## Facts

- Fourteen actions under the Employee Retirement Income Security Act (ERISA) were filed against Cardinal Health, Inc. and others on behalf of participants in two defined-contribution plans: the Cardinal Health Profit Sharing, Retirement and Savings Plan (Cardinal Plan) and the Syncor International Corporation Employees’ Savings and Stock Ownership Plan (Syncor Plan).
- The cases arose from alleged fiduciary breaches connected to plan investments that included Cardinal Health stock, and related participant communications.
- The United States District Court for the Southern District of Ohio consolidated the fourteen cases into a single action captioned *In re Cardinal Health, Inc. ERISA Litigation*.
- After consolidation, five different plaintiff groups filed competing motions asking the court to appoint interim lead counsel (or a leadership team) to manage the consolidated litigation going forward.
- One group—the McKeehan plaintiffs—asked the court to appoint two firms as co-lead counsel, emphasizing that (a) both firms had served as lead or co-lead counsel in large ERISA class actions, (b) the two firms had worked together successfully in other matters, and (c) they had already performed significant work in investigating and organizing claims in this litigation, including submitting multiple briefs.
- The other applicants proposed different firms or arrangements, with varying levels of complex-litigation experience, but with less demonstrated ERISA class-action experience and/or less prior work shown on this consolidated case.
- The court considered the competing requests as a case-management matter focused on who would best represent the putative class and manage the litigation efficiently before class certification.

## Issues

1. Which applicant firm or firm group should be appointed interim lead counsel (or co-lead counsel) for the consolidated ERISA putative class action under Federal Rule of Civil Procedure 23(g) and the court’s case-management authority?
2. What interim leadership structure and allocation of responsibilities should be set to coordinate filings and reduce duplicated effort among multiple plaintiffs’ counsel?

## Decision

- The court granted the McKeehan plaintiffs’ motion and appointed the two firms they proposed as interim co-lead counsel for plaintiffs in the consolidated action.
- The court denied the competing motions seeking appointment of other firms or alternative leadership structures.
- The court set an organizational framework for the litigation, placing responsibility on co-lead counsel to coordinate plaintiffs’ work and direct core litigation tasks (including consolidated pleadings and motion practice), with other counsel participating under that leadership to avoid duplicated filings and disjointed strategy.

## Legal Principles

- Federal Rule of Civil Procedure 23(g) guides the selection of class counsel; courts consider factors including: (1) work counsel has done in identifying or investigating potential claims, (2) counsel’s experience handling class actions and the specific types of claims asserted, (3) counsel’s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.
- In consolidated, multi-firm putative class actions, the district court has broad discretion to appoint interim class counsel to manage the case before class certification and to structure counsel leadership for orderly pretrial proceedings.
- Demonstrated ERISA class-action experience and demonstrated early work on the specific litigation (such as investigation and substantive briefing) are valid bases for selecting interim leadership.
- The court may favor a leadership proposal that shows the ability to work jointly and execute a clear division of labor, to reduce wasteful duplication and ensure consistent advocacy for the putative class.

## Conclusion

The court resolved competing bids for interim leadership in a consolidated ERISA class action by applying Rule 23(g)-style factors and selecting the McKeehan plaintiffs’ proposed two-firm team as interim co-lead counsel, while denying rival motions and establishing a leadership structure intended to coordinate plaintiffs’ efforts in the consolidated case.


In re Cardinal Health, Inc. ERISA Litigation, 225 F.R.D. 552 (2005)