Lynch Carpenter

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

ORDER

This matter comes before the Court on competing motions for appointment of interim class counsel filed by Roy E. Barnes, Jean S. Martin, and Barrett J. Vahle, (doc. 52); Marc Edelson and Cathy Smith, (doc. 53); Anthony L. Parkhill, (doc. 54); and Kelly Iverson, Mary Beth Gibson, and Amy Keller, (doc. 55). Neither Defendant nor any Plaintiffs have filed a response to these Motions. Having read and carefully considered each of these Motions, the Court finds that all attorneys who have sought a leadership role in this action are well-qualified, diligent, and capable to serve as interim class counsel. However, the Court finds that Ms. Iverson, Ms. Gibson, and Ms. Keller have presented the strongest application to represent the putative class on an interim basis. Therefore, the Court GRANTS their Motion for appointment of interim class counsel, (doc. 55), and DENIES the remaining Motions, (docs. 52, 53, & 54).

BACKGROUND

Plaintiffs contend that Defendant TMX Finance Corporate Services, Inc., provides consumer credit products to individuals under various brand names. (Doc. 1, p. 2.)¹ As part of these operations, Defendant allegedly collected and stored Plaintiffs’ personal identifying information on Defendant’s network. (Id.) In February 2023, an unknown actor breached Defendant’s network and allegedly accessed and acquired Plaintiffs’ personal identifying information stored on the network (“the data breach”). (Id.) Plaintiffs maintain that the data breach compromised the personal identifying information of 4.8 million individuals throughout the United States. (Id. at pp. 1, 3.) Plaintiffs bring claims against Defendants under various theories of state law seeking damages and injunctive relief. (Id. at pp. 30–51.) Plaintiffs also seek to represent a nationwide class of all similarly situated individuals whose information was compromised in the data breach. (Id. at pp. 23–30.)²

The Court held a status conference in this case on July 25, 2023. During that conference, the Court granted the Plaintiffs’ unopposed Motion to Consolidate twenty-two actions regarding the data breach into this case. (See doc. 37.) The Court subsequently consolidated two more actions on August 16, 2023. (Doc. 57.) At the conference, the Court directed any attorney (or group of attorneys) for any Plaintiff who wished to be appointed interim class counsel to file a motion seeking such appointment on or before August 15, 2023. Counsel filed the four motions now before the Court within that timeframe.

DISCUSSION

I. Selection of Interim Class Counsel

Federal Rule of Civil Procedure 23 authorizes the Court to appoint interim class counsel, instructing that a 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). The Middle District of Florida aptly summarized the benefits of interim class counsel as follows:

Selection of interim lead counsel facilitates “efficiency and economy without jeopardizing fairness to the parties.” [Manual for Complex Litigation (Fourth) (2004) § 10.22] (noting that interim counsel “assume a responsibility to the court and an obligation to act fairly, efficiently, and economically in the interests of all parties and parties’ counsel”). In matters such as this, appointing seasoned lead counsel is one of the district court’s key organizational tools. [Id.] at §§ 10.224, 21.272. The “designation of interim [class] counsel clarifies responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement.” Id. at § 21.11.

In re: Disposable Contact Lens Antitrust., No. 3:15-MD-2626-J-20JRK, 2015 WL 10818781, at *1 (M.D. Fla. Oct. 7, 2015). “Federal Rule of Civil Procedure 23(g)(1) outlines the considerations pertinent to the appointment of lead counsel at the time a class is certified and applies equally to the appointment of interim lead counsel before certification.” Id. Those four 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 claims of the type asserted in the action; (iii) counsel’s knowledge of the applicable law, and (iv) the resources counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).

The Court finds that appointment of interim class counsel is appropriate in this case. As laid out above, this case involves a nationwide data breach that allegedly affected millions of individuals. Multiple Plaintiffs have brought suit, and they are represented by a multitude of attorneys. Even at this early stage, there are numerous tasks to be accomplished before the Court determines whether to grant class certification. It would be unwieldly to attempt to accomplish those tasks without a designated group of attorneys authorized to speak on behalf of Plaintiffs. Indeed, all parties appear to agree that the appointment of interim class counsel is appropriate.

The Court finds that the proposal advanced by Ms. Iverson, Ms. Gibson, and Ms. Keller, (“the IGK Group”) best meets the factors set forth in Rule 23(g)(1)(A). The lawyers within the IGK Group have already devoted voluminous time and resources to identifying, investigating, and prosecuting Plaintiffs’ claims. For instance, even at this early stage, they have conducted substantial research and analysis and have retained and interviewed experts. (See doc. 55, pp. 21– 22.) The IGK Group also has extensive experience representing plaintiffs in class action lawsuits and in data breach litigation specifically. Significantly, Ms. Iverson, Ms. Gibson, and Ms. Keller have each served in leadership roles in large data breach class actions in federal courts. (See, id. at pp. 6, 8–9, 11.) These experiences, particularly when combined with the significant experiences of the IGK Group’s steering committee chair, liaison counsel, and steering committee members, provides the group with a vast amount of knowledge of the law applicable to Plaintiffs’ claims. Lastly, the attorneys within the IGK Group have track records of devoting the resources necessary to represent classes in cases such as this, and they have committed to doing so in this case. (See id. at p. 24.) In particular, in their Proposed Order, the Group has set forth a proposal that details the responsibilities each member of the group will shoulder during the litigation. Thus, the IGK Group not only has the experience, knowledge, time, and funds to represent the proposed class but also will devote those collective resources to this litigation.

II. Interim Class Counsel and Group Members’ Roles

The attorneys whom the IGK Group identified to serve various roles within the Group are each well positioned and qualified for their respective proposed roles. Thus, the Court hereby appoints the following interim leadership:

1. Plaintiffs’ Interim Co-Lead Counsel
   • Kelly Iverson, Lynch Carpenter, LLP
   • MaryBeth Gibson, The Finley Firm, P.C.
   • Amy Keller, DiCello Levitt LLP
2. Interim Chair of Plaintiffs’ Steering Committee (“PSC”)
   • Rebecca Franklin Harris, Franklin Law, LLC
3. Interim Plaintiffs’ Steering Committee
   • Brian Gudmundson, Zimmerman Reed LLP
   • James Pizzirusso, Hausfeld LLP
   • Carl Malstrom, Wolf Haldenstein Adler Freeman & Herz LLP
   • Terence Coates, Markovits, Stock & DeMarco, LLC
   • William B. Federman, Federman & Sherwood
4. Interim Plaintiffs’ Liaison Counsel
   • Tom Withers, Withers Law Firm, P.C.

III. Interim Co-Lead Counsels’ Duties

The IGK Group has properly identified the duties that each member of the group should perform. Thus, the Court hereby outlines the following duties of the interim leadership team commensurate with those described in their proposed order:

1. Duties of Interim Co-Lead Counsel
   The Interim Co-Lead Counsel shall have the following responsibilities:
   1. Direct, coordinate, and manage pretrial proceedings on behalf of all Plaintiffs, including the filing of a consolidated complaint and all pleadings including motions and briefs;
   2. Coordinate all discovery proceedings on behalf of all Plaintiffs;
   3. Delegate work responsibilities to other Plaintiffs’ counsel, and monitor the activities of all Plaintiffs’ counsel to assure that Plaintiffs’ pretrial preparation is conducted effectively, efficiently, and economically, that schedules are met, and that unnecessary expenditures of time and resources are avoided;
   4. Consult with and employ consultants or experts, as necessary;
   5. Coordinate with members of the Steering Committee in management of the litigation and fund the necessary and appropriate costs of discovery and other common benefit efforts, including the maintenance of Plaintiffs’ document depository;
   6. Coordinate settlement discussions or other dispute resolution efforts on behalf of the Plaintiffs, under the Court’s supervision, if and as appropriate;
   7. Maintain adequate time and disbursement records covering services as appointed counsel;
   8. Enter into stipulations with other parties as necessary for the conduct of the litigation;
   9. Prepare and distribute to the parties and the Court periodic status reports;
   10. Submit to the Court and circulate to Plaintiffs’ Counsel a time and expense reporting protocol consistent with this Order governing the submission and potential compensation of time and expense spent in this matter;
   11. Submit to the Court for in-camera review quarterly time keeping and expense records; and,
   12. Perform such other duties as may be incidental to proper coordination with the Steering Committee’s pretrial activities or as authorized by further Order of the Court
2. Duties of the Interim Chair of the PSC
   The Interim Chair of the PSC shall have the following responsibilities:
   1. Act as liaison between the members of the PSC and Interim Co-Lead Counsel;
   2. Provide substantive advice to Interim Co-Lead Counsel on coordination of efforts with respect to activities of the PSC, including compliance with the local rules in carrying out the discovery and pretrial activities by members of the PSC;
   3. Regularly meet with members of the PSC to oversee the day-to-day efforts and tasks as delegated by Interim Co-Lead Counsel;
   4. Make scheduled reports to Interim Co-Lead Counsel on the efforts of the PSC;
   5. Represent the PSC in discussions with opposing counsel regarding pre-trial matters, if and as appropriate; and
   6. Report to the Court on efforts of the PSC, as requested by Interim Co-Lead Counsel
3. Duties of Interim Liaison Counsel
   Interim Liaison Counsel shall have the following responsibilities:
   1. Communicate with the Court, on behalf of Interim Co-Lead Counsel, concerning scheduling and other administrative matters;
   2. Maintain, for any circumstances where documents may not be electronically filed via CM/ECF, an up-to-date, comprehensive Service List of all Plaintiffs’ Counsel, to be made available at the request of the Court and Defendant’s counsel;
   3. Receive and distribute to Plaintiffs’ counsel, as appropriate, Orders, notices, and correspondence from the Court, to the extent such documents are not electronically filed; and
   4. Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery, pleadings, correspondence, and other documents from Defendants’ counsel that are not electronically filed
4. Duties of Plaintiffs’ Interim Steering Committee
   Plaintiffs’ Interim Steering Committee shall have the following responsibilities:
   1. Meet and confer as needed regarding the completion of the Plaintiffs’ pretrial and trial activities;
   2. Establish subcommittees, as needed, to aid in the effective and efficient conduct of the litigation;
   3. Consult with other members of the interim leadership team and keep apprised of the progress of the litigation; and
   4. Participate in any significant decisions including matters of litigation strategy that arise during the litigation.
5. Plaintiffs’ Counsels’ Responsibilities Regarding Billing
   All Counsel must keep a daily record of their time spent and expenses incurred in connection with this litigation and must report on a monthly basis their expenses and hours worked to Interim Co-Lead Counsel. Interim Co-Lead Counsel will make such records and reports available to members of the Steering Committee upon request. In order for their time and expenses to be compensable, those not serving in leadership positions must secure the express authorization of Interim Co-Lead Counsel for any projects or work undertaken in this litigation. Time and expenses incurred prior to the appointment of Interim Co-Lead Counsel should be submitted for consideration for compensation only to the extent it has contributed to the advancement of the litigation as a whole.On a quarterly basis, beginning on October 30, 2023, and thereafter on the last business day of each January, April, July, and October, Interim Co-Lead Counsel shall submit to the Court in camera reports reflecting hours billed in this matter by all Plaintiffs’ counsel. Failure to maintain and submit records with sufficient descriptions of the time spent and expenses incurred may be grounds for denying attorneys’ fees and/or expenses for the period that relates to the missing or inadequate submissions.

CONCLUSION

For the reasons and in the manner set forth above, the Court GRANTS the Motion for Appointment of Interim Class Counsel filed by Ms. Iverson, Ms. Gibson, and Ms. Keller, (doc. 55), and DENIES the remaining Motions, (docs. 52, 53, & 54). Plaintiffs’ Interim Co-Lead Counsel shall confer with Defendant’s counsel regarding a timeframe for filing the consolidated complaint and other actions needed to advance this litigation. Following that conference, and within ten (10) days of the date of this Order, Plaintiffs’ Interim Co-Lead Counsel and Defendant’s counsel shall contact the Magistrate Judge’s Courtroom Deputy Clerk to request a scheduling conference before the Magistrate Judge. In the interim, all deadlines in this matter remain STAYED until further Order of the Court.

SO ORDERED, this 12th day of September, 2023.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

¹ This consolidated action consists of numerous Complaints filed by multiple Plaintiffs or groups of Plaintiffs. (See doc. 38.) Though the actions have been consolidated, a consolidated complaint has not yet been filed. Nonetheless, the factual contentions within all complaints are similar, and the Court need not discuss their differences to resolve the instant motions. Thus, the Court cites to the first filed Complaint, (doc. 1), in this Order.

² While the first filed Complaint sought only a nationwide class, other Complaints also sought certification of state-based classes. Those differences do not affect the Court’s decision regarding interim lead counsel. Should some Plaintiffs continue to pursue state-based certification, the Court may need to adjust the leadership structure at a later point.