United States District Court, D. Massachusetts
ASHBY HENDERSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
THE BANK OF NEW YORK MELLON CORPORATION, et al., Defendants.
B. SARIS CHIEF, U.S.D.J.
review of the supplemental briefings and after hearing, the
Court orders the following:
objections of Howard Law Firm, Minami Tamaki, and Bailey &
Glasser to the magistrate judge's order on the firms'
termination (Docket No. 146) are DENIED.
See Fed.R.Civ.P. 72(a). Accordingly, the magistrate
judge's Order on Ex Parte Motion to Withdraw as Counsel
(Docket Nos. 137, 163) is AFFIRMED. McTigue Law
remains the sole personal attorney for Plaintiff Henderson.
Plaintiff Henderson's Motion for Consolidation of Related
Motions, Appointment of Lead Plaintiff, and Appointment of
Interim Lead Class Counsel (Docket No. 170) is
DENIED as to the request to appoint interim lead
class counsel. Because mediation on a class settlement is
scheduled, I give my reasons briefly. Based on the record, I
find that Mr. McTigue is unable to work constructively as a
co-lead counsel on a legal team with his previous co-counsel
from the three law firms, Howard Law Firm, Minami Tamaki, and
Bailey & Glasser. Combined, these three firms, which were
discharged by the plaintiff, have extensive class action
experience and expertise litigating breach of fiduciary duty
claims on behalf of trust beneficiaries. They also have the
resources to litigate this case.
on the affidavits of his co-counsel and the statements at the
hearings before the magistrate and me, I find that Mr.
McTigue's treatment of co-counsel in this litigation is
Mr. McTigue told Ms. Henderson that his co-counsel wanted a
“cashless settlement, ” causing her to believe
that co-counsel would agree to a speedy settlement just to
make money. Mr. McTigue told the magistrate judge that he had
emails to prove that assertion, but he produced none. Mr.
McTigue apparently “sensed” that co-counsel would
advocate for a cashless settlement based on some preliminary
emails. However, the accusation that co-counsel was pushing a
“cashless settlement” was unfounded.
Ms. Henderson expressed concern that the other counsel did
not communicate with her, and she felt that they were not
representing her. Mr. McTigue failed to inform her that the
reason he was the only one communicating with her was that he
was the sole designated contact person for the team. Although
Mr. McTigue disputes this assertion by co-counsel, he has not
disputed the affidavit that he rebuffed efforts by co-counsel
to contact Ms. Henderson to prepare her for deposition.
Mr. McTigue showed up at a deposition unannounced and
demanded to question the witness for three hours without
having provided any feedback on the circulated deposition
outline or assisting in the preparation for the deposition.
he attempted to cancel the date of a court-ordered mediation
without the consent of his co-counsel.
he unilaterally terminated co-counsel without warning and
without attempting to work out any disagreements. By that
point, the relationship among co-counsel had soured so much
that all three of the other law firms sent Mr. McTigue a
letter on March 30, 2016, asking him to collaborate better.
The letter also stated that Mr. McTigue's treatment of
defense counsel had caused defense counsel to tell co-counsel
that they preferred not to deal with Mr. McTigue because of
his “fractious” manner.
Mr. McTigue developed a new theory of breach of fiduciary
duty based on alleged excessive fees, which he admits he did
not share with co-counsel. Yet he has criticized co-counsel
for not seeking settlement amounts that reflect this new,
factors favor the appointment of McTigue Law. Mr. McTigue has
experience in this kind of trustee litigation; he has an
attorney-client relationship with the proposed class
representative who trusts him; and he has recently recruited
experienced co-counsel, Berman DeValerio. Mr. McTigue points
the finger at co-counsel for not being prepared or aggressive
enough in their approach to settlement. Whatever the merits
of this argument, given his contumacious, uncivil conduct in
this litigation, I find that he would not be an effective
lead or co-lead class counsel. See Fed.R.Civ.P.
23(g)(1)(B) (the Court “may consider any other matter
pertinent to counsel's ability to fairly and adequately
represent the interests of the class”). Accordingly, I
decline to appoint Mr. McTigue as Interim Lead or Co-Lead
Court does not rule on Henderson's motion to consolidate
with the related action in Hershenson v. BNY Mellon,
N.A., No. 16-cv-11480-PBS (D. Mass. filed July 15,
Court DENIES the motion of Bailey & Glasser and the
Howard Law Firm to be appointed as interim co-lead counsel
(Docket No. 174) on the ground that Ashby Henderson has not
consented to serve as a class representative unless Mr.
McTigue, her lawyer, is appointed to serve at least as a
co-lead counsel. This ruling is without ...