EXHIBIT A 

Case: 1:20-cv-04405 Document #: 66-1 Filed: 12/22/20 Page 1 of 6 PageID #:1333
UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

IN RE: NAVISTAR MAXXFORCE ENGINES ) 

MARKETING, SALES PRACTICES AND ) Case No. 14-cv-10318 

PRODUCTS LIABILITY LITIGATION ) 

 ) MDL No. 2590 

 ) 

THIS ORDER RELATES TO ALL ACTIONS ) Judge Joan B. Gottschall 

ORDER 

 The court grants the Denis Gray plaintiffs’ motion for appointment of interim lead 

counsel and liaison counsel [8] and denies the Par 4 plaintiffs’ motion [69] filed in 14-cv-5151. 

STATEMENT

 

Before the court are two applications for appointment as interim counsel pursuant to 

Federal Rule of Civil Procedure 23(g). The first proposal from the “Denis Gray” plaintiffs 

consists of a leadership structure of three firms—Adam J. Levitt of Grant & Eisenhofer, P.A. 

(G&E), Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein (LCHB), and William M. 

Audet of Audet & Partners, LLP—serving as interim co-lead counsel, with Laurel G. Bellows of 

The Bellows Law Group acting as Liaison Counsel. The second proposal, from the “Par 4” 

plaintiffs, features two firms as interim co-counsel—Jeffrey R. Krinsk of Finkelstein & Krinsk 

LLP (“F&K”) and either Levitt of G&E or Selbin of LCHB—with Marvin Miller of the Miller 

Law Firm (“Miller Law”) acting as Liaison Counsel. 

 Pursuant to Federal Rule of Civil Procedure 23(g)(3), a “court may designate interim 

counsel to act on behalf of a putative class before determining whether to certify the action as a 

class action.” It is generally accepted that the same considerations that govern the appointment 

of class counsel once a class is certified govern the designation of interim class counsel before 

certification. See, e.g., Walker v. Discover Fin. Servs., No. 10 C 6994, 2011 WL 2160889, at *2 

(N.D. Ill. May 26, 2011). When presented with competing requests for appointment, “the court 

must appoint the applicant best able to represent the interests of the class.” Fed. R. Civ. P. 

23(g)(2). The court “must consider”: 

(i) the work counsel has done in 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; 

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Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). In addition, the court may also “consider any other matter 

pertinent to counsel’s ability to fairly and adequately represent the interests of the class. . . .” 

Fed. R. Civ. P. 23(g)(1)(B). 

 All of the firms vying to be interim lead counsel are well-credentialed, experienced in 

class actions and complex litigation (although to varying degrees), and have documented their 

efforts to investigate the facts giving rise to the claims already brought and to other potential 

claims. Choosing among the candidates is not easy. For the reasons that follow, however, the 

court finds that the first proposal from the Denis Gray plaintiffs is best suited for the needs of 

this litigation. 

 First, the Denis Gray plaintiffs propose a three-firm leadership structure comprised of 

two large, sophisticated plaintiffs’ firms, G&E and LCHB, along with Audet & Partners. Where 

a disagreement arises within the leadership, the odd-numbered structure will facilitate, at a 

minimum, a 2-1 resolution. By contrast, the Par 4 plaintiffs offer a two-firm leadership 

structure, which creates the possibility of a stalemate. Moreover, in light of the apparent distrust 

between F&K and both G&E and LCHB, and given F&K’s accusations against both firms, it is 

foreseeable that an internal conflict could develop in a joint F&K-G&E or F&K-LCHB 

appointment, to the detriment of the class and the progress of the MDL. 

 Second, the Denis Gray plaintiffs appear to hold the confidence of nearly all plaintiffs, 

except for the Par 4 plaintiffs. On January 8, 2015, the Denis Gray plaintiffs organized a 

meeting to discuss initial disclosures, document retention, and other case management protocols. 

The Par 4 plaintiffs contend that the meeting was merely a charade to present a predetermined 

leadership structure, its preliminary decisions, and assignments to firms that had consented to the 

leadership structure. 

What the Par 4 plaintiffs do not dispute, however, is that a supermajority of plaintiffs’ 

firms involved in this MDL favor the Denis Gray plaintiffs’ proposal. This near consensus 

suggests that the Denis Gray plaintiffs’ counsel have acquired the confidence and trust of their 

colleagues.1

 

The Par 4 plaintiffs contend that the Denis Gray plaintiffs will excessively rely upon 

committees and create an environment that engenders unnecessary, duplicative work. Indeed, 

there is a fine line in an MDL between establishing (a) an organizational structure that promotes 

the efficient delegation of work, and (b) an elaborate inter-firm bureaucracy that impedes 

progress and generates fees. The Denis Gray plaintiffs, however, stress that they can straddle 

this line. They vow to “collect time reports from all co-counsel involved in this litigation in 

order to ensure that there is no duplicative or excessive billing, and to make sure that all fees are 

appropriate.” (ECF No. 8 at 19.) At least at the outset, this system appears sounds and wellpositioned to manage time in relation to task. If, upon reviewing the Denis Gray plaintiffs’ 

                                                            

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 The court finds no evidence to support the accusation that the Denis Gray plaintiffs acquired 

the support of other plaintiffs’ firms improperly. 

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periodic reports of fees accrued, the court sees evidence of unnecessary, wasteful billing, the 

court can revisit this order appointing interim counsel. See Fed. R. Civ. P. 23(g)(1)(E). 

Accordingly, the court grants the Denis Gray plaintiffs’ motion for appointment of 

interim lead counsel and liaison counsel and denies the Par 4 plaintiffs’ motion. The court 

designates Adam J. Levitt of Grant & Eisenhofer, P.A., Jonathan D. Selbin of Lieff Cabraser 

Heimann & Bernstein, and William M. Audet of Audet & Partners, LLP as interim co-lead 

counsel and Laurel G. Bellows of The Bellows Law Group as Liaison Counsel. 

 Interim co-lead class counsel shall provide general supervision of the activities of all 

plaintiffs’ counsel in the litigation. They should seek consensus among the attorneys when 

making decision that may have a critical impact on the litigation. They have the authority to: 

a. Determine (in consultation with other counsel) and present to the court and opposing 

 parties the position of the plaintiffs in the litigation on all matters, substantive and 

 procedural, arising during the proceedings; 

b. Coordinate and conduct discovery on behalf of the plaintiffs, either personally or through 

 the efforts of other counsel, including following any discovery and scheduling orders 

 that the court may issue, preparing joint interrogatories and requests for production of 

 documents, and deposing witnesses; 

c. Host or co-host a common document depository for the plaintiffs and monitor the review 

 of documents to ensure non-duplication of effort; 

d. Coordinate the selection and preparation of expert witnesses for the plaintiffs; 

e. Conduct settlement negotiations on behalf of the plaintiffs; 

f. Delegate specific tasks to other counsel and appoint such informal committees of counsel 

 as are necessary; 

g. Enter into stipulations with opposing counsel as necessary; 

h. Prepare and distribute periodic status reports for the plaintiffs as required; 

i. Monitor the activities of co-counsel to ensure that schedules are met and unnecessary 

 expenditures of time and funds are avoided; 

j. Perform such other duties as may be incidental to proper coordination of plaintiffs’ 

 activities or authorized by further order of the court; 

k. Keep the other attorneys in the group advised of the progress of the litigation and consult 

 them about decisions significantly affecting their clients; 

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l. Keep a daily record of their time spent and expenses incurred in connection with this 

 litigation, indicating with specificity the hours, location, and particular activity (such as 

 “Conduct deposition of A.B.”). The failure to maintain such records will be grounds for 

 denying court-awarded attorney fees, as will an insufficient description of the activity 

 (such as “research” or “review of correspondence”); and 

m. Submit a billing statement to chambers for the court’s review six months from the entry 

 of this order and again six months after that. Thereafter, such records shall be submitted 

 annually. 

 While the court will not enter a detailed order regulating the number of attorneys that 

may attend depositions or hearings, or prescribing a protocol for email communications, should 

there be any indication that interim counsel is violating its duties to the class or co-plaintiffs, or 

otherwise engaging in unduly expensive practices, the court will reconsider the need for more 

detailed specification. 

 No tasks, including filing pleadings and other papers or conducting discovery, shall be 

performed by plaintiffs’ counsel without coordination by interim co-lead counsel, so as to 

prevent duplication of efforts. All papers filed with the court on behalf of any plaintiff shall be 

filed through interim co-lead counsel. In the event that the Par 4 plaintiffs or plaintiffs 

represented by counsel other than interim co-lead counsel have interests distinct from those of 

the rest of the putative class, their counsel may petition this court for limited relief from this 

order. All plaintiffs’ counsel shall submit to interim co-lead counsel a record of time expended 

and expenses incurred in the manner, form, and frequency directed by interim co-lead counsel. 

 The parties will comply with the United States District Court for the Northern District of 

Illinois’ rules regarding Electronic Case Filing (“ECF”) for all documents submitted for filing 

before this court. Service through ECF shall be deemed sufficient with no additional service 

required. For documents to be served but not filed, service on interim co-lead counsel 

constitutes service on all other attorneys for plaintiffs. 

 Cooperation by and among counsel is essential for the orderly and expeditious resolution 

of this litigation. Counsel for all parties are directed to cooperate with one another, wherever 

possible, to promote the expeditious handling of pre-trial proceedings in this litigation. The mere 

communication of otherwise privileged information among plaintiffs’ counsel and their 

respective clients shall not be deemed a waiver of the attorney-client privilege or the attorney 

work product immunity. 

 This order shall apply to each case subsequently filed in this court or transferred to this 

court, unless a party objecting to the consolidation of such a case files an application for relief 

from this order. Interim co-lead class counsel shall assist the court by calling to the attention of 

the clerk of the court the filing or transfer of any case that might properly be consolidated as part 

of this action. 

 If any party wishes to object to the terms of this order, they should file objections within 

fourteen days of the date of the order. 

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 The parties are to appear for status on April 10, 2015 at 10:00 a.m. An order addressing 

this initial status conference shall issue shortly. 

 

 ENTER: 

 /s/ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: March 5, 2015 

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