US. District Judge Michelle Childs instructed lawyers to consider a diverse team to lead about 20 lawsuits against Blackbaud. Five weeks later, she followed through.
What has been hailed as one of the most diverse leadership teams to lead a multidistrict litigation docket, a group of eight women and four men, including lawyers of color, will pilot class actions brought over a data breach involving cloud management software firm Blackbaud.
The appointment order (//images.law.com/contrib/content/uploads/documents/292/Critical-Mass-nts-3.3.21-data-breach-leadership-appointment.pdf) did not come from just any judge. U.S. District Judge J. Michelle Childs is a 2010 appointee of President Barack Obama to the South Carolina bench. U.S. Rep. James Clyburn, D-South Carolina, recently floated Childs’ name (https://www.nytimes.com/2021/02/21/us/politics/biden-supreme-court-black-woman.html) as one to be considered as a top pick for the U.S. Supreme Court. If a vacancy is created and she is selected, Childs would be the first Black woman to serve on the high court. That would fulfill a campaign pledge of President Joe Biden.
In a Jan. 8 order, Childs instructed lawyers to consider a diverse team to lead about 20 lawsuits against Blackbaud, which is headquartered in Charleston, South Carolina.
“The court also seeks to develop the future generation of diverse MDL leadership by providing competent candidates with opportunities for substantive participation now,” she wrote.
Five weeks later, on Feb. 16, she followed through.
The team includes four co-lead counsel. Amy Keller (https://dicellolevitt.com/attorney/amy-e-keller/), of Chicago’s DiCello Levitt Gutzler, is a veteran MDL lawyer, having served as co-lead counsel in multidistrict litigation over three other data breaches, involving Equifax, Marriott and American Medical Collection Agency. She and Melissa Emert, of Kantrowitz, Goldhamer & Graifman in Chestnut Ridge, New York, who was appointed to the Blackbaud plaintiffs’ steering committee, had the most appointments in MDLs of any woman attorney from 2016 to 2019 (https://www.law.com/2020/07/06/there-are-new-faces-leading-mdls-and-they-arent-all-men/).
It is the first appointment for Krysta Pachman
(https://www.susmangodfrey.com/attorneys/krysta-kauble-pachman/), of Susman Godfrey in Los Angeles, and Marlon Kimpson (https://www.motleyrice.com/attorneys/marlon-e-kimpson), of Motley Rice, a Democratic state senator in South Carolina, who has worked on other mass torts with name partner Joe Rice (https://www.motleyrice.com/attorneys/joseph-f-rice). It’s the first co-lead counsel role for Harper Segui (https://milberg.com/attorney/harper-t-segui/), a partner in Raleigh, North Carolina, at Whitfeld Bryson, now known as Milberg Coleman Bryson Phillips Grossman. The plaintiffs’ steering committee also includes a lawyer from Pittsburgh’s Lynch Carpenter.
Pachman, speaking for the leadership team, said in an email: “Not only did Judge Childs note her conscious effort to avoid implicit bias and not overlook candidates based on race, color, gender, sexual orientation, age or geography, but she also indicated in her case management order that she expected counsel to perform their duties in a way that is free of discrimination and bias, including choosing a diverse slate of vendors.
“She selected what is arguably the most diverse leadership team ever in an MDL to the benefit of the class.”
In the lawsuits, Blackbaud is accused of failing to adequately respond to hackers whose activities exposed its clients and their customers to exposure of personal data. Blackbaud has said, according to media reports, that it combatted and curtailed the threat from the hack.
On Dec. 15, the U.S. Judicial Panel on Multidistrict Litigation sent the Blackbaud lawsuits to Childs, who has handled one prior MDL.
In assembling the leadership team, Childs appointed lawyers from two competing proposed slates, then added three attorneys who applied individually. She appointed Frank Ulmer, of McCulley McCluer in Charleston, as liaison counsel. In addition to Emert, the plaintiffs’ steering committee is: Gretchen Cappio, of Seattle’s Keller Rohrback; Desiree Cummings of Robbins Geller Rudman & Dowd in New York; Kelly Iverson of Lynch Carpenter; Howard Longman of Stull, Stull & Brody in New York; Douglas McNamara, of Washington, D.C.’s Cohen Milstein Sellers & Toll; and Melissa Weiner, of Pearson, Simon & Warshaw in Minneapolis.