Column: Law firm Edelson pitches radical idea for picking lead in 23andMe case. Ask class members.

What is the best way for judges to pick plaintiffs' lawyers to lead consolidated cases that impact thousands of people?

These choices, as you know, can have huge implications for how cases are litigated, tried and settled, but outside of securities class actions, there are few rules to guide the selection process.

Judges frequently invite plaintiffs' firms to submit applications, sometimes suggesting criteria – such as prior experience, financial stability and case management plans — for firms to address in their briefs. Often, lead counsel candidates coordinate with each other and propose a consensus slate. Defendants usually get a chance to say whether proposed leaders on the other side are capable of doing the job.

But you know who almost never has a say in picking firms to lead consolidated litigation?

The unnamed plaintiffs with claims in the case.

That is why a new brief from the Edelson law firm, requesting interim appointment to lead consolidated litigation arising from a data breach at genetic testing company 23andMe ME is so radical: The firm hired a pair of professors to survey prospective class members about what they actually want from the lawyers who will lead the litigation.

The Edelson brief argues that survey results from 395 prospective members of the 23andMe data breach class support its bid to lead the case. My focus here, however, is not on the merits of Edelson's candidacy — I'll leave that to the judge — but rather on its novel premise that there is an empirical way to give prospective class members a voice in who will represent them. (Neither 23andMe nor its counsel from Greenberg Traurig responded to an email query.)

That premise is grounded in recent work by the academic experts Edelson hired. Joseph Avery and Alissa del Riego, both of whom have law degrees, are professors at of the University of Miami’s Herbert Business School. Last year, they published a Stanford Law Review paper arguing that artificial intelligence tools can be used to give absent class members a more robust voice in cases litigated on their behalf.

Avery and Del Riego put their theory to an empirical test in an experiment they described in a just-published article in the Utah Law Review. The professors created questionnaires based on three real-life consolidated litigations – the Takata airbag, Marriott data breach and TikTok consumer privacy cases – and surveyed mock class members about which plaintiffs' firm they would have picked to head the case. In all three surveys, mock class members picked different firms than those selected by the judges overseeing the cases.

Edelson name partner Jay Edelson told me that the professors’ work was a revelation for lawyers at his firm. As you probably recall, the firm is famous (or notorious, depending on your perspective) for highlighting problems in the class action and mass litigation process.

In the 23andMe case, for instance, the firm made an early pitch to be named lead counsel before dozens of class actions were consolidated by the U.S. Judicial Panel on Multidistrict Litigation, arguing that 23andMe might otherwise try to reach a “collusive” settlement with compliant plaintiffs' firms. U.S. District Judge Edward Chen rejected that bid without prejudice, opting to wait for the cases to be formally consolidated.

Edelson has long argued that the lead counsel selection process is fundamentally flawed, in part because judges often simply allow plaintiffs' lawyers to pick their own leaders, rather than encouraging and probing competing bids as if they were corporate general counsel shopping for representation. Even when judges invite competing lead counsel briefs, as Chen did in the 23andMe case, they end up picking leaders based on their own priorities, not those of absent class members.

The Edelson firm decided to hire Avery and Del Riego to find out what prospective 23andMe class members want.

The professors described the survey process in a report that accompanies the Edelson brief. Using a survey firm, they eventually reached 395 respondents who indicated they were prospective class members. (Millions of people were allegedly affected by the data breach.)

Those 395 respondents were asked 17 neutrally worded questions intended to mirror the factors judges are supposed to consider in picking class counsel, including litigation strategy and firms' ability to dedicate resources to the litigation.

Respondents weren’t told that a law firm had commissioned the survey or that the results would be used in a lead counsel contest. They were not given specific information about any potential lead plaintiffs' firms. Edelson, moreover, does not know the names of survey respondents.

The results? Prospective class members said they want robust, transparent litigation, not a quick settlement. They place a high value on firms’ ability to fund the case. They strongly prefer a lean, efficient leadership team. They want a resolution that safeguards their genetic data. And they want lawyers to keep them informed.

The entire project cost the Edelson firm “in the low six figures,” Edelson said. It made that investment without having any idea whether the survey results would help its bid – in part, Edelson said, because the firm’s hope was to “start a broader conversation” about how the lead counsel selection process can reflect what the real clients – absent class members – want.

"We thought, ‘Let’s just do it, and do it right,’” Edelson said.

The professors who ran the survey, Avery and Del Riego, said the project has already advanced class action litigation by proving the feasibility of soliciting input from class members and deriving insights from their responses.

“The 23andMe court has direct access to class members’ stated interests,” the professors said in an email statement. "What remains to be seen is what value the court will assign to class members’ preferences.

Read more:

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