United States District Court, W.D. Virginia, Harrisonburg Division
Terry A. Riggleman, Plaintiff,
Harold Clarke and Mark Amonette, Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
a putative class action. Terry A. Riggleman
(“Plaintiff”) is a Virginia inmate who claims he
has endured cruel and unusual punishment through the Virginia
Department of Corrections' (“VDOC”) refusal
to treat his Hepatitis C infection. Before the Court is his
second motion to certify a class of fellow inmates with
Hepatitis C. Certification is inappropriate because Plaintiff
is not an adequate class representative. Fed.R.Civ.P.
Plaintiff's counsel is not adequate to handle this case
as a class action. Counsel initially failed to provide
evidence about their qualifications, experience, or financial
ability to litigate a class action-despite binding case law
placing a meaningful evidentiary burden on Plaintiff to prove
he has adequate counsel. Following a hearing on the motion,
Plaintiff's counsel did file two declarations, which the
Court has considered. Also, counsel's filings in this
case reveal a lack of substantive knowledge about class
actions and a disregard for the privacy interests of their
client. Lastly, counsel's performance in other cases in
this District evinces, among other things, a shortfall in
legal acumen and an inability to comply with basic procedural
Standard of Review
certification is a discretionary decision. EQT Prod. Co.
v. Adair, 764 F.3d 347, 357 (4th Cir. 2014). A plaintiff
trying to certify a class must (1) propose a readily
identifiable class, (2) satisfy all four requirements of Rule
23(a), and (3) satisfy at least one prong of Rule 23(b).
See id. at 358; Fed.R.Civ.P. 23(a), (b). Further,
Rule 23(g) sets out specific factors a court must consider in
appointing class counsel. Fed.R.Civ.P. 23(g)(1).
party seeking class certification must do more than plead
compliance with . . . Rule 23['s] requirements. Rather,
the party must present evidence that the putative class
complies with Rule 23.” EQT Prod., 764 at
357.; see Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011) (“A party seeking class
certification must affirmatively demonstrate his compliance
with the Rule-that is, he must be prepared to prove that
there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” (emphasis in
original)). Critically here, a “district court has an
independent obligation to perform a rigorous analysis to
ensure that all of the prerequisites have been
satisfied.” EQT Prod., 764 F.3d at 358.
Adequacy of Counsel
class certification fails if even one Rule 23 requirement for
certification is not met, the Court can proceed directly to
the one it finds most obviously lacking: adequacy of proposed
class counsel. Rule 23(a) requires that the prospective class
comply with four prerequisites: (1) numerosity; (2)
commonality; (3) typicality; and (4) adequacy of
representation. EQT Prod., 764 F.3d at 357;
Fed.R.Civ.P. 23(a). In his brief in support of the motion for
certification of a class, Plaintiff states that Rule 23(a)(4)
turns on two inquiries: (1) whether the named plaintiffs have
interests conflicting with those of absent class members and
(2) whether class counsel are competent to conduct the class
action and fairly represent the interests of the class. (Dkt.
101 at 19). At the December 20, 2018 hearing on
Plaintiff's motion to certify a class, Defendants'
counsel took no position on the adequacy of Plaintiff's
counsel to represent a class in this case. (Dkt. 115 at
2003, Rule 23 was amended, in part, by adding subsection
23(g), which governs the appointment of class counsel. Rule
23(a)(4) sets out the requirements for adequate class
representatives while Rule 23(g) and Rule 23(c)(1)(B) address
the requirements for class counsel. Bell v.
Brockett, ___ F.3d ___, 2019 WL 1848525, at *7 (4th Cir.
2019). Rule 23(g) “creates an explicit textual mooring
for the class counsel analysis[, ] but most courts continue
to employ the substantive standards generated under Rule
23(a)(4) prior to Rule 23(g)'s adoption in their analysis
of counsel's adequacy.” 1 William B. Rubinstein,
Newberg on Class Actions § 3:72 (5th ed.)
(quoted in Sharp Farms v. Speaks, 817 F.3d 276, 290
n.7 (4th Cir. 2019)).
extent Rule 23(g) governs the determination of the adequacy
of proposed class counsel, a finding of adequacy remains a
part of the certification decision. First, any order that
certifies a class action must appoint counsel under Rule
23(g), meaning that a determination of counsel's adequacy
must be made prior to entry of an order. See Fed. R.
Civ. P. 23(c)(1)(B). Second, the Advisory Committee Note to
the 2003 Amendment stated that while Rule 23(a)(4) continues
to call for scrutiny of the proposed class representative,
Rule 23(g) “will guide the court in assessing proposed
class counsel as part of the certification decision.”
Fed.R.Civ.P. 23, adv. comm. notes (2003 amendment). Third,
adoption of Rule 23(g) did not change the long-standing rule
that “[a] class action is appropriate only when
both class representatives and class counsel adequately
protect the interests of the class.” Bell,
2019 WL 1848525, at *6 (emphasis added). Thus, a finding that
proposed counsel are adequate remains a requirement of
certifying a class.
only one applicant seeks appointment, as here with respect to
Plaintiff's counsel, the court may appoint the applicant
only if the applicant is adequate under Rule 23(g)(1) and
(4). Rule 23(g)(4) provides that any appointed class counsel
must “fairly and adequately represent the interests of
the class.” Rule 23(g)(1) provides that the court must
consider (1) the work counsel has done in identifying or
investigating potential claims in the action; (2)
counsel's experience in handling class actions, other
complex litigation, and the types of claims asserted in the
action; (3) counsel's knowledge of the applicable law;
and (4) the resources that counsel will commit to
representing the class. Fed.R.Civ.P. 23(g)(1)(A). The court
may consider any other matter pertinent to counsel's
ability to fairly and adequately represent the interests of
the class. Fed.R.Civ.P. 23(g)(1)(B).
inquiry focuses on whether counsel is competent, dedicated,
qualified, and experienced enough to appropriately conduct
the litigation as a class action. See,
e.g., In re Serzone Prod. Liab. Litig., 231
F.R.D. 221, 238 (S.D. W.Va. 2005); McGlothlin v.
Connors, 142 F.R.D. 626, 633-34 (W.D. Va. 1992) (same).
“[B]ecause of the broad binding effect of class-action
judgments, serious attention is given to the adequacy of
representation of those absent class members who will be
bound by the judgment.” Wright & Miller, 7A
Fed. Prac. & Proc. Civ. § 1769.1 (Westlaw
3d ed. Sept. 2018). The “inquiry into the adequacy of
class counsel” is of “extreme importance.”
Evidence about Qualifications of Counsel
the plaintiff's burden to demonstrate compliance with
Rule 23. EQT Prod., 764 F.3d at 358; see
Wal-Mart, 564 U.S. at 350 (requiring plaintiff to
“affirmatively demonstrate” compliance with Rule
23 “in fact”). ...