Seventh Circuit Win for Lynch Carpenter Attorney, Kyle Shamberg
Lynch Carpenter attorney Kyle Shamberg won a significant victory from the United States Court of Appeals for the Seventh Circuit in Bakov v. Consolidated World Travel, Inc. In a unanimous opinion released May 19, 2023, the appeals court affirmed the Northern District of Illinois court’s decision to shift costs of class notice to a defendant (CWT) found liable for bombarding consumers with prerecorded telemarketing calls in violation of the Telephone Consumer Protection Act (TCPA).
The circumstances of the district court’s ruling were unusual, in large part because of Shamberg’s persistence in advocating for consumers. In 2019, the court certified an Illinois class, but found it lacked jurisdiction to certify a class including out-of-state residents. Shamberg won summary judgment for the Illinois consumers and then, after the Seventh Circuit clarified class action jurisdictional requirements in an unrelated case, moved to amend the class definition and subsequently won summary judgment for a nationwide class. Because CWT’s liability was already established, the court shifted the costs of notifying out-of-state class members from plaintiffs to the defendant – saving over $600,000 in administrative costs.
CWT appealed the district court’s cost-shifting order, arguing that the Supreme Court’s decision in Oppenheimer Fund, Inc. v. Sanders created a categorical list of four factors courts must consider before issuing a cost-shifting order. Shamberg countered that Oppenheimer did not establish a bright-line rule, especially because the Supreme Court was not confronted there with a case where the defendant’s liability had already been determined. The Seventh Circuit held oral argument on February 10, 2022, and agreed with Shamberg’s argument that a prior finding of the defendant’s liability is a permissible basis for shifting costs of class notice.
By opening another route to shift the burden of administrative costs to tortfeasors, Bakov represents a significant win for consumers looking to vindicate their legal rights.
View the full opinion here.
Lynch Carpenter Supports the Pittsburgh Community through the Allegheny Country Bar Association
Bar associations offer many benefits to lawyers that complement and further the practice of law. Those benefits include pertinent information about practice trends, continuing legal education (CLE) courses, building camaraderie and professional relationships, discovering or cultivating a professional skill set, and volunteer and pro bono opportunities. The associations can be mandatory, such as a state regulatory bar association, or voluntary, like the American Bar Association. While serving lawyer members in cities, counties, regions, nationally, or internationally, bar associations also help the public.
Engaging the local community through bar association service and philanthropic work erases doubts and stereotypes surrounding attorneys, strengthening integrity, advocacy, and trust in the profession. Community engagement also breaks down barriers and promotes accessibility to the legal system. The Allegheny County Bar Association (ACBA) has served the Allegheny County legal community since 1870 with a mission “to empower our members; promote a just, accessible and inclusive judicial system; and serve the community at large.” The ACBA welcomes all attorneys and law students. It has numerous sections for lawyers to get involved, including Young Lawyers Division (YLD), Women in the Law Division (WLD), Civil Litigation Section, Homer S. Brown Division (HSB), and LGBTQ+ Rights Committee to name a few.
Many of the attorneys at Lynch Carpenter’s Pittsburgh office are involved with the ACBA. For example, Gary Lynch serves on the ACBA Federal Court Section Council, a position nominated or appointed for a three-year commitment. Kelly Iverson is an active member of the Federal Court Section and Civil Litigation Section. Kelly recently volunteered to judge the Allegheny County High School Mock Trial competition. Jamisen Etzel wrote and instructed an ACBA CLE called Class Action for the Non-Class Action Attorney, which was presented during a “SkiLE” (a day of skiing while collecting a CLE credit on the bus ride to Seven Springs) sponsored by Lynch Carpenter. The firm also sponsored an ACBA Strike Out Hunger event (a game night of bowling with all proceeds benefiting the hunger campaign for the Allegheny County Bar Foundation’s Attorneys Against Hunger). As a firm, our lawyers traveled to the ACBA’s Annual Bench Bar Conference in Seven Springs, an event that encompasses CLEs, opportunities to network, meet more amazing attorneys, and create exciting memories with colleagues.
Even more unique to the ACBA is its zeal to encourage and support its young lawyers (practicing ten years or less). The YLD perpetually facilitates the advancement of its section members through events, education, fundraising, and volunteer work. In YLD programming, the Bar Leadership Initiative (BLI) is offered every year for section members. BLI was designed for young lawyers with little to no involvement with the ACBA to develop leadership and professional skills, while learning the inner workings of the ACBA. Only 15 individuals are selected per class and the class must complete a project.
2022 -2023 Bar Leadership Initiative Class
412 Youth Zone Representatives and BLI Chair, Tara Sease, at Luggage with Love Happy Hour
This author was accepted to the 2022-2023 BLI class and participated in this rigorous yet rewarding program. As part of the curriculum, I attended monthly BLI meetings, joined the YLD Education Committee, participated in the YLD Annual Gift Drive, and attended various YLD, ACBA, and other divisions events. With the Education Committee, I volunteered to chair the SkiLE, assisted with other education programs, and offered ideas for upcoming YLD CLEs.
The 2022-2023 BLI class project was Luggage with Love. We collected new or gently used suitcases and bags to donate to 412 Youth Zone to be provided to young adults transitioning out of foster care. Included in the bags were pamphlets with QR codes to basic legal knowledge related to taxes, voting, Miranda rights, and landlord/tenant law, along with toiletries and other necessities. In Pennsylvania, approximately 1,100 children age out of foster care each year, and many have no financial resources. One in four of those children experience homelessness or mental health challenges. 412 Youth Zone was designed to help young people between the ages of 16 and 23 that are transitioning out of foster care and help them to “gain stability, build positive relationships, learn life skills, meet basic needs, foster creative expressions and be guided on the right path towards a brighter future.” The BLI class also planned a happy hour to collect bags and raise funds to purchase additional toiletries. The class delivered over 150 new/gently used luggage/duffel bags and presented 412 Youth Zone with a check in the amount of $1,415 (the total proceeds raised during the happy hour).
For nine months with the BLI, I grew my professional network, learned more about the ACBA structure, and discovered new transferable skills, while strengthening my leadership and professionalism. The experience culminated with a rewarding class project that assisted those youth aging out of foster care, but also raised awareness in the local bar association of 412 Youth Zone and its mission. What’s next after BLI? I am excited to have been nominated for a council position with HSB and plan to continue to serve the legal community.
On a personal note, it’s been an incredible and full-circle experience to be involved with the ACBA, YLD, and HSB. I was placed with an ACBA-affiliated firm in 2011 as part of an HSB summer program for high school students. As a teenager, I was unsure of my future and where I’d be after high school. I’m grateful to the ACBA and the HSB for influencing my decision to become a lawyer. My path now is clear. I’m proud and honored to serve the legal community. Hopefully, my service can spark a positive influence in another person’s life. Each person from my class (and our BLI chair) inspired me to become a better attorney and community leader. I’m happy to have worked with outstanding young attorneys and look forward to more collaboration in the future.
Donations at Luggage with Love Happy Hour
BLI class members presenting check to 412 Youth Zone
Blog By Hannah Barnett
1 ACBA Mission Statement, https://www.acba.org/about/mission-statement/.
2 Homer S. Brown is considered the first African American judge in Pittsburgh. He graduated from the University of Pittsburgh School of Law in 1923 and joined the ACBA the same year. He served the Pittsburgh community for over 50 years as both a civil and political rights activist Homer S. Brown Biography, https://www.acba.org/homer-s-brown-biography/.
3 See https://www.psrfa.org/being-a-foster-parent/the-facts/
4 Id.
5 Auberle 412 Youth Zone, https://www.auberle.org/the-412-youth-zone
Lynch Carpenter Attorneys Appointed as Class Counsel for Sincera Reproductive Medicine Class Settlement
On March 2, 2023, Judge Joel H. Slomsky of the Eastern District of Pennsylvania granted preliminary approval to a proposed class action settlement that resolves claims against Defendant Sincera Reproductive Medicine, formerly known as Abington Reproductive Medicine, stemming from a 2020 data breach during which an unauthorized third-party gained access to Sincera’s data environment, resulting in the potential exfiltration of certain protected health information (“PHI”) and personal identifying information (“PHI”) of current and former patients of Sincera. The Court certified a settlement class consisting of “All Persons residing in the United States who were provided notice from Sincera that their information was involved in the Data Incident.”
Under the Settlement, Sincera agreed to pay a minimum of $800,000.00 and a maximum of $1,200,000.00 in monetary relief to the settlement class. Settlement class members that submit a claim, can receive a cash payment of $150.00 by confirming that they have suffered any of a broad number of harms that they believe is related to the data breach, including but not limited to the following types of harm: time spent dealing with the Data Incident, loss of confidences, loss of their PII/PHI, and/or emotional distress. Settlement class members may also make a claim for any out-of-pocket losses they had that they believe are due to the data breach and may recover those out-of-pocket losses, up to a total of $2,000.00 (inclusive of the cash payment). Notice to the settlement class will be sent by April 24, 2023, which notice will provide details on the settlement and how to file a claim.
Kelly K. Iverson and Patrick D. Donathen of Lynch Carpenter, LLP, along with Kenneth J. Grunfeld of Golomb Spirt Grunfeld, P.C., were appointed by the Court as Settlement Class Counsel.
In reaching its decision to grant preliminary approval, the Court found that the proposed settlement was the result of extensive and good-faith negotiations at arm’s length; was reached only after extensive litigation; and provides an equitable claims process that enables Settlement Class Members to obtain reimbursement for harms related to the data incident.
Settlement class members will have until July 24, 2023, to submit a claim for benefits under the proposed settlement and until June 23, 2023, to otherwise object or opt out of the proposed settlement. The Final Approval Hearing is currently scheduled for September 6, 2023, before Judge Slomsky in Courtroom 13A of United States Courthouse in Philadelphia, Pennsylvania. Settlement class members can obtain more information about the Settlement by visiting www.SinceraSettlement.com.
A copy of the Preliminary Approval Order can be found here.
What is Preliminary Approval of a Settlement Class?
Under the Federal Rules of Civil Procedure, the settlement of a class action requires court approval, which the court may issue after a finding that the proposed settlement is fair, reasonable, and adequate. The court reviews proposed class action settlements in two stages. The first stage is the preliminary approval stage, at which the court determines if the proposed settlement discloses grounds to doubt its fairness or other obvious deficiencies. If the court grants preliminary approval, the court then directs that notice of the proposed settlement be sent to all settlement class members. At the second stage, the final approval stage, after settlement class members are notified of the proposed settlement, the court holds a formal fairness hearing where settlement class members may object to the proposed settlement. If the court concludes the proposed settlement is fair, reasonable, and adequate, the proposed settlement is then given final approval.
Blog Post by Kelly K. Iverson and Patrick D. Donathen
Sources:
Opris et al v. Sincera Reproductive Medicine, Case No. 2:23-cv-03072-JHS (E.D. Pa.), Dkt. No. 61.
In re Nat’l Football League Players’ Concussion Inj. Litig., 961 F. Supp. 2d 708, 713 (E.D. Pa. 2014)
Federal Rule of Civil Procedure 23(e)
Gary Lynch appointed by Judge James L. Robart as Co-Lead Class Counsel in Re: Zillow Group, Inc. Session Replay Software Litigation (W.D. Wash.)
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE
In Re: Zillow Group, Inc. Session Replay Software Litigation
This Document Refers to:
All Actions
Master File No. 2:22-cv-01282-JLR
[PROPOSED] ORDER APPOINTING INTERIM CLASS COUNSEL
1. On January 18, 2023, this Court entered an order granting the parties’ proposed stipulation to consolidate actions and set scheduling deadlines, which included a process for submitting applications for appointment of interim class counsel or other designated counsel either individually or as part of a proposed leadership structure.
2. Before the court is Plaintiffs Natalie Perkins, Kenneth Hasson, Ashley Popa, Mark Conlisk, Michael Dekhtyar, Jill Strelzin, Jill Adams, Ryan Margulis’s (collectively, “Moving Plaintiffs”) motion to appoint interim class counsel (Dkt. # 37). No party opposes the motion. See generally Dkt.) The court has considered the motion, the Moving Plaintiffs’ submissions in support of the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS the Moving Plaintiffs’ motion and ORDERS as follows:
PLAINTIFFS’ INTERIM CLASS COUNSEL
3. The Court appoints the following attorneys to serve as Interim Class Counsel pursuant to Rule 23(g):
- Co-Lead Counsel: Gary F. Lynch, Lynch Carpenter, LLP
- Co-Lead Counsel: Joseph P. Guglielmo, Scott+Scott Attorneys at Law LLP
- Liaison Counsel: Kim D. Stephens, Tousley Brain Stephens PLLC
4. The above-named attorneys meet the requirements of Rule 23(g) and are designated 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). Mr. Lynch and Mr. Guglielmo shall serve as Interim Class Counsel with responsibility for managing the distribution of work amongst plaintiffs’ counsel and overseeing compliance with the duties and responsibilities set forth herein. The duties and responsibilities of Interim Class Counsel are as follows:
- Assign work to other plaintiffs’ counsel who, as of the date of this Order, have filed complaints in this consolidated litigation, such assignments to occur as necessary in light of the needs of the litigation.
- Determine and present (in pleadings, motions, briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pretrial (and if appropriate, trial) proceedings;
- Initiate, coordinate, and conduct all pretrial discovery on behalf of Plaintiffs in this consolidated litigation, including the preparation of joint interrogatories and requests for production of documents, and the examination of witnesses in depositions, and direct and coordinate the conduct of all types of discovery proceedings;
- Examine witnesses and introduce evidence at hearings on behalf of Plaintiffs;
- Perform all work necessary for the prosecution of the case, including investigation, research, briefing, and discovery;
- Make all work assignments on behalf of Plaintiffs in a manner to promote the orderly and efficient conduct of this litigation and to avoid unnecessary duplication and expense;
- Appear at all hearings and conferences regarding the case as most appropriate for effective and efficient presentation;
- Negotiate and enter into stipulations and agreements with opposing counsel as necessary throughout the litigation, including discovery, mediation, and other pretrial matters;
- Consult with and employ experts;
- Call meetings of Counsel for Plaintiffs for any appropriate purpose, including coordinating responses to questions of other parties or of the Court. Initiate proposals, suggestions, schedules, and any other appropriate matters pertaining to pretrial proceedings;
- Prepare and distribute periodic status reports to the Court as requested and to the parties;
- Act as spokespersons for all Plaintiffs with Defendants and the Court, subject to the right of other Plaintiffs’ counsel to present non-repetitive individual or different positions;
- Conduct settlement negotiations on behalf of all Plaintiffs;
- Develop and recommend for Court approval practices and procedures pertaining to attorneys’ fees and expenses as further detailed below and, on an ongoing basis, monitor and administer such procedures. At such time as may be appropriate, Interim Class Counsel also will recommend apportionment and allocation of fees and expenses subject to Court approval; and
- Otherwise direct, coordinate, and supervise the prosecution of plaintiffs’ claims in the consolidated action and perform such other duties as may be needed to ensure proper coordination of Plaintiffs’ pretrial activities and prosecution of the claims or as may be further directed by the Court.
ADDITIONAL MATTERS
5. Interim Class Counsel shall confer with counsel for Defendants an attempt to agree on appropriate preservation and confidentiality orders. If agreement cannot be reached, each side shall present its own proposal for the Court’s determination.
6. Within seven (7) days of entry of this Order Interim Class Counsel shall submit to the Clerk a detailed timekeeping protocol for monitoring and documenting costs and computing of potential common benefit or class action time including timekeeping, submission of records, and other procedures applicable to attorneys’ fees and expenses. All Plaintiffs’ counsel shall then comply with the terms of this protocol.
7. Within forty-five (45) days of entry of this order Interim Class Counsel shall file a Consolidated Complaint.
IT IS SO ORDERED.
Dated: February 22, 2023
JAMES L. ROBART
United States District Judge
Kelly Iverson appointed by Judge Benita Y. Pearson to the Plaintiffs’ Steering Committee in a consolidated action against Norfolk Southern Railway Co.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
HAROLD R. FEEZLE, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0242
JUDGE BENITA Y. PEARSON
ORDER
[Resolving ECF No. 25]
GRAYCE EISLEY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant.
CASE NO. 4:23CV0250
JUDGE BENITA Y. PEARSON
ORDER
RAY E. HALL, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0257
JUDGE BENITA Y. PEARSON
ORDER
ANDREW ERDOS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION., et al.,
Defendants.
CASE NO. 4:23CV0268
JUDGE BENITA Y. PEARSON
ORDER
CHASE KINDER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0292
JUDGE BENITA Y. PEARSON
ORDER
AYSIA CANTERBURY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0298
JUDGE BENITA Y. PEARSON
ORDER
KRISTIN BATTAGLIA, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0303
JUDGE BENITA Y. PEARSON
ORDER
JESSICA DAVIS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0308
JUDGE BENITA Y. PEARSON
ORDER
TINA IBEL, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0315
JUDGE BENITA Y. PEARSON
ORDER
KAYLA BAKER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0324
JUDGE BENITA Y. PEARSON
ORDER
SCOTT SNYDER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0344
JUDGE BENITA Y. PEARSON
ORDER
AMY DETTMER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0345
JUDGE BENITA Y. PEARSON
ORDER
WILLIAM LEE FISHER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.
Defendants.
CASE NO. 4:23CV0350
JUDGE BENITA Y. PEARSON
ORDER
ROBERT ATKINSON, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0363
JUDGE BENITA Y. PEARSON
ORDER
CHRISTINA BODNAR, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0380
JUDGE BENITA Y. PEARSON
ORDER
ROSEMARY MOZUCH, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0415
JUDGE BENITA Y. PEARSON
ORDER
BRENDA SMITH, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0429
JUDGE BENITA Y. PEARSON
ORDER
JON LUKE AFFELTRANGER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0440
JUDGE BENITA Y. PEARSON
ORDER
GIOVANI IRIZARRY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.
Defendants.
CASE NO. 4:23CV0479
JUDGE BENITA Y. PEARSON
ORDER
FRANK POLICARO, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0495
JUDGE BENITA Y. PEARSON
ORDER
CERAMFAB, INC., et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0509
JUDGE BENITA Y. PEARSON
ORDER
EDWARD E. BARNHOUSE, etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0510
JUDGE BENITA Y. PEARSON
ORDER
ROBERT KURTZ, JR., et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0529
JUDGE BENITA Y. PEARSON
ORDER
MICHAEL BUNTS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0586
JUDGE BENITA Y. PEARSON
ORDER
DAVIDSON CULIXTE,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0600
JUDGE BENITA Y. PEARSON
ORDER
JERROLD GURNEY, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.
Defendants.
CASE NO. 4:23CV0601
JUDGE BENITA Y. PEARSON
ORDER
TIM HAMILTON, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0602
JUDGE BENITA Y. PEARSON
ORDER
JIBRIL EMMANUEL HAMMOND,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0603
JUDGE BENITA Y. PEARSON
ORDER
SCOTT MCALLER, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0604
JUDGE BENITA Y. PEARSON
ORDER
MICHAEL LOYD, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0634
JUDGE BENITA Y. PEARSON
ORDER
LAURA MANN, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORP., et al.,
Defendants.
CASE NO. 4:23CV0672
JUDGE BENITA Y. PEARSON
ORDER
I.
Pending is Plaintiffs’ Motion to Appoint Interim Class Counsel and a Plaintiffs’ Leadership Structure (ECF No. 25 in Case No. 4:23CV0242 (i.e. the first-filed case)). The Feezle Leadership Group and Team Ohio seek appointment as interim class counsel to act on behalf of the putative class prior to class certification. The Cory Watson Attorneys contend the Court should not force non-class-seeking Plaintiffs to place their claims under the control of a class counsel organizational structure. After notice to the parties, the Court conducted a hearing on the motion via Zoomgov.com. The Court has been advised, having reviewed the record, the motion, supporting documentation (ECF Nos. 25-1, 25-2, 25-3, 25-4, 25-5, 25-6, and 25-7 in Case No. 4:23CV0242), and the applicable law. The Court has also considered the oral arguments of counsel offered during the hearing.
The appointment of interim class counsel is critically important in a case of this nature, as it is an ongoing event affecting potentially thousands of residents, property owners, and businesses in East Palestine, Ohio and the surrounding area, all of whom are members of the putative classes that have been proposed. For the reasons set forth below, the Court grants Plaintiffs’ Motion (ECF No. 25 in Case No. 4:23CV0242; and appoints Interim Class Counsel as proposed by the Feezle Leadership Group and adopts the Feezle Leadership Group’s proposed leadership structure with slight modification. 1
At the outset, the Court notes that both the Feezle Leadership Group and Team Ohio have demonstrated the qualifications, experience, and commitment to adequately represent the putative class. While both sets of counsel raise compelling arguments, the Court finds that the Feezle Leadership Group will best serve the interests of the putative class.
Fed. R. Civ. P. 23(g)(3) gives a district court discretion to “designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.” See also Smith v. FirstEnergy Corp., Nos. 2:20-cv-03755, 2:20-cv-03987, 2:20-cv-03954, 2021 WL 9032912 at, *1 (S.D. Ohio May 13, 2021). When there are a number of overlapping, duplicative or competing class actions filed, appointment of interim class counsel may be helpful to clarify “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.” Manual for Complex Litigation (“MCL”) § 21.11 (4th Edition, 2004).
Rule 23(g)(1)(A) specifically directs the Court to consider the following factors before appointing interim 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.” Rule 23(g)(1) also lists other matters the Court may consider and actions the Court may take in appointing class counsel. Fed. R. Civ. P. 23(g)(1)(B)-(E). Rule 23(g)(4) requires class counsel to “fairly and adequately represent the interests of the class.” When “more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.” Fed. R. Civ. P. 23(g)(2).
The Court has conducted an independent review to ensure that counsel appointed to leading roles in the case at bar are qualified and responsible, that they will fairly and adequately represent all of the parties on their side, and that their charges will be reasonable. See MCL § 10.22. In the case at bar, Attorneys Seth A. Katz, M. Elizabeth Graham, and Jayne Conroy have done significant work in identifying and investigating the potential claims in the February 3, 2023 Norfolk Southern train derailment in East Palestine, Ohio. These three lawyers and their respective law firms have extensive experience in the areas of class actions, complex litigation, toxic torts, railroad litigation, regulatory, and environmental litigation. The proposed team of attorneys is knowledgeable and experienced in the applicable law. Finally, the proposed Interim Class Counsel and their organizational structure are dedicated to committing substantial economic and legal resources to represent the putative class. The Court has no reason to believe that the Feezle Leadership Group, as supplemented herein, will be unable to commit the resources necessary to represent the class. Therefore, because the Court finds the Feezle Leadership Group clearly satisfies the requirements of Rule 23(g), it approves their proposed organizational structure consisting of Interim Class Counsel, Co-Lead Counsel, an Executive Committee (which includes Plaintiffs’ Liaison Counsel), Plaintiffs’ Steering Committee (which includes Plaintiffs’ Co-Liaison Counsel, Community Liaison Counsel, and several Subcommittees such as Discovery, Law and Briefing, Science, and Experts. See MCL § 10.221.2
- The Court finds that Burg Simpson Eldredge Hersh & Jardine, P.C., Grant & Eisenhofer P.A., and Simmons Hanly Conroy LLC meet the standards set forth in Fed. R. Civ. P. 23(g)(l) and (4) to serve as Interim Class Counsel. Pursuant to Rule 23(g)(3), the Court appoints the following attorneys as Interim Class Counsel:
- Seth A. Katz of Burg Simpson Eldredge Hersh & Jardine, P.C.
- M. Elizabeth Graham of Grant & Eisenhofer P.A.
- Jayne Conroy of Simmons Hanly Conroy LLC
- The Court finds that Burg Simpson Eldredge Hersh & Jardine, P.C., Grant & Eisenhofer P.A., Simmons Hanly Conroy LLC, and Morgan & Morgan, P.A. are competent to serve as Co-Lead Counsel to manage the putative class actions and the individual actions. Pursuant to the Court’s inherent authority, the Court appoints the following attorneys as Co-Lead Counsel:
- Seth A. Katz of Burg Simpson Eldredge Hersh & Jardine, P.C.
- M. Elizabeth Graham of Grant & Eisenhofer P.A.
- Jayne Conroy of Simmons Hanly Conroy LLC
- T. Michael Morgan of Morgan & Morgan, P.A. 3
- The Court finds that the following attorneys and their firms meet the standards set forth in Fed. R. Civ. P. 23(g)(l) and (4) to serve in the following capacities in the organizational structure of the Feezle Leadership Group:
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Executive Committee:
- Mark P. Chalos of Lieff Cabraser Heimann & Bernstein, LLP
- Vincent L. Greene IV of Motley Rice LLC
- Christopher A. Seeger of Seeger Weiss LLP
- Mikal C. Watts of Watts Guerra LLP
- Charles E. Schaffer of Levin Sedran & Berman LLP
- James J. Bilsborrow of Weitz & Luxenberg, PC
- Michelle L. Kranz of Zoll & Kranz, LLC (Plaintiffs’ Liaison Counsel)
- Jeffrey S. Goldenberg of Goldenberg Schneider, LPA
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Steering Committee:
- Daniel R. Karon of Karon LLC
- Roger C. Denton of Wright & Shulte, LLC
- Neal E. Shapero of Shapero Roloff Co., LPA
- Brian P. Kopp of Betras Kopp & Markota
- Alyson Steele Beridon of Herzfeld Suetholz Gastel Leniski and Wall PLLC
- Margaret M. Murray of Murray & Murray Co., L.P.A.
- Joyce Chambers Reichard of Kelley Ferraro, LLC
- Gary A. Corroto of Plakas Mannos
- Ashlie Case Sletvold of Peiffer Wolf Carr Kane Conway & Wise, LLP (Plaintiffs’ Co-Liaison Counsel)
- Wesley D. Merillat of The Charles E. Boyk Law Offices, LLC
- Kelly K. Iverson of Lynch Carpenter, LLP
- Douglas J. Olcott of Edgar Snyder & Associates, LLC
- Daniel Aaron Rihn of Robert Pierce & Associates
- Dena R. Young of Berger Montague PC
- Stephen R. Basser of Barrack Rodos & Bacine
- Gary M. Klinger of Milberg Coleman Bryson Phillips Grossman, PLLC
- Andrew D. Schlichter of Schlichter Bogard & Denton, LLP
- Daniel Thornburgh of Aylstock, Witkin, Kreis & Overholtz, PLLC
- Ronald R. Parry of Strauss Troy Co., LPA
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys as Community Liaison Counsel:
- Nicholas T. Amato of Amato Law Office, LPA
- Nils P. Johnson, Jr. of Johnson & Johnson Law Office 4
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ current Subcommittees focused on specific aspects of this litigation to work on tasks assigned to them by Co-Lead Counsel:
- Gregory R. Farkas of Frantz Ward
- Grant W. MacKay of Law Office of Grant W. MacKay LLC
- Zachary J. Murry of Barkan & Robon, Ltd.
- Michael J. O’Shea of Lipson O’Shea Legal Group
- Patrick J. Perotti of Dworken & Bernstein, Co., L.P.A.
- Thomas W. Pirtle of Laminack Pirtle & Martines, LLP
- J. Scott Bertram of Bertram & Graf, L.L.C. 5
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Executive Committee:
- Co-Lead Counsel, in consultation with the Members of the Executive Committee, shall have the following responsibilities on behalf of all Plaintiffs in this action and any additional related actions that are consolidated with this action (collectively, “the Action”):
- To determine and to present in motions, briefs, oral argument (subject to permission of the Court) or such other fashion as may be appropriate, either personally or by designee, to the Court and opposing party, the position of all Plaintiffs as to all matters arising during all pretrial and trial proceedings in the Action;
- To designate attorneys to appear and present oral argument (subject to permission of the Court) at status, pretrial and other conferences and hearings in the Action;
- To conduct or coordinate discovery on behalf of Plaintiffs consistent with the Local and Federal Civil Rules, including the preparation of interrogatories, requests for production of documents, requests for admission, and the examination of witnesses in depositions in the Action;
- To designate an attorney to enter into stipulations with Defendants’ counsel in connection with the Action;
- To direct, supervise, and monitor the activities of Plaintiffs’ counsel and to implement procedures to ensure that schedules are met and unnecessary expenditures of time and funds by counsel are avoided in the Action;
- To conduct all pretrial, trial, and post-trial proceedings on behalf of all Plaintiffs in the Action, including appointing trial counsel;
- To employ and consult with experts;
- To call meetings of the Executive Committee and other attorneys involved in this litigation when appropriate;
- To conduct settlement discussions in the Action with Defendants’ counsel on behalf of Plaintiffs and the proposed Class and to enter into a settlement with Defendants, subject to Court approval;
- To ensure that all Plaintiffs and all Plaintiffs’ counsel are kept informed of the progress of the Action as necessary;
- To be responsible for forwarding, as necessary, to all Plaintiffs’ counsel all Orders, discovery, filings, and other documents served on Interim Class Counsel in the Action;
- To make all work assignments to Plaintiffs’ counsel in the Action and to do so in such a manner as to promote the orderly and efficient prosecution of the Action and to avoid unnecessary duplication and unproductive efforts;
- To ensure that work assignments to all Plaintiffs’ counsel in the Action are made in the best interests of Plaintiffs and the proposed Class and are made on the basis of the qualifications and expertise of the persons assigned particular tasks or responsibilities, counsel’s knowledge of the law, facts and issues, efficiency, and cost-effectiveness;
- To assess Plaintiffs’ counsels’ common litigation costs in the Action and to collect all assessments on a regular basis;
- To collect time, lodestar, and expense reports from all Plaintiffs’ counsel in the Action, including paralegals and any other staff members whose time is expected to be included in any fee petition in the Action;
- To coordinate and communicate with Defendants’s counsel in the Action, including the scheduling of depositions;
- To coordinate and communicate with Plaintiffs’ counsel in any other actions involving the February 3, 2023 Norfolk Southern train derailment in East Palestine, Ohio at issue in this Action, if any, when those other actions are not formally related to this Action; and
- To otherwise coordinate the work of all Plaintiffs’ counsel in the Action and to perform such other duties as necessary or as authorized by further Order of the Court.
- Co-Lead Counsel shall serve as the principal point of contact for the Court with Plaintiffs’ counsel in the Action and, in that role, shall have the following responsibilities:
- Receive Orders, notices, and telephone calls from the Court on behalf of all Plaintiffs’counsel in the Action;
- Attend all in-person and telephonic/Zoomgov.com hearings and conferences before the Court in the Action;
- Coordinate the filing and service of all pleadings and other documents that are filed by Plaintiffs’ counsel in the Action;
- Sign any consolidated complaint, motions, briefs, discovery requests, objections and responses, and subpoenas or notices on behalf of all Plaintiffs in the Action; and
- Ensure that all actions by Plaintiffs’ counsel in the Action are in conformance with the applicable Local Civil Rules of the Court.
- Defendants’ counsel may rely upon all agreements made with and representations made by Co-Lead Counsel in connection with the prosecution of the Action.
II.
The Court has also considered the parties’ Joint Status Report (ECF No. 26 in Case No. 4:23CV0242 Counsel for Plaintiffs in all but one of the 22 filed cases identified in Paragraph A of the parties’ Joint Status Report have agreed to consolidation of all cases for pretrial purposes. 6 Defendants’ Counsel also agrees that consolidation for pretrial purposes of all cases in Paragraph A is appropriate.
- Case Nos. in 4:23-cv-00242, 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672 are hereby consolidated pursuant to Fed. R. Civ. P. 42. On or before May 4, 2023, Co-Lead Counsel shall serve and file a Master Consolidated Class Action Complaint in Case No. 4:23-cv-00242 (i.e. the first-filed case) joining the claims from the consolidated cases (including cases filed by individual plaintiffs that are not putative class actions) that reflects their joint representation of Plaintiffs. Therefore, Defendants need not respond to the Complaint (ECF No.1) in Case No. 4:23-cv-00242.
- The record, including the docket sheet for Case No. 4:23-cv-00242 shall be changed to reflect that “In re: East Palestine Train Derailment” is the name of this litigation, in lieu of “Feezle et al v. Norfolk Southern Railway Co. et al.”
- Further proceedings in the following cases are stayed: Case Nos. 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672. 7
- Defendants shall have until 30 days after service of the Master Consolidated Class Action Complaint to answer, plead or otherwise move in response to the affirmative pleading.
- If Defendants serve and file a motion in response to the Master Consolidated Class Action Complaint, Plaintiffs must serve and file a memorandum in opposition within 30 days after service of the motion.Defendants may serve and file a reply memorandum in support of any motion filed in response to the Master Consolidated Class Action Complaint within 14 days after service of the memorandum in opposition.
- The Fed. R. Civ. P. 26(f) conference shall be completed on or before May 18, 2023. The participation of parties represented by counsel is left to the discretion of their counsel. The Court does not require the personal participation of the parties at this conference. A party may not seek formal discovery from any source before the parties have met and conferred at the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1).
As part of their pre-Case Management Conference planning conference, counsel must determine whether there will be discovery of electronically stored information (“ESI”) [E-discovery]. If counsel anticipates E-discovery, they must decide on a method for conducting such discovery or agree to abide by the default standard set forth in Appendix K to the Local Civil Rules.
The parties (through counsel or personally, if unrepresented) shall file a report on their discussion, including a proposed discovery plan, in a form substantially similar to Attachment No. 1, signed by all counsel and/or unrepresented parties and submit this report to the Court no later than five days after the Rule 26(f) conference. See Attachment No. 2 for an example of an agreement regarding the handling of disclosed privileged material.
IT IS SO ORDERED.
Date: April 5, 2023
Benita Y. Pearson
United States District Judge
1 As suggested during the hearing, the Court adds Attorney Jeffrey S. Goldenberg to Plaintiffs’ Executive Committee and Attorney Ronald R. Parry to Plaintiffs’ Steering Committee. The Court also adds Attorney Nils P. Johnson, Jr. to be another Community Liaison Counsel.
2 Committees of counsel can sometimes lead to substantially increased costs. Therefore, Interim Class Counsel should try to avoid unnecessary duplication of efforts and control fees and expenses.
3 Attorney Morgan will represent individuals and entities who have elected to file cases outside the class action, but are not opposed to the class structure.
4 Attorney Johnson is not currently receiving Notices of Electronic Filing (“NEFs”) from the Court. In order to effectively use the electronic filing system and retrieve documents from the electronic filing system, users must have a PACER (Public Access to Court Electronic Records) account. NextGen CM/ECF registration for e-filing and notification is required in the Northern District of Ohio unless otherwise ordered by the Court. Register online at https://www.pacer.gov/; and the registration form can be completed at: https://pacer.psc.uscourts.gov/pscof/registration.jsf. Attorney Johnson is, hereby, ordered to act, forthwith, to cure this deficiency.
NextGen CM/ECF Registration for the Northern District of Ohio is located on the Court’s web site at: https://www.ohnd.uscourts.gov/electronic-filing-registration.
Once registration is completed and approved by the Court, the party will be notified via email that filing privileges have been granted. The user’s login and password required to submit documents to the electronic filing system serve as the user’s signature on all electronic documents filed with the Court.
5 The Court will look with favor on Co-Lead Counsel invoking Local Rule 83.6, to allow qualified law students from regional law schools (e.g., Akron, Cleveland State, Case Western Reserve, Capital, and/or Ohio State) to participate in court-approved facets of this litigation.
6 Counsel for Plaintiffs in CeramFab, Inc. et al. v. Norfolk Southern Corporation et al. No. 4:23-cv-00509 (N.D. Ohio filed March 13, 2023) have not agreed that consolidation is appropriate and did not consent to being part of a Master Consolidated Class Action Complaint. Despite that original mindset, upon the issuance of this Order, the Court encourages the plaintiffs and their counsel in that case to consider the benefits of consolidation.
7 It is the intention of the undersigned to administratively close these cases upon the filing of the Master Consolidated Class Action Complaint in Case No. 4:23-cv-00242.
Nick Colella appointed by Judge Denise J. Casper as Co-Lead Class Counsel in a consolidated action against Suffolk University (D. Mass.)
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
MEGAN JACKSON, Individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SUFFOLK UNIVERSITY,
Defendant.
Case No. 1:23-CV-10019-DJC
SUSANNAH SMITH, Individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SUFFOLK UNIVERSITY,
Defendant.
Case No. 1:23-CV-10261-DJC
[PROPOSED] ORDER CONSOLIDATING ACTIONS, APPOINTING CO-LEAD INTERIM CLASS COUNSEL, AND SETTING A BRIEFING SCHEDULE
THIS MATTER, having come before the Court by the Plaintiffs in the above-captioned cases by their Unopposed Motion for Consolidation Pursuant to FED. R. CIV. P. 42 and Appointment of Co-Lead Interim Class Counsel Pursuant to FED. R. CIV. P. 23(g), and supporting materials, and the Court having read the papers, IT IS ORDERED that the Motion is GRANTED as set forth below:
1. The Court hereby consolidates Jackson v. Suffolk University, 1:23-CV-10019 (the “Jackson Action”) and Smith v. Suffolk University, 1:23-CV-10261 (the “Smith Action”) (collectively, the “Class Actions”), as well as any future related actions (collectively the “Related Actions”), under the docket number of this, first filed case: 1:23-cv-10019-DJC (the “Consolidated Action”).
2. All papers previously filed and served to date in the Related Actions are deemed part of the record in the Consolidated Action.
3. The Court hereby appoints Nicholas A. Colella of Lynch Carpenter LLP and Kevin Laukaitis of Laukaitis Law Firm LLC as Co-Lead Interim Class Counsel to act on behalf of the Plaintiffs in the Consolidated Action, and the putative Class, with the responsibilities set forth below:
-
- Determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pre-certification proceedings;
- Coordinate the initiation and conduct of discovery on behalf of Plaintiffs and the putative Class consistent with the requirements of the Federal Rules of Civil Procedure;
- Convene meetings amongst counsel;
- Conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
- Negotiate and enter into stipulations with opposing counsel as necessary for the conduct and efficient advancement of the litigation;
- Monitor the activities of all counsel to ensure that schedules are being met and unnecessary expenditures of time and funds are avoided;
- Perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of this Court;
- Serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
- Ensure that all notices, orders, and material communications are properly distributed (to the extent that they are not otherwise served on Plaintiffs’ counsel via the Court’s electronic filing system);
- Communicate with Defense counsel as necessary to promote the efficient advancement of this litigation; and
- Make available to other Plaintiffs’ counsel documents produced by the Defendant.
4. Co-Lead Interim Class Counsel shall have the authority to communicate with Defendant’s counsel and the Court on behalf of any Plaintiffs unless that authority is expressly delegated to other counsel. Defendant’s counsel may rely on all agreements made with Co-Lead Interim Class Counsel, and such agreements shall be binding on all other Plaintiffs’ counsel.
5. The Court hereby appoints Jason Leviton of Block & Leviton as Interim Liaison Counsel for Plaintiffs. Interim Liaison Counsel is responsible for performing the duties and responsibilities described in the MANUAL FOR COMPLEX LITIGATION § 21.221 (4th ed. 2004), including facilitating and expediting communications with and among Plaintiffs’ counsel and fulfilling such other duties as requested by the Court or Interim Co-Lead Counsel. The Court also orders the following:
-
-
- Interim Liaison Counsel is authorized to: (i) receive orders, notices, correspondence, and telephone calls from the Court and the Clerk of the Court on Plaintiffs’ behalf; (ii) prepare and transmit copies of such orders and notices on Plaintiffs’ behalf; and (iii) receive orders and notices from the District of Massachusetts, if any;
- Interim Liaison Counsel shall maintain complete files with copies of all documents served and make such files available to all Plaintiffs’ counsel on request;
- Interim Liaison Counsel must maintain and make available to all counsel and the Court an up-to-date service list; and
- Interim Liaison Counsel shall assume other responsibilities as may be deemed appropriate by Interim Lead Counsel or as ordered by the Court.
-
6. Unless otherwise ordered by the Court upon a showing of good cause, this Order shall apply to any action filed in, transferred to, or removed to this Court that relates to the subject matter at issue in this case.
7. The Court shall enter a Case Management Order as soon as practicably possible.
8. Plaintiffs in the Consolidated Action shall file an operative, consolidated complaint within fourteen (14) days of this Order.
9. Defendant shall have forty-five (45) days from the date on which Plaintiffs file the consolidated complaint to file a responsive pleading thereto.
10. In the event that Defendant’s response is a motion to dismiss, Plaintiffs shall have thirty (30) days to file their opposition thereto, and Defendant shall have twenty-one (21) days to file its reply
SO ORDERED.
DATED: March 7, 2023
HON. DENISE J. CASPER, U.S.D.J.
Kelly Iverson appointed Chair of Liability Expert Committee
Congratulations to Lynch Carpenter Partner, Kelly Iverson for being appointed Chair of Liability Expert Committee for the Samsung Customer Data Security Breach Litigation. Lynch Carpenter is proud to be a part of the team fighting for the rights of the people.
Read the full appointment order:
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
IN RE: SAMSUNG CUSTOMER DATA
SECURITY BREACH LITIGATION
This Document Relates To All Actions
Civil Action No. 23-md-3055(CPO)(EAP)
ORDER
THIS MATTER having been opened to the Court by counsel for Plaintiffs Naeem Seirafi, Shelby Holtzclaw, Roald Mark, Andrew Becker Anthony Dipaola, Keanna Cole, Peggy Rodriguez, Indea Sanchez, Angelina Alvarado Scott, Angela Robinson, Jorge Fernandez, Joseph Rollins, Jorge Newbery, Holly Ringling, and Tammy Gutierrez, on notice to counsel for Defendants, and good cause appearing,
IT IS THIS day of March, 2023
ORDERED as follows:
1. The Court hereby appoints James E. Cecchi as Interim Lead Class Counsel to act on behalf of the Plaintiffs in the above matters.
2. Interim Class Counsel shall have the responsibilities set forth below:
- determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pretrial proceedings;
- coordinate the initiation and conduct of discovery on behalf of Plaintiffs and the putative Class consistent with the requirements of the Federal Rules;
- convene meetings among Plaintiffs’ counsel;
- conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
- delegate specific tasks to other counsel in a manner to ensure that pretrial preparation for the Plaintiffs and the putative Class is conducted efficiently and effectively;
- enter into stipulations with opposing counsel as necessary for the conduct of the litigation;
- monitor the activities of all counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
- perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of the court.
- serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
- ensure that all notices, orders, and material communications are properly distributed (to the extent that they are not otherwise served on Plaintiffs’ counsel via the Court’s electronic filing system);
- negotiate and enter into stipulations with defense counsel as necessary to promote the efficient advancement of this litigation;
- communicate with defense counsel as necessary to promote the efficient advancement of this litigation; and
- make available to other Plaintiffs’ counsel documents produced by the defendant.
3. The following counsel are appointed as chair(s) of the indicated committees:
- Chairs of Law and Briefing: Roberta Liebenberg Sabita Soneji
- Chair of Discovery: Linda Nussbaum
- Chair of Liability Experts: Kelly Iverson
- Chair of Damage Experts: Nada Djordjevic
- Chair of Settlement: Christopher Seeger
- Chair of Third Party Discovery: Ryan Clarkson
- Chairs of Plaintiffs’ Discovery: Steve Nathan Caroline Bartlett
- Chair of Electronic Discovery Christopher Ayers
- Liaison Counsel: Catherine DeRenze
TikTok to Pay $92 Million in Final Approval of Settlement Agreement
On July 28, 2022, Judge John Z. Lee granted final approval in the class action settlement against TikTok and parent company ByteDance awarding $92 million to the class of 1.4 million people for the company’s violation of users’ private data.
“We are pleased that the court recognized the substantial value of this landmark settlement. More importantly, we believe that TikTok will make substantial changes in its practices going forward to ensure the privacy of its users is protected," says Katrina Carroll, Lynch Carpenter Partner. Carroll served as Co-Lead Attorney for TikTok users in the Illinois Subclass which asserted claims under the Illinois Biometric Information Privacy Act.
To read the full court opinion, click here.
LAWSUIT UPDATE – Copley v. Evolution Well Services Operating, LLC, No. 20-cv-1442, slip op., 2022 WL 295848 (W.D. Pa. Jan. 21, 2022)
In a decision on January 31, 2022, the district court for the Western District of Pennsylvania conditionally certified a collective action on the part of employees against their employer for a violation of the Fair Labor Standards Act of 1938 (FLSA).
The FLSA is the federal law that establishes the minimum wage, overtime pay rates, recordkeeping requirements, and youth employment standards. Generally, all the time an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace constitute their work hours for payment purposes. Additionally, overtime is any amount of time an employee works over the normal 40 hours a week. When the FLSA was enacted, the Department of Labor created the Wage and Hour Division to administer and enforce the provisions of the law. Under the FLSA, employees are allowed to bring collective actions against their employer, which differ from traditional class actions in several procedural respects. Because the statute itself doesn’t specify those procedures, the courts have come up with a two-step process by which to certify collective actions.
The first stage of collective action certification requires that the plaintiffs show that there is a connection between how the employer’s policies and procedures affected the individually named plaintiff and how the policies affected all the other prospective collective action members. In other words, the court, at this stage, determines whether other employees are situated similarly to the named plaintiff. If plaintiffs are granted the conditional certification at this stage, they are allowed to then notify the potential collective action members of the suit. At the second stage, following discovery and usually prompted by a motion to decertify, courts engage in a more thorough inquiry to determine if the named plaintiff and the opt-in plaintiffs are similar enough to allow the matter to proceed to trial on a collective basis.
In our suit against Evolution Well Services Operating, LLC, plaintiffs and members of the collective action would work two-week long “hitches” during which time they would live in employee-controlled housing, working 12-hour shifts at the remote work site. In addition to the time spent working at the site, however, they had been required to get themselves to the employee-controlled housing at the beginning of a hitch, to attend meetings before and after leaving the employer housing for the work site, and to spend an average of one and a half hours travelling before and after each 12-hour shift, for which they were not compensated. During the meetings, employees would be on calls and in meetings with supervisors, would have their temperature checked, and would sometimes be drug tested. They would also be performing work-related activities during transport to and from the job site on a daily basis. Plaintiffs argued that the policies regarding travel applied to all hitches employees, and therefore all hitch employees were similarly situated as required for conditional certification.
Evolution Well made several arguments against the plaintiffs’ assertions. One of these was that the travel from the employer housing to the worksite and back was a “normal incident” of the work. The court first explained that the regulations promulgated by the Department of Labor consider travel incident to work to be the commute an employee makes between work and home on a regular workday. The court found that employees clearly were not traveling to and from home every day and that the precedent cited by Evolution Well was either factually distinguishable or legally irrelevant, so employees’ travel time could potentially be legally compensable. Evolution Well also argued that different employees performed different activities and not all employees might be performing indispensable and integral activities on the way to and from the work site. The court rejected this argument, finding that the activities conducted by employees during this time could be indispensable and integral and that this defense did not prevent the court from granting conditional certification.
Evolution Well further argued that the proposed collective action included some employees that weren’t owed damages because some employees had been compensated for travel time. The court said that it was unclear at this stage which employees were or were not compensated by the policies and so the court would not prevent the collective action from going forward on that basis.
Finally, the plaintiffs requested employee names, job titles, addresses, email addresses, mobile phone numbers, employment dates, dates of birth, and the last four digits of the employees’ SSNs and argued that email and text message notice should be allowed. Evolution Well requested the court require the parties to meet and confer regarding the scope of employee information provided and the notice plan. The court granted the plaintiffs’ request almost entirely, excluding only the last four digits of the employees’ social security numbers. Importantly, the court and that, in this day and age, distributing notice by text and email was appropriate.
The court’s ultimate conclusion in the January 31 decision was that the plaintiffs had put forth enough evidence in favor of conditionally certifying the collective action and so had passed through stage one of the FLSA collective action procedures and can move on to stage two. This is a huge step forward for the plaintiffs and other employees toward holding Evolution Well responsible and being paid the money they earned.
Blog Post by Elizabeth Pollock-Avery and Lucia Romani.
Sources
The Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.
Brian J. Malloy, Employment: Navigating The “Collective Action” In Federal Court, Plaintiff Magazine, Nov. 2013
29 C.F.R. § 785.39
Copley v. Evolution Well Services Operating, LLC, No. 20-cv-1442, slip op., 2022 WL 295848 (W.D. Pa. Jan. 21, 2022)
LAWSUIT UPDATE - In re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014 (W.D. Pa.)
On May 2, 2022, following the FDA’s Section 518(a) of the Federal Food, Drug, and Cosmetic Act (“FDCA”) action against Philips, which required Philips to provide notification to customers of the recall and the health risks presented by the recalled devices, the U.S. Food and Drug Administration’s Center for Devices and Radiological Health (“CDRH”) issued a letter proposing that Phillips be issued a new order, but this time under Section 518(b) of the FDCA.
Section 518 of the FDCA is designed to protect public health. Under Section 518(a), the FDA may require manufacturers or other appropriate individuals to notify all health professionals who prescribe or use the device and any other person (including importers, distributors, retailers, and device users) of the health risks resulting from the use of the defective device, so that these risks may be reduced or eliminated. In turn, Section 518(b) authorizes the FDA, after offering an opportunity for an informal hearing, to order manufacturers, importers, or distributors to repair, replace, or refund the purchase price of devices that present unreasonable health risks.
Despite explicit authority granted under Section 518 of the FDCA to regulate medical devices, the FDA seldomly employs it. Before Philips, the latest use of Section 518 was the issuance of a Section 518(a) notification in 1995 to a firm called Telectronics. Telectronics manufactured pacemakers; however, their pacemaker’s wire, responsible for delivering electric pulses to the heart, began to break and puncture the individual’s heart to whom the device was surgically implanted. This faulty wire affected nearly 22,000 Americans and is to blame for two patients’ deaths, at least a dozen injuries, and over 1,000 surgeries to remove the defective wire resulting in an additional four deaths during the operations. When issuing the 518(a) notification, the FDA accused Telectronics of not warning patients about the malfunctions until January 1995, even though it received the first reports in 1994.
The issuance of the 518(b) notice is significant—we have found no past examples of the FDA exercising its repair/replace/refund authority under Section 518(b). However, per the FDA’s May 2, 2022 letter, Phillips may make recent history and receive a 518(b) order. The FDA asserts four reasons which justify the issuance of a 518(b) order.
First, as outlined in the 483 report, the CDRH states that the recalled devices contain polyurethane (“PE-PUR”) foam that may degrade into particles and be inhaled by device users. This foam contains harmful chemicals, including toluene diisocyanate isomers (“TDI”), toluene diamine isomers (“TDA”), and diethylene glycol (“DEG”). Inhalation or ingestion of these particles may cause toxic and potentially carcinogenic effects and irritation of the respiratory tract, eyes, nose, and skin, asthma, inflammatory responses, and headache.
The CDRH further states that testing of the recalled devices showed that these devices emitted volatile organic compounds (“VOC”). These compounds include dimethyl diazine, phenol, 2,6-bis (1,1-dimethylethyl)-4-(1-methylpropyl), and formaldehyde. Due to the risk associated with the potential degradation of and the VOC emissions from the PE-PUR foam contained in the recalled devices, the CDRH believes there is sufficient evidence for the FDA to determine that the recalled devices present an unreasonable risk of substantial harm to the public health.
Second, the CDRH states that there are reasonable grounds that Phillips did not adequately evaluate the devices subject to the recall despite receiving various test reports, complaints, information from supplies, and information from another entity owned by Philips’s parent company that the devices’ foam was potentially degrading as early as 2015. By continuing to manufacture the products that contained the potentially degrading foam, the CDRH held that Philips failed to evaluate the devices adequately and, in turn, implement corrective and preventive actions that could have potentially mitigated the harm of the degraded foam as required by current good manufacturing requirements. As a result, the CDRH believes that under these circumstances, there is enough evidence for the FDA to determine that there are reasonable grounds to believe that Philips’s manufacturing of the recalled devices was not adequately conducted consistent with the state of the art as it existed at the time when Phillips manufactured the devices.
Third, the CDRH held that while the use of ozone to clean the recalled devices may exacerbate the degradation of the PE-PUR foam, the unreasonable risk associated with the devices was not caused by the ozone cleaning agents but instead was caused by the foam’s susceptibility to degradation under even relatively mild environmental conditions. Therefore, CDRH believes that there is sufficient evidence for the FDA to determine that there are reasonable grounds to believe that the unreasonable risk associated with the recalled devices was not caused by using ozone cleaning products and instead caused by the manufacturer, importer, distributor, or retailer of the devices failure to exercise due care in device installation, maintenance, repair, or use.
Lastly, the CDRH stressed that patients and providers could not readily mitigate that risk even when aware of the unreasonable risk associated with the recalled devices. The FDA has cautioned against using an additional filter in these recalled devices, and the removal of PE-PUR foam from BiPAP or CPAP machines may present a severe risk. Further, no solution is offered as a viable way to prevent the potential chemical emissions from being inhaled. Therefore, repairing, replacing, and/or issuing a refund for the affected devices is necessary.
The next step in this saga is whether the FDA will issue the Section 518(b) order.
According to the FDA, between “April 2021 through April 30, 2022, the FDA received more than 21,000 medical device reports (“MDRs”), including 124 reports of death, associated with the PE-PUR foam breakdown or suspected foam breakdown. The MDRs received included both mandatory reports from Philips and voluntary reports from health professionals, consumers, and patients. A wide range of injuries have been reported in these MDRs, including cancer, pneumonia, asthma, other respiratory problems, infection, headache, cough, dyspnea (difficulty breathing), dizziness, nodules, and chest pain.”
If you have been injured as a result of the use of a recalled Philips CPAP, Bi-Level Pap, or Ventilator, you may contact us to discuss your legal rights.
Blog Post by Kelly K. Iverson and Bailey Corbin.
Kelly K. Iverson is a partner at Lynch Carpenter, LLP, and was appointed by Judge Joy Flowers Conti as Plaintiffs’ Co-Lead Counsel in In re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014 (W.D. Pa.).