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Diversity Plays Role In Selection of Class Counsel

March 10, 2011


The Honorable Harold Baer, Unites States District Judge for the Southern District of New York, is serious about diversity and making it know from the bench. 

On Monday, Judge Baer certified a class action and made clear that diversity played a role in his assignment of class counsel:

“Cohen, Milstein, Sellers & Toll, PLLC has the experience, knowledge, commitment and record of work on this case to merit appointment as Class Counsel. See Rehns Decl. Ex. B; Lehman Bros., 232 F.R.D. at 182. Defendants have not argued otherwise. In considering other matter pertinent to counsel’s ability to fairly and adequately represent the class, as I have noted in previous opinions, diversity is a factor of central importance. See In re J.P. Morgan Chase Cash Balance Litig., 242 F.R.D. 265, 277 (S.D.N.Y. 2007). Cohen Milstein has helped to satisfy the Court’s concerns by its note that it was recognized as one of the top law offices in Washington D.C. for diversity efforts. While I recognize that many or all of the proposed class members may be institutional investors, it should be clear to all that their investments were made on behalf of people of diverse gender, racial, and socio-economic backgrounds. That said, Cohen Milstein is encouraged to staff the case accordingly. See J.P. Morgan Cash Balance Litig., 242 F.R.D. at 277.”  

This is not the first time Judge Baer has taken action from the bench to promote diversity in the profession.  Last September, Judge Baer instructed lead counsel in a class action against Gildan Activewear, to “make every effort” to have at least one woman and one minority working on the case.

Some have criticized the judge’s actions, arguing that he is improperly using the bench to promote his personal agenda.  It will be interesting to see whether other judges will follow his lead, and how champions of diversity will react to Judge Baer’s non-apologetic and no nonsense approach to promoting diversity within the profession.

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