Gary Lynch of Lynch Carpenter Elected Fellow of The College of Labor and Employment Lawyers

Firm’s founding partner honored for outstanding performance, integrity and excellence

PITTSBURGH (November 13, 2021) — The College of Labor and Employment Lawyers proudly announce the election of Lynch Carpenter founding partner, Gary Lynch, as a new Fellow. Election as a Fellow is the highest recognition by one’s colleagues for superior performance, commitment to integrity, dedication and overall excellence. The College is comprised of more than sixteen hundred members in forty-six states, Washington DC, Puerto Rico, and eight Canadian Provinces.
The installation of Fellows is scheduled for Saturday November 13, 2021 in Beverly Hills, CA during the American Bar Association’s Labor and Employment Law Section’s Continuing Legal Education Conference.

“I am honored to have been named a Fellow by The College of Labor and Employment Lawyers. It is a pleasure to receive this level of recognition from my peers. I would like to congratulate all the Fellows who have been elected alongside me. I look forward to working closely with you all and help guide this organization for years to come.” said Gary Lynch of Lynch Carpenter.

About Lynch Carpenter

Lynch Carpenter fights for everyday people. When the system fails an employee, consumer or a citizen whose rights have been violated, Lynch Carpenter is here to uphold justice. No one should be denied the wages they deserve, face discrimination or contend with unfair business practices. We prosecute individual and class action lawsuits, holding wrongdoers accountable.

About the College of Labor and Employment Lawyers

The College of Labor and Employment Lawyers was the vision of a number of Fellows. The idea was to further establish the profession in all its aspects as one uniquely important to the world of labor and employment law, individual rights, collective bargaining and dispute resolution. The College was established in 1995 through an initiative of the Council of The Section of Labor and Employment law of the American Bar Association. It operates as a free-standing organization recognizing those who, by long outstanding service, have distinguished themselves as leaders in the field.

Contact Information:

Jennifer Schlieper,
Flying Scooter Productions
jennifer@flyingscooterproductions.com
412-916-7495

Austin Henry,
Flying Scooter Productions
austin@flyingscooterproductions.com
412-427-0101


TikTok and Parent Company ByteDance, Inc. Hit with $92 Million Settlement for Users’ Privacy Issues, According to FeganScott

CHICAGO–(BUSINESS WIRE)–Oct 4, 2021–

A federal court in Chicago granted preliminary approval of a $92 million class action settlement on behalf of users of the TikTok app, and its predecessor application Musical.ly, over claims the social media company wrongfully collected users’ biometric information and private data, according to FeganScott. The social media company then allegedly disclosed users’ private data and information to third parties violating the Illinois Biometric Information Privacy Act (BIPA), the federal Video Privacy Protection Act, and other consumer and privacy protection laws.

Biometric identifiers are physiological traits such as fingerprints, facial patterns, or voice cadence. They can be used to verify a user’s identity and are thought to be more reliable than other forms of identification. This is against the law in Illinois.

The settlement includes a $92 million fund to be distributed to class members, a requirement for TikTok to make disclosures to consumers under certain circumstances, and for the company to initiate a newly designed data privacy compliance training program for all TikTok employees and contractors.

“A decade ago, we were concerned about companies like TikTok collecting email addresses and data on shopping behavior,” said Beth Fegan, managing member of the FeganScott Law Firm. “Now, the level of sophistication these companies employ has increased exponentially — they collect billions of user attributes ranging from eye color and facial expressions, to how a person moves or gestures.”

The court provisionally certified two settlement classes:

  • Nationwide Class: All persons who reside in the United States who used the App— the TikTok video-sharing application (or its Musical.ly predecessor) distributed in the U.S.— prior to September 30, 2021.
  • Illinois Subclass: All persons who reside in the State of Illinois and used the App in the State of Illinois to create videos prior to September 30, 2021.

Katrina Carroll, a partner at Carlson Lynch, argued the case in Illinois Federal Court with the Honorable Judge John Z. Lee presiding. Carroll said, “In a world where social media apps track our locations, record our conversations and surreptitiously log our preferences, we need to ensure customers are aware of how their data is being stored, used and sold for profit. Our hope is that this settlement will focus attention on the need for informed consumer consent before their biometrics are collected, and incite other states to enact laws similar to Illinois.”

The Illinois subclass recognizes the state is one of the few in the U.S. that has enacted strong, pro-consumer privacy laws through the Illinois Biometric Information Privacy Act (BIPA). BIPA mandates that companies that seek to collect biometric data must first obtain informed consent. Further, BIPA provides for statutory damages.

Ekwan Rhow, a partner at Bird Marella, affirmed that “this settlement is one of the largest ever achieved, in a consumer BIPA case, and one of the largest settlements in privacy class action.” He continued, “It serves as a reminder, to corporations, that privacy is important and that they will be held accountable for violating consumers’ rights.”

Members of the Illinois subclass will receive six pro rata shares of the settlement fund in recognition of BIPA, while members of the nationwide class will receive one pro rata share of the settlement. The value of those shares, or the amount of compensation to each class member, will be determined by the number of those who submit claims.

After claims are submitted and statements in support of or in opposition to the settlement are received, the court will hold a final fairness hearing on May 18, 2022. For more information about the settlement or deadlines, and to submit a claim, TikTok and Musical.ly users should visit the settlement website at www.tiktokdataprivacysettlement.com.

The consolidated cases are led by class counsel appointed by the court, including Elizabeth Fegan of FeganScott LLC, Katrina Carroll, Carlson Lynch LLP, and Ekwan Rhow, Bird Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

About FeganScott LLC:

FeganScott is a national class action law firm dedicated to helping victims of sexual abuse, discrimination, consumer fraud, antitrust violations and more. The firm is championed by acclaimed class action and veteran attorneys and has successfully recovered $1 billion for millions of victims nationwide. FeganScott is committed to pursuing successful outcomes with integrity and excellence, while holding unjust parties accountable. To learn more, visit www.feganscott.com.

About Carlson Lynch:

Founded in 2004, Carlson Lynch has earned national acclaim for complex litigation for plaintiffs in cyber security, anti-theft and consumer protection. The firm’s philosophy is to provide the same quality of representation to consumers and other individual plaintiffs as the nation’s largest defense-oriented law firms provide to their clients. The result is a practice that is both tough and sophisticated, advising diverse clients against some of the most aggressive legal teams in the country. Carlson Lynch has offices in Pittsburgh, San Diego, Los Angeles, Chicago and Philadelphia. www.lynchcarpenter.com

About Bird Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C

Established in 1981 and based in Los Angeles, Bird Marella is one of America’s premier litigation boutiques. The firm and its team of experienced trial lawyers handle complex high-stakes – and often high-profile – civil litigation for both plaintiffs and defendants nationwide, as well as white collar criminal litigation for corporate and individual defendants. The common theme in Bird Marella’s cases is not the underlying legal issues but the sophistication of the challenge and the need for innovative and insightful representation through trial. To learn more, please visit www.birdmarella.com.

View source version on businesswire.com: https://www.businesswire.com/news/home/20211004005856/en/

CONTACT:

Mark Firmani

feganscottpr@firmani.com

KEYWORD: ILLINOIS UNITED STATES NORTH AMERICA

INDUSTRY KEYWORD: LEGAL PROFESSIONAL SERVICES

SOURCE: FeganScott LLC

Copyright Business Wire 2021.

PUB: 10/04/2021 02:16 PM/DISC: 10/04/2021 02:16 PM

http://www.businesswire.com/news/home/20211004005856/en


gavel

ORDER APPOINTING LEAD AND LIAISON COUNSEL AND DIRECTING THE FILING OF CERTAIN SUPPLEMENTAL PAPERS

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: ERIE COVID-19 BUSINESS INTERRUPTION PROTECTION INSURANCE LITIGATION

This Document Relates to:
All Cases

Master Docket Misc. No. 1:21-mc-00001

MDL No. 2969

ORDER APPOINTING LEAD AND LIAISON COUNSEL AND DIRECTING THE FILING OF CERTAIN SUPPLEMENTAL PAPERS

In its Initial Status Conference Order (ECF No. 3), the Court informed the parties that it would appoint Plaintiffs’ Lead Counsel and Plaintiffs’ Liaison Counsel. The Court received three (3) applications, representing a total of six (6) individuals. (ECF Nos. 85, 104, and 105.) The Court then heard from the respective candidates at the Initial Status Conference. After careful consideration of the applicants’ written submissions and oral statements as well as the criteria set forth in the Manual for Complex Litigation and Federal Rule of Civil Procedure 23(g), the Court issues the following Order:

 

1. APPOINTMENT OF INTERIM PLAINTIFFS’ CO-LEAD COUNSEL

The Court appoints the following attorneys as Plaintiffs’ Co-Lead Counsel:

Kelly K. Iverson
Lynch Carpenter, LLP
1133 Penn Ave., 5th Floor
Pittsburgh, PA 15222

Adam M. Moskowitz
The Moskowitz Law Firm PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134

Plaintiffs’ Co-Lead Counsel will be responsible for coordinating pretrial proceedings on behalf of Plaintiffs. They will have the following responsibilities, and such responsibilities may be modified by subsequent Order. The responsibilities include, without limitation:

  1. Determine––after such consultation with other leadership counsel including members of the Plaintiffs’ Steering Committee (“PSC”) (see Section 3 below delineating the PSC’s responsibilities), and other co-counsel as appropriate––and present to the Court and opposing parties the position of Plaintiffs as to all matters arising during pretrial proceedings, including but not limited to attending conferences, filing and presenting jointly drafted motions, drafting joint status reports, etc.;
  2. When a case that arises out of the subject matter of the actions in this MDL is hereinafter filed in this Court or transferred from another Court, Plaintiffs’ Co-Lead Counsel shall advise the Court and the parties so that the Clerk of this Court may post a copy of this Order and other relevant Orders in the separate action. Such will serve to advise the attorneys for the plaintiff(s) in the newly filed or transferred case and to any new defendant(s) in the newly filed or transferred case of this action of the procedural status of this MDL and so that new counsel may make the appropriate entry on the docket for this action;
  3. Coordinate the initiation and conduct of discovery and other activities on behalf of Plaintiffs consistent with the Federal Rules of Civil Procedure relating to discovery or any other actions directed by any subsequent Order of this Court;
  4. Coordinate with members of the PSC in management of the litigation and fund the necessary and appropriate costs of Plaintiffs’ discovery and other common benefit efforts, including the maintenance of a Plaintiffs’ document depository;
  5. Coordinate settlement discussions or other dispute resolution efforts on behalf of Plaintiffs, but not enter binding agreements except to the extent expressly authorized;
  6. Delegate specific tasks to other Plaintiffs’ counsel in the matter to ensure that pretrial preparation is conducted effectively, efficiently, and economically;
  7. Monitor the activities of Plaintiffs’ co-counsel to ensure schedules are met and unnecessary expenditures or time and expense are avoided;
  8. Consider the qualifications of non-leadership Plaintiffs’ counsel for specific tasks;
  9. Consult with and employ consultants or experts on behalf of Plaintiffs, as necessary;
  10. Enter into stipulations with opposing counsel as necessary for the conduct of this litigation;
  11. Prepare and distribute periodic status reports to the parties;
  12. Maintain adequate time and disbursement records covering service of designated counsel and establishing guidelines as to keeping of time records and expenses;
  13. Encourage full cooperation and efficiency among all Plaintiffs’ counsel;
  14. Submit, if appropriate, additional committees and counsel on behalf of Plaintiffs for designation by the Court;
  15. Perform such other duties as may be incidental to proper coordination of Plaintiffs’ pretrial activities or authorized by further order of the Court.

 

2. APPOINTMENT OF INTERIM PLAINTIFFS’ LIAISON COUNSEL

The Court appoints the following attorney to serve as Plaintiffs’ Liaison Counsel:

George L. Stewart
Reed Smith, LLP
225 5th Ave.
Pittsburgh, PA 15222

Plaintiffs’ Liaison Counsel will be charged with responsibility for administrative matters as set forth below and as may be modified by subsequent Order. Liaison Counsel will be expected to:

  1. Maintain an up-to-date, comprehensive Service List of Plaintiffs and promptly advise defense counsel of changes to Plaintiffs’ Service List;
  2. Receive and distribute to Plaintiffs’ Counsel orders, notices, and correspondence from the Court, to the extent such documents are not electronically filed;
  3. Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery, pleadings, correspondence, and other documents from defense counsel that are not electronically filed;
  4. Establish and maintain a document depository;
  5. Maintain complete files with copies of all documents served upon them in hard copy or electronic form to make files available to Plaintiffs’ counsel upon request;
  6. Revive orders and notices from the Judicial Panel on Multidistrict Litigation pursuant to Rule 5.2 (e) of the Panel’s Rules of Procedure or from the Court on behalf of all Plaintiffs, and prepare transmittal of copies of such orders and notices to Plaintiffs’ counsel;
  7. Assist Plaintiffs’ Co-Lead Counsel and the PSC in resolving scheduling conflicts among the parties and coordinating activities, discovery, meetings, and hearings;
  8. Maintain a filed-endorsed copy of this Order, and serve the same on the parties and/or their attorneys in any actions later instituted in, removed to, or transferred to these proceedings;
  9. Maintain records of receipts and disbursements advanced by members of the PSC and received by the PSC, and report in writing to the PSC concerning disbursements and receipts;
  10. Act as the treasurer for any common benefit assessments and expenses;
  11. Arrange monthly conference call numbers and provide the number to the Court and all counsel; and,
  12. Perform other functions necessary to effectuate these responsibilities or as may be expressly authorized by further Orders from the Court or requested by Plaintiffs’ Co- Lead Counsel. Further, one or more duties of Plaintiffs’ Liaison Counsel as set forth herein may also be performed by Plaintiffs’ Co-Lead Counsel or otherwise at their direction, if in their judgment such reallocation of duties leads to greater efficiency and expense savings. Plaintiffs’ Liaison Counsel nonetheless remains responsible for the fulfillment of the obligations set out herein unless relieved of same by further Order.

Notwithstanding the appointment of Plaintiffs’ Liaison Counsel, each Plaintiff’s counsel shall have the right to participate in all proceedings before the Court as fully as such counsel deems necessary. Such Liaison Counsel shall not have the right to bind any party as to any matter without the consent of counsel for that party, except Plaintiffs’ Liaison Counsel’s own clients. Further, such Liaison Counsel shall remain free to represent the interests and positions of their clients free of any claim (including, without limitation, any claim of conflict) arising from service as Plaintiffs’ Liaison Counsel.

 

3. PLAINTIFFS’ STEERING COMMITTEE

To further promote efficient management of the MDL and pursuant to the guidance set forth in the Manual for Complex Litigation (Fourth) § 40.22, the Court hereby establishes a Plaintiffs’ Steering Committee (“PSC”). The following individuals, along with Plaintiffs’ Co- Lead Counsel and Liaison Counsel, are appointed to the PSC:

Richard Golomb
Golomb & Honik, P.C.
1835 Market St., Suite 2900
Philadelphia, PA 19103

John “Jack” Goodrich
Goodrich & Associates, P.C.
429 4th Ave., Suite 900
900 Law & Finance Building
Pittsburgh, PA 15219

William “Chip” F. Merlin
Merlin Law Group
777 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602

The PSC shall assist Plaintiffs’ Co-Lead Counsel and Plaintiffs’ Liaison Counsel in coordinating Plaintiffs’ pretrial activities, fulfilling the obligations as set forth in Sections 1 and 2 above, and in planning for trial. In addition, the PSC shall, as approved by Plaintiffs’ Co-Lead Counsel, establish a federal-state liaison advisory subcommittee of up to three (3) counsel of record in this proceeding, including Mr. Goodrich. The purpose of this subcommittee is to serve as liaison relative to federal and state court proceedings involving cases in which similar issues are raised, including in other cases against the same Defendants. The PSC may create other such committees and subcommittees (made up of counsel of record in this proceeding) as are necessary and proper to efficiently carry out its responsibilities, designate members thereof, and to delegate common benefit work responsibilities to selected counsel (including non-members of the PSC), as may be required for the common benefit of Plaintiffs.

To the extent a committee or subcommittee needs additional support with its common benefit work, it may seek the participation and assistance of non-leadership counsel. However, no common benefit work may be performed by non-leadership counsel without the prior approval of Plaintiffs’ Co-Lead Counsel. The Court may amend or expand the PSC upon request from the Plaintiffs’ Co-Lead Counsel or on the Court’s own motion, if and as circumstances warrant.

 

4. LEADERSHIP COUNSEL CONFERENCES

Those appointed to Plaintiffs’ leadership positions, including the PSC, are expected to confer within fourteen days (14) days of the filing of this Order to establish the leadership structure, allocate responsibilities, institute a billing protocol, and to document the same. Those appointed to Defendants’ leadership positions (see Section 11 below) are also directed to confer to discuss and document the same as to the organization of matters on behalf of Defendants.

 

5. TERM OF APPOINTMENT

All appointments, for and to Plaintiffs’ and Defendants’ leadership responsibilities, are made for an initial one-year period from the date of this Order and will expire on April 30, 2022, unless extended by further Order. The Court may terminate or modify any appointment made by this Order for good cause shown and after notice and an opportunity to be heard, or upon the request of any appointee. Thirty (30) days prior to the expiration of this Order’s appointments, counsel may apply for the new appointment term. An appointment application process will be established at an appropriate time in advance of the expiration date. Applications for appointment must detail the nature and scope of the attorney’s work on this litigation, including the time and resources that they expended during the previous term.

 

6. PERSONAL NATURE OF APPOINTMENT

All appointments of specific lawyers by this Order are personal in nature. As such, each appointee must assume personal responsibility for the performance of their responsibilities. No other attorneys, including members of an appointee’s law firm, may substitute for the appointee in the fulfillment of their exclusive duties, except with prior approval of the Court. The Court may add or replace appointees on their request, on request of the Plaintiffs’ or Defendants’ leadership team as to the involved team, or on its own motion, if and as circumstances warrant. Notwithstanding the above, any appointee attorney may utilize the services of a member or associate lawyer of their law firm or law partnership (or appropriate paraprofessional and clerical personnel) to assist them in fulfilling their obligations under this Order when doing so results in representational efficiencies and/or expense savings.

 

7. CLASS CERTIFICATION

This Order shall not be interpreted by any party or any person as indicative of the Court’s decision on the issue of class certification. This Order does not assume that class certification is or is not warranted nor does it foreclose any argument that any party may wish to raise relative to class certification. However, if one or more classes is certified in this matter, counsel appointed to leadership positions or serving as a member of a steering or other committee contemplated by this Order (and members of their immediate family) will be excluded from membership in the class.

 

8. FUTURE CASE MANAGEMENT CONFERENCES

Prior to any Court-scheduled conference, Plaintiffs’ Liaison Counsel and a Defendants’ Co-Lead Counsel (see Section 11 below) shall submit a proposed joint agenda on the Lead Miscellaneous Docket (21-mc-0001) seven (7) days before the conference.

Plaintiffs’ Liaison Counsel and a Defendants’ Co-Lead Counsel shall also jointly file on the Lead Miscellaneous Docket a list detailing the names, email addresses, and phone numbers of the attorneys who plan to appear via video or phone (if such is the format of the conference), or in person, at least three (3) full days before such conference, absent urgent circumstances or the setting of such a conference by the Court on shorter notice. The Court will circulate participation instructions via email to those who wish to appear by video and/or phone.

Finally, at least three (3) business days prior to all conferences, Plaintiffs’ Co-Lead Counsel and Defendants’ Co-Lead Counsel shall each submit a position letter to this Court. The position letter shall set forth the following: (a) a brief recitation of the facts; (b) a discussion of the party’s strengths and weaknesses; and (c) the party’s settlement posture. To ensure candor, Co-Lead Counsel are directed to fax or email their position letters to Chambers only. All position letters will be kept confidential and will not be shared with opposing counsel.

 

9. COMMUNICATIONS WITH THE COURT

All communications with the Court must be through Co-Lead Counsel or Liaison Counsel. If circumstances require direct correspondence with the Court by individual counsel, copies of any such communications must simultaneously be served on all Co-Lead Counsel and Liaison Counsel.

 

10. TIMEKEEPING, COMPENSATION, AND REIMBURSEMENT OF PLAINTIFFS’ COUNSEL

The Court will make the final determination as to the compensation and reimbursement of Plaintiffs’ counsel, if any. As such, any Plaintiff seeking the award of fees and costs at the end of, or other point in, this litigation must present to the Court clear and definitive records prepared as to the fees and costs incurred. All timekeepers carrying out work for Plaintiffs’ common benefit, including PSC members, who may look to any common fund or agreement for reimbursement or compensation shall maintain detailed and contemporaneous time records. Plaintiffs’ Co-Lead Counsel are responsible for ensuring that the following guidelines are adhered to by all Plaintiffs’ counsel who carry out work for Plaintiffs’ common benefit:

  1. Plaintiffs’ Co-Lead Counsel shall maintain detailed billing records that will include a description of each legal service performed, the time required to perform such described legal services, and the billing rate of the timekeeper performing each service. Plaintiffs’ Co-Lead Counsel will ensure that all counsel for Plaintiffs keep such billing records. Block billing is not permitted. Time must be recorded by specific task.
  2. All work performed by any Plaintiffs’ counsel shall be coordinated with Plaintiffs’ Co-Lead Counsel to avoid duplicative work. Any work performed by Plaintiffs’ counsel that has not been coordinated with Plaintiffs’ Co-Lead Counsel may not be subject to reimbursement if an award of attorneys’ fees is made in this action.

 

11. INTERIM DEFENSE LEADERSHIP

Defendants requested in the Joint Proposed Agenda to the Court (ECF No. 107) that the following attorneys will serve as their Co-Lead Counsel, and they are so designated:

Adam J. Kaiser
Alston & Bird, LLP
90 Park Ave., 15th Floor
New York, NY 10016-1387

Tiffany L. Powers
Alston & Bird, LLP
1201 West Peachtree St.
Atlanta, GA 30309-3424

Kristin A. Shepard
Alston & Bird, LLP
950 F St., NW
Washington, DC 20004

The leadership responsibilities set forth above, and specifically as stated within Sections 1(a)–(o) of this Order, apply equally to the above appointees as to such enumerated matters on behalf of Defendants to the extent conceptually applicable. Defendants also requested in the Joint Proposed Agenda to the Court (ECF No. 107) that the following attorneys serve as Co-Liaison Counsel. To facilitate the sound administration of these proceedings, each of the following counsel, along with Defendants’ Co-Lead counsel, are appointed as the Defendants’ Steering Committee (“DSC”):

Robert T. Horst
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Robert M. Runyon III
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Matthew B. Malamud
Timoney Knox, LLP
400 Maryland Drive
Fort Washington, PA 19034

Paul K. Geer
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

Richard DiBella
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

Tara L. Maczuzak
DiBella, Geer, McAllister & Best, P.C.
20 Stanwix St., 11th Floor
Pittsburgh, PA 15222

The responsibilities set forth above as to Plaintiffs’ Co-Lead Counsel, Plaintiffs’ Liaison Counsel, and the PSC/subcommittee members, and specifically as stated within Sections 2(a)–(l) of this Order (excepting Paragraph 10 as well as the obligation to form a federal-state liaison subcommittee), apply equally to Defendants’ Co-Lead Counsel and the DSC members as to matters related to the defense of these proceedings, to the extent applicable.

 

12. STATUS REPORT ORDER

The Court hereby directs Co-Lead Counsel for Plaintiffs and Co-Lead Counsel for Defendants to confer and file status report(s), jointly or separately as noted below, as to procedural or other next steps in light of the following recent events including but not limited to:

  1. Judge Ward’s decision in Ungarean v. CNA, No. GD-20-006544 (Pa. Com. Pl. Mar. 22, 2021);
  2. Appeal of Judge Ward’s July 2020 Order coordinating COVID-19 business interruption loss insurance litigation against Erie Insurance Exchange, see Tambellini, Inc. v. Erie Ins. Exch., Nos. GD-20-005137; GD-20-006901 (Pa. Com. Pl. July 23, 2020), appeals docketed, Nos. 902 WDA 2020; 903 WDA 2020 (Pa. Super. Ct. Aug. 31, 2020);
  3. Judge Gibson’s decision in Windber Hosp. v. Travelers Prop. Cas. Co. of Am., No. 20-80, 2021 WL 1061849, at * 1 (W.D. Pa. Mar. 18, 2021);
  4. Judge Stickman’s decision in 1 S.A.N.T., Inc. v. Berkshire Hathaway, Inc., — F. Supp. 3d — , No. 20-862, 2021 WL 147139, at * 1 (W.D. Pa. Jan. 15, 2021), appeal docketed, No. 21-1109 (3d Cir. Jan. 21, 2021);
  5. The Third Circuit consolidated appeal of COVID-19 business interruption loss insurance cases, see Order, Wilson v. USI Ins. Servs. LLC, No. 20-3124 (3d Cir. Apr. 6, 2021), ECF No. 43;
  6. The recent certification of a state law question to the Supreme Court of Ohio on similar issue(s) raised in this MDL, see Neuro-Commc’n Servs. Inc. v. Cincinnati Ins. Co., No. 2021-0130 (Ohio Apr. 14, 2021);
  7. The filing of an unopposed motion to stay in a case arising in the U.S. District Court for the District of New Jersey, see Unopposed Motion to Stay Litigation Pending Resolution of Third Circuit Appeal, Ambulatory Care Ctr. v. Sentinel Ins. Co., No. 20-05837 (D.N.J. Apr. 21, 2021), ECF No. 21; and,
  8. The Third Circuit Oral Argument held on April 28, 2021, regarding the appeal of Judge Fischer’s decision in Dianoia’s Eatery, LLC, v. Motorists Mut. Ins Co., No. 20- 787, 2020 WL 5051459, at *1 (W.D. Pa. Aug. 27, 2020), appeal docketed, No. 20- 2954 (3d Cir. Sept. 24, 2020), see ECF No. 49.

Based on the foregoing, the Court hereby ORDERS that counsel shall confer and file a joint status report, or separate status reports if Co-Lead Counsel for Plaintiffs and Co-Lead Counsel for Defendants are unable to reach agreement, proposing procedural and/or other next steps this Court should take to ensure just and efficient disposition of the cases in this MDL. The status report(s) shall be filed on or before May 14, 2021, and shall be filed on the Lead Miscellaneous Docket. The Court would note that it strongly prefers a single joint such report, even if differences of position as to certain discrete matters are noted therein.

s/ Mark R. Hornak
Mark R. Hornak
Chief United States District Judge

cc: All counsel of record
Date: April 30, 2021


woman filming another woman dancing

Attorneys Urging TikTok Settlement Approval Call Objectors’ Proposed Opt-Out Procedures ‘Suspicious’ 

The settlement, if approved, would address millions of reported violations of Illinois’ Biometric Information Privacy Act in multi district litigation consolidated in the Northern District of Illinois.

By: Ellen Bardash | April 19, 2021

Attorneys clashed Monday over the opt-out procedure for class members in the proposed settlement of TikTok’s consumer privacy litigation, coming close to questioning each other’s professional motivations.

During a motions hearing, Jonathan Gardner of Labaton Sucharow said requiring signatures from each class member who wants to opt out of the $92 million settlement would be an unnecessary administrative step, a stance Katrina Carroll of Lynch Carpenter called contradictory to standard procedures, including those Labaton Sucharow has used in other class action settlements.

The settlement, if approved, would address millions of reported violations of Illinois’ Biometric Information Privacy Act in multi district litigation consolidated in the Northern District of Illinois.Gardner, a New York-based Labaton partner representing two objectors, proposed allowing attorneys to submit opt-out forms on class members’ behalf rather than requiring each class member to get a form, sign it and return it.

But Carroll, a founding partner of Lynch Carpenter’s Chicago office, said the signature is key for ensuring each class member is knowingly giving up a chance for arbitration by accepting the settlement.

Gardner fired back, asserting that Carroll’s position that signatures were necessary to prevent fraud implied she’s telling the court that he and other attorneys representing class members are committing fraud. Carroll said she was making no claim of fraud.

“Why, in those circumstances, would you make it as difficult as possible to people to exercise their arbitration rights?” He asked. “Why is it more complicated to opt out of this settlement than to make a claim in this settlement? Why is it more complicated to opt out of this settlement than to become a TikTok user? The parties want to make it as burdensome as possible to opt out.

Carroll responded by saying she found it suspicious a firm would assert 957 class members it’s representing want to opt out but not give the court any proof of that, citing other settlements in which the number of class members attorneys estimated would opt out were significantly higher than the number that ultimately did.

“I’m not accusing anyone of committing fraud. All I’m saying is we need to know that arbitration is the route that these people are choosing voluntarily,” Carroll said.

U.S. District Judge John Z. Lee of the Northern District of Illinois raised the issue near the beginning of the hearing when he asked if it would be possible to add a form to the lawsuit’s website that class members could use to opt out electronically, similar to the one they could use to register a claim.

“People are very confused, and a lot of times, when they think they are submitting an opt-out, they are submitting a claim,” Carroll said, noting the settlement agreement has already provided for an opt-out form but it hadn’t been provided to the court yet.

Lee said he plans to issue a written opinion on whether the settlement can move forward based on elements including the parties’ proposed method of notifying class members.


phone with tiktok app on screen

Ill. Judge Again Asked To Weigh Approval Of $92M TikTok Deal

Law360 (April 19, 2021, 9:52 PM EDT) -- TikTok users who accused the social media giant of privacy violations in multidistrict litigation again asked an Illinois federal judge Monday to grant initial approval to a $92 million settlement over the concerns of objectors questioning its value for the class and, most recently, the proposed procedures for opting out.

U.S. District Judge John Z. Lee didn't rule after a second preliminary approval hearing on Monday, and instead told the parties to expect a written decision. He'll also now consider whether to order TikTok to provide inbox notice of the settlement within the app, something the short-form video app had initially resisted but has since agreed to do, following objections to the proposed notice plan, if ordered by the court.

Co-lead attorney for the TikTok users, Katrina Carroll of Lynch Carpenter LLP, said during the hearing that that deal was a "terrific settlement" in light of threshold risks, like an arbitration clause, "that would have completely eliminated plaintiffs' ability to get out of the gate."

"This settlement is squarely within the range of reasonableness, and that's why we're recommending it," she said.

But several objectors maintained that the deal is insufficient.

Edelson PC attorney Ryan Andrews, representing objector Dennis Litteken, told the court that the settling plaintiffs must provide concrete estimates of exactly who the in-app and direct notice will reach. And since the parties have essentially agreed to in-app notice, the claims rate is going to increase beyond what was initially predicted, he said.

"The problem is, if there are substantial claims, the relief offered begins to look inadequate," Andrews said. A 10% claims rate would get most class members "barely enough to purchase a coffee at Starbucks," he said, while a 5% rate would "maybe get enough to buy lunch."

"I just think that times have changed. … The public thinks they deserve more, and courts are requiring more," he said. "I think we need to be better."

Judge Lee did appear skeptical of the arguments made by objectors claiming that the agreed-upon deal blocks their right to individually arbitrate their claims.

Brian Behnken, Joshua Dugan and 957 other unnamed individuals hoping to opt out of the TikTok settlement argued earlier this month that the settlement violates the Federal Arbitration Act by stopping them from entering arbitration, asking the court to either deny preliminary approval of the agreement or tweak the terms to explicitly exclude claimants who seek to enter arbitration or allow such plaintiffs to opt out online or en masse through their counsel.

Judge Lee did say Monday that he thought a website for claims ought to have an opt-out form available, with a method by which an individual could send the opt-out form to the settlement administrator electronically and not necessarily by physical mail, as required under the current deal.

But there's nothing stopping any class member from opting out and initiating arbitration, or initiating it right now, the judge said. And he questioned how burdensome it was to ask someone to "sign a piece of paper" if they want to opt out.

"There has to be some affirmative showing of intent," Judge Lee said.

Jonathan Gardner of Labaton Sucharow LLP, representing the opt-out objectors, said requiring them to take the affirmative step of opting out effectively adds a term to the agreement to arbitrate between TikTok and users. That very agreement was also used by TikTok as a "bludgeon against plaintiffs' counsel to drive down the value of the settlement," he said.

"Why, in those circumstances, would you make it as difficult as possible to make people exercise their opt-out rights and pursue arbitration?" he said.

Carroll countered that it was "suspicious" that the firm is telling the court that nearly 1,000 people want to opt out and pursue arbitration but hasn't provided any information on who those individuals are or evidence that they want to pursue arbitration willingly.

The opt-out requirements in this case are the same standard procedures used in thousands of other class action cases, she said.

"We're not adding any burden. What we're asking for is basic info on who these people are," Carroll said.

And Scott Drury of Loevy & Loevy, representing objector Mark S., again raised concerns that there's a conflict of interest between minor plaintiffs, who have a different and stronger claim because they're not subject to the arbitration provision, and adult users.

Minors under 13 and minors under 18 should be grouped into subclasses, he said.

Carroll argued that class counsel looked at every available claim for minors and adults and determined that they could recover both under the settlement proposed in this case and the one proposed in a similar case alleging that TikTok collected and shared personally identifiable information about minors under 13 without parental consent.

Minors have "always been at the top of our concern," which is why notice was also targeted to parents and not just users and why counsel pushed for broad injunctive relief, she said.

Under the proposed deal, in addition to the $92 million settlement fund, TikTok has also agreed not to use the app to collect users' biometric data, nor will it collect geolocation or GPS data, transmit U.S. user data outside of the U.S. or store U.S. user data in databases outside of the U.S., unless it makes a disclosure in its privacy policy and complies with all laws.

The social media company will also require new training on compliance with data privacy laws and company procedures for all of its incoming employees and contractors, with annual training thereafter, and TikTok will hire a third party to review the compliance training for the next three years, according to the motion for preliminary approval.

The settling plaintiffs are represented by Lynch Carpenter LLP, Fegan Scott LLCBird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PCFreed Kanner London & Millen LLCSusman Godfrey LLP, Bottini & Bottini Inc., Hausfeld LLPBurns Charest LLP and Clifford Law Offices PC.

TikTok is represented by Anthony J. Weibell of Wilson Sonsini Goodrich & Rosati PC.

The objectors and arbitration claimants are represented by Michael D. Smith of the Law Office of Michael D. Smith, and Jonathan Gardner, Melissa H. Nafash and Jonathan D. Waisnor of Labaton Sucharow LLP.

Objector Dennis Litteken is represented by Jay Edelson, Ryan Andrews and J. Eli Wade Scott of Edelson PC.

Objector Mark S. is represented by Scott Drury and Michael I. Kanovitz of Loevy & Loevy.

The case is In re: TikTok Inc. Consumer Privacy Litigation, case number 1:20-cv-04699, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Ben Kochman. Editing by Rich Mills.

Link: https://www.law360.com/technology/articles/1376563/ill-judge-again-asked-to-weigh-approval-of-92m-tiktok-deal


Ollie's Bargain Outlet

Lynch Carpenter won a contested class certification motion against Ollie’s Bargain Outlets, which was successfully argued by founding partner, Bruce Carlson. This case (click here for the transcript) alleged that the interior of the retail locations were inaccessible because of the manner that the staff positions merchandise, boxes, etc. (e.g., “cluttered aisles”).

Read the judge’s opinion here.


Uber Driver

FEDERAL APPEALS COURT: CIVIL RIGHTS CLAIMS AGAINST UBER MUST BE HEARD IN COURT

Plaintiffs suing Uber for failing to provide transportation accessible to people with disabilities cannot be forced out of court and into arbitration, a Federal Court of Appeals ruled on Wednesday. Read the Third Circuit Court of Appeals’ opinion here.

The plaintiffs are people with disabilities who cannot use Uber’s on-demand transportation service in Pittsburgh because there are no wheelchair accessible vehicles available through Uber’s app. The lawsuit, filed in 2019, seeks modifications to Uber’s policies and practices to ensure that the company makes wheelchair-accessible vehicles readily available to Pittsburgh riders who need them. Plaintiffs do not seek monetary damages.

The Third Circuit Court of Appeals rejected Uber’s argument that a provision in its terms of service could apply to people who had never agreed to it and prevent them from bringing discrimination claims against Uber in court.

“Uber and other ride-sharing companies need to be held accountable for their discriminatory exclusion of people with disabilities,” said Disability Rights Advocates Staff Attorney Melissa Riess. “They are a multi-billion dollar company and they can and should be rolling out service that everyone can use. This ruling confirms that they cannot squirm out of court and their obligations to abide by civil rights law through the fine print in their terms of service. We are delighted that our clients will have their day in court.”

“Uber’s business model is in-part calculated to cut into the market share of bus companies and other public transportation companies that offer accessible transportation. While Uber and other ride-sharing services offer a convenient transportation option, this case and similar cases are intended to ensure that that option does not exclude individuals with disabilities.” Said Bruce Carlson, Partner Lynch Carpenter.

The Court of Appeals’ ruling means that the plaintiffs can proceed in court and have their claims heard under federal civil rights law. The court rejected as “meritless” Uber’s novel argument that people who have not downloaded Uber’s app or signed up to its terms of use could be forced into arbitration, upholding the basic legal principle that someone cannot be bound by a contract they did not sign.

In addition to the case filed against Uber in Pittsburgh, DRA has filed cases against Uber in New York and California for their failure to serve riders who use wheelchairs. DRA has also filed a case against Uber’s competitor Lyft in California. These cases are critical to protecting the rights of wheelchair-users throughout the country. More background on the case is available here.

# # #

About Disability Rights Advocates

With offices in New York and California, Disability Rights Advocates is the leading nonprofit disability rights legal center in the nation. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with all types of disabilities in complex, system-changing, class action cases. DRA is proud to have upheld the promise of the ADA since our inception. Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to education, health care, employment, transportation, disaster preparedness planning, voting, and housing. For more information, visit www.dralegal.org.

About Lynch Carpenter LLP

Lynch Carpenter, LLP is a national class action firm with offices in Pittsburgh, Chicago, Los Angeles, San Diego and Philadelphia. Since 2010, Lynch Carpenter has dedicated significant resources to litigation on behalf of individuals with disabilities and is committed to pursuing impactful cases that advance the interests of the disabled community on the largest possible scale. www.lynchcarpenter.com


Attorney Spotlight: Jamisen Etzel

Spotlight: Jamisen Etzel

Attorney Spotlight: Jamisen Etzel

Q&A WITH JAMISEN

Why did you become a lawyer?

Starting in middle school, several experiences sparked me to study constitutional rights and socioeconomic justice. I also always loved reading history, and started following politics during the presidential election in 2000. Still, even though these interests might naturally suggest a career in law or government, I wasn’t sure what I wanted to do when I graduated high school. But during my freshman year in college, I started to see that most of the things I might like to do for work would be more feasible with a law degree. So I started looking into that path, and decided to go for it. I think it was a great choice for me.

Most memorable court room experience?

I can’t pick just one, so I have three, all quite different.

First, we took a case to a jury trial in 2018, and the middle of it was interrupted by a major blizzard, so we had to wait around in snow-covered Philadelphia for a day and half before court reopened. The whole experience was a bit surreal, especially the moment that the jury foreperson read the verdict, which felt pretty dramatic even though we were very confident in our case. Fortunately, the jury awarded our clients everything we sought, so it’s a good memory.

Second, I would say all of my appellate oral arguments have been very memorable. I’ve only done five at this point, so each one is still fresh in my mind. I really enjoy getting to know every detail of a case and the applicable law, and then trying to convince a panel of judges to go our way. It’s not easy, but it is exhilarating and can be fun if you approach it the right way.

Third, I actually served on a jury for a criminal case a couple years ago. I didn’t think I’d get picked given the fact that I’m a lawyer, but I made it through. It was not a major case, but it also wasn’t an easy case, so the deliberations took about a full day, and were a bit contentious at points. Even though I’d been a lawyer for a few years at that point, I learned a lot about our justice system from that experience, and I’ll never forget it.

What are 3 things you couldn’t survive without?

  1. Friends, family, and my wife. I’ve been very fortunate on all those fronts, and am lucky to be married to someone whose own friends and family are also people I enjoy spending time with. Being surrounded by great people who you love to talk to and celebrate life with is very sustaining.
  2. Music. It’s always been important to me for a lot of reasons. It keeps the good parts of my brain active and gives my mood a boost whenever I need it.
  3. Keeping up on the news. This might seem trivial to some people, who can tune it all out and be perfectly happy, but I’m not wired like that. I need to know what’s going on in the world, or I’ll start to feel like I’m trapped in a cave.

Favorite Musician or Band?

My favorite band is The Lawrence Arms, a punk trio from Chicago. More widely-known honorable mentions would be The Cure, Radiohead, and Bruce Hornsby. A weird mix.

Favorite Activity to do in Pittsburgh on the weekend?

Going out to a restaurant or a show with my wife and/or friends.

Jamisen's Profile


view of earth from space lit up by lights

Pittsburgh Lawyer Tapped for ‘Most Diverse Leadership Team Ever’ in Data Breach Class Action MDL

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.


Stonefire Naan $1.9 Million False Ad Settlement Gets Final Nod

By: Bloomberg Law | Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

• Consumers may receive $2.50 per item, no injunctive relief
• Bread allegedly mass-produced despite portrayal as traditional

Stonefire Naan maker FGF Brands Inc. and consumers alleging it duped them into thinking mass-produced breads are hand-baked in traditional tandoor ovens won an Illinois federal court’s final approval for a $1.9 million class settlement.

The deal, which provides class members $2.50 for each product purchased, is fair, reasonable, and adequate, Judge Robert W. Gettleman of the U.S. District Court for the Northern District of Illinois said Tuesday.

Emily Friend alleged FGF Brands, a Canadian company, and its American unit FGF USA Brands Inc. tout their products as “hand-stretched and tandoor oven-baked to honor 2,000 years of tradition.”

But rather than being baked in a traditional tandoor oven, which is operated over a wood- or charcoal-burning fire and can accommodate only one or two pieces of naan at a time, Stonefire bread is produced on an “endless” conveyor belt that rotates through a gas-heated commercial oven capable of baking 15,000 pieces an hour, she alleged.

The nationwide class covers purchasers who bought affected Stonefire products between Nov. 16, 2013, and Oct. 23, 2020.

The court also approved the plaintiffs’ attorneys’ request for approximately $650,000 in fees and costs, and a $7,500 service award to Friend.

Gettleman denied the company’s motion to dismiss the suit in 2019. But he said Friend, who’d become aware of the alleged deception, lacked standing to pursue injunctive relief such as marketing changes because she wouldn’t be fooled in the future, a requirement for such relief.

The deal was preliminarily approved in October 2020.

Lynch Carpenter LLP and Gordon Law Offices represented the plaintiffs. Kirk-land & Ellis LLP represented FGF Brands.

The case is Friend v. FGF Brands (USA), Inc., N.D. Ill., No. 1:18-cv-07644, 2/16/21.

Link to read the full article: https://news.bloomberglaw.com/class-action/stonefire-naan-1-9-million-false-ad-settlement-gets-final-nod