Case Information
*1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
IN RE VALVE ANTITRUST CASE NO. 2:21-cv-00563-JNW LITIGATION
ORDER GRANTING HEPLER PLAINTIFFS’ MOTION TO APPOINT COHEN MILSTEIN SELLERS & TOLL PLLC AS INTERIM LEAD INTRODUCTION 14
The Court must appoint interim class counsel for the putative Consumer 15
Class in this antitrust litigation against Defendant Valve Corporation. Four groups 16
of attorneys seek appointment: Vorys, Sater, Seymour and Pease LLP (“Vorys”); 17 Hagens Berman Sobol Shapiro LLP and Bucher Law PLLC (together, “
18 Counsel”); Cohen Milstein Sellers & Toll PLLC (“Cohen Milstein”); and a tripartite 19
group consisting of Berger Montague PC, Cotchett, Pitre & McCarthy LLP, and 20
Keller Rohrback LLP (together, “ Drake Counsel”). After carefully considering the 21
motions, responses, and replies, the Court appoints Cohen Milstein as Interim Lead 22
Class Counsel for the putative Consumer Class. *2 BACKGROUND This case arises from allegations that Valve Corporation, which operates the dominant platform for distributing PC games called “Steam,” has engaged in anticompetitive practices that harm both game publishers and consumers. The litigation now encompasses claims by both groups of plaintiffs—publishers and consumers. The Court previously certified a Publisher Class and appointed class counsel. The motions now before the Court concern who will represent the putative Consumer Class. Dkt. Nos. 407, 409, 411, 412.
The procedural background of the case warrants a brief recap. In January 2021, Vorys filed the first putative consumer class action against Valve. Soon after, several game publishers filed similar claims against Valve. The Honorable John C. Coughenour consolidated the cases—the putative consumer and publisher class actions—under this cause number. See Dkt. No. 29. In October 2021, Judge Coughenour ordered the consumer plaintiffs to arbitrate pursuant to Valve’s Steam Subscriber Agreement (“SSA”), staying their claims in federal court while the publisher claims proceeded on. See Dkt. No. 66. In July 2023, Bucher Law (“Bucher”) began representing consumers in individual arbitrations against Valve. After successfully challenging the enforceability of Valve’s arbitration provision in four separate arbitration proceedings, Counsel filed a class action complaint in August 2024. Valve eventually struck the arbitration provision from the SSA in September 2024. Subsequently, Cohen Milstein and Drake Counsel filed complaints on behalf of consumers in October 2024.
*3 Each group has moved to be appointed as Interim Lead Counsel for the putative Consumer Class. The Court must now choose among the competing applications.
3. LEGAL STANDARD
District courts “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). When appointing interim class counsel, courts in this district typically
apply the same factors considered when appointing class counsel: “(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[.]” Fed. R.
Civ. P. 23(g)(1)(A)(i)–(iv);
see Pecznick v. Amazon.com, Inc.
, No. 2:22-CV-00743-TL,
The Ninth Circuit has emphasized that the adequacy of representation
requirement “serves to uncover conflicts of interest between named parties and the
class they seek to represent[.]”
In re Hyundai & Kia Fuel Econ. Litig.
,
When multiple groups seek appointment, “the court must appoint the applicant [who is] best able to represent the interests of the class.” Fed. R. Civ. P. 23(g)(2). Appointing interim class counsel is especially appropriate when there are “multiple complaints” and a “gaggle of law firms jockeying to be appointed class counsel.” Parrish v. Nat’l Football League Players Inc. , No. C 07-00943 WHA, 2007 WL 1624601, at *9 (N.D. Cal. June 4, 2007).
4. DISCUSSION
All applicants here present significant experience in complex litigation and antitrust law, sufficient knowledge of the applicable law, and adequate resources to represent the class. Thus, the Court focuses its analysis on differentiating factors and potential conflict issues that bear on which applicant is best able to represent the interests of the class.
4.1 As a member of the Executive Committee representing the Publisher
Class, Vorys has a disqualifying conflict of interest.
17
Vorys, though the first to file a consumer action against Valve, has a
18
disqualifying conflict that precludes its appointment as lead counsel for the putative
19
Consumer Class. Vorys currently serves on the Executive Committee representing
20
the Publisher Class, Dkt. No. 92, and has spent thousands of hours working on
21
behalf of publishers through discovery and class certification, Dkt. No. 409 at 5.
22
*5
The Ninth Circuit has consistently observed that “‘[t]he responsibility of class
counsel to absent class members whose control over their attorneys is limited does
not permit even the appearance of divided loyalties of counsel.’”
Rodriguez v. W.
Publ’g Corp.
,
Here, the potential conflict is not just apparent but fundamental. Vorys has
already advocated for a damages model on behalf of the Publisher Class that
allocates around 75–80% of the alleged overcharge to publishers, leaving only 20–
25% for consumers. Dkt. No. 343 ¶ 402. This position was taken with only the
publishers’ interests in mind. Courts have recognized that a “conflict between class
members regarding the most favorable measure of damages can create a potential
conflict of interest between members of the class.”
In re Mego Fin. Corp. Sec. Litig.
,
The conflict is particularly acute because Valve’s expert suggested a 60%
pass-through rate, meaning consumers might be entitled to 40% of the overcharge
rather than the 25% advanced by Vorys’s expert. Dkt. No. 416 at 12 (citing Dkt. No.
345 ¶ 114). As the Second Circuit aptly noted in
In re Literary Works in Electric
Databases Copyright Litigation
, “how can the value of any subgroup of claims be
*6
properly assessed without independent counsel pressing its most compelling case?”
1
Vorys’s co-counsel in representing the Publisher Class previously acknowledged this conflict, arguing that “counsel cannot zealously and fairly represent both the [publishers] and [consumers] throughout this litigation to achieve the best possible outcome and damages award for each class independent of the outcome for the other class.” Dkt. No. 46 at 14. They also observed that this “divergence in best interests carries through nearly every stage of the litigation— discovery, class certification, experts, and trial—and precludes the same lead counsel from representing both groups.” Id. at 12. These admissions by Vorys’s co- counsel further underscore the fundamental nature of the conflict.
As a result, Vorys cannot adequately represent consumers when it has
already taken positions favoring publishers’ financial interests.
See Murray v.
Grocery Delivery E-Servs. USA Inc.
,
4.2 A combination of concerns disqualifies Counsel. 19 Bucher deserves substantial credit for its successful efforts challenging 20 Valve’s arbitration provision through individual arbitrations. These efforts 21 ultimately enabled class litigation to proceed, and the Court recognizes the 22 importance of this work. Dkt. No. 412 at 3–4. But several concerns lead the Court to *7 conclude that Bucher and Hagens Berman— Counsel—are not best suited to represent the Consumer Class.
First, Bucher’s continued representation of individual consumers in
arbitration against Valve creates concerns about divided interests. The Ninth
Circuit has stressed the importance of undivided loyalty in class representation
. See
Rodriguez,
Specifically, Bucher has advertised that “consumers in arbitration recover
hundreds of times more than in a class action” and that “with the help of Bucher
Law PLLC, you will often recover more [in arbitration] than you would in a class
action proceeding.” Dkt. No. 416 at 10. These statements directly conflict with the
position Bucher must take regarding superiority at class certification.
*8
Additionally, tensions between Bucher and Valve, as shown in related
litigation,
Valve Corp. v. Abbruzzese
, 24-cv-1717 (W.D. Wash.), Dkt. No. 12, suggest
the potential for distracting collateral disputes that could impede the efficient
prosecution of this case. Courts have recognized that “[t]he added demands and
burdens of complex litigation place a premium on attorney professionalism.”
In re
Amazon Return Pol’y Litig.
, No. 2:23-CV-1372,
Bucher’s proposed partnership with Hagens Berman does not put the Court’s
mind at ease. While Hagens Berman has significant antitrust experience and no
direct involvement in the arbitrations, Dkt. No. 418 ¶ 4, its recent conduct in an
unrelated class action gives the Court pause.
See Floyd v. Amazon.com Inc.
, No.
C22-1599-KKE,
3 Valve’s arbitration provision, the Court concludes that Counsel’s conflicting 4 positions on arbitration versus class action superiority, ongoing representation of 5 individual arbitration claimants, and potential for distracting collateral disputes 6 render them less suitable than other applicants to represent the Consumer Class. 7 8 4.3 Cohen Milstein has superior qualifications and no conflicts, making them the Court’s choice to represent the putative consumer class. 9 Cohen Milstein is exceptionally well-qualified to serve as Interim Lead
10 Counsel for the Consumer Class. The firm has a strong track record in complex 11 antitrust litigation, having secured billions of dollars in recoveries for various 12 classes of plaintiffs. Cohen Milstein attorneys have successfully litigated many 13 antitrust class actions, including recent victories in Pacific Steel Group vs. 14 Commercial Metals Co . ($110 million trial verdict) and Le v. Zuffa, Inc . ($375 15 million settlement). Dkt. No. 407 at 10. This success demonstrates their ability to 16 effectively represent the Consumer Class in this litigation. 17 Most importantly, Cohen Milstein does not have any conflicts regarding this 18 matter. The firm has never represented any plaintiffs in arbitration against Valve 19 and has no concurrent representation of the Publisher Class. This allows Cohen 20 Milstein to advocate for consumers with undivided loyalty, particularly regarding 21 the critical question of damage allocation. 22
*10
While the Ninth Circuit has held that adding unconflicted counsel can
sometimes remedy potential conflicts, see
Radcliffe v. Hernandez
,
Furthermore, Cohen Milstein has shown its ability to work collaboratively with all firms involved here, including with the attorneys representing the Publisher Class. Dkt. No. 407 at 14. This collaborative approach will benefit the efficient prosecution of this case while avoiding needless disputes over conflicts.
The Court notes that Drake Counsel also lack conflicts that would impede representation of the Consumer Class. But Drake Counsel did not engage in the arbitration work that made class litigation possible and filed suit only after others had done the heavy lifting. Dkt. No. 411 at 6. While this factor alone would not be dispositive, it does suggest that Cohen Milstein, which has offered to work collaboratively with the firms that advanced consumer interests through arbitration, represents the stronger choice.
*11 4.4 Obligations of interim lead counsel.
In general, interim lead counsel is tasked with coordinating the activities of the plaintiffs during the pretrial proceedings. Manual Complex Lit. § 40.22 (4th ed.). Interim lead counsel is responsible for the undertakings below:
a. Determine and present (in briefs, oral argument, or any other fashion as may be appropriate, personally or by a designee) to the Court and Valve the position of the plaintiffs on all matters arising during pretrial proceedings;
b. coordinate the initiation and conduct of discovery on behalf of plaintiffs consistent with the requirements of Fed. R. Civ. P. 26(b)(1), 26(2), and 26(g), including the preparation of joint interrogatories and requests for production of documents and the examination of witnesses in depositions;
c. conduct settlement negotiations on behalf of plaintiffs, but not enter binding agreements except to the extent expressly authorized; d. delegate specific tasks to other counsel or committees of counsel, as authorized by the Court, in a manner to ensure that pretrial preparation for the plaintiffs is conducted efficiently and effectively; e. enter into stipulations with Valve as necessary for the conduct of the litigation;
f. prepare and distribute periodic status reports to the Court and the parties;
*12 g. maintain adequate time and disbursement records covering services as lead counsel;
h. monitor the activities of co-counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided; and i. perform any other duties that may be incidental to proper coordination of plaintiffs’ pretrial activities or authorized by further order of the court.
See id.
Counsel for plaintiffs who disagree with interim lead counsel or who have individual or divergent positions may present written and oral arguments, conduct examinations of deponents, and otherwise act separately on behalf of their clients as appropriate, as long as in doing so they do not repeat arguments, questions, or actions of lead counsel.
5. CONCLUSION
The Court ORDERS that Cohen Milestein’s motion to appoint interim class counsel is GRANTED. Dkt. No. 407. The remaining motions to appoint interim class counsel are DENIED. Dkt. Nos. 409, 411, and 412. Vorys’s initial motion to appoint interim counsel, which was included in its motion at Dkt. No. 373, is DENIED AS MOOT.
Dated this 2nd day of May, 2025.
Jamal N. Whitehead United States District Judge