Posted Nov 18, 2013 05:29 pm CST
The U.S. Supreme Court has refused to hear a challenge to a federal judge’s order that three law firms serving as class counsel staff the case with lawyers whose gender and race reflect the composition of the class.
Justice Samuel A. Alito issued a statement supporting the cert denial but stressing that the action isn’t an expression of opinion on the merits. “If the challenged appointment practice continues and is not addressed by the Court of Appeals,” Alito wrote, “future review may be warranted.”
The judge in question, U.S. District Judge Harold Baer of Manhattan, appears to have a “standard practice” of imposing race- and sex-based staffing requirements on law firms in class-certification orders, Alito wrote in his statement (PDF). Baer has done so in three cases besides the challenge before the court involving the merger that produced Sirius XM Radio.
Alito expressed doubts that the practice is constitutional or allowed under federal procedural rules. “Based on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended,” Alito wrote.
Baer justified his order by citing Rule 23 of the Federal Rules of Civil Procedure, which says that judges certifying class counsel may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”
Alito wrote that he doubts the provision “can be stretched to justify the practice at issue here. It seems quite farfetched to argue that class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class. Indeed, if the District Court’s rule were taken seriously, it would seriously complicate the appointment process and lead to truly bizarre results.”
How does one ascertain the race and gender of the class? Alito wondered. Should the information be uncovered by discovery? Should the class be polled? And when demographics could be ascertained, there could be some “strange results,” he said.
“Suppose, for example, that the class consisted of persons who had undergone a particular type of treatment for prostate cancer,” Alito wrote. “Would it be proper for a district judge to favor law firms with a high percentage of male attorneys?”
Alito offered another example. A class of stock purchasers may be more affluent than the general population. “To the extent that affluence correlates with race, would it be proper for a district judge in such a case to favor law firms with relatively low minority representation?” Alito asked.
The New York-based 2nd U.S. Circuit Court of Appeals had not ruled on the challenge to Baer’s order because it found the objecting class member did not have standing.
The case is Martin v. Blessing. Hat tip to SCOTUSblog.
Prior coverage of a Baer diversity order:
ABAJournal.com: “Federal Judge Orders Class Counsel to Try for More Diverse Legal Team”