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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE

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):

1. Co-Lead Counsel: Gary F. Lynch, Lynch Carpenter, LLP
2. Co-Lead Counsel: Joseph P. Guglielmo, Scott+Scott Attorneys at Law LLP
3. 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:

1. 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.
2. 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;
3. 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;
4. Examine witnesses and introduce evidence at hearings on behalf of Plaintiffs;
5. Perform all work necessary for the prosecution of the case, including investigation, research, briefing, and discovery;
6. 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;
7. Appear at all hearings and conferences regarding the case as most appropriate for effective and efficient presentation;
8. Negotiate and enter into stipulations and agreements with opposing counsel as necessary throughout the litigation, including discovery, mediation, and other pretrial matters;
9. Consult with and employ experts;
10. 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;
11. Prepare and distribute periodic status reports to the Court as requested and to the parties;
12. 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;
13. Conduct settlement negotiations on behalf of all Plaintiffs;
14. 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
15. 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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

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

1. 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
2. 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
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:
   1. 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
   2. 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
   3. 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
   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
4. 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”):
   1. 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;
   2. 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;
   3. 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;
   4. To designate an attorney to enter into stipulations with Defendants’ counsel in connection with the Action;
   5. 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;
   6. To conduct all pretrial, trial, and post-trial proceedings on behalf of all Plaintiffs in the Action, including appointing trial counsel;
   7. To employ and consult with experts;
   8. To call meetings of the Executive Committee and other attorneys involved in this litigation when appropriate;
   9. 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;
   10. To ensure that all Plaintiffs and all Plaintiffs’ counsel are kept informed of the progress of the Action as necessary;
   11. 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;
   12. 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;
   13. 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;
   14. To assess Plaintiffs’ counsels’ common litigation costs in the Action and to collect all assessments on a regular basis;
   15. 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;
   16. To coordinate and communicate with Defendants’s counsel in the Action, including the scheduling of depositions;
   17. 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
   18. 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.
5. 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:
   1. Receive Orders, notices, and telephone calls from the Court on behalf of all Plaintiffs’counsel in the Action;
   2. Attend all in-person and telephonic/Zoomgov.com hearings and conferences before the Court in the Action;
   3. Coordinate the filing and service of all pleadings and other documents that are filed by Plaintiffs’ counsel in the Action;
   4. Sign any consolidated complaint, motions, briefs, discovery requests, objections and responses, and subpoenas or notices on behalf of all Plaintiffs in the Action; and
   5. Ensure that all actions by Plaintiffs’ counsel in the Action are in conformance with the applicable Local Civil Rules of the Court.
6. 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.

1. 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.
2. 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.”
3. 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
4. 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.
5. 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.
6. 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.

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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.

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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.

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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.

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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.

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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.

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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.

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

[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:

1. 1. 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;
   2. 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;
   3. Convene meetings amongst counsel;
   4. Conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
   5. Negotiate and enter into stipulations with opposing counsel as necessary for the conduct and efficient advancement of the litigation;
   6. Monitor the activities of all counsel to ensure that schedules are being met and unnecessary expenditures of time and funds are avoided;
   7. Perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of this Court;
   8. Serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
   9. 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);
   10. Communicate with Defense counsel as necessary to promote the efficient advancement of this litigation; and
   11. 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:

1. 1. 1. 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;
      2. Interim Liaison Counsel shall maintain complete files with copies of all documents served and make such files available to all Plaintiffs’ counsel on request;
      3. Interim Liaison Counsel must maintain and make available to all counsel and the Court an up-to-date service list; and
      4. 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.

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

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:

1. 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;
2. coordinate the initiation and conduct of discovery on behalf of Plaintiffs and the putative Class consistent with the requirements of the Federal Rules;
3. convene meetings among Plaintiffs’ counsel;
4. conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
5. 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;
6. enter into stipulations with opposing counsel as necessary for the conduct of the litigation;
7. monitor the activities of all counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
8. perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of the court.
9. serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
10. 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);
11. negotiate and enter into stipulations with defense counsel as necessary to promote the efficient advancement of this litigation;
12. communicate with defense counsel as necessary to promote the efficient advancement of this litigation; and
13. make available to other Plaintiffs’ counsel documents produced by the defendant.

3. The following counsel are appointed as chair(s) of the indicated committees:

1. Chairs of Law and Briefing: Roberta Liebenberg Sabita Soneji
2. Chair of Discovery: Linda Nussbaum
3. Chair of Liability Experts: Kelly Iverson
4. Chair of Damage Experts: Nada Djordjevic
5. Chair of Settlement: Christopher Seeger
6. Chair of Third Party Discovery: Ryan Clarkson
7. Chairs of Plaintiffs’ Discovery: Steve Nathan Caroline Bartlett
8. Chair of Electronic Discovery Christopher Ayers
9. Liaison Counsel: Catherine DeRenze

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

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