Shiloah v. Geico Indemnity Company

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RENATA SHILOAH, on behalf of herself
and all others similarly situated,
DECISION AND ORDER
Plaintiff,
v. 	6:24-CV-06447 EAW CDH
GEICO INDEMNITY COMPANY,
Defendant.
INTRODUCTION
Plaintiff Renata Shiloah (“Plaintiff”) commenced this putative class action suit
against defendant GEICO Indemnity Company (“Defendant” or “GEICO Indemnity”),
asserting a claim for breach of contract based on Defendant’s failure to pay sales tax
as part of the “Actual Cash Value” or “ACV” for total loss vehicles. 1 (Dkt. 1).
Presently before the Court is Plaintiff’s motion to appoint Feinstein Doyle
Payne & Kravec, LLC, Vozzolo LLC, and Normand PLLC as co-lead interim class
counsel. (Dkt. 58). For the reasons below, Plaintiff’s motion is denied without
prejudice.
1 	A related action, Marcelletti v. GEICO General Insurance Company, Civil
Action No: 6:23-cv-6211 (W.D.N.Y.), involving an identical breach of contract claim
for unpaid sales tax against a different GEICO entity is also pending in this Court.
Familiarity with this action and the Marcelletti action is assumed for purposes of the
instant motion.
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BACKGROUND
This case has been referred to the undersigned for all pre-trial matters
excluding dispositive motions. (Dkt. 29).
Plaintiff commenced this action on July 17, 2024 by filing a class action
complaint. (Dkt. 1). The complaint identifies Feinstein Doyle Payne & Kravec, LLC,
Vozzolo LLC, and Normand PLLC (hereinafter referred to, collectively, as “Plaintiff’s
Counsel”) as “Counsel for Plaintiff and the Proposed Class.” (Id. at 13).
A Rule 16 scheduling conference was set in this matter for May 14, 2025. (Dkt.
46). For putative class actions in this District, Local Rule of Civil Procedure 16
provides that parties should be prepared at their initial scheduling conference to
discuss the appointment of interim class counsel. Loc. R. Civ. P. 16(b)(3)(G)(ii). On
May 8, 2025, the parties submitted a proposed discovery plan, which described
several disagreements between the parties regarding management of this case. (See
Dkt. 	52). 	The 	appointment 	of 	interim 	class 	counsel 	was 	one 	such 	point 	of
disagreement. Plaintiff’s position was that “the designation of interim class counsel
is necessary and appropriate to safeguard the interests of the proposed Class”
because “[e]ntrepreneurial plaintiffs’ counsel may piggyback off the efforts [of]
Plaintiff’s [C]ounsel by filing duplicative cases, setting up the potential for a reverse
auction whereby competing firms may be pitted against one another to secure a
favorable settlement for defendants.” (Id. at 15-16). By contrast, Defendant’s position
was that “it is not necessary for, and there would be no benefit from, an appointment
of interim class counsel,” because Plaintiff has not identified any overlapping
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litigation or competing counsel. (See id. at 16-18). At a continued scheduling
conference on May 20, 2025, the Court advised Plaintiff’s Counsel to file a motion if
it sought to be appointed as interim class counsel. (See Dkt. 55).
Plaintiff filed the instant motion to appoint Plaintiff’s Counsel as co-lead
interim class counsel on May 30, 2025. (Dkt. 58). In her motion, Plaintiff identifies a
purportedly overlapping class action in the Eastern District of New York, See, et al.
v. Gov’t Employees Ins. Co., et al., No. 21-cv-547 (E.D.N.Y.) (“See”). (Dkt. 59 at 6). At
the time Plaintiff filed her motion, the See plaintiffs had a pending motion to amend
their complaint to add, according to Plaintiff, “claims for unpaid sales tax on behalf
of classes defined to include GEICO Indemnity insureds.” 2 (Id.). Although Plaintiff
argued that these claims were “destined to fail,” she asserted that appointment of
interim class counsel was still necessary because the See claims “create a variety of
challenges for litigation and any appeals, and threaten to prejudice Class members’
claims” in this case. (Id. at 18). Defendant filed a response to Plaintiff’s motion,
continuing to assert that appointment of interim class counsel is unnecessary (Dkt.
60 at 5-6), and Plaintiff filed a reply (Dkt. 61).
2 	According to Plaintiff, briefing on the motion to amend in See was submitted
on May 7, 2025. (Dkt. 59 at 15). But it is unclear whether Plaintiff’s Counsel was
aware of the motion when they filed the proposed discovery plan in this matter, in
which they represented that appointment of interim lead counsel was necessary
without specific reference to the See action. Defense counsel was certainly aware of
the pending motion to amend in See at the time the proposed discovery plan was filed,
as defense counsel in this action also represents the GECIO defendants in See. (See
id.).
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On July 30, 2025, Plaintiff filed a notice apprising the Court that the pending
motion to amend the complaint in See had been granted in its entirety. 3 (Dkt. 62).
Plaintiff also attached a copy of the magistrate judge’s decision on the motion. 4 (Dkt.
62-1). On August 4, 2025, Defendant filed a reply to Plaintiff’s notice, notifying the
Court that it had filed objections to the magistrate judge’s decision in See. (Dkt. 63).
DISCUSSION
I. 	Legal Standard to Appoint Interim Class Counsel
Rule 23(g)(3) provides that “[t]he court may designate interim counsel to act
on behalf of a putative class before determining whether to certify the action as a
class action.” Fed. R. Civ. P. 23(g)(3). While neither the Federal Rules nor the
Advisory Committee Notes prescribe a specific standard for designating interim class
counsel, courts generally apply the factors set forth in Rule 23(g)(1)(A), which governs
appointment of class counsel once a class is certified. See In re Air Cargo Shipping
Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006). These factors are:
(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[.]
3 	The Court notes that in granting the motion to amend in See, the magistrate
judge did not specifically discuss a proposed breach of contract claim for unpaid sales
tax against GEICO Indemnity.
4 	By contrast, Plaintiff did not make the See motion or any of the associated
briefs part of the record by filing them as exhibits to the instant motion.
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Fed. R. Civ. P. 23(g)(1)(A). In addition, the Court “may 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).
When deciding a motion to appoint interim class counsel, a court must first
find that such an appointment is necessary. Melville v. HOP Energy, LLC, No. 21-
CV-10406, 2024 WL 2240280, at *2 (S.D.N.Y. May 17, 2024). “Generally, courts will
appoint 	interim 	class 	counsel only 	in 	the 	event 	that 	there 	are 	‘a 	number 	of
overlapping, duplicative, or competing suits pending in other courts, and some or all
of those suits may be consolidated,’ with multiple attorneys vying for class counsel
appointment.” Sullivan v. Barclays PLC, No. 13 CIV. 2811 PKC, 2013 WL 2933480,
at *1 (S.D.N.Y. June 11, 2013) (quoting Federal Judicial Center, Manual for Complex
Litigation § 21.11 (4th ed. 2004)). “In the absence of such competing lawsuits, the
work that otherwise would be done by interim class counsel is done by the counsel
who appears on behalf of the named plaintiff seeking to represent the class.” City of
Providence, R.I. v. AbbVie Inc., No. 20-CV-5538 (LJL), 2020 WL 6049139, at *7
(S.D.N.Y. Oct. 13, 2020). As one court has explained:
By prematurely selecting the named plaintiff’s counsel as interim class
counsel, before there is any efficiency served by that selection, the Court
can only be sending a message that it has prejudged the issue, granting
that lawyer pride of position and perhaps unnecessarily deterring those
who otherwise might be better able to represent the absent class
members from entering the competition.
Id.
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II. 	Appointment of Interim Class Counsel is Not Necessary
The Court finds that Plaintiff has not demonstrated that appointment of
interim class counsel is necessary at this time. This is far from the typical situation
requiring appointment of interim class counsel. Plaintiff’s Counsel are the only
attorneys litigating this action on behalf of a single named plaintiff. Consequently,
there is no need to “clarif[y] responsibility for protecting the interests of the class
during precertification activities.” Buonasera v. Honest Co., Inc., 318 F.R.D. 17, 18
(S.D.N.Y. 2016) (quotation omitted).
Moreover, Plaintiff’s Counsel, as the only attorneys litigating this action, are
requesting to be appointed as co-lead interim class counsel, and have, in their own
words, “demonstrated . . . their ability to work together to manage the litigation
expeditiously.” (Dkt. 59 at 7). Thus, there is no “rivalry or uncertainty that makes
formal designation of interim class counsel appropriate.” Fed. R. Civ. P. 23, Advisory
Committee’s Notes to 2003 Amendments; see also Sullivan, 2013 WL 2933480, at *1
(“When a putative class action consists of a single case brought by two law firms
working in apparent harmony, the rationale behind the appointment of interim class
counsel is diminished.”).
Appointing Plaintiff’s Counsel as interim class counsel would merely serve to
preserve the status quo. Such appointments are unnecessary because “[w]hether or
not formally designated interim counsel, an attorney who acts on behalf of the class
before certification must act in the best interests of the class as a whole.” In re Issuer
Plaintiff Initial Pub. Offering Antitrust Litig., 234 F.R.D. 67, 70 (S.D.N.Y. 2006)
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(quoting Fed. R. Civ. P. 23, Advisory Committee’s Notes to 2003 Amendments); see
also In re Nest Labs Litig., No. 14-CV-01363-BLF, 2014 WL 12878556, at *2 (N.D.
Cal. Aug. 18, 2014) (“it is not necessary to appoint interim class counsel merely to
maintain the status quo”).
In addition, Plaintiff fails to demonstrate that the amended complaint in See
necessitates appointment of interim class counsel. 5 The existence of a related action
in a different court “does not automatically create a rivalry or uncertainty between
counsel as to who should be appointed lead counsel.” Dhruva v. CuriosityStream Inc.,
No. CV SAG-23-2265, 2024 WL 712467, at *4 (D. Md. Feb. 21, 2024) (quotation
omitted). As it stands, there is no confusion that Plaintiff’s Counsel is responsible for
protecting the interests of the putative class. See id.
The Court also gives minimal weight to the supposed threat of a “reverse
auction.” 6 (See Dkt. 59 at 14). Contrary to Plaintiff’s suggestion (see Dkt. 61 at 3), it
is not appropriate for the Court to consider the adequacy or relative effectualness of
5 	In light of Defendant’s August 4, 2025 sur-reply (Dkt. 63), the Court notes that
the reasons underlying this Decision and Order are unlikely to be affected by the
district court’s ruling on the See defendants’ objections. Accordingly, there is no need
to wait until that ruling is issued to resolve the instant motion.
6 	“A ‘reverse auction’ is ‘the practice whereby the defendant in a series of class
actions picks the most ineffectual class lawyers to negotiate a settlement with the
hope that the district court will approve a weak settlement that will preclude other
claims against the defendant.’” Mirkin v. XOOM Energy, LLC, No. 18-CV-2949-ARR-
RER, 2020 WL 13890926, at *2 n.2 (E.D.N.Y. Sept. 6, 2020) (quoting Reynolds v.
Beneficial Nat’l Bank, 288 F.3d 277, 282 (7th Cir. 2002)). However, appointment of
interim class counsel does not preclude a defendant from reaching settlement with
counsel for the putative class in a separate action. See, e.g., Melville v. HOP Energy,
LLC., No. 21-CV-10406, 2024 WL 4224850, at *2 (S.D.N.Y. Sept. 18, 2024).
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counsel in a case before a different court on an obviously one-sided record. Under
Plaintiff’s reverse auction theory, the appointment of Plaintiff’s Counsel as interim
class counsel would give them leverage over the See plaintiffs’ counsel to negotiate a
settlement on behalf of the putative class, even though the See plaintiffs’ counsel did
not have notice or an opportunity to be heard on this motion. (See Dkt. 59 at 14). The
Court is not inclined to facilitate such a consequence without a more fulsome record
informing the propriety of its decision—specifically, whether the decision would best
serve the interests of the putative class. 7 See Davis v. GEICO Cas. Co., No. 2:19-CV-
2477, 2021 WL 4876213, at *3 (S.D. Ohio May 20, 2021) (“Because this action and
Desai are not consolidated, the parties in Desai have not had an opportunity to be
heard and to contest Plaintiffs’ representations about the Desai counsel and the
interests of the putative class.”).
This concern reinforces why many courts find appointment of interim class
counsel to be premature when the related actions are pending in different courts or
have not yet been consolidated. See Donaldson v. Pharmacia Pension Plan, No. CIV.
06-3-GPM, 2006 WL 1308582, at *1 (S.D. Ill. May 10, 2006) (collecting cases). Where,
as here, Plaintiff’s Counsel’s purported rivals are in absentia, the Court is unable to
conclude that granting Plaintiff’s motion would best serve the interests of the
putative class. See Davis, 2021 WL 4876213, at *3; Navarrete v. Hill’s Pet Nutrition,
7 	The 	Court 	is 	also 	not 	inclined 	to 	give 	substantial 	weight 	to 	Plaintiff’s
representations regarding the See plaintiffs’ counsel when (1) Plaintiff previously
relied on their efforts in an earlier motion in this action (see Dkt. 23), and, (2) despite
Plaintiff teeing up the See plaintiffs’ motion to amend as “destined to fail,” the motion
was ultimately granted.
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Inc., No. C 19-00767 WHA, 2019 WL 1932388, at *1 (N.D. Cal. May 1, 2019); Santos
v. Carrington Mortg. Servs., LLC, No. 2:15-CV-864 (WHW-CLW), 2017 WL 215969,
at 	*3 	(D.N.J. 	Jan. 	18, 	2017). 	Appointment 	at 	this 	juncture 	may, 	instead,
“preemptively limit a full airing and evaluation” of possible candidates, should the
possibility of consolidation arise. Sullivan, 2013 WL 2933480, at *1.
In sum, Plaintiff has not demonstrated how this litigation would benefit from
appointment of interim class counsel, or how the interests of the putative class would
be best served by appointing Plaintiff’s Counsel to that role. Plaintiff’s motion is
therefore denied without prejudice. If circumstances change, Plaintiff may renew her
motion, and the Court will consider the issue anew and, if necessary, determine
Plaintiff’s Counsel’s adequacy to serve as interim class counsel under Rule 23(g)(1).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to appoint Plaintiff’s Counsel as
co-lead interim class counsel (Dkt. 58) is denied without prejudice.
SO ORDERED.
________________________________
COLLEEN D. HOLLAND
United States Magistrate Judge
Dated: 	Rochester, New York
August 12, 2025
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