The Tampa Bay Buccaneers were sued in five different putative class actions for alleged TCPA violations. One of those cases was filed by lawyers at Anderson & Wanca, on behalf of Medical & Chiropractic Clinic, Inc. A mediation was conducted but it was unsuccessful. Shortly thereafter, David Oppenheim, the attorney at Anderson & Wanca who was principally involved in the mediation, jumped ship to join the Bock Law Firm. Within a month, the Bock Firm filed a separate class action against the Buccaneers raising the same TCPA claims, and within two months of filing, a proposed class settlement was reached.
After Medical & Chiropractic and others (‘the Cin-Q Intervenors’) were permitted to intervene, the court granted their motion to decertify the settlement class, after finding that (i) class counsel may have undercut Cin-Q’s counsel’s negotiating position, and (ii) unlike the Cin-Q plaintiffs, the settling plaintiffs’ claims were potentially barred by the statute of limitations.
In the meantime, Anderson & Wanca encouraged Medical & Chiropractic to sue the Bock Firm in State Court alleging that they had breached fiduciary duties owed to it as a named class representative. They claimed that Oppenheim gave attorneys at the Bock Firm confidential information about settlement negotiations in the previous class action which assisted the Bock Firm in settling their class action quickly and to the detriment of the class. The case was removed, summary judgment was granted, and the Eleventh Circuit affirmed dismissal of the breach of fiduciary duty claims on appeal.
“The parties all agree that, as putative class counsel, Oppenheim owed fiduciary duties to the class as a whole. But, that is not the issue we must address. M&C does not argue (at least in this case) that Oppenheim violated a duty owed to the class. Rather, M&C and Wanca assert that Oppenheim owed a heightened fiduciary duty to M&C as a putative class representative. Therefore, in evaluating this claim, we must first determine whether class counsel owes a fiduciary duty to class representatives that is distinct from the fiduciary duty owed to the class. We conclude class counsel does not….
“M&C relies heavily on rules and decisions from outside the class action context. But class actions, wherein lawyers represent absent parties, involve different considerations than cases in which counsel is actually retained by a client (or multiple clients).”
The attorney-client relationships in class actions are unique because (1) the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and (2) the class itself often speaks in several voices. Because of this unique attorney-client relationship, counsel in class actions have different ethical duties to their clients than in ordinary cases. As an illustration of that difference, the court held in Kincade v. General Tire & Rubber Co., 635 F.2d 501 (5th Cir. 1981) that cases “holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable” to class actions.
“One cardinal rule defines the scope of counsel’s ethical obligations in class actions: class counsel owes a duty to the class as a whole and not to any individual member of the class. Applying this rule, courts like Kincade have rejected attempts by class members to derail settlements beneficial to the class. But, an important corollary stems from this principle: class counsel does not owe a particular duty to any group comprised of class members, such as class representatives, distinct from the duty owed to the class. To hold otherwise would threaten one of the defining purposes of class actions – the consolidation of claims into one suit where a class of plaintiffs may speak with one voice. If courts required class counsel to give special ethical considerations to class representatives (or any other subset of the class), the remaining class members would necessarily receive reduced ethical considerations in comparison. And, in cases where the interests of the class representative diverge from the interests of class members, class counsel would be required to choose the interests of some class members over the rest of the class. Such outcomes could splinter class actions, lead to costly litigation between class members, and encourage class members to opt-out….
“The absence of a traditional attorney-client relationship between Oppenheim and M&C, the unique relationship between class counsel and class representatives, and application of our Kincade precedent all lead us to affirm the district court’s ruling. However, we are obliged to make one additional observation. M&C’s filing of this suit in state court against Oppenheim and the Bock Firm strikes us as an attempt to end run around the TTA court, which was solely responsible for making all Rule 23 determinations related to the Bock Firm’s requests to certify a class and approve a class settlement. Rule 23 makes clear that the district court in which a class action is filed operates as a gatekeeper. It is that court, and that court alone, that has the task of deciding a number of Rule 23 questions, including whether to certify a class, whether to appoint class counsel, and whether to approve a proposed class settlement….
“M&C and Wanca may contend that their substantive objections were valid. After all, once M&C was permitted to intervene, the district court eventually decertified the class and rejected the settlement. But, that is precisely the point. It is emphatically the role of the district court to address those matters, for it is the only forum in which such a challenge should have been launched – certainly not a different court. So, regardless of the merits of the objections, M&C crossed a line by attempting to litigate them in another court.”
Medical & Chiropractor Clinic v. Oppenheim, 981 F.3d 983 (11th Cir. 2020).