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Orders Highlight Need for Diversity in Appointing Class Counsel

By Duchess Harris, Litigation News Associate Editor – December 1, 2010

A federal district judge received considerable attention from litigators around the country as a result of two orders focusing on the need for law firms to assign minority and female lawyers to work on their cases.

Diversity Requirement for Class Counsel
U.S. District Judge Harold Baer, Jr., of the Southern District of New York, initially issued an order [PDF] describing certain diversity requirements for counsel seeking to be appointed as class counsel. The order was issued in response to an unopposed motion for preliminary approval of a proposed settlement of the In re Gildan Activewear Inc. Securities Litigation.

Judge Baer required class counsel to “make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience.” He made this a requirement because the proposed class included thousands of participants “both male and female, arguably from diverse backgrounds.” He planned a preliminary approval hearing to assess counsel’s “compliance with the diversity requirement.”

The proposed class action counsel responded strongly to the order and defended their firms’ diversity programs and policies. In response, Judge Baer issued a subsequent order [PDF] making it clear that his prior order should not be read as “expressing a specific factual view” about the counsel in the case or “critical in any way” of their firms’ diversity efforts. He also noted that the submissions by the firms had “demonstrated their commitment to minority and diversity hiring.” In both orders, Judge Baer mentioned his 2007 order in another case, In re J.P. Morgan Chase Cash Balance Litigation, that imposed similar diversity requirements for class counsel in that case.

Creative Approach to Issues of Diversity
Judge Baer’s orders are “creative” and should help to ensure that the courts recognize diversity as a factor that can and should be considered in making court appointments, says Roberta D. Liebenberg, Philadelphia, PA, cochair of the ABA Section of Litigation’s Special Committee on Multi-District Litigation. “Judge Baer’s effort to increase opportunities for women and minority lawyers to serve as lead counsel in representing plaintiff classes should be applauded,” she says. “He correctly recognizes that just as class members are diverse, their lead counsel should be, too.”

Lucia E. Coyoca, Los Angeles, CA, cochair of the Section of Litigation’s The Woman Advocate Committee, believes that Judge Baer’s orders implicitly recognize that the best way to achieve diversity in the legal profession is to ensure that diverse lawyers are given the opportunity to participate in the economics of modern litigation. In her view, lawyers with the ability to generate business are the lawyers who are economically rewarded by their firms and advance in partnership ranks.

Further, Coyoca notes, “clients make decisions about who will speak for them at court hearings based on the lawyers’ relationship with judges. With the predominance of white, male judges, that can mean that white, male lawyers are more often selected as spokespeople.”

Where to Draw the Line?
Although many laud the court for encouraging diversity in appointing class counsel, some, like Raymond B. Kim, Santa Monica, CA, a member of the Section’s Diversity Committee, wonder exactly where the line is drawn. “For example, this order does not state that class counsel should ‘make every effort’ to also include [lesbian, gay, bisexual, or transgender] lawyers. Neither does it mention lawyers with disabilities. Presumably, the class would include members with such backgrounds and characteristics as well,” adds Kim.

Keywords: litigation, diversity, class counsel

Related Resources

  • » In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (S.D.N.Y. 2007).
  • December 9, 2010 – I think Juge Baer is going too far. Shouldn't the primary concern be to find the best representation possible for the class regardless of race, gender, sexual preference, etc.? Whatever happened to putting the client first? For a federal judge to mandate that class counsel "make every effort" to assign work to "at least one minority lawyer and one woman lawyer" is certainly not in the best interests of the class if those lawyers are not the very best that prospective class counsel can offer. I also suggest that in the vast majority of cases the race/gender/ethnic background composition of the class has little or nothing to do with selecting the lawyers who are best qualified to serve as class counsel - and in the unlikely event that it does become a factor in a particular class action, shouldn't class counsel have the flexibility to figure out when and if it's necessary to add an attorney with a particular race/ethnic/gender background to facilitate interaction with members of the class? Finally, the "make every effort" language sounds discretionary, but federal judges know exactly what they're signalling when they issue orders like this - especially when they schedule a preliminary approval hearing to assess counsel s compliance with the diversity requirement. It simply means "do it or you don't have a prayer." I think this well-intentioned order ignores the interests of the class in favor of the Judge's own social engineering objectives. From my perspective, that's a bad thing.

  • June 16, 2011 –From your perspective, all of that may be true. But what about from the perspective of attorneys of color and curves that have to endure the fact that class actions are dominated Good Ol' Boy clubs—and all of the Good Ol' Boys just happen to be white. From my perspective, State Bars across the County should stop admitting white male lawyers because, quite honestly, there are already way too many of you practicing.


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