Judge Appoints Class Counsel in Shop-Vac MDL

(CN) - Three New York law firms will represent consumers who claim that Shop-Vac misrepresents the horsepower of its vacuums, a federal judge ruled.

Shop-Vac wet-dry vacuums allegedly contain high horsepower motors capable of lifting debris heavier than what a conventional vacuum would be expected to lift.

Claiming that their Shop-Vacs failed to deliver, however, numerous consumers across the country have filed class actions against Shop-Vac or Lowes.

Six separate cases in federal and state courts in New Jersey and California were filed between February and May 2012 by plaintiffs with represented from as the Milberg Group - namely, Milberg LLP, Lax LLP, Faruqi & Faruqi LLP, and Reese Richman LLP, all of New York; Dilworth Paxson LLP of Pennsylvania, Lite DePalma Greenberg LLC, and Pinilis Halpern LLP, all of New Jersey; and Baron & Herskowitz of Florida.

After two of those actions were voluntarily dismissed, several other plaintiffs initiated actions in various federal courts across the country. These plaintiffs are represented by Pennsylvania-based attorneys known as the Schaffer Group - namely, Charles Schaffer of Levin Fishbein Sedran & Berman and J. Christopher Munley of Munley, Munley & Cartwright.

The Judicial Panel for Multidistrict Litigation started transferring the actions to the Middle District of Pennsylvania in August 2012.

Plaintiffs Alan McMichael, Andrew Harbut, Clay Scott and Scott Mahoney moved to appoint the Milberg Group as interim counsel on Aug. 24.

But plaintiffs Emanuele DiMare, Deborah Blaylock, Igor Selizhuk, Fred Phillips, Charles Kates and Walt Lavespere argued that the Schaffer Group deserved the appointment.

After holding a hearing, Chief U.S. District Judge Yvette Kane granted the Milberg Group's motion and denied the Schaffer Group's motion on Thursday.

Kane found that both groups meet most requirements for putative class counsel.

"Both groups of attorneys have demonstrated significant experience in handling class actions, including MDLs (multidistrict litigations). Both groups of attorneys appear to have a strong command of the applicable law," the judge wrote. "Moreover, the court is satisfied that both groups of attorneys have significant resources that they are willing to commit to representing the putative class. Furthermore, the court is confident that either group would aid the court in achieving efficiency without jeopardizing fairness to the parties."

The Milberg Group best fits the bill, according to the ruling.

"The court finds that the expertise, organization, and leadership ability demonstrated by the Milberg Group renders it most qualified to further the interests of all putative class members," Kane wrote. "The Milberg Group has conducted thorough and extensive pre-filing investigation and testing of the potential claims and initiated legal action months in advance of other applicants."

The Schaffer Group failed to convince the court that it completed comparable investigative work.

"Whereas the Schaffer Group asserts that it began researching small motor claims in late 2011, and began considering claims against wet/dry vacuum manufacturers as early as March 2012, the Milberg Group had already initiated claims as early as February 2012," according to the six-page ruling.

The court tossed aside the Schaffer Group's argument that it has the support of a majority of the plaintiffs and law firms involved in the case.

"Other courts have noted that appointment of counsel 'is not supposed to be a popularity contest, and the number of attorneys supporting a given candidacy is not included among the factors set forth in Rule 23(g)," Kane wrote. "Because application of the factors listed in Rule 23(g) supports the appointment of the Milberg Group's suggested leadership structure, the court will grant the Milberg Group's motion."

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