UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Lori Carrier and

Valerie Whitman

v. Civil No. 05-cv-430-JD

American Bankers Life

Assurance Co. of Florida

O R D E R

Lori Carrier and Valerie Whitman filed a putative class

action in which they allege that American Bankers Life Assurance

Company of Florida breached its insurance contracts with them and

other members of the putative class by failing to refund unearned

portions of premiums that were prepaid as a part of their vehicle

financing. The plaintiffs move to have their counsel appointed

as interim class counsel under Federal Rule of Civil Procedure

23(g)(2)(A). American Bankers objects to the motion.

Rule 23(g)(2)(A) provides that “[t]he court may designate

interim counsel to act on behalf of the putative class before

determining whether to certify the action as a class action.” 

Although the rule does not provide a standard for determining

whether interim counsel should be appointed, courts that have

construed it have relied on the Advisory Committee Notes

accompanying the rule which limit its use to circumstances when

interim counsel is necessary to protect the interests of the

putative class. See, e.g., Parkinson v. Hyundai Motor Am., 2006

WL 2289801 at *2 (C.D. Cal. Aug. 7, 2006); Donaldson v. Pharmacia

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Pension Plan, 2006 WL 1208582 at *1 (S.D. Ill. May 10, 2006). 

The need to protect the interests of the putative class arises

when it is necessary to have one attorney to prepare for the

class certification decision, to prepare or respond to other

motions before class certification, to discuss settlement before

certification, or to resolve rivalry or uncertainty among

competing counsel or law firms. In re Issuer Plaintiff Initial

Pub. Offering Antitrust Litig., 234 F.R.D. 67, 69-70 (S.D.N.Y.

2006).

Carrier and Whitman assert that appointment of interim class

counsel is necessary to facilitate pre-certification discovery

and communication with putative class members and to avoid

jurisdictional issues caused by multiple cases involving

different counsel. American Bankers contends that interim

counsel is unnecessary because none of the factors that would

support such an appointment are present here. In support of its

objection, American Bankers represents that no other cases

similar to this one are pending against it here or in other

jurisdictions. In the absence of multiple counsel in this case

or similar cases filed here or in other jurisdictions, the second

reason offered by the plaintiffs does not appear to apply here.

The first reason offered by Carrier and Whitman, the need to

designate interim counsel to facilitate discovery and

communications with putative class members, could be persuasive

if it were more fully developed. They have not, however,

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provided any concrete examples of circumstances in this case

under which a designated interim counsel would be advantageous

for the putative class. They also represent that discovery is

appropriate without the designation of interim counsel.

In light of American Bankers’s objection to the appointment

of interim counsel at this time and the barebones request filed

by the plaintiffs, the motion is denied, without prejudice to

file a fully supported motion for appointment of interim counsel

if that becomes necessary and appropriate.

Conclusion

For the foregoing reasons, the plaintiffs’ motion to appoint

interim class counsel (document no. 29) is denied without

prejudice.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 19, 2006

cc: Frank Burt, Esquire

James Butler, Esquire

Kate S. Cook, Esquire

Wilbur A. Glahn, III, Esquire

Farrokh Jhabvala, Esquire

Edward K. O’Brien, Esquire

Joel O. Wooten, Jr., Esquire

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