Rejection of all-male class leadership is seen as trend

Women class action attorneys on Wednesday praised a federal judge's refusal to approve the appointment of an all-male team of interim lead plaintiffs' lawyers, saying the decision is part of a trend of judicial officers insisting on more diversity.

U.S. District Judge James Donato of the Northern District of California said in an order Tuesday the four proposed lead counsel were all qualified and capable of handling a putative class action by users of the Robinhood Markets Inc. app who couldn't access their brokerage accounts on a busy trading day. But he balked at an attorney lineup led by four male lawyers with Kaplan Fox & Hilsheimer LLP in Oakland and Cotchett, Pitre & McCarthy LLP in Burlingame.

"The court is concerned about a lack of diversity in the proposed lead counsel," Donato wrote. "For example, all four of the proposed lead counsel are men, which is also true for the proposed seven lawyers for the 'executive committee' and liaison counsel." In re: Robinhood Outage Litigation, 20-CV01626 (N.D. Cal., filed March 5, 2020).

"Counsel with significant prior appointments are by no means disqualified from consideration here, but leadership roles should be made available to newer and less experienced lawyers, and the attorneys running this litigation should reflect the diversity of the proposed national class," Donato added.

The judge deferred a scheduling order in the case until he was satisfied with the lead counsel issue.

Lori E. Andrus, a partner at Andrus Anderson LLP who handles class actions but is not involved in this case, hailed Donato's ruling.

"Women have been graduating from law school in near equal numbers for about 40 years," Andrus wrote. "I'm glad to see judges recognizing that women lawyers are not being given the leadership opportunities they deserve."

Elizabeth J. Cabraser, a prominent plaintiffs' class action attorney with Lieff Cabraser Heimann & Bernstein LLP who also is not involved in the Robinhood case, said judges have become "increasingly attentive to diversity and inclusion in leadership appointments."

That's important, she wrote, because women, younger partners and people of color "are already doing the work, in the courts, with clients, and in discovery and briefing."

"It is refreshing that courts are being proactive in using their appointment authority and discretion to provide these lawyers the leadership opportunities they -- and the civil justice system -- deserve, to serve alongside more experienced counsel," Cabraser added. "Judges have been hinting at and suggesting this for a number of years, and Judge Donato is not the first to take a direct approach."

Federal judges, notably in the Northern District, have pushed trial attorneys to give more opportunities for younger attorneys to argue motions or question witnesses.

A host of lawsuits were filed against Robinhood after the brokerage service firm's system crashed March 2, leaving clients unable to trade. Kaplan Fox partners Laurence D. King and Matthew B. George and Cotchett Pitre attorneys Mark C. Molumphy and Tyson C. Redenberger proposed to consolidate the litigation, with their firms as interim lead counsel.

The firms and attorneys cited their experience handling large class actions, a point Donato did not question. The proposal also included an executive committee of seven attorneys who had filed complaints against Robinhood, all of whom are men.

George declined comment Wednesday, and the other proposed lead lawyers could not be reached immediately.

Attorneys for Robinhood took no position on the proposal.

Donato also expressed concern about the same plaintiffs' class action attorneys getting leadership roles in another large case.

"While this experience is likely to benefit the putative class, it highlights the 'repeat player' problem in class counsel appointments that has burdened class action litigation and MDL proceedings," Donato wrote.

Kaplan Fox and Cotchett, Pitre & McCarthy did not file a response as of press time Wednesday.

Donato ordered all 13 of the complaints consolidated for pretrial purposes but reserved a decision about whether to keep the cases together at trial.