Free Order - District Court of Delaware - Delaware

Case 1:04-cv-01488-JJF Document 27 Filed 10/31/2005 Page1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT V. TOWNES, IV, :
individually and on behalf of :
of all others similarly :
situated, :
Plaintiffs, E
v. i Civil Action No. O4-1488-JJF
TRANSUNION, LLC and TRUELINK, E
LLC, :
Defendants. Z
M MORANDUM ORDER
Pending before the Court are Plaintiff’s Motion For
Appointment Of Interim Counsel (D.I. 10) and a Stipulation And
Order allowing an extension of time for Defendant’s response to
Plaintiff's Motion (D.I. 18). For the reasons discussed,
Plaintiff’s Motion For Appointment Of Counsel (D.I. 10) and the
Stipulation And Order (D.I. 18) will be granted.
I. Background
On December 1, 2004, Plaintiff filed a Complaint on behalf
of himself and all others similarly situated, alleging violations
of the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seg.
(D.I. 1). Specifically, Plaintiff alleged that Defendant is a
“credit repair organization" and that it failed to (1) request
payment only once its services were performed, (2) provide
disclosures required by 15 U.S.C. § 1679c, (3) provide a written
contract containing terms as required by 15 U.S.C. § 1679d, and

Case 1:04-cv-01488-JJF Document 27 Filed 10/31/2005 Page 2 of 4
(4) provide a cancellation form and information pertaining
thereto as required by l5 U.S.C. § l679e. (Lg. at l-2). On
March l0, 2005, Plaintiff filed a Motion requesting that the
Court appoint the law firms of Milberg Weiss Bershad & Schulman,
LLP and Pope, McGlamry, Kilpatrick, Morrison, & Norwood, LLP as
interim counsel under Federal Rule of Civil Procedure
23(g)(2)(A). (D.l. l0). A Stipulation And Order allowing an
extension of time for Defendant’s response to Plaintiff’s Motion
was filed March 2l, 2005. (D.l. 18). Defendants filed a
proposed response to Plaintiff's Motion on March 24, 2005. (D.I.
r
II. Parties' Contentions Q
By its Motion, Plaintiff contends that the appointment of
interim counsel would be help§ul because it would “establish
leadership, unify plaintiffs’eapproach to class certification,
avoid duplication or conflict, and ensure appropriate and
competent representation for the proposed class.” (D.I. ll at
3). Plaintiff contends that interim counsel will be particularly
helpful due to the pendency of a similar lawsuit in the Northern
District of Alabama, Rosser v. TrueLink, Inc. and Trans Union,
LLC, No. 2:05—cv—00245—LSC. Lg.
ln response, Defendant contends that Plaintiff’s reasons for
requesting the appointment of interim counsel have been
eliminated because the Rosser case has been voluntarily
2

Case 1:04-cv-01488-JJF Document 27 Filed 10/31/2005 Page 3 of 4
dismissed. However, while noting that these reasons have been
eliminated, Defendants “recognized the potential efficiency and
other benefits to having one law firm represent the interests of
the putative class" and suggested that two attorneys from one
firm be appointed. (D.I. l9 at 2).
III. Discussion
Federal Rule of Civil Procedure 23(g)(2)(A) provides that
“[t]he Court may designate interim counsel to act on behalf of
the putative class before determining whether to certify the
action as a class action.” Fed. R. Civ. P. 23(g)(2)(A). While
there is no pertinent case law on this provision,l the 2003
Advisory Committee’s Note offers some guidance to the courts as
to when it is appropriate to appoint interim counsel.
The 2003 Advisory Committee's Note provides that, in most
situations, the attorney or firm that initially filed the case
will handle motions, discovery, and other matters prior to class
certification.2 Fed. R. Civ. P. 23(g) advisory committee's note.
The rule recognizes, however, that “there may be rivalry or
uncertainty that makes formal designation of interim counsel
appropriate." Ig. In such cases, a court may appoint interim
'Rule 23(g) was added in 2003 to “guide [courts] in
assessing proposed class counsel as part of the certification
decision.” Fed R. Civ. P. 23(g) advisory committee's note.
2The Court is not required to appoint lead counsel until the
class is certified. §ee Fed. R. Civ. P. 23(c)(l}(B).
3

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counsel prior to class certification to eliminate such rivalry or
uncertainty. See Ig.; Fed. R. Civ. P. 23(g)(2)(A).
The Court concludes that it is appropriate, in the
circumstances presented, to exercise its discretion and appoint
the firms of Milberg Weiss Bershad & Schulman, LLP and Pope,
McGlamry, Kilpatrick, Morrison, & Norwood, LLP as interim counsel
for the putative class. The Rosser lawsuit, which was pending in
the Northern District of Alabama, was voluntarily dismissed
without prejudice (D.I. 19, exhibit A), and therefore, may be
brought again, leading to the same leadership and unity issues
cited by Plaintiff. Additionally, the Court has already ordered
the admittance pro gag gigs of several attorneys from the firms
Plaintiff seeks to have appointed as interim counsel.
Accordingly, the Court will grant Plaintiff’s Motion For
Appointment Of Interim Counsel (D.I. l0).
QQQE
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion
For Appointment Of Interim Counsel (D.I. 10) is GRANTED.
Furthermore, the Stipulation And Order allowing an extension of
time for Defendant’s response to Plaintiff’s Motion (D.I. 18) is
GRANTED.
he _ - . - ·--·~ .
October 2005 4= Eg
UNIiED "AT-S DISTRICT‘JUDGE