Luck Of The Transfer?: Curtailing Courts’ Impact on Class Members’ Legal Representation

Alissa del Riego[*]

Abstract

The judge assigned to a class action case impacts the legal representation class members receive. When multiple attorneys seek to represent class members in a litigation, Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys best able to represent class members’ interests. Courts, however, have little guidance and much discretion in determining which attorneys would best represent the class, resulting in a process that allows judicial preferences and biases to factor into class counsel appointment decisions. Class action attorneys often forum- and judge-shop in hopes of obtaining a “lucky” draw or transfer—a court that will not only be sympathetic to class members’ claims but also more likely to appoint the attorney to represent the class. But are attorneys correct in assuming their odds of serving as class counsel vary depending on the court to which a litigation is assigned or transferred?

This Article empirically examines class action cases transferred to various courts to determine whether certain courts are more likely to appoint certain attorneys to represent class members. Pointedly, the data reveal that female attorneys experienced lower success rates than male attorneys before Republican-appointed courts. Conversely, male attorneys experienced lower success rates before racially diverse courts and Democrat-appointed courts. The court presiding over a matter also impacted attorneys’ class counsel bids. Male attorneys, for example, formed a greater percentage of the applicant pool when a court was male or White. The judge to whom a class action is assigned or transferred therefore impacts class members’ legal representation, either due to courts’ preferences or class attorneys’ (correct and incorrect) perceptions of courts’ preferences. This Article thus proposes implementing a class counsel rubric system that, in addition to assigning specific weight to criteria courts must and may consider when appointing counsel under Rule 23, assigns significant weight to class members’ evaluations of counsel. Employing a rubric that assigns distinct numerical values to class members’ attorney preferences and other factors courts presently consider will increase the objectivity of class counsel appointments, temper courts’ wide discretion, eliminate siloed decisionmaking, and provide class members with legal representation that better aligns with their interests and needs.

I. Introduction

What better person to choose an attorney for a legal client in a litigation than a legal expert—a federal judge? Or even better, the judge who will preside over the client’s case? This occurs in federal class action cases when multiple attorneys seek to represent class members. Rule 23(g) of the Federal Rules of Civil Procedure requires that the court presiding over the litigation appoint the attorney or group of attorneys that will best represent the interests of the class.¹ But what if the court to which the litigation was assigned or transferred has particular preferences or biases that are not shared by class members? Or what if one or more of the attorneys seeking to represent class members believes or is told that the court is biased against them and abandons putative class members? Rule 23(g) provides judges with four seemingly objective factors they must consider when determining which counsel is best for the class: the attorney’s work on the case to date, relevant experience, knowledge of the relevant law, and resources.² The judge applying these factors should not, in theory, impact or change the attorney(s) chosen to represent the class. But it does.

To curtail courts’ discretion and impact on class members’ representation, this Article proposes employing a class counsel evaluation rubric that assigns significant weight to class members’ evaluations of the attorneys seeking to represent them. It also provides a sample rubric in the Appendix. But before prescribing a rubric, this Article explains why a rubric is necessary. Pointedly, it explains why a court’s appointment of class counsel is presently an inherently subjective process; how individual class counsel applicants perceiving it to be a subjective appointment process forum and judge shop in order to improve their chances of appointment; and whether, in practice, courts evaluate class counsel applicants similarly. Specifically, the Article empirically tests whether courts have certain preferences or biases that impact the attorneys they choose to represent class members, and whether class-action attorneys correctly perceive these biases and preferences. Despite increased interest in the once-vast gender and racial disparity in class counsel appointments,³ there are no clear answers.

Only a few studies have broached the topic, and most conclude that the court to which a class litigation is assigned or transferred does not impact the attorneys appointed to represent the class. One study, which looked at all multidistrict litigation (“MDL”) leadership appointments in both class and non-class-action cases from 2011 to 2016, found no relationship between the gender of the judge presiding over the MDL and the rate of female attorneys appointed to lead the case.⁴ Another more recent study that looked at certain class-action MDLs from 2012 to 2022 found that female attorneys held roughly the same percentage of class counsel positions as the percentage of class counsel applications they filed, suggesting courts had no gender preferences or biases.⁵ But the study admittedly did not look at whether courts’ genders, political affiliations, or races and ethnicities impacted the percentages of appointments, applications, or success rates.⁶ A study of all auto-defect class-action MDLs from 1977 to 2020,⁷ however, found class counsel differences across courts. Specifically, it found that (perhaps surprisingly) male courts, Democrat-appointed courts, and racially diverse courts historically had a greater percentage of female attorneys and racially diverse attorneys serving as class counsel.⁸ But this study did not consider whether judges were affirmatively choosing from a diverse applicant pool or were instead simply appointing the attorneys that applied. The study was also limited to a narrow category of class-action cases and included fewer than ten cases from the previous decade, which provides little reliable insight into the class counsel environment today. This Article seeks to fill the data gaps from past studies and provide a clearer narrative of courts’ class counsel appointment decisions.

This Article gathers data from all products-liability, deceptive-marketing-and-sales-practices, data-breach, and privacy class actions consolidated and transferred by the Judicial Panel for Multidistrict Litigation (“JPML”) to a district court between 2012 and 2022. From these district court dockets, the data gathered included the district court judge to whom the class litigation was transferred; the attorneys that applied to serve as class counsel, whether as lead counsel or as part of either a plaintiffs’ steering committee or plaintiffs’ executive committee (collectively referred to here as lead plaintiff committees, “LPCs”) (collectively, “class counsel”); and the attorneys ultimately appointed to serve as class counsel. The dataset included more than 1,500 class counsel applications filed by hundreds of attorneys for roughly 700 class counsel positions. The data were analyzed to determine whether the courts’ identity impacted the attorneys appointed to represent the class. Judges were divided into three overlapping categories: (1) gender; (2) political party of the President that appointed them to serve on the federal district court bench; and (3) race/ethnicity. Attorneys were divided into gender categories.

The findings suggest that a federal judge’s gender and race/ethnicity impacted the attorneys who applied (or did not apply) to serve as class counsel, and a judge’s political appointment and race/ethnicity impacted the success rates of attorneys’ class counsel bids. Female courts, Democrat-appointed courts, and racially diverse courts appointed a greater percentage of female attorneys to serve as class counsel than male courts, Republican-appointed courts, and White courts.⁹ In most instances, however, these higher appointment rates correlated with greater application rates by female attorneys before these courts. Only before Republican-appointed courts did female attorneys experience success rates more than 25% lower than male attorneys. Conversely, male attorneys applying to represent classes fared worse than their female colleagues before racially diverse courts and Democrat-appointed courts. These seemingly disparate outcomes are problematic for myriad reasons, but, importantly, class members should not be saddled with counsel that reflects courts’ biases or preferences—they are legally entitled to the class counsel applicant best able to represent their interests.¹⁰

While the data gathered only permitted exploring judges’ potential gender preferences, the findings herein have broader implications. For example, the findings suggest class action attorneys perceive certain judges as more likely to appoint them as counsel than other judges, which could explain the forum-shopping tactics that class action attorneys sometimes engage in.¹¹ Class action attorneys may also try to eliminate competition by convincing other attorneys interested in representing the class to withdraw their bids, which is an effective means to ensure appointment. Indeed, about half (46.5%) of the class actions discussed herein saw no competition for any class counsel positions.¹² This lack of public competition seemingly benefitted male candidates, who held a greater percentage of positions (roughly 3% more) on pre-selected class counsel teams than court-chosen class counsel teams.

Given that some courts have preferences—and that some attorneys attempt to exploit them—what should be done? To reduce the impact of courts’ discretion, this Article proposes the adoption of a rubric that aims to objectively evaluate class counsel applicants by assigning specific values to Rule 23(g)’s mandatory and permissible considerations, as well as to class members’ evaluations of class counsel candidates. The Article also provides a sample rubric in the Appendix. The rubric, which would be publicly disclosed before attorneys applied to represent the class, would assign calculable values to each of Rule 23(g)’s factors and class members’ evaluations of counsel, thereby providing courts with a tool to evaluate class counsel applicants in a more objective manner. Including a sufficiently representative sample of absent class members’ evaluations of counsel, in addition to preventing siloed decisionmaking, follows the momentum of a small-but-growing body of scholarship that recognizes class members need no longer be “absent” from class litigation.¹³ Advances in technology and computer science have now made possible the task of including thousands, if not millions, of individuals in litigation decisions.

This Article proceeds in four main parts. Part II provides a theoretical basis for the adoption of the class counsel applicant rubrics proposed in Part V. It discusses why courts’ class counsel appointment decisions are subjective in nature. Specifically, it discusses the subjective objectivity of legal consumers’ evaluation of attorneys; the mandatory and permissible Rule 23(g) considerations courts apply when evaluating counsel; and judges’ decisionmaking and factfinding in other areas of law where the gender, political leanings, and race/ethnicity of a court have been found to impact legal outcomes.

Part III accepts Part II’s premise that class counsel appointment decisions are subjective and focuses on class action attorneys’ strategic maneuvers to improve their perceived chances of a “lucky” judge assignment or transfer. It explains how class action cases are initially assigned, consolidated, and transferred to specific judges, noting that while some luck is involved, said luck can be forged by the attorneys in the case. Such luck, however, should not matter if courts are objectively and uniformly evaluating the attorneys who apply to represent class members when making appointment decisions. If courts are not objectively evaluating class counsel applicants, Part III provides additional grounds to implement the more objective rubrics proposed in Part V.

Part IV thus seeks to determine empirically whether the court to which an action is assigned or transferred impacts the attorneys appointed to represent class members. The findings suggest it does. Some courts seem to have class counsel preferences, and class counsel applicants appear (sometimes correctly and sometimes incorrectly) to perceive those preferences in deciding whether to apply as class counsel before a particular court or not. Collectively, these judicial preferences and perceived judicial preferences impact the attorneys appointed to represent class members.

Given Part IV’s findings, Part V makes a clear and practical recommendation: the adoption of objective class counsel rubrics that incorporate class members’ evaluations of prospective class counsel. Part V explains how the rubrics would be practically employed within Rule 23(g)’s current framework; provides the categories and items forming the rubrics; proposes quantifiable values for each; and addresses potential drawbacks associated with the rubrics. A sample rubric courts may adopt or modify is discussed and provided in the Appendix.

Class members’ legal representation in class litigation should not be left to luck or self-interested attorneys’ strategic maneuvers. Instead, the quality of class members’ legal representation should be objectively evaluated, not only by courts but also by class members—the ultimate legal clients. Adoption of class counsel evaluation rubrics that assign considerable weight to class members’ class counsel preferences curtails courts’ unfettered discretion to appoint counsel and is a significant step towards removing judicial bias from class counsel appointments. More importantly, class counsel evaluation rubrics provide class members with a voice and role in litigation meant to represent, protect, and further their interests.

II. Appointing Class Counsel: An Objective Or Subjective Endeavor?

Legal clients are motivated for obvious reasons to hire the best legal counsel, and federal courts are also similarly motivated to appoint the best attorneys to represent class members. This is true for a few reasons. First, when multiple attorneys seek to represent the class, the Federal Rules of Civil Procedure require courts to choose the best attorney or combination of attorneys to represent the class.¹⁴ This mandate, along with others in class litigation, puts courts in a fiduciary role of protecting class members’ interests¹⁵ and compels them to appoint the best attorneys. Second, and more practically, the court will preside over the litigation, which further motivates it to choose competent, responsible, and trustworthy counsel who will save it and its clerks from the headaches of presiding over a case with less-qualified attorneys. This would seem to suggest that courts uniformly appoint the same attorneys to serve as class counsel.

Two existing studies seem to support this conclusion. One study that looked at all MDLs (including those asserting non-class claims) transferred by the JPML between 2011 and 2016 concluded that a court’s gender did not impact the rate of female attorneys appointed to lead the cases.¹⁶ In other words, male courts and female courts appointed a similar percentage of female attorneys to lead MDLs. This study, however, included several non-class action cases, in which courts consider different criteria than those required under Rule 23(g). Moreover, the study did not consider the applicant pool in each MDL, meaning it could not comment on whether courts were proactively choosing counsel or whether the attorneys came to an earlier agreement as to the legal team that would lead the MDL.

A recent 2024 study, however, gives this earlier study’s findings more credence. The 2024 study looked at over one hundred class actions transferred by the JPML between 2012 and 2022, as well as the attorneys that applied to serve as class counsel in those litigations. The study found that, across various time periods, the percentage of male and female attorneys appointed by courts correlated closely with the percentage of male and female attorneys in the applicant pool.¹⁷ The study thus concluded that courts did not appear to discriminate against female attorneys, who were just as likely, if not more likely than, male attorneys to be appointed by courts to serve as class counsel.¹⁸ But this study admittedly did not look at individual applicant pools or divide courts by gender, political appointment, or race/ethnicity.¹⁹

There is some research, however, that suggests that the court to which a class action is assigned or transferred impacts the attorneys appointed to represent the class. A 2022 study that looked at auto-defect class action cases consolidated by the JPML from 1977 to 2020 found that a court’s gender, political appointment, and race/ethnicity did seem to affect its class counsel appointments.²⁰ Pointedly, it found that female judges, White judges, and Republican-appointed judges had fewer female attorneys serving as class counsel in the cases over which they presided than male judges, Democrat-appointed judges, and racially diverse judges.²¹ The study also found that racially diverse courts and Democrat-appointed courts were more likely to appoint racially diverse attorneys to serve as class counsel.²² But this 2022 study was based on a relatively limited dataset (roughly fifty litigations) that only involved one type of class case. Most importantly, it did not look at any data regarding the class counsel applicant pool, meaning it did not consider whether courts actively chose the attorneys appointed or adopted the attorneys’ agreed-upon class counsel slates.

Considering these studies’ seemingly inconsistent findings, Part I focuses on three rationales supporting the premise that the court to which a class case is assigned or transferred impacts the attorneys appointed to represent class members: the subjective objectivity of evaluating an attorney; the subjective objectivity of Rule 23(g); and the subjective objectivity of courts’ decisionmaking in other instances, including class cases. As used herein, subjective objectivity is meant to highlight the subjective nature of seemingly objective decisions and criteria.

A. The Subjective Objectivity of Evaluating Counsel

Undoubtedly those seeking legal representation want to hire the best legal counsel they can afford. But what constitutes the best? What characteristics are legal clients looking for in an attorney? Do all legal clients or class members feel the same? A few studies suggest that while some consensus exists amongst legal clients’ preferences, not all legal clients prioritize the same qualities in counsel,²³ even in the same case.²⁴ Moreover, even when clients do prioritize the same qualities, they may still choose different attorneys.²⁵ A client’s decision to hire one attorney over another is thus influenced by a subjective assessment of the attorney.

Pointedly, in a recent article, Professors Alissa del Riego and Joseph Avery surveyed participants as prospective class members in three existing class action cases (a products-liability, a data-breach, and a privacy class action) regarding the counsel they would like to represent them and other class members.²⁶ The study provided short descriptions of the attorneys who applied to represent class members, including those ultimately appointed by the court.²⁷ The attorney descriptions were taken from the materials the attorneys submitted to the court in their class counsel applications.²⁸ Encouragingly, respondents across all three cases claimed to value many of the same criteria that courts consider under Rule 23(g), such as experience, knowledge of the law, and commitment to the litigation.²⁹ But the study’s most interesting finding was that, despite claiming to value the same criteria, most participants across all three studies chose different attorneys to represent them than those chosen by the court. Participants did not uniformly agree on alternative counsel either.³⁰

Legal clients (and courts) may also have subconscious preferences beyond those they explicitly claim to consider. While Professors del Riego and Avery’s class-member study did not find a significant difference between female participants choosing female attorneys and male participants choosing male attorneys, gender did factor into at least a few participants’ decisions.³¹ One participant transparently explained that she liked a female attorney’s qualifications equally with those of another male attorney’s “but I would choose her because she is a woman.”³² Another participant suggested that he chose one attorney because “he is a man.”³³ Similarly, a Black class member in a recent class litigation indicated he wanted at least one of the attorneys representing him and other class members to be Black.³⁴

Attorneys also seemed to have biases towards or against certain clients, at least in the criminal defense context. One study, for example, found that White defense attorneys demonstrated bias against Black clients.³⁵ Another study showed that criminal defense attorneys recommended more severe sentences in plea bargains for Black clients than White clients.³⁶ A different study demonstrated that female jurors found female attorneys less credible than male attorneys.³⁷ Studies focusing on political representation have shown constituents prefer to be represented by those of their own gender and race.³⁸ These studies collectively seem to suggest that determining who the “best” attorney or legal team is involves decisionmaking based on a subjective, nonuniform evaluation of counsel.

B. The Subjective Objectivity of Rule 23(g)

Rule 23(g) was adopted in 2003 to provide courts “a framework for selection of class counsel,”³⁹ but the Rule affords courts with “substantial flexibility,”⁴⁰ permitting courts to weigh the Rule’s criteria and consider other matters pertinent to counsel’s ability to adequately represent class members when deciding which attorneys are “best able to represent the interest of the class.”⁴¹ Rule 23(g)(1)(A) requires courts to consider four seemingly objective criteria: “(i) the work counsel has done identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.”⁴² But these factors are difficult to assess objectively and comparatively.

The Advisory Committee notes discussing Rule 23(g)(1)(A) recognize courts’ wide discretion and instruct them to weigh all factors, as no single one should be determinative.⁴³ Caselaw interpreting Rule 23(g)(1)(A) is also not particularly instructive, as the majority of courts issue appointment orders without extensively discussing the Rule.⁴⁴ Courts thus have little guidance on how to evaluate attorneys comparatively. For example, what if, amongst the pool of class counsel applicants, there was one attorney with unlimited resources, another with offices in the jurisdiction where the case was pending, another that engaged various industry experts prior to filing her complaint, and another that had ten years of class litigation experience? Who is the “best” counsel? Courts are left to prioritize Rule 23(g)’s mandatory adequacy factors as they subjectively see fit.

Most courts give the greatest weight to counsel’s experience when making appointment decisions because counsel’s experience is more easily quantifiable and identifiable.⁴⁵ Courts typically look at counsel’s prior appointments and successes in prior similar litigation.⁴⁶ But these factors may also prove difficult to evaluate objectively, as a large settlement in a case with a large class is not necessarily indicative of a successful litigation. Facts in a particular past case could have made success in the case a foregone conclusion, while other litigation could have involved less-optimal paths for establishing liability or damages. And how would courts compare counsel with experience serving as lead counsel in three data-breach class actions with counsel serving as lead counsel in two data-breach class actions and on an LPC in three data-breach class actions? Presently, there is no objective way to comparatively evaluate varying types of experience.

To add greater discretion to the court’s subjective evaluation of counsel, Rule 23(g)(1)(B) permits courts to “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”⁴⁷ Courts have therefore considered, amongst other things, prospective counsel’s billable rate or the percentage of any settlement they would seek in fees;⁴⁸ the level of support counsel received from other attorneys in the litigation;⁴⁹ and the level of diversity counsel would bring to the legal team.⁵⁰ When courts discuss these additional factors, the weight they give them is far from clear.⁵¹ They may be tiebreakers or may be considered more heavily. Justice Alito has warned that “deviation from the criteria set out in [Rule 23(g)(1)(A)] may give rise to suspicions about favoritism,”⁵² but it is difficult to even determine whether any deviations take place, as courts rarely explain their appointments in detail. In sum, courts presently have seemingly unfettered discretion when evaluating and appointing class counsel, which is not subject to meaningful appellate review.⁵³

C. The Subjective Objectivity of Judicial Decisionmaking

Putting on a judicial robe does not extinguish an individual’s subconscious (or conscious) preferences or biases. “One of the central questions at the intersection of law and political science,” as at least a few scholars have put it, “is to what extent judges’ personal characteristics influence their judicial behavior.”⁵⁴ Indeed, the Supreme Court has endured much criticism of late for its alleged lack of impartiality,⁵⁵ and public views of the Court have hit record lows.⁵⁶ While some studies conclude a judge’s personal characteristics rarely impact their legal interpretations or factfinding,⁵⁷ several other studies suggest otherwise.⁵⁸ This section discusses existing research on the impact of gender, politics, and race/ethnicity on judges’ decisionmaking. Research on judicial partiality has traditionally focused on criminal sentencing, civil discrimination, and harassment, but is expanding to the class action context, where it has been found to impact outcomes in litigation.

Specifically, in a 2023 study on appellate courts’ review of class certification decisions from 1967 to 2017, Professors Stephen Burbank and Sean Farhang found that when such decisions were reviewed by a panel of all Democrat-appointed judges, pro-certification outcomes were more than twice as likely than before an all Republican-appointed panel.⁵⁹ The presence of a Black judge and the presence of two (but not one) female judges on the panel also increased the likelihood of a pro-certification decision.⁶⁰ Professors Burbank and Farhang conclude the study provides sobering data for class litigation that demonstrates a judge’s characteristics matter beyond cases involving potential gender or racial issues.⁶¹ Indeed, the study’s dataset included securities class cases, insurance class cases, and products-liability class cases not typically thought to be influenced by a judge’s characteristics, and the findings stood even when civil rights cases were removed from the dataset.⁶² The study’s findings, of course, also implicate district courts’ class certification decisions, where judges are not tempered by other colleagues on the bench. Certification decisions are also in theory more substantively removed from potential gender and racial bias issues than class counsel appointment decisions.⁶³

In the criminal context, studies have found that the gender, race, and political leaning of a judge could impact how the defendant (depending on their gender and race) is sentenced. For example, one study found that, as compared to Democrat-appointed judges, Republican-appointed judges sentenced Black defendants to three more months of prison time than they did similar non-Black and female defendants.⁶⁴ Another study reported that female judges were more likely to sentence female defendants to prison than male judges.⁶⁵ Yet another study found that while both White and Black judges sentence Black defendants at higher rates, the magnitude of this difference is greater for White judges than Black judges.⁶⁶ The same study found that when Black defendants were convicted, they were sentenced more harshly by Black judges.⁶⁷ Similarly, another study found that Hispanic judges did not appear to be influenced by a criminal defendant’s ethnicity, but White judges sentenced Hispanic defendants more severely than non-Hispanic defendants.⁶⁸

Outside the criminal context, demographics of judges also have an impact in gender- and racial-discrimination and harassment cases. One study, for example, found that the inclusion of a female judge on an appellate panel correlated with a twice as likely outcome that a plaintiff would prevail on a Title VII sexual-discrimination or harassment case.⁶⁹ Another study found a positive correlation between a finding of gender discrimination in an employment case when the judge was female.⁷⁰ Yet another study found that Black plaintiffs asserting workplace-harassment claims were almost twice as successful before a Black judge than before a White or Hispanic judge.⁷¹ Appellate judges have also been found more likely to support affirmative action programs if a Black judge sits on the panel.⁷²

These studies suggest a few things for class counsel appointments. Perhaps, female judges’ harsher treatment of female defendants translates to their harsher evaluation of female class counsel candidates. Perhaps, like Black judges’ treatment of affirmative action plaintiffs, other minority class attorneys fare better before racially diverse judges. Regardless of whether it is possible to extrapolate any conclusions from these studies’ findings to the class counsel appointment context, they suggest judicial decisionmaking can, at least at times, be subjective.

Considering collectively the subjective process of choosing and hiring an attorney, courts’ wide discretionary authority under Rule 23(g) to determine which attorney or group of attorneys might best represent the interests of the class and meet Rule 23(g)(1)(A)’s mandatory criteria, and evidence that court decisions in the past have been influenced by gender, political appointments, and race, Part II provides an explanation motivating the forum and judge shopping practices described in Part III, foreshadows the findings in Part III, and provides a theoretical authority for the rubric advanced in Part V.

III. Judge And Class Counsel Appointment Shopping

Like all litigators, class action attorneys often believe that certain judges are more favorable to their cases than others.⁷³ Though case assignments to district court judges are often thought to be random and the legal client and their counsel beholden by the “luck or unluck” of their judicial draw, such is not always the case. Counsel can sometimes create some “luck” or improve their chances of a “lucky” judicial draw by making strategic decisions in a case ranging from how the class is defined, how the class representatives are chosen, how the claims are asserted, how the case is tagged, and in which court and division the case is filed. When multiple cases are filed on behalf of the same class, counsel can also improve their luck of a favorable transfer by coming to an agreement with other class attorneys and defendants on the preferred forum; advancing the case before a favorable court or delaying the litigation before an unfavorable court; dismissing a case before an unfavorable court; lobbying a favorable court to keep or receive a case; and lobbying the JPML to have a favorable court retain or be transferred the case.

A class action attorney’s forum calculation includes whether they believe it is likely a particular court will appoint them to represent the class because, if excluded from the class counsel team, the attorney cannot pursue the litigation or reap any of its financial benefits.⁷⁴ Consider the following two hypotheticals, which are (not that) loosely based on actual experiences, wherein a class action attorney was “lucky” enough to have their case assigned or transferred to a particular court and then appointed class counsel.

Scenario 1:

Jackie is a female class action attorney. She learns of a data breach with potential class claims and decides to file suit on behalf of the class quickly, before other class action attorneys can file suit. Jackie believes she has a greater chance of being appointed class counsel by a female, Democrat-appointed judge. She thus strategically files the data-breach class action in a district court that has a larger percentage of female and Democrat-appointed judges. Jackie is “lucky” and draws a Democrat-appointed, female judge, Judge Miller. Jackie convinces several colleagues to file copycat class action suits in the same district that are tagged as related to her case and transferred to Judge Miller. Simultaneously, Jackie files various unnecessary motions in the case to have Judge Miller rule on them. Other class action attorneys file similar actions seeking to represent the same class members in the same data breach in other district courts. Jackie files a motion to consolidate these proceedings. She argues that Judge Miller had the first assigned case, has the greatest volume of cases, has already ruled on certain motions in the case, has invested the most time on the action, and is most familiar with its facts. Convinced the JPML will likely consolidate all cases before Judge Miller, other class attorneys agree to have their cases transferred to Judge Miller. Jackie files a motion to be appointed lead counsel that is supported by the other attorneys she convinced to file cases in Judge Miller’s district. In exchange for these attorneys’ support, Jackie supports their appointment as members of the LPC. Other attorneys who filed suit and may be “better” or more qualified do not move for appointment, assuming it to be a foregone conclusion Judge Miller will appoint Jackie. Jackie is “lucky” and, by default, is appointed lead counsel.

Scenario 2:

Bob, a male class action attorney, tells his legal staff to monitor all class action cases filed before Judge Johnson, a federal judge in another state, because he and Judge Johnson are friendly; Judge Johnson has previously expressed to Bob his desire to preside over a large nationwide class action or MDL; Judge Johnson is politically left-leaning and tends to rule favorably for plaintiffs in class action cases; and Bob believes, given their acquaintance, that he would have a fair chance of being appointed class counsel before Judge Johnson. News breaks of intrusive privacy violations committed by an online social network company. Several class action cases are filed on behalf of all users of the social network across various district courts. One of those is filed in Judge Johnson’s district by Mark, and the case is randomly assigned to Judge Johnson. Bob’s staff alerts Bob of the filing, and Bob files a copycat case with different class representatives in the same district, which Bob tags as related to Mark’s case and is assigned to Judge Johnson. Bob convinces other colleagues to similarly file copycat cases in Judge Johnson’s district and tag them as related, so they are transferred to Judge Johnson. Bob files a motion before the JPML to consolidate the dozens of class action cases filed across multiple districts and transfer these cases before Judge Johnson. In Bob’s motion before the JPML, he argues that Judge Johnson has the greater number of cases pending before him and that Judge Johnson is interested in presiding over an MDL. The JPML privately asks Judge Johnson whether he would like to preside over the MDL, and he states he would. The JPML transfers the case to Judge Johnson. Over fifty attorneys initially sought to be appointed class counsel, but Bob convinces most of them, including those with more privacy class action experience than Bob, that he will be appointed class counsel because of his relationship with Judge Johnson and that in exchange for them withdrawing their application as lead counsel, he will support their appointment to an LPC. These attorneys thus withdraw their applications for a lead counsel role. Left with only ten other attorneys who are roughly as qualified as Bob, Bob is “lucky” and is appointed lead counsel by Judge Johnson.

Jackie and Bob forged their “luck,” which cannot be practically appealed, as courts have nearly unfettered discretion to appoint adequate class counsel.⁷⁵ Moreover, the JPML’s transfer decisions have no practical review by an appellate body.

If these hypothetical scenarios seem outlandish (they are not), consider the uptick of filings in the Amarillo division of the Northern District of Texas. Amarillo has been the location of various politically contentious federal lawsuits. In 2020, a father filed suit on behalf of himself and similarly situated class members in Amarillo claiming the U.S. Department of Health and Human Services’ administration of a Title X program that would provide minors with access to contraceptives without parental consent violated his Fourteenth Amendment due process right and fundamental right to control the upbringing of his child.⁷⁶ In 2021, the state of Texas filed suit in Amarillo to block enforcement of the Equal Employment Opportunity Commission’s guidance requiring employers and their employees to use an individual’s preferred pronouns, claiming the policy violated Texas’ employees’ free speech rights.⁷⁷ In late 2022, several antiabortion groups filed suit in Amarillo to prevent sale of the FDA-approved mifepristone abortion pill.⁷⁸ In 2023, a coalition of 25 Republican state attorneys general sued the U.S. Department of Labor in Amarillo, alleging that the Department’s rule permitting retirement plan managers to consider environmental and other social-justice factors when making investment plan decisions violated the Employee Retirement Income Security Act.⁷⁹ Plaintiffs’ attorneys’ decision to file these cases in Amarillo was no coincidence.

The Amarillo division of the Northern District of Texas has one judge: Judge Matthew J. Kacsmaryk.⁸⁰ Judge Kacsmaryk was appointed by President Trump in 2019, and previously worked for a conservative Christian legal group that espoused socially conservative views on LGBTQ rights, abortion, and other political issues.⁸¹ Plaintiffs filing suit in the Amarillo division know they will “draw” Judge Kacsmaryk, who will then preside over their case, unless it is transferred. This fact has not gone unobserved by legal analysts and scholars who have accused these and other plaintiffs of forum shopping or, more specifically, judge shopping.⁸² While most federal district court divisions have more than one judge, it is also not uncommon for a district court to have single-judge divisions. In 2023, eight divisions in Texas district court had only one judge.⁸³ Single-judge federal divisions also exist outside Texas. In Florida, for example, President Trump was accused of judge shopping when he filed suit against Hillary Clinton and former FBI agents in the Southern District of Florida’s Fort Pierce division, whose only member was Judge Aileen Cannon, a Trump appointee.⁸⁴ Plaintiffs filing in these courts make their “luck” unless defendants succeed in having the case transferred.⁸⁵

Class counsel has two primary incentives to pick one forum over another: favorable law and a favorable judge. Favorable law can be procedural or substantive. Although federal courts hearing class action suits presumably apply the same procedural and substantive laws, courts’ interpretations of these laws can vary, creating significant hurdles or advantages for class members. For example, Article III class representative standing should be interpreted uniformly in federal courts, but such is not the case. District courts are presently split on whether plaintiffs have standing to assert economic loss claims on behalf of class members who purchased substantially similar products with the same alleged defect.⁸⁶ Similarly, there is a split amongst courts as to whether common questions of law or fact must predominate over individualized ones to grant issue certification under Rule 23(b)(3).⁸⁷ Courts within the same district can also interpret substantive law in different ways that impact the viability of class claims. For example, California, New York, and Florida federal district courts are split on whether third-party beneficiaries require privity to assert breach of implied warranty claims.⁸⁸

Shopping for favorable law, however, is less distasteful than shopping for a favorable judge. When shopping for favorable law, class counsel is making a reasoned, strategic decision in the best interest of the class. Shopping for a favorable judge, however, requires acknowledging that the judicial system is not neutral and that the judge presiding over the matter could impact the ultimate outcome of the litigation.⁸⁹ After all, if procedural rules and substantive law are the same in a particular forum, the identity of the judge who applies them should not matter. But, as discussed in Part II, courts can have a real impact on the course of a litigation ranging from the dismissal to non-dismissal of claims, discovery parameters, summary-judgment survival, or evidence a jury is allowed to consider.

Perhaps unsurprisingly, accusations of forum and judge shopping by class action attorneys abound.⁹⁰ Naturally, class action attorneys will want to litigate before judges they believe are more likely to appoint them to serve as class counsel. Accepting that some shopping exists, as some empirical studies have suggested,⁹¹ the following sections discuss how judicial assignments and transfers occur and how attorneys can impact them.

A. Luck of the Assignment

When filing a case, class action attorneys strategically choose the district court in which to file their class claims. How they forum shop, however, depends on how cases are assigned in the district court in which they file. If a district divides cases by the division in which they are filed, like the Northern District of Texas, then the odds of drawing a particular judge or type of judge (e.g., a Republican-appointed judge) are calculable. Class action attorneys may therefore choose to file in one particular division over another. They may also file in a district or division where they routinely litigate and have the respect of the judges,⁹² such that the courts will be more familiar with the attorney and likely to appoint them to represent class members. Even when case assignments are more random and unpredictable, a class action attorney that gets a “lucky” draw can strategically litigate the case in a manner that makes it more likely that the judge will keep the case if other overlapping class suits are filed. Similarly, if the attorney gets an “unlucky” draw, they can voluntarily dismiss the suit or make other strategic decisions that make it unlikely for the court to keep the case if another overlapping class suit is filed.

Not all districts assign cases based on the division in which they are filed like the Northern District of Texas does. Putting aside single-judge divisions in districts that assign cases by division, how cases are assigned to particular judges varies across district courts. Although the Fifth Amendment’s Due Process Clause guarantees the right to an impartial decisionmaker,⁹³ it does not guarantee the right to any particular case assignment process, such as random judicial assignments.⁹⁴ The chief judge of each district court has considerable discretion on how to assign cases to particular judges in the district.⁹⁵

Courts having more than one judge, per statute, must divide their caseload amongst the judges as provided by the rules and orders of the district court.⁹⁶ The statute affords district courts “‘broad discretion in assigning court business to individual judges,’ and does not require the formal adoption of any particular assignment procedure.”⁹⁷ Because of this broad discretion, a 2018 survey of district courts’ case assignment procedures found that “almost no two courts use identical case assignment procedures,”⁹⁸ but most of the ninety-four federal district courts assign judges at least partially based on geographic divisions within the district.⁹⁹ In a way, this makes sense—geographic proximity is a natural convenience.

Not all rules determining in which geographic division a case lands, however, are the same. Some track venue rules that look to the geographic division in which the defendant resides or where the bulk of the alleged wrongful conduct giving rise to a plaintiff’s claim(s) occurred.¹⁰⁰ Some courts assign cases to divisions based on a pre-established order of priority when venue would be proper in multiple divisions.¹⁰¹ Others assign by geographic division but pull certain types of cases, like intellectual property cases, class actions, and securities cases, out of the division and randomly assign them across the district.¹⁰² Yet others, again, like the Northern District of Texas, allow plaintiffs to file in any one of the court’s divisions.¹⁰³ Finally, others do not use divisions and instead randomly assign cases to judges across the district.¹⁰⁴

Typically, district court assignment procedures attempt to distribute caseloads equally amongst the active judges in the district,¹⁰⁵ and cases are assigned randomly from a pool of eligible judges.¹⁰⁶ But this does not mean that every judge has an equal chance of drawing a case, only that the case assignment is based on a blind draw.¹⁰⁷ For example, a judge in a ten-judge district that has already been assigned to nine percent of cases in the district will have a smaller chance of being assigned to a case than one that only has four percent of the cases in the district.¹⁰⁸ To avoid random assignments resulting in one or two judges in a district winding up with too many cases of a particular kind, say class actions, subdecks are sometimes created to attempt an equal distribution of case types.¹⁰⁹ A judge’s present caseload broken down by type of case could thus be helpful information for a class attorney.

Class action attorneys are wise to consider these varying case-assignment procedures when choosing a forum to file suit. They can also evade forum challenges by strategically choosing class representatives and limiting the scope of the class. For example, venue could be improper and a transfer appropriate where “a substantial part of the events or omissions giving rise to the claim occurred” in another venue.¹¹⁰ In the class context, courts look to the events concerning the class representatives, rather than all the class members, when deciding whether venue is proper.¹¹¹ Class attorneys, therefore, improve the success of their forum choice when they choose class representatives that reside in the forum or experienced the brunt of the harm caused by the defendant’s conduct in the forum.¹¹² They can also ensure a forum is proper if they limit the scope of the class on behalf of which they assert claims. For example, Amazon’s conduct may have impacted several of its employees across the country, but a complaint that asserts claims solely on behalf of Illinois class members under a specific Illinois statute is more likely to stay in Illinois.¹¹³ Attorneys can also employ more frowned-upon forum-shopping practices, such as voluntarily dismissing a class complaint that drew an unfavorable judge. While refiling the same or a similar complaint before another court waves a forum-shopping red flag,¹¹⁴ the attorney could convince another law firm to file without the attorney being listed on the pleadings, thereby decreasing the chance of accusations of forum-shopping.

But not all cases filed are placed into a pool. In the class context, most district courts allow plaintiffs filing a case to mark it as related to another case previously filed in the district, which would presumably cause the case to be assigned to the judge that was already assigned the related case.¹¹⁵ This is because “[j]udicial economy is best served when related or consolidated cases are handled by the same judge.”¹¹⁶ Naturally, this often happens when a second, third, or fifteenth class action case purporting to represent the same class against the same defendant is filed in a district. When all cases are filed in one particular district, the court internally consolidates them before a particular judge in that court.¹¹⁷

Sometimes competing class actions are filed across district courts. The Manual for Complex Litigation recommends that courts have “[a]ll related civil cases pending in the same court . . . assigned to a single judge to determine whether consolidation . . . is feasible.”¹¹⁸ Other courts have similarly recognized they should “strive to avoid having multiple overlapping or competing class actions certified in the federal court system”¹¹⁹ and recommend consolidation when possible.

Class action attorneys, however, can attempt to avoid court intervention and strategically come to an agreement on which suit should survive. For example, if competing class cases were filed in three different districts just days apart, two suits could be voluntarily dismissed in favor of all appearing before the judge perceived to be most sympathetic to the claims. The attorneys may, in this instance, come to an agreement as to who will serve as class counsel. Sometimes, the attorneys can come to no such agreement, or a defendant or court acts before such an agreement is made. The following section discusses how overlapping class cases are transferred and how, in such instances, attorneys can make strategic decisions to affect the luck of the transfer.

B. Luck of the Transfer

Related or overlapping class actions filed in different federal district courts may be consolidated in a single district under section 1404(a) of the Judicial Code or by the JPML. Section 1404(a) provides that “in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”¹²⁰ In deciding where to transfer a case, under Section 1404(a), weight is typically given to the plaintiff’s choice of forum, but that is not the case in class litigation.¹²¹ This makes sense for at least two reasons. First, it is typically class counsel’s decision where to file suit, not the named plaintiffs’ decision. Second, when overlapping suits are filed in two different jurisdictions and there is a dispute as to which forum to transfer the cases, two named plaintiffs have made two different forum choices. Giving deference to a plaintiff’s forum choice thus does not solve the dispute. Transfer considerations under section 1404(a), therefore, require a balancing of private and public interests, which include the plaintiff’s choice of forum, the forum where the claim arose, the convenience to the parties, the convenience to the witnesses, the location of the evidence, the court’s familiarity with governing laws, the comparative congestion of the courts, and any local interests in deciding the controversy.¹²²

When consolidating or transferring cases, courts also often apply the first-to-file rule, which “allows a district court to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court.”¹²³ Unfortunately, the rule motivates class attorneys to file quickly, sometimes without allowing a thorough investigation of the facts and claims, to gain the advantage of a forum choice over other class attorneys. When deciding whether to apply this rule, a district court typically considers (1) the class members involved;¹²⁴ (2) the chronology of the two actions; and (3) the similarity of the issues. Courts do make exceptions to the first-to-file rule, however, where attorneys have filed anticipatory suits or engaged in forum-shopping.¹²⁵ In these cases, “[t]he designation of interim class counsel is especially encouraged . . . [because] there are multiple, overlapping class actions that require extensive pretrial coordination.”¹²⁶

Outside section 1404(a), the JPML can also consolidate and transfer competing and overlapping class actions. One might assume that forum-shopping occurs less when actions are consolidated by the JPML, as the Panel ultimately decides to which court to transfer proceedings. But, as elaborated below, such is not the case. Before explaining how the Panel decides to which court to transfer an action, it is worth briefly discussing the Panel’s formation and composition. The JPML was established by Congress in 1968¹²⁷ to avoid “conflict and duplication in discovery and other pretrial procedures in related cases.”¹²⁸ The Panel has the authority to consolidate “civil actions involving one or more common questions of fact . . . pending in different districts” and to transfer them for pretrial purposes to one district court.¹²⁹ It is comprised of seven circuit and district court judges from different circuits appointed by the Chief Justice of the Supreme Court.¹³⁰ Four panel members must agree to a transfer.¹³¹ Section 1407 does not provide other criteria to select panel members, but experience as a judge and demographic and geographic factors are thought to matter.¹³²

Proceedings to consolidate actions can be initiated by the JPML but are typically initiated by motion from a party.¹³³ When a motion is filed before the Panel, all parties in a proceeding that would be consolidated can file a response briefing the Panel on (1) whether the actions should be consolidated for pretrial purposes and (2) to which court they should be transferred if consolidated.¹³⁴ After the briefing period has ended, the Panel will typically conduct oral arguments.¹³⁵ Oral arguments are usually no more than twenty minutes, and all parties with varying viewpoints must divide up that time,¹³⁶ typically leaving litigants with roughly two minutes to make an argument before the Panel.¹³⁷

Congress provided the JPML some direction on which cases to consolidate but no guidance on to which district court to transfer an action.¹³⁸ So, where to transfer an MDL is often “hotly contested.”¹³⁹ A former chair of the JPML admitted that selecting the transferee district court judge “is often the most difficult decision the Panel faces.”¹⁴⁰ It appears the JPML has nearly unfettered discretion to decide to which of the ninety-four district courts to transfer an MDL.¹⁴¹ Practitioners have complained that the Panel’s transferee court selection is unpredictable, with prior decisions affording little to no explanation for transfer to a particular judge.¹⁴² Indeed, sometimes the JPML will transfer a case to a district that had no constituent actions pending before it.¹⁴³

An empirical analysis of transfers by the JPML, involving 303 JPML transfer orders from 2003 to 2008 revealed that the JPML claimed to consider several factors when determining to which court to transfer an action, including significant pretrial progress of an action before a particular judge; the docket conditions and resources of the judge; the location of the first-filed action; the court’s proximity to the location of the other filed actions; the number of pending related actions before the judge or in the judge’s district; the court’s proximity to key witnesses and documents; the experience of the judge; the preferences of the parties; the court’s proximity to the residences of the parties; the geographic accessibility of the court; and the proximity of the court to the conduct or event at issue.¹⁴⁴ Moreover, because MDLs are often large and can take up a considerable amount of time for courts, the district court receiving the MDL has to be willing to accept it, and the chief judge of the district has to be willing to permit the transferee judge to accept it.¹⁴⁵ Therefore, in addition to the factors listed above, the JPML has admitted that the “willingness” of a prospective transferee court judge is key.¹⁴⁶

These factors, however, can all favor different districts and judges. And the JPML has not explained how it balances these factors or articulated a consistent formula or standard.¹⁴⁷ Instead, Panel members have indicated the transferee court selection process often involves “intuition.”¹⁴⁸ One prominent class action MDL litigant opined that the JPML’s transfer decision is “not so much a where question, but a who question.”¹⁴⁹ Indeed, a 2012 study found that the most common justification provided by the JPML in support of its transfer decision was the location of the Panel’s preferred judge.¹⁵⁰ And the Panel’s decision to consolidate and transfer can only be appealed by a writ of mandamus filed in the circuit court having jurisdiction over the transferee district court.¹⁵¹ A Panel’s transferee judge choice is thus practically definitive.

Class and defense counsel overtly lobby the JPML to transfer cases to particular judges and lobby those judges to persuade the JPML to transfer them a case. The JPML generally selects a district from those recommended by the parties.¹⁵² And defendants’ and class counsel’s lobbying efforts matter. Indeed, one study that looked at over 200 consolidations between 2012 and 2016 found that in cases where a district existed that both plaintiffs and defendants supported, the Panel selected that district eighty percent of the time.¹⁵³ In cases where support was divided between the parties, the Panel transferred to a district supported by plaintiffs in roughly sixty percent of cases and a district supported by defendants in forty percent.¹⁵⁴ In only four percent of cases, the Panel chose a district that was not supported by any party.¹⁵⁵

Class counsel can influence several factors the JPML considers when deciding where and to whom to transfer an action. For example, class counsel can, to an extent, control the pretrial progress of an action by proposing aggressive scheduling orders, engaging in extensive motion practice, and responding to motions quickly—all to argue that a judge has already spent significant time on the case and is most familiar with its facts. Class attorneys can also quickly file to ensure their chosen court has the first-filed case. They can convince other colleagues to file copycat actions with other class representatives so that the first court drawn has the greatest number of pending actions. Class counsel can also identify relevant witnesses (whether they ultimately need them or not) that reside in the jurisdiction where they would like the case transferred.

While there have been some attempts to curtail such forum-shopping practices, these attempts have been limited. For example, in 2024, the Judicial Conference of the United States issued a new rule to combat single-division forum-shopping practices.¹⁵⁶ The rule requires judges to be assigned randomly across the district in civil cases implicating state or federal action.¹⁵⁷ But this rule impacts only a few class cases seeking equitable relief from the government—barely addressing the tip of the forum-shopping iceberg in class action litigation. And the rule has no bearing on the JPML’s transfer of cases. Other rules could be crafted to expand the Judicial Conference’s recent rule. For example, a new rule could expand the scope of the existing rule’s application to all class action cases. Alternatively, a new rule could require that all class action cases asserting claims on behalf of a nationwide class be randomly assigned to district court judges with personal jurisdiction over the defendant, though this might lead to premature jurisdictional disputes. Scholars have also argued district courts should randomly assign cases to judges across the entire district (and not by division).¹⁵⁸

In sum, case assignments and transfers are not completely random. Class attorneys and defendants can make strategic decisions aimed at improving their “luck” of having their case heard before a particular court. But the practices of forum- and judge-shopping exist in part because attorneys assume their odds of being appointed counsel vary across courts. If courts uniformly appoint the same attorneys, the forum-shopping tactics that class attorneys engage in to draw a particular judge impact little the legal representation class members receive. Part IV thus empirically explores whether the court to which an action is assigned or transferred affects the attorneys appointed to represent the class. It provides the final basis to implement the class counsel rubric proposed in Part V.

IV. Luck Of The Transfer?: Courts’ Impact on Class Counsel Appointments

Part IV offers an original empirical analysis of courts’ class counsel appointments. Data was drawn from over 100 class action cases transferred by the JPML between 2012 and 2022 to eighty different judges, wherein attorneys filed over 1,500 class counsel applications for roughly 700 class positions. The data was then analyzed to determine whether certain courts appointed a greater percentage of male or female attorneys to serve as class counsel; whether male or female attorneys applied to serve as class counsel in greater percentages before certain courts; whether higher class counsel appointment percentages were correlated with higher class counsel application percentages; whether a competitive class counsel appointment process benefitted or adversely impacted male or female class counsel applicants; and whether male or female attorneys comparatively enjoyed greater or lower rates of success in class counsel appointments before particular courts.

Judges were divided into three overlapping categories by gender (male versus female),¹⁵⁹ political party appointment (Republican-appointed versus Democrat-appointed), and race/ethnicity (White versus racially diverse)¹⁶⁰. In terms of the consolidated class action cases forming part of the data sample, 73.8% were transferred to male judges and 26.2% to female judges; 39.8% to Republican-appointed judges and 60.2% to Democrat-appointed judges; and 72.8% to White judges and 27.2% to racially diverse judges. Attorneys were only divided by one category, male and female,¹⁶¹ as there was limited publicly available reliable data on attorneys’ political party affiliations and race/ethnicity. The findings, therefore, only provide a narrow window into courts’ potential preferences and attorneys’ perceptions of the same.

Pointedly, the data reveal that: (1) female courts, Democrat-appointed courts, and racially diverse courts appointed a greater percentage of female attorneys to serve as class counsel, while male courts, Republican-appointed courts, and White courts appointed a greater percentage of male attorneys to serve as class counsel; (2) female courts and racially diverse courts had a greater percentage of female attorneys apply to serve as class counsel, and male courts and White courts had a greater percentage of male attorneys apply to serve as class counsel; (3) appointment percentages correlated with application percentages before all but Republican-appointed courts; (4) competition before courts tended to favor female over male attorneys in most cases, but mostly for LPC positions; and (5) female attorneys experienced similar or better success rates applying for class counsel than male attorneys, except again before Republican-appointed courts.

Broadly, Part IV’s findings suggest that most courts do not have class counsel gender preferences, but attorneys seem to believe they do, which leads them to apply at different rates before different courts. Application rates correlate with appointment rates, thereby creating a self-fulfilling prophecy of sorts (i.e., female attorneys believed female judges were more likely to appoint them; female attorneys applied in greater numbers before female courts; female courts had a wider pool of female attorneys to choose from; female courts appointed more female attorneys), cementing the perception that certain courts are more likely to appoint female attorneys to serve as class counsel. That said, some courts did seem to have clear gender preferences for class counsel appointments. Republican-appointed courts, for example, were roughly two times more likely to appoint a male attorney over a female attorney when provided the choice. Racially diverse courts and Democrat-appointed courts were, on the other hand, more likely to appoint a female attorney.

A. Methodology

All products-liability, marketing-and-sales-practices, breach-of-privacy, and data-breach MDLs asserting class claims transferred by the JPML to a district court between December 1, 2012, and December 31, 2022, formed part of this Article’s dataset.¹⁶² In total, 74 consumer products-liability and marketing-and-sales-practices (henceforth “PL&MSP”) MDLs and 29 privacy and data-breach MDLs (henceforth “privacy MDLs”) were reviewed, for a total of 103 MDLs.¹⁶³ Class action MDLs were chosen because competition for class counsel positions was more likely in these cases, as often multiple putative actions are filed across various districts.¹⁶⁴ The inclusion of varying types of consumer claims (e.g., deceptive sales practices, fraud, privacy violations) permitted observations that were not simply exclusive to one type of class case. The dataset also captured a large percentage of class action MDLs, as PL&MSP and privacy MDLs composed roughly half of the MDL docket in 2023.¹⁶⁵

Various data points were collected across these MDLs. Specifically, transferee court dockets were searched for: (1) orders calling for class counsel applications; (2) applications for lead counsel and LPC positions submitted by attorney applicants; (3) orders appointing class counsel; and (4) other miscellaneous court orders and transcripts relating to the original appointment of counsel. All docket entry descriptions were reviewed, but the document associated with each entry was not. If docket entries were thus mislabeled or descriptively unclear, their data were not captured. In the same vein, if applications were submitted in camera or filed under seal, they were not captured.¹⁶⁶

In some MDLs, law firms, as opposed to individual attorneys, applied for and were appointed class counsel.¹⁶⁷ Instead of discounting these cases, the lead attorney that appeared for each law firm was included. Where joint applications or applications proposing the appointment of more than one attorney as either lead counsel or as an LPC member were filed, each attorney proposed for a leadership position was considered individually,¹⁶⁸ unless they were part of the same law firm, in which case only the initially proposed individual was considered.¹⁶⁹ This was done because courts rarely appoint more than one attorney from the same law firm. Indeed, if the lead attorney from a firm leaves that firm, courts have clarified the appointment was meant to be individual and followed the attorney to their new firm.¹⁷⁰ The only exception to this was if the court individually appointed attorneys from the same law firm to serve as counsel.¹⁷¹ In those cases, each attorney was recorded as having applied and been appointed.

Where the same attorney applied simultaneously for lead counsel and an LPC position, they were considered as having applied for each position, unless they were appointed to a higher-ranking position.¹⁷² When an attorney appointed as lead counsel was simultaneously appointed to an LPC position, they were only considered as having been appointed to serve as lead counsel,¹⁷³ as they functioned as lead counsel with the ability to direct the rest of the LPC.

Applicants for positions that were not created in a particular MDL were not considered as having lost out on those positions. Similarly, where applications were filed, but the action was dismissed prior to the appointment of counsel, the applicants were not considered to have applied and lost out on those positions.¹⁷⁴ Interim counsel replacements were similarly not considered, unless a substitution occurred immediately after the initial appointment by the court.¹⁷⁵

Only lead counsel and LPC applications were considered. Lead counsel, when appointed, traditionally manages the litigation and assigns distinct tasks to the LPC.¹⁷⁶ Some scholars have thus referred to lead counsel as a first-tier position and LPC membership as a second-tier position.¹⁷⁷ But, when appointed, both lead counsel and the LPC (to a lesser extent) manage the litigation.¹⁷⁸ In MDLs where the court appointed a plaintiffs’ executive committee and a plaintiffs’ steering committee,¹⁷⁹ only those attorneys applying for and appointed to the committee with greater leadership authority (i.e., the LPC) were considered.

B. Findings

This section discusses various findings relating to the percentage of positions held; percentage of applications filed; relationship between the percentages of applications filed and positions held; effects of a competitive application process; and comparative success rates of male attorneys and female attorneys applying to class counsel, lead counsel, and LPC positions before male courts, female courts, Republican-appointed courts, Democrat-appointed courts, White courts, and racially diverse courts. The results focus on the appointment and application percentages of female attorneys, as they have been traditionally found to be excluded from the class counsel bar,¹⁸⁰ but each percentage naturally relates to male attorneys’ appointment and application percentages.¹⁸¹

1. Female Attorneys Held a Greater Percentage of Class Counsel Positions Before Female Courts, Democrat-Appointed Courts, and Racially Diverse Courts

Judge	Percentage of Class Counsel Positions Held by Female Attorneys	Percentage of Lead Counsel Positions Held by Female Attorneys	Percentage of LPC Positions Held by Female Attorneys
Male	25.2%	24.0%	25.8%
Female	32.6%	28.4%	35.1%
Republican-Appointed	21.6%	22.7%	20.9%
Democrat-Appointed	29.9%	26.9%	31.2%
White	23.9%	21.0%	25.3%
Racially Diverse	38.6%	37.8%	39.1%

Female courts, Democrat-appointed courts, and racially diverse courts appointed a greater percentage of female attorneys to serve as class counsel than male courts, Republican-appointed courts, and White courts. Most notably, female attorneys served in greater percentages before racially diverse courts than White courts, occupying 14.7 percentage points more positions before racially diverse courts than before White courts. Female attorneys also held 7.4 percentage points more class counsel positions before female courts than male courts and 8.3 percentage points more positions before Democrat-appointed courts than Republican-appointed courts.

Most courts also had a greater percentage of women serving on LPCs than as lead counsel, except for Republican-appointed courts. Most notably, female attorneys served in a much lower percentage of LPC positions before White judges than racially diverse judges (a roughly fourteen percentage point difference). They also served in a lower percentage of LPC positions before Republican-appointed judges than Democrat-appointed judges (a roughly ten percentage point difference).

2. Female Attorneys Were Responsible for a Greater Percentage of Class Counsel Applications Before Female Courts and Racially Diverse Courts

Female attorneys were responsible for a greater percentage of class counsel applications before female courts than male courts (a 10.6 percentage point difference) and before racially diverse courts than White courts (a 10.5 percentage point difference), but not before either Democrat-appointed courts or Republican-appointed courts (a mere 0.9 percentage point difference).

Judge	Percentage of Class Counsel Positions Held by Female Attorneys	Percentage of Lead Counsel Positions Held by Female Attorneys	Percentage of LPC Applications by Female Attorneys
Male	24.4%	22.9%	25.2%
Female	35.0%	34.2%	35.4%
Republican-Appointed	27.9%	25.7%	30.0%
Democrat-Appointed	27.0%	25.9%	27.6%
White	24.8%	22.8%	25.8%
Racially Diverse	35.3%	32.9%	37.5%

Application rates for female attorneys were similar across both lead counsel and LPC positions but tended to be greater for LPC positions. Across both positions, female attorneys applied in greater percentages before female courts and racially diverse courts, perhaps reflecting a belief that female and racially diverse courts would be more likely to appoint them to serve as class counsel than male and White courts.

3. Application Percentages Roughly Correlated with Appointment Percentages Before Most Courts

Class counsel application rates often tracked appointment rates, meaning that the percentage of female attorneys that formed the applicant pool was similar to the percentage of female attorneys appointed to serve as class counsel. Differences between the two ranged from less than one percentage point to roughly six percentage points. Application and appointment rates most aligned before male courts, where female attorneys occupied only a slightly greater percentage of positions than those for which they applied, and before White courts, where female attorneys held just a slightly lower percentage of class counsel positions than those for which they applied. The greatest difference was before Republican-appointed courts, where female attorneys held a notably smaller percentage of appointments than those for which they applied.

The difference between application and appointment percentages generally varied more for LPC than lead counsel positions.

The greatest difference in lead counsel application-to-appointment percentages was before female judges, where female attorneys occupied 5.8 percentage points fewer positions than those for which they applied, and before racially diverse judges, where female attorneys occupied roughly 4.9 percentage points more lead counsel positions than those for which they applied. But there were no dramatic differences.

LPC application-to-appointment correlations were particularly strong before male courts (a 0.6 percentage point difference), female courts (a 0.5 percentage point difference), White courts (a 0.5 percentage point difference), and racially diverse courts (a 0.8 percentage point difference). The most notable difference was before Republican-appointed judges, who appointed 10 percentage point fewer female attorneys than applied.

4. A Competitive Application Process Generally Led to a Greater Percentage of Appointments for Female Attorneys

Nearly half (46.5 percent) of all class counsel positions were not competitive. A competitive application process, however, favored female attorneys before most courts. The only exception was before Republican-appointed courts, where despite also being responsible for a slightly greater percentage of class counsel applications when the appointment process was competitive, female attorneys actually held a slightly lower percentage of class counsel positions.

Judge	Class Counsel Positions Held by Female Attorneys	Competitive Class Counsel Appointments Held by Female Attorneys	Class Counsel Applications by Female Attorneys	Competitive Class Counsel Applications by Female Attorneys
Male	25.2%	28.0%	24.4%	24.8%
Female	32.6%	36.4%	34.9%	36.7%
Republican-Appointed	21.6%	21.1%	26.8%	31.2%
Democrat-Appointed	29.9%	33.8%	28.2%	27.5%
White	23.9%	27.0%	25.1%	25.9%
Racially Diverse	38.6%	42.7%	33.2%	35.8%

Dividing the data between lead counsel and LPC positions reveals that female attorneys derived more of a benefit from competition at the LPC level.

Judge	Lead Counsel Positions Held by Female Attorneys	Competitive Lead Counsel Appointments Held by Female Attorneys	Lead Counsel Applications by Female Attorneys	Competitive Lead Counsel Applications by Female Attorneys
Male	22.9%	25.2%	22.9%	23.0%
Female	34.2%	31.3%	34.2%	36.2%
Republican-Appointed	25.7%	20.0%	25.7%	25.6%
Democrat-Appointed	25.9%	30.5%	25.9%	26.7%
White	22.8%	23.5%	22.8%	23.9%
Racially Diverse	32.9%	37.5%	32.9%	32.2%

Indeed, competition in the lead counsel position led to a slightly lower percentage of appointments for female attorneys before female courts (a 2.9 percentage point difference) and Republican-appointed courts (a 5.7 percentage point difference). For LPC positions, competition appeared to favor female attorneys before every court.

Judge	LPC Positions Held by Female Attorneys	Competitive LPC Appointments Held by Female Attorneys	LPC Applications by Female Attorneys	Competitive LPC Applications by Female Attorneys
Male	25.8%	30.1%	25.2%	26.2%
Female	35.1%	39.7%	35.4%	37.0%
Republican-Appointed	20.9%	22.5%	30.0%	38.7%
Democrat-Appointed	31.2%	35.8%	27.6%	27.9%
White	25.3%	29.3%	25.8%	27.0%
Racially Diverse	39.1%	46.7%	37.5%	39.7%

While female attorneys were also responsible for a greater percentage of applications when there was a competitive LPC appointment process, the increase in most cases was only marginal and likely not solely responsible for the increase in appointments.

5. Female Attorneys Experienced Similar or Greater Success Rates than Male Attorneys When Competing for Class Counsel Positions Before Most Courts

Female attorneys vying for competitive class counsel positions generally fared similarly to, or better than, male attorneys before most courts. Most notably, female attorneys experienced a success rate roughly 9 percentage points higher than male attorneys before racially diverse courts and Democrat-appointed courts but 15.3 percentage points lower than male attorneys before Republican-appointed courts.

This pattern held true for LPC positions, but less so for lead counsel positions, where female attorneys experienced lower success rates than male attorneys before female judges (a 7.9 percentage point difference) and Republican-appointed judges (an 11 percentage point difference), but around the same before White judges (a 0.8 percentage point difference). In comparison to their male colleagues, female attorneys fared best before Democrat-appointed courts (a 5.5 percentage point difference) and racially diverse courts (a 6.3 percentage point difference) when competing for lead counsel positions.

When competing for LPC positions, however, female attorneys experienced higher success rates before almost every court, except Republican-appointed courts, where they experienced a success rate nearly 26 percentage points lower than male attorneys.

Female attorneys most outperformed male attorneys in LPC positions before racially diverse judges and Democrat-appointed judges, averaging success rates 10.5 percentage points higher before these courts.

C. Discussion

The data above suggest two important findings: (1) certain courts are more likely to appoint female attorneys to serve as class counsel and (2) female attorneys believe certain courts are more likely to appoint them to serve as class counsel, thus explaining the judge and forum shopping practices discussed in Part II.¹⁸² Prior research that had not broken up application percentages by court had found that appointment percentages correlated strongly with application percentages, suggesting courts had little gender preference when making class counsel appointment decisions.¹⁸³ But the findings herein demonstrate that these missing data points rendered an incomplete picture. While application percentages did correlate with appointment percentages before most courts, the degree to which they correlated varied. Particularly, when vying for lead counsel positions, application and appointment percentages correlated less before female courts, where male attorneys held a greater percentage of positions than those for which they applied, and before racially diverse courts, where female attorneys held a greater percentage of positions than those for which they applied. A stronger correlation existed for LPC positions, except before Republican-appointed courts, where female attorneys held LPC positions at a rate 10 percentage points lower than the rate at which they applied for them. That said, before male courts and White courts, application percentages closely tracked appointment percentages.

In addition to clarifying past research, this Article makes several key findings. Female attorneys vying for class counsel positions fared best before racially diverse courts and Democrat-appointed courts and worst before Republican-appointed courts. Male attorneys, conversely, fared best before Republican-appointed courts and female courts, at least for lead counsel positions, and worst before racially diverse courts. This lends credence to the central premise that the court to which a class action is assigned or transferred can impact the legal representation class members receive, and that Republican-appointed courts appear to be discriminating against female class counsel candidates. And, whether discriminatory or not, male courts, Democrat-appointed courts, and racially diverse courts seem to favor female attorneys over male attorneys in class counsel appointments.

A more interesting and pivotal finding, however, is that attorneys appear to perceive (correctly and incorrectly) that they have a greater chance of being appointed by certain courts, as they apply at different rates before different courts. Specifically, female attorneys were more likely to apply to serve as class counsel if a court was female and/or racially diverse. This, in turn, appeared to correlate with a higher percentage of appointments before these courts. While racially diverse judges did appear more likely to appoint female class counsel, the data do not suggest female judges were similarly inclined. Indeed, female attorneys experienced higher success rates before male judges than before female judges, and male attorneys applying for competitive lead counsel positions experienced a higher success rate before female judges than female attorneys. This suggests that, at least before female courts, women holding a greater percentage of appointments is a product of women applying more than men, which supports prior research finding that the court’s gender did not impact MDL leadership appointments.¹⁸⁴ Given the strong correlation between applications and appointments before most courts, it might be the case that if female attorneys simply applied at greater rates before White, Democrat-appointed, and racially diverse courts, they might hold a greater percentage of appointments.

A large percentage of class actions from the dataset did not have competition for either lead counsel or LPC positions. Indeed, for roughly half (46.5 percent) of appointed class counsel positions, there was no competition. A publicly competitive application process that required courts to proactively choose amongst applicants, however, benefited female attorneys. Courts (except for Republican-appointed courts and female courts in lead counsel battles) chose more female attorneys to represent the class than were chosen when the attorneys involved in the case proposed their own agreed-upon class counsel slates. This could be because, as at least one other scholar has explained, elite male class attorneys do not invite female attorneys to “the meeting before the meeting” where class counsel positions are collectively agreed upon amongst counsel.¹⁸⁵

D. Limitations

The data described herein is accurate, but conclusions drawn from the same may be unreliable for a few reasons. First, it was impossible to completely divide courts into three non-overlapping categories (female/male; Republican-appointed/Democrat-appointed; White/racially diverse), as every court fell into each category.¹⁸⁶ If all male judges were also White or 90% were Republican-appointed, conclusions about the propensity of male judges to appoint female counsel would be of little worth. The author ran a regression analysis to test, when controlling also for the percentage of female applicants in cases where there was competition for a class counsel position, whether the data lent itself to the same findings.¹⁸⁷ The results of the analysis confirmed that Democrat-appointed courts and racially diverse courts appoint a greater percentage of female attorneys to represent class members.¹⁸⁸

Some caution must be exercised in generalizing or assuming the findings are reflective of all class actions, as there were some differences between PL&MSP MDLs and privacy MDLs. For example, although more female attorneys served in class counsel positions before female courts than male courts in both types of MDLs, male courts in privacy MDLs appointed a greater percentage of female attorneys than male courts in PL&MSP MDLs. Before female courts, however, the inverse was true. Female attorneys also held a greater percentage of class counsel positions before racially diverse courts than before White courts across both types of MDLs, but the difference was most stark in privacy MDLs, where women held approximately double the percentage of positions before racially diverse courts than before White courts. Application percentages also varied between the two types of MDLs, with female attorneys applying at greater percentages in privacy MDLs before male courts, Democrat-appointed courts, White courts, and racially diverse courts than in PL&MSP MDLs. Application percentages did largely correlate with appointment percentages in both types of MDLs, except before racially diverse judges in privacy MDLs, where female attorneys held an even greater percentage of class counsel positions than those for which they applied. Success rates also varied some between the two MDLs. Female attorneys, for example, experienced higher success rates than male attorneys in PL&MSP MDLs than in privacy MDLs. This variation was most observable before Democrat-appointed courts, where female attorneys experienced nearly triple the success rate of their male colleagues. Female attorneys also had a higher success rate than male attorneys before White judges in PL&MSP MDLs, but a lower success rate in privacy MDLs. This might suggest that as female attorneys apply at greater rates, their success rate before certain courts decreases.

Finally, the data only discuss courts’ potential preferences or non-preferences of counsel on the basis of counsel’s gender, but there are, of course, innumerable variables that could also have impacted courts’ appointment decisions and might explain the variances observed herein. These include contemplated Rule 23(g)(1)(A) criteria, such as the attorney’s experience, resources, and work in the litigation to date; and other uncontemplated factors, such as the attorney’s political leaning, race/ethnicity, residence, age, or religion. Data on these factors were difficult to reliably track or comparatively analyze. But it could be possible, for example, that the female attorneys who applied before Republican-appointed courts in contested positions experienced significantly lower success rates than male attorneys because they had less experience, or because they were Hispanic, or because they had fewer resources to prosecute the action, and not simply because they were female.

Given the findings discussed in this Part, Part V proposes a class counsel rubric that courts can employ to considerably reduce biases and perceptions of bias in class counsel appointments.

V. A Rubric For Courts to Evaluate Class Counsel Alongside Class Members

Preferences and biases will always exist, but introducing objective measurement criteria may limit their effects. Indeed, the Federal Sentencing Guidelines were introduced, and changed from advisory to mandatory, primarily to limit the effects of bias that were present when judges were given wide discretion.¹⁸⁹ Presently, courts lack an objective means to comparatively evaluate class counsel applicants. The factors courts must consider under Rule 23(g) (experience, knowledge of the law, commitment to the litigation to date, and resources) assist courts in assessing counsel’s adequacy, but are less helpful when comparatively evaluating adequate counsel that may excel in different categories. Left with wide discretion, courts at times seem to “go with their gut” when appointing class counsel. This section thus proposes the adoption of a class counsel rubric to better evaluate class counsel applicants on a more objective basis. The proposed three-part rubric would evaluate counsel on the basis of: (1) Rule 23(g)(1)(A)’s¹⁹⁰ mandatory adequacy criteria; (2) disclosed criteria pertinent to counsel’s adequacy, as permitted under Rule 23(g)(1)(B),¹⁹¹ and, importantly; (3) class members’ evaluations of counsel. A template of the rubric is provided in the Appendix.

Rubrics provide clarity. When disclosed, rubrics set expectations ex ante and increase objectivity.¹⁹² Indeed, Professor Elizabeth Chamblee Burch proposed adopting rubrics for counsel in the MDL context,¹⁹³ and there is no reason not to also apply them in class cases. Professor Chamblee Burch’s rubric focuses on counsel’s particular skills (e.g., negotiation, deposition-taking, leadership, and writing), but these are difficult for courts and class members to evaluate when appointing counsel, particularly at the outset of the litigation. The class counsel rubric proposed herein, therefore, does not adopt Professor Chamblee Burch’s rubric but instead proposes one based on Rule 23(g)’s present framework.

Rule 23(g)’s class counsel mandatory adequacy factors may be vague, but they are not wrong. In a study, participants acting as class members affirmed that relevant experience, legal knowledge, access to resources, and dedication to the litigation are important metrics on which to evaluate counsel.¹⁹⁴ Those survey participants often justified their choice of representation based on Rule 23(g) factors.¹⁹⁵ The problem with Rule 23(g)’s factors is not their substance but rather their lack of specificity and guidance in comparatively evaluating counsel. Imagine one attorney has ten years of experience in class litigation but only three years of experience litigating the claims at issue, while another attorney has five years of experience in class litigation but eight years of experience litigating the claims at issue—which attorney has greater experience? The Rule, the Advisory Committee notes, and the caselaw provide no guidance for courts. A rubric that assigns clear values to each Rule 23(g) factor and further divides the relevant experience referenced in the Rule into independent factors provides courts with a more objective way to compare counsel.

Each litigation is unique, and courts should, as Rule 23(g)(1)(B) recognizes, have some discretion to evaluate counsel based on other factors “pertinent to [their] ability to fairly and adequately represent the interests of the class.”¹⁹⁶ But consideration of anything other than the four Rule 23(g) mandatory factors should be disclosed by courts. Counsel should know prior to submitting their applications for appointment that the court is considering, for example, their willingness to communicate with and involve class members in the litigation; the fees they will seek for representing the class; the diverse perspectives they would bring to the legal team; their bankruptcy knowledge if a defendant is facing bankruptcy; or their willingness to work with other counsel that may form part of the class counsel team. Courts must also disclose the weight assigned to each of these factors to avoid tipping the scales in favor of a particular attorney during the evaluation process.

Most importantly, class members’ evaluations of prospective class counsel must form part of the rubric and be afforded considerable weight. To date, judges have conducted class counsel appointments in a silo. This Article does not argue that class members are better equipped than courts to evaluate attorneys’ competency or qualifications, but rather that class members’ thoughts, opinions, and evaluations of class counsel matter and should be factored into class counsel appointment decisions.¹⁹⁷ After all, class members are the ultimate legal client. Class members’ collective voice via surveys of a representative sample of the class can and should speak volumes to the court. A growing body of literature has argued class members’ preferences should be taken into consideration by courts,¹⁹⁸ but to date no vehicle has been proposed for courts to give specific and quantifiable weight to those preferences. A class counsel rubric provides such a vehicle. By including class members’ evaluations, courts not only have a litmus test by which to consider whether their own evaluations of counsel might be biased, but also insight into what clients seek in their counsel.

The following sections describe how the rubrics would be procedurally employed under Rule 23(g)’s current framework; explain rubric categories and their respective proposed scoring; and address potential criticisms and consequences associated with a class counsel rubric.

A. Practically Employing Class Counsel Rubrics

It is a well-accepted principle that competition breeds better market performance.¹⁹⁹ The findings in Part IV similarly suggest that competitive class counsel appointment processes lead to more gender-diverse class counsel teams. Diverse legal teams are particularly important in class litigation with diverse class members that often have little to no opportunity to communicate with counsel regarding their injuries and preferred remedies.²⁰⁰ Moreover, a competitive appointment process assures that courts (now with the assistance of class members) are the ones evaluating class counsel, rather than individual attorneys like Jackie and Bob in Part III. Competitive class counsel appointment procedures ensure that qualified attorneys interested in representing the class are not bullied or dissuaded from applying by other attorneys. Instead, courts must institute a competitive application process and disclose the class counsel rubrics they will use to evaluate counsel. A rubric should be completed for at least each adequate (i.e., qualified) lead counsel applicant.

Prior disclosure of the rubric is necessary. This allows class counsel applicants to focus and tailor their applications to address the categories and items on the rubric. The weight assigned to each category in the rubric must also be disclosed. Courts must inform class counsel applicants how the rubrics will be tabulated for joint appointments should there be more than one lead counsel or a multiple-member LPC.²⁰¹

As a substantial portion of any rubric adopted should be dependent on class members’ evaluations of counsel, the court must provide a sufficient period of time to survey a representative sample of class members. A period of two to three weeks should suffice to design a class-member survey, deploy it, and collect and analyze the results.²⁰² During this time, a sample of class members would receive what scholars have termed “representational notice,” which informs recipients of the pending litigation; the claims presently asserted in the litigation; their likely status as class members; and that the attorneys listed therein would like to represent them and other class members in the litigation.²⁰³ The notice would then invite class members to evaluate the attorneys seeking to represent them by completing a short survey.²⁰⁴ Attorney descriptions would be provided by attorneys in their applications, subject to a word limit.²⁰⁵ These surveys should be designed, deployed, and analyzed by a third-party expert at the collective direction of prospective counsel or the court.²⁰⁶ The analyzed class member survey results would then be publicly filed with the court,²⁰⁷ allowing the court to conduct an evidentiary hearing with the third-party expert or experts prior to completing the rubric, if necessary. These experts could either complete the class member portion of the rubric or the court could, with their guidance. Either way, the results of the class member portion of the rubric should be public.

It is further worth noting at this point that obtaining class members’ collective preferences on class counsel is not an outlandish proposition and was accomplished in 2024 in the 23andMe data breach class litigation.²⁰⁸ Incorporating class members’ evaluations of class counsel does not require changes to procedural or substantive law, as Rule 23(g)(1)(B) allows courts to “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”²⁰⁹ Surely, class members’ legal representation interests and preferences are pertinent to counsel’s ability to represent class members’ interests. But even accepting the argument that class members’ evaluations of counsel are not pertinent to counsel’s ability to fairly and adequately represent the class, Rule 23(d) provides an additional avenue to consider class members’ evaluations of counsel.²¹⁰ “[T]o protect class members and fairly conduct the action,” courts can, under Rule 23(d)(1)(B), order the parties to provide “appropriate notice to some or all class members of” both “any step in the action” and “the members’ opportunity to signify whether they consider the representation fair and adequate.”²¹¹ This provision allows for representational notice that solicits class members’ evaluations of counsel.

While class member preferences are being gathered and analyzed, the court should complete its portions of the rubric. The court’s scoring does not have to be final, but completing its portions of the rubric before reviewing class members’ evaluations of counsel makes certain that courts are independently performing their legally required duty of evaluating counsel’s adequacy. If class members’ evaluations of class counsel vary uniformly or widely from the court’s evaluations, meaning that most class members evaluated one or several candidates higher than the court’s evaluation, this should raise a flag for the court. The court should ensure it is not evaluating counsel based on any individual biases. If it is not and believes it has a well-founded, objective reason for the variance, the court should not feel compelled to revisit its scoring.

Whether courts should disclose their portion of the rubric is a more difficult question to answer. There are valid arguments for disclosure and non-disclosure. On the one hand, disclosure of each attorney’s rubric adds transparency and accountability to the appointment process. Courts would feel obliged to appoint the applicant or applicant team with the highest score and not change scores to artificially inflate or deflate an applicant’s score. On the other hand, there is a genuine concern that one court’s biased evaluation of counsel could impact or bias another court’s evaluation of the same attorney, cement an attorney as inadequate or less adequate than others, and severely affect the attorney’s reputation not just in class litigation, but before other clients, attorneys, and the community.²¹² Additionally, disclosure would likely lead to a more adversarial process where attorneys would challenge courts’ scoring of them and other attorneys, making the class counsel appointment more contentious. Given these possibilities, it is not recommended that courts’ completed rubrics of each scored attorney be disclosed. But courts should in their appointment order generally discuss how the appointed attorney(s) fared on the rubric and certify in their appointment orders that they employed the rubric.

Once class counsel rubrics have been completed, they should be tabulated. Technology can assist in this step of the process. If the legal team is small, then the top two scoring applicants can be appointed. The formula, however, should be established ahead of time to prevent it from being adopted solely to favor the appointment of the attorney whom the court prefers.

Critically, courts should use the rubric when making appointment decisions. Class member survey results will be public, and courts should discuss them and justify appointment decisions that appear to contradict class members’ preferences. This should be less difficult when sampled class members are divided on their evaluation of counsel but might present a greater challenge when there are clear favorites amongst class members that are not chosen by the court. This does not mean that courts should abdicate their responsibility to appoint the best counsel for the class to appease sampled class members. Rule 23(g) requires courts to appoint the best counsel, and sampled class members can be wrong. It means that the court must acknowledge class members’ preferences and explain appointment decisions that contradict them.²¹³

B. Class Counsel Rubric Categories

The rubric should have three primary categories: (1) Rule 23(g)(1)(A)’s mandatory adequacy factors; (2) Rule 23(g)(1)(B)’s permissible adequacy factors; and (3) class members’ evaluations of counsel. This section elaborates on all three categories and recommends specific values to assign to each.

1. Rule 23(g)(1)(A)’s Mandatory Class Counsel Adequacy Factors

Rule 23(g)(1)(A)’s mandatory adequacy considerations must form part of any rubric. A rubric is not meant to be a departure from Rule 23(g), but simply an instrument that assists courts in applying the Rule more objectively. Rule 23(g)(1)(A) requires courts appointing class counsel to consider: “the work counsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable law; and the resources that counsel will commit to representing the class.”²¹⁴ Under the Rule’s present framework, these are difficult factors to evaluate comparatively. Experience and legal acumen should be at the forefront of any legal client’s evaluation of counsel, and an attorney’s resources are important in all litigations, but especially so in contingency-fee litigation, such as class actions, where clients are not paying for legal fees and costs upfront. Indeed, survey participants acting as class members affirmed these factors’ importance, particularly knowledge of the law and experience, when choosing class counsel and justifying their attorney choices.²¹⁵ These factors must therefore form part of the rubric and be afforded considerable weight because they are required under Rule 23(g)(1)(A). Specifically, as detailed below, Rule 23(g)’s mandatory factors should comprise at least fifty points (or at least half the value of the rubric), as it is unlikely Rule 23(g) would (or should) permit any less consideration.

Class counsel must have the financial, human, and practical resources to prosecute the action, which could last for years. This includes having sufficient funds to cover extensive costs, such as retaining experts, conducting extensive document review, or engaging a document management company. It is also important to have sufficient attorneys, paralegals, and staff to perform the work required in the litigation. That said, those applying for class counsel, particularly lead counsel, almost always individually or collectively, have the resources to successfully prosecute the action. Some law firms have more resources than others, but sufficiency of resources rarely seems to be a deciding factor for courts.²¹⁶ Some weight should be assigned to counsel’s ability and willingness to commit financial and human resources to the case, but it should be less significant than other factors. The proposed rubric assigns ten points to prospective counsel’s resources.

This leaves Rule 23(g)’s other three factors: the work counsel has done identifying or investigating potential claims in the action, experience, and knowledge of the applicable law. Counsel’s knowledge of the law is often understandably subsumed in counsel’s experience²¹⁷ and could also be considered when evaluating counsel’s work on the litigation. Courts discussing counsel’s knowledge of the law focus on past similar experiences in the same area of law and the quality of the pleadings in the case.²¹⁸ Unless counsel were asked to take a test, it is unclear how else their knowledge would be assessed independently from their experience and work on the case. Counsel’s knowledge of the law does not need an independent category, as it will be considered as part of counsel’s experience and present work on the instant litigation. This leaves two factors: counsel’s work on the case and experience.

Evaluating counsel’s work on the case in investigating and identifying potential claims is important. The level of investigation and legal acumen of a class complaint reveals counsel’s knowledge of the law and commitment to the case. Whether counsel consulted class members and experts is evidence of the same. Counsel can also detail the hours, personnel, and specific work done on the case to date in their motion for appointment. But counsel’s work on the instant case should not factor as greatly as counsel’s experience. The proposed rubric assigns it ten points.

Counsel’s experience is by far the Rule 23(g)(1)(A) factor courts discuss and weigh most heavily.²¹⁹ And surveyed participants acting as class members also valued class counsel’s prior experience and knowledge of the relevant law higher than any other factor.²²⁰ Comparing counsel’s experience, however, can be an apples-to-oranges exercise. One attorney in a data-breach case may have twenty-five years of litigation experience in privacy law with five years of experience in class action litigation, while another has fifteen years of data-breach class action litigation experience, and yet another twenty-two years of class litigation experience and worked on only one data-breach class action that was successfully settled. Which attorney is the most experienced? It is unclear. Experience should, therefore, be further subdivided into three categories in the rubric to allow for a more objective comparative evaluation of counsel.

Counsel should be evaluated on their general class action experience, experience litigating class action cases in the particular area of law at issue in the litigation, and experience litigating the claims asserted in the instant case across two measures: the number of cases they have litigated and the outcomes of those cases. One attorney may have litigated dozens of cases over several years, but never successfully. That should matter. Moreover, the rubric considers the number of cases as opposed to the number of years litigating because a case can last years and an attorney could, in theory, have twenty years of litigation experience based on two or three cases. Each category should be assigned an equal value. Outcomes should be evaluated in light of the size of the class, the potential damages at issue, the strength of the facts, and the favorableness (or lack thereof) of the governing law at the time of the litigation. The sample rubric in the appendix assigns five points to each of these metrics, which together total thirty points. Thus, the proposed rubric weighs experience three times more heavily than both resources and work on the litigation.

2. Permissible Rule 23(g)(1)(B) Class Counsel Adequacy Factors

Rule 23(g)(1)(B) permits courts to “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”²²¹ This provision allows courts to consider counsel’s proposed litigation strategy, diversity, legal fees, and willingness and commitment to communicate with class members. These factors may (and should) also vary by case. Disclosure of these factors is paramount and must form part of the rubric so that their consideration is transparent to prospective counsel and class members. These factors, however, should not be assigned as much weight as Rule 23(g)’s mandatory adequacy factors, individually or cumulatively, and no individual Rule 23(g)(1)(B) factor should outweigh any Rule 23(g)(1)(A) mandatory factor. The proposed rubric assigns a cumulative weight of no more than fifteen points to permissive factors.

3. Class Members’ Assessments of Class Counsel’s Adequacy

Class members’ evaluations of counsel should factor heavily in the rubric. For decades, class member participation in class litigation was thought to be not only impractical but impossible,²²² but in the last decade scholars and practitioners have demonstrated how, via advances in technology and class counsel’s dedication to involving class members, class members can have a meaningful voice in class litigation.²²³ And there is no shortage of reasons to provide it to them. Class litigation was meant at its core to be representative, but it has, since its inception, suffered criticism that it benefits only class action attorneys at the expense of the class.²²⁴ Involving class members puts pressure on class counsel to align the objectives of the litigation with class members’ objectives and preferences. It also provides courts with a better lens through which to evaluate counsel’s adequacy, both at the outset of the litigation and at certification.

As evidenced in piloted academic experiments and the 23andMe data breach litigation,²²⁵ surveying a well-powered (sufficiently numerous) and representative sample of class members provides valuable insight into class members’ concrete preferences. For example, in the 23andMe data breach litigation, class members valued the experience some firms possessed, and others did not.²²⁶ Rule 23(g) requires courts to consider the attorneys best able to represent class members’ interests. Given the demonstrated ability to do so, it seems absurd not to ask class members how those interests would be best represented or, more pointedly, whom they believe would best represent those interests and how. Ascertaining class members’ preferences, moreover, is not a tedious or particularly costly endeavor. In the 23andMe data breach litigation, one law firm bore the cost of engaging survey experts and filed analyzed survey results in a matter of weeks.²²⁷ The missing piece of the puzzle to this point has been how to practically and meaningfully take class members’ evaluations of counsel into consideration when appointing class counsel. Incorporating class members’ evaluations of counsel as part of the class counsel rubric and assigning it considerable weight provides that missing piece.

The proposed rubric assigns class members’ overall evaluation of counsel thirty-five points. It divides most of those points evenly amongst three subcategories, each worth ten points: class members’ rankings of counsel (from “Would least want to represent me” to “Would most want to represent me”); class members’ rankings of counsel’s level of experience (from “Not sufficiently experienced” to “Extremely experienced”); and class members’ rankings of counsel’s experience litigating in the area of law relevant to the litigation (from “Not sufficiently experienced” to “Extremely experienced”). The proposed rubric also assigns five points based on class members’ rankings of the factor they considered most important in the attorney representing them (from “Unqualified” to “Most qualified”).²²⁸

The weight assigned to class members’ evaluations of counsel is significant but does not overpower the court’s assessment. This reflects the belief that class members provide valuable insight, but courts as their fiduciaries have the ultimate responsibility to appoint class members the best counsel. Because it is unlikely that sampled class members will speak in one uniform voice, it is important courts retain this responsibility. Class members’ evaluations of counsel also have a greater propensity to be misinformed or biased because of their lack of legal training, but collectively, those biases would be less observable.²²⁹ A proportion of thirty-five out of one-hundred points, however, provides class members with a clear, meaningful, and significant voice that does not overpower the court’s evaluation of counsel, but can substantially influence the court’s appointment decision.

C. Class Counsel Rubric Potential Criticisms

Adopting a class counsel rubric is not without possible costs and concerns. These include the potential to: (1) tax judicial resources; (2) delay class counsel appointments and the litigation; (3) lose judicial expertise in class counsel appointments; (4) fail to eliminate judicial bias; and (5) appoint less diverse representation for class members. While it would be remiss not to acknowledge these possible drawbacks, this Section explains why these do not outweigh the benefits of instituting a rubric.

1. Greater Expenditure of Judicial Resources

A rubric will require courts to dedicate more time to class counsel appointment decisions, particularly in cases where such positions are highly competitive. While this may be a positive development, judicial resources are finite, and time would be taken away from other matters. To conserve judicial resources (and sampled class members’ time) when there are many attorneys applying for class counsel positions, the rubric can be limited to lead counsel positions. The average number of lead counsel applicants in Part IV’s dataset in competitive cases was a little less than nine. And not all class counsel applicants must form part of the rubric. When counsel fails to meet Rule 23(g)(1)(A)’s adequacy floor, evaluating them via the rubric is unnecessary. Use of the rubric may also be less necessary for LPC positions, as these attorneys assist in prosecuting the case but are less likely to steer the course of the litigation than lead counsel, who is responsible for pleadings, motions, arguments, discovery, and retention of experts in the case.²³⁰ Therefore, while it may be a little more time-consuming for courts to use a class counsel rubric, it would not, at least in most cases, require a significantly large amount of time.

2. Delays In Class Counsel Appointments and Overall Litigation

Not only will having judges fill out a rubric for each class counsel applicant require a more time-intensive process for judges—class member survey design, deployment, and analysis could also increase the time between class counsel applications and appointments, necessarily delaying the litigation and class members’ relief. But a substantial delay does not have to occur. In the 23andMe data breach litigation, class member surveys were designed, deployed, and analyzed within the court’s pre-planned class counsel application and appointment schedule.²³¹ No additional time was required. Best and standardized practices are presently being developed to conduct class member surveys,²³² and, once adopted, these best practices will further streamline the process. Courts can have the results well in advance of making any appointment decision and even in advance of a class counsel appointment hearing, as occurred in the 23andMe data breach litigation.²³³

3. Loss of Judicial Expertise in Class Counsel Appointments

Rubrics may constrain courts from using their expertise and intuition in class counsel appointments. If a court cannot justify its desired appointment decisions through the rubric, this should trouble the court. Courts do not have to choose the attorney team with the highest score but rather a well-rounded team. If the rubric’s scoring suggests the court is not choosing based on objective measures, this again should trouble the court. That said, the rubric does not require judges to cast aside common sense. There may exist legitimate reasons to diverge from rubrics. For example, a case may need three attorneys to serve as lead counsel, but one of the attorneys with the highest score on the rubric might refuse to work cooperatively with the other two attorneys. Appointing the top three candidates with similar backgrounds may also not benefit the class if the resulting legal team is afflicted with cognitive biases. Rubrics do not completely replace judicial common sense and expertise but provide courts with an objective reference point for their class counsel appointment decisions.

4. Failure to Fully Eliminate Judicial Bias

Conversely, because judges would not be completely bound by rubric outcomes, appointment decisions could still reflect judicial biases. Furthermore, because the court’s scoring of individual candidates will not be disclosed, there will be little avenue for the class or attorneys not appointed to challenge explicit or implicit biases. But such is presently the case. Even if the rubrics were strictly followed, the results could still be riddled with biases. If a particular court is biased against an attorney or strongly prefers another attorney, that might impact the court’s scoring of the attorney on several of the categories that form part of the rubric. There really is little way to prevent this other than the court later comparing its scoring with class members’ or perhaps also having its clerks independently complete the rubric. But the other criteria or factors the court considers under Rule 23(g)(1)(B), which presently form 15 points of the rubric, could also be manipulated to favor a particular candidate. Admittedly, class counsel rubrics do not eradicate judicial bias. But they should alert courts of their biases and temper them, as class members’ evaluations of counsel also factor into the analysis.

5. Less Diverse Counsel Appointments

It is possible that selection of the highest-scoring attorneys or highest-scoring attorney team may lead to a non-diverse legal team afflicted with cognitive biases, which undoubtedly would not be the best legal team, particularly to represent diverse class members that have little to no voice to assert their needs throughout the litigation. The rubric, however, as previously stated, could take this into consideration by ensuring that diversity of gender, race, and experience²³⁴ form part of Rule 23(g)(1)(B)’s permissible considerations.²³⁵ Caps on collective scores in categories, as discussed in the first Section, should also prevent this from occurring. In other words, if White male repeat players have the most collective experience, experience could be capped at 60 points to ensure that other categories that bring diversity of experience are factored into consideration.

The benefits of employing a rubric outweigh the potential drawbacks. A court may prefer a particular attorney or group of attorneys but realize once completing the class counsel rubric that its initially preferred attorney(s) are not the best for the class. A rubric provides a second (even if muffled) voice to temper the court’s instinct by allowing a sample of class members to opine on their prospective legal team and gain knowledge of the litigation. The court’s employment of the rubric would also decrease the perception of bias in class counsel appointments, which may lead to a wider and collectively more qualified applicant pool from which the court can appoint class counsel for the class.

VI. Conclusion

“[C]lass members have a strong and legitimate interest in having their attorneys appointed pursuant to a practice that is free of unlawful discrimination. [What i]f a district judge had a practice of appointing only attorneys of a particular race or gender . . . ?”²³⁶

The quality of class members’ legal representation should not be left to luck, or an attorney’s strategic maneuvers, or a judge’s preferences or biases. Class counsel appointments should be based on objectively measured factors that include class members’ evaluations of prospective counsel. Presently, courts appoint class counsel in a silo with little oversight. The original empirical data reviewed suggests that at least some courts are discriminating on the basis of gender, and more importantly, attorneys’ perceptions of such discrimination appear to be impacting the composition of the attorneys that form the class counsel applicant pool, thus impacting class members’ legal representation. While Rule 23(g) provides a worthy barometer for courts to weed out inadequate counsel, it does not assist courts in objectively and comparatively evaluating competent attorneys to appoint.

This Article has proposed a practical framework to comparatively evaluate prospective class counsel—a rubric that assigns specific values to Rule 23(g)’s criteria and, importantly, to class members’ evaluations of class counsel. In addition to curtailing the unchecked discretion courts presently wield in appointing attorneys for class members, the rubric affords class members a quantifiable voice in their litigation.

A class counsel rubric that considers class members’ evaluations of counsel is but one step toward affording class members a much-needed participatory role in class litigation. More must be done to provide class members a true (even if far removed) seat at the litigation table and ensure that class litigation is truly being conducted in their interest. A voice is of no value if it can be ignored by relevant class actors, such as courts and class counsel. Class litigation reform efforts must focus not solely on empowering class members with a voice but providing them with a shared governance role. A role in choosing their legal representation is an important first step, but it cannot be the last.

VII. Appendix

Class Counsel Applicant Comparative Evaluation Rubric

Rule 23(g)(1)(A)’s Mandatory Adequacy Categories

Category	Points Allowed	Points Possible
The resources counsel is able and willing to commit to the litigation (counsel’s financial resources and human resources, such as attorneys and staff)		5
The work counsel has done in identifying or investigating potential claims in the action (the quality of counsel’s complaint, any unique facts or allegations counsel is asserting, counsel’s communications with class members to better understand the harms and needs of the class, counsel’s engagement of experts to better understand the nature of the facts or claims at issue, the time counsel has dedicated to the matter)		5
The number of class action cases counsel has litigated		5
The quality of outcomes counsel has achieved in past class litigation (considering the size of the class, the potential damages at issue, the strength of the facts, and the favorableness of the law in these cases)		5
The number of matters counsel has litigated in this particular area of law		5
The quality of outcomes counsel has achieved litigating in this particular area of law (considering the size of the class (if relevant), the potential damages at issue, the strength of the facts, and the favorableness of the law in these cases)		5
The number of matters counsel has litigated involving the claims or types of claims at issue in this litigation		5
The quality of outcomes counsel has achieved litigating the claims or types of claims at issue in this litigation (considering the size of the class (if relevant), the potential damages at issue, the strength of the facts, and the favorableness of the law in these cases)		5
Total Points		50

Rule 23(g)(1)(B)’s Permissible Considerations (“Any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class”)²³⁷

Category	Points Allotted	Possible Points
The diverse experiences or perspectives counsel will bring to the litigation team
Counsel’s commitment to considering class members’ preferences and communicating with class members throughout the litigation

Total Points		15

Class Members’ Evaluations of Class Counsel²³⁸

Category	Points Allotted	Possible Points
Counsel’s ranking by class members (on a scale from “Would least want to represent me” to “Would most want to represent me”)		10
Counsel’s overall experience as ranked by class members (on a scale from “Not sufficiently experienced” to “Extremely experienced”)		10
Counsel’s experience litigating in the area of law relevant to this litigation as ranked by class members (on a scale from “Not sufficiently experienced” to “Extremely experienced”)		10
Counsel’s ranking on the factor stated to be most important to class members (on a scale from “Unqualified” to “Most qualified”)		5
Total Points		35

[*] Assistant Professor, University of Miami Herbert Business School. J.D., Harvard Law School; B.A., University of Miami. The Author would like to thank the attendees of the Southeast Academy of Legal Studies in Business and the Big Ten & Friends Business Law & Ethics Research Seminar for their invaluable input into earlier drafts of this Article. The author would also like to thank Wyatt English, Anthony R. Joffre, Eileen M. Rodriguez, and Elizabeth Santana Rivero for their invaluable research assistance.

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