that they be withdrawn as class representatives in this matter. 8 IT IS FURTHER ORDERED that, upon the filing of Lira’s and Lofton’s election 9 of counsel, and at the latest by February 23, 2024, Marlin & Saltzman shall transmit the 10 case files to Blackstone Law only pertaining to the Plaintiffs the latter firm will represent. 11 IT IS FURTHER ORDERED that the previously set case deadlines remain in 12 effect pending entry of the Court’s forthcoming Order addressing the choice of law issues. 13 (Doc. 347.) 14 Dated this 23rd day of January, 2024. 15 16 Honorable John J. Tuchi United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 - 24 -
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