Lynch Carpenter LLP Appointed Class Counsel in Barry v. University of Washington
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY
ALEXANDER BARRY, individually and on behalf of all others similarly situated,
Plaintiff,
v.
UNIVERSITY OF WASHINGTON,
Defendant.
No. 20-2-13924-6-SEA
ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
THIS MATTER having come before the Court on Plaintiff’s Motion for Class Certification (the “Motion”), following the Court’s review of the Motion, the papers submitted in support and in response, the hearing thereon, after conducting a rigorous analysis to ensure that the Plaintiff has satisfied the requirements of CR 23(a) and CR 23(b)(3), and good cause appearing, the Motion is hereby GRANTED.
I. STANDARD OF REVIEW
Class actions, authorized by CR 23 in Washington, are an essential tool for adjudicating cases with multiple claims that involve similar factual and/or legal inquiries and that are too modest to prosecute individually. Chavez v. Our Lady of Lourdes Hospital at Pasco, 190 Wash. 2d 507, 514, 415 P.3d 224 (2018) (other citations omitted). Washington courts liberally interpret CR 23 because the rule “avoids multiplicity of litigation, saves members of the class the cost and trouble of filing individual suits, and frees the defendant from the harassment of identical future litigation.” Weston v. Emerald City Pizza, LLC, 137 Wash. App. 164, 168, 151 P.3d 1090 (2007) (quoting Smith v. Behr Process Corp., 113 Wash. App. 306, 318, 54 P.3d 665 (2002) (cleaned up).
To certify a class, Plaintiff must meet all of the requirements under CR 23(a), numerosity, commonality, typicality, and adequacy of representation, and at least one subdivision of 23(b). Schwendeman v. USAA Casualty Insurance Co., 116 Wash. App. 9, 18, 65 P.3d 1 (2003). These rules provide:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
. . . .
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
CR 23(a); CR 23(b)(3). As noted further below and in the Court’s oral ruling on June 28, 2023, incorporated herein, the proposed class meets the requirements of CR 23(a) and CR 23(b)(3).
II. THIS CASE SATISFIES THE CR 23(a) PREREQUISITES
To start, Plaintiffs have carried their burden of demonstrating this case meets each of the four CR 23(a) prerequisites.
CR 23(a)(1) Numerosity. First, CR 23(a)(1) requires that a class be so numerous that joinder of all members is impracticable. When a class is large, joinder is usually impracticable. Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982). Joinder is generally deemed impracticable in classes with over 40 members. Chavez, 190 Wash. 2d at 520. Here, numerosity is satisfied because the proposed class contains over 56,000 members, including undergraduate and graduate students. Compl. ¶ 24. See Little v. Grand Canyon Univ., No. CV-20-00795-PHX-SMB, 2022 WL 266726, at *5 (D. Ariz. Jan. 28, 2022) (finding numerosity met and certifying class in COVID-19 fee refund case where proposed class included over 20,000 students).
CR 23(a)(2) Commonality. Second, the commonality element of Rule 23(a)(2) requires only that “there are questions of law or fact common to the class.” CR 23(a)(2). “Commonality” under CR 23(a)(2) is a “low threshold test” that “is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” Smith, 113 Wash. App. at 320. Commonality is met if the “course of conduct” that gives rise to the cause of action affects all the class members. Pellino v. Brink’s Inc., 164 Wash. App. 668, 682, 267 P.3d 383 (2011) (commonality satisfied when alleged facts indicate defendant was engaged in common course of conduct in relation to all potential class members). Plaintiff satisfies the low commonality hurdle. Common issues here include: (1) whether UW and Class members had a contract; (2) whether those contracts obligated UW to provide in-person instruction; (3) whether those contracts obligated UW to provide access to campus facilities and in-person resources; (4) whether UW breached the contracts; (5) whether UW unlawfully kept funds paid; (6) whether UW was unjustly enriched by keeping the funds paid; and (7) the fact and measure of damages derived from verifiable class-wide information maintained by UW. Commonality is met because the proof will focus on UW’s conduct and will be common to the Class.
CR 23(a)(3) Typicality. Third, CR 23(a)(3) requires that the “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” CR 23(a)(3). The typicality requirement is met when the claims of the representative plaintiffs arise from the same course of conduct that gives rise to the claims of the other class members, and where the claims are based upon similar legal theories. John Doe L v. Pierce County, 7 Wash. App. 2d 157, 203, 433 P.3d 838 (2018) (citing Pellino,164 Wash. App. at 684). Here, Plaintiff’s claims are typical because they arise from the same events and course of conduct and common legal and remedial theories. Plaintiff’s claims, like those of Class members, stem from a contract with UW for the provision of in-person education and access to campus facilities and in-person resources. Plaintiff, like members of the Class, was billed by UW for tuition and fees specific to students who registered for in-person courses; and paid the demanded tuition and fees. Compl. ¶ 8. UW stopped providing the promised in-person instruction and access to campus facilities and in-person resources for all students simultaneously. Def. Ans. ¶ 3. UW then retained full price for tuition and fees. Plaintiff alleges UW must refund the pro-rated fees for campus access and in-person resources that UW did not provide when it shuttered its campus. Defendant raises factual differences between students to oppose this finding. These issues stray into the merits of Plaintiff’s allegations and his burden of proof as to the claims. Those issues need not be determined at this stage. Since each Class member’s claims arise from the same course of UW’s conduct, and each Class member makes similar legal arguments, the typicality requirement is met.
CR 23(a)(4) Adequacy. For the final CR 23(a) prerequisite, CR 23(a)(4) requires that the representative parties will “fairly and adequately protect the interests of the class.” CR 23(a)(4). CR 23(a)(4) utilizes a two-part test is: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will prosecute the action vigorously on behalf of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Plaintiff and his counsel satisfy both parts of this test.
First, the Court finds that Plaintiff’s interests are aligned with those of Class members in obtaining a recovery that will provide each with the benefit of their bargain. In addition to these aligned interests, Plaintiff has no conflicts with the Class and seeks to hold UW accountable. Plaintiff has committed to prosecuting this litigation and will continue to advocate for the best interests of the Class. Plaintiff and proposed Class Counsel will vigorously represent the Class.
In addition, proposed Class Counsel, Hagens Berman Sobol Shapiro LLP and Lynch Carpenter LLP are each qualified. Both law firms include experienced class action lawyers, with success in litigating issues relating to the provision of in-person education and campus access during the Spring 2020 quarter, working together and separately. Plaintiff and proposed Class Counsel satisfy the adequacy inquiry, satisfying each requirement of CR 23(a).
III. CR 23(B)(3)’S PREDOMINANCE AND SUPERIORITY REQUIREMENTS ALSO ARE MET HERE
Next, CR 23(b)(3) permits class certification if “common questions of law predominate over questions affecting only individual members and that a class action is the superior method of handling the claim.” CR 23(b)(3).
A. Common issues predominate given the central issues raised in this litigation.
Predominance tests whether the proposed class is sufficiently cohesive to call for adjudication by representation. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997) “[T]he predominance requirement is not defeated merely because individual factual or legal issues exist; rather, the relevant inquiry is whether the issue shared by the class members is the dominant, central, or overriding issue shared by the class.” Miller v. Farmer Bros. Co., 115 Wash. App. 815, 825, 64 P.3d 49 (2003). When one or more of the central issues are common to the class and can be said to predominate, the action may be considered proper under CR 23(b)(3), “even though other important matters will have to be tried separately, such as damages or some defenses peculiar to some individual class members.” Tyson Foods Inc. v. Bouaphakeo, 577 U.S. 422, 453 (2016). In determining whether predominance is met, the court engages “in a pragmatic inquiry into whether there is a common nucleus of operative facts to each class member’s claim.” Smith, 113 Wash. App. at 323. The “predominance standard is not strictly applied to every aspect of the plaintiffs’ claims; rather, questions of judicial economy are central.” Sitton, 116 Wash. App. at 255. Here, this Court concludes that common questions predominate. Plaintiff identifies key evidence common for all Class members, such as: whether UW, based on UW’s conduct and representations, including during enrollment, course registration, billing, and payment, and students paying tuition and fees, formed a contract that required UW to provide in-person instruction and access to facilities and in-person services; whether UW breached that contract when it closed campus; and the calculation of damages. This evidence directly affects every Class member’s effort to show liability and every Class member’s entitlement to relief.
Defendant targets much of its opposition to class certification here, arguing Plaintiff’s proposed methodology is flawed. It does not and cannot, the argument goes, account for myriad differences between class members to place a value on the education for which an individual paid and, accordingly, how the change to remote learning at the height of the Covid-19 pandemic may have affected or reduced that value. The Court finds that these issues also are properly raised on the merits of Plaintiffs’ allegations and methodology for calculating damages. Defendant will have the opportunity on the merits to challenge and dispute Plaintiff’s claims. Even if some individual differences among class members are shown, the essential question here is whether allegations arise from a “common nucleus of operative facts”. Smith, 113 Wash. App. at 323. Plaintiff will present the same class-wide evidence that UW’s course of conduct, transitioning to online-only education, caused economic loss to Plaintiff and Class members. These common issues predominate over any individual issues, rendering class treatment appropriate.
B. A class action is superior to individual actions covering the same issues and arising out the same transition to remote learning.
The Court finds that a class action here is superior to the alternative of individual actions. Where individual damages are small, the class vehicle is usually deemed superior. Chavez, 190 Wash. 2d at 523. “[F]orcing numerous plaintiffs to litigate the alleged pattern or practice … in repeated individual trials runs counter to the very purpose of a class action.” Sitton, 116 Wash. App. at 256–57. CR 23(b)(3) includes four factors for this inquiry: “(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.” CR 23(b)(3). Here, class action treatment is superior to adjudicate the claims in this matter.
The first factor favors certification because it would cost Class members more to litigate this action individually than the relatively small amount of damages they will recover. There is no reason to believe putative Class members have any interest in controlling the litigation.
The second factor favors class certification, as neither Plaintiff nor his counsel are aware of any other litigation regarding this matter against UW. See Barry Decl. ¶ 10; Kurowski Decl. ¶ 15; Ciolko Decl. ¶ 8.
The third superiority factor also favors certification. This Court is the logical and desirable forum as UW is located in King County, where this case is being litigated, and the Court is familiar with the factual and legal issues. Holding separate trials for claims that could be tried together would be costly and inefficient. Elter v. United Servs. Auto. Ass’n, 17 Wash. App. 2d 643, 661, 487 P.3d 539 (2021), review denied sub nom. Elter v. USAA Cas. Ins., 198 Wash. 2d 1027, 498 P.3d 957 (2021).
The final superiority factor—manageability—focuses on the “practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). That individual issues might exist or take some time to resolve does not make a class action unmanageable. Chavez, 190 Wash. 2d at 521. Trial courts have a “variety of procedural options to reduce the burden of resolving individual damage issues, including bifurcated trials, use of subclasses or masters, pilot or test cases with selected class members, or even class decertification after liability is determined.” Sitton, 116 Wash. App. at 255. This case can be tried in an efficient matter, and the Court foresees no manageability problems that make over 56,000 individual actions a better alternative. As a result, Plaintiff shows the superiority prong of CR 23(b)(3) has been met here.
IV. THE PROPOSED CLASS IS ASCERTAINABLE
While CR 23 does not explicitly include an ascertainability requirement, some appellate courts have reviewed ascertainability issues in evaluating appeals from class certifications. See Elter, 17 Wash. App. 2d 643, 658 (affirming class certification noting that appellant “also argues that ‘ascertainability’ was not satisfied. But CR 23 does not list an ‘ascertainability’ requirement” and conducting no further analysis of the argument). In doing so, such courts direct simply that “[t]he definition must include objective rather than subjective criteria that makes the plaintiff class identifiable.” Barnett v. Wal-Mart Stores, Inc., 133 Wash. App. 1036 (2006). See also Kihuria v. Consumer Legal Servs. Am., Inc., 5 Wash. App. 2d 1001 (2018) (“The class must be sufficiently identifiable without being overly broad. The class should not be defined by criteria that are subjective or that require an analysis of the merits of the case.”) (citations omitted). The proposed Class meets this standard. The condition for class membership is students who paid UW tuition and fees for access to a suite of promised in-person educational services during the Winter and Spring 2020 quarters that UW did not provide. This definition uses precise and objective criteria to identify Class members using UW’s student and payment records.
V. CONCLUSION
Plaintiff has satisfied the requirements of CR 23(a) and CR 23(b)(3). Accordingly, IT IS HEREBY ORDERED as follows:
1. The Court certifies the following Class:
All students who were enrolled in and paid for the University of Washington’s in-person based educational programs, services, and courses for the Winter Quarter 2020 or Spring Quarter 2020 academic term(s).
Excluded from the Class is UW, any entity in which UW has a controlling interest, and UW’s legal representatives, predecessors, successors, assigns, and non-student employees. Further excluded from the Class is this Court and its employees.
2. The Court appoints Plaintiff Alexander Barry as Class Representative.
3. The Court appoints Hagens Berman Sobol Shapiro LLP and Lynch Carpenter, LLP as Class Counsel.
4. The Court directs that notice issue to certified Class members under CR 23(d)(2) and further directs that UW provide Plaintiff’s counsel with last known Class member email and mailing address contact information. The parties shall confer and determine a realistic schedule to prepare and send notice to Class members. This Order shall constitute a “judicial order” within the meaning of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g and 34 C.F.R. § 99.31(a)(9), sufficient to compel the University of Washington to provide this information.
DATED:
HONORABLE JUDITH H. RAMSEYER
KING COUNTY SUPERIOR COURT JUDGE
[Proposed order prepared by Hagens Berman Sobol Shapiro LLP]
King County Superior Court
Judicial Electronic Signature Page
Case Number: 20-2-13924-6
Case Title: BARRY VS UNIVERSITY OF WASHINGTON ET AL
Document Title: ORDER RE GRANTING CLASS CERTIFICATION
Signed By: Judith H. Ramseyer
Date: June 28, 2023
Judge: Judith H. Ramseyer
This document is signed in accordance with the provisions in GR 30.
Certificate Hash: 08B04919A6905EC38077251FA81017A01DA60A76
Certificate effective date: 7/16/2023 2:34:55 PM
Certificate expiry date: 7/16/2023 2:34:55 PM
Certificate Issued by: C=US, E=kcscefiling@kingcounty.gov, OU=KCDJA, O=KCDJA, CN=”Judith Ramseyer: BBvO7QrS5hGe+MT2AFk6yQ==”
CalPERS Cybersecurity Attack Being Investigated by Lynch Carpenter LLP
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About Lynch Carpenter
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PITTSBURGH, July 05, 2023 (GLOBE NEWSWIRE) -- Activate Healthcare, LLC recently announced that it suffered from a cybersecurity attack on April 27, 2023 that impacted approximately 93,000 individuals personal information. The information potentially impacted in the breach included: name, Social Security number, date of birth, address, driver’s license number, and clinical information, such as provider names, dates of service, and diagnoses.
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If you have received a notification from Activate Healthcare that your information was impacted, please call Patrick Donathen at (412) 322-9243, email him at patrick@lcllp.com, or fill out our contact form at www.lynchcarpenter.com/contact.
About Lynch Carpenter
Lynch Carpenter is a national class action law firm with offices in Pennsylvania, California, and Illinois. Our firm has represented millions of clients in data privacy matters for more than a decade and has earned national acclaim for complex litigation for plaintiffs across the country. To learn more, please visit www.lynchcarpenter.com.
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PITTSBURGH, July 05, 2023 (GLOBE NEWSWIRE) -- Imagine 360, LLC recently announced that it suffered from a cybersecurity attack on January 28, 2023 that impacted approximately 113,000 individuals personal information. The information potentially impacted in the breach included: names, medical information, health insurance information, and Social Security Numbers.
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About Lynch Carpenter
Lynch Carpenter is a national class action law firm with offices in Pennsylvania, California, and Illinois. Our firm has represented millions of clients in data privacy matters for more than a decade and has earned national acclaim for complex litigation for plaintiffs across the country. To learn more, please visit www.lynchcarpenter.com.
Gary Lynch appointed by Judge James L. Robart as Co-Lead Class Counsel in Re: Zillow Group, Inc. Session Replay Software Litigation (W.D. Wash.)
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE
In Re: Zillow Group, Inc. Session Replay Software Litigation
This Document Refers to:
All Actions
Master File No. 2:22-cv-01282-JLR
[PROPOSED] ORDER APPOINTING INTERIM CLASS COUNSEL
1. On January 18, 2023, this Court entered an order granting the parties’ proposed stipulation to consolidate actions and set scheduling deadlines, which included a process for submitting applications for appointment of interim class counsel or other designated counsel either individually or as part of a proposed leadership structure.
2. Before the court is Plaintiffs Natalie Perkins, Kenneth Hasson, Ashley Popa, Mark Conlisk, Michael Dekhtyar, Jill Strelzin, Jill Adams, Ryan Margulis’s (collectively, “Moving Plaintiffs”) motion to appoint interim class counsel (Dkt. # 37). No party opposes the motion. See generally Dkt.) The court has considered the motion, the Moving Plaintiffs’ submissions in support of the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS the Moving Plaintiffs’ motion and ORDERS as follows:
PLAINTIFFS’ INTERIM CLASS COUNSEL
3. The Court appoints the following attorneys to serve as Interim Class Counsel pursuant to Rule 23(g):
- Co-Lead Counsel: Gary F. Lynch, Lynch Carpenter, LLP
- Co-Lead Counsel: Joseph P. Guglielmo, Scott+Scott Attorneys at Law LLP
- Liaison Counsel: Kim D. Stephens, Tousley Brain Stephens PLLC
4. The above-named attorneys meet the requirements of Rule 23(g) and are designated to “act on behalf of a putative class before determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). Mr. Lynch and Mr. Guglielmo shall serve as Interim Class Counsel with responsibility for managing the distribution of work amongst plaintiffs’ counsel and overseeing compliance with the duties and responsibilities set forth herein. The duties and responsibilities of Interim Class Counsel are as follows:
- Assign work to other plaintiffs’ counsel who, as of the date of this Order, have filed complaints in this consolidated litigation, such assignments to occur as necessary in light of the needs of the litigation.
- Determine and present (in pleadings, motions, briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pretrial (and if appropriate, trial) proceedings;
- Initiate, coordinate, and conduct all pretrial discovery on behalf of Plaintiffs in this consolidated litigation, including the preparation of joint interrogatories and requests for production of documents, and the examination of witnesses in depositions, and direct and coordinate the conduct of all types of discovery proceedings;
- Examine witnesses and introduce evidence at hearings on behalf of Plaintiffs;
- Perform all work necessary for the prosecution of the case, including investigation, research, briefing, and discovery;
- Make all work assignments on behalf of Plaintiffs in a manner to promote the orderly and efficient conduct of this litigation and to avoid unnecessary duplication and expense;
- Appear at all hearings and conferences regarding the case as most appropriate for effective and efficient presentation;
- Negotiate and enter into stipulations and agreements with opposing counsel as necessary throughout the litigation, including discovery, mediation, and other pretrial matters;
- Consult with and employ experts;
- Call meetings of Counsel for Plaintiffs for any appropriate purpose, including coordinating responses to questions of other parties or of the Court. Initiate proposals, suggestions, schedules, and any other appropriate matters pertaining to pretrial proceedings;
- Prepare and distribute periodic status reports to the Court as requested and to the parties;
- Act as spokespersons for all Plaintiffs with Defendants and the Court, subject to the right of other Plaintiffs’ counsel to present non-repetitive individual or different positions;
- Conduct settlement negotiations on behalf of all Plaintiffs;
- Develop and recommend for Court approval practices and procedures pertaining to attorneys’ fees and expenses as further detailed below and, on an ongoing basis, monitor and administer such procedures. At such time as may be appropriate, Interim Class Counsel also will recommend apportionment and allocation of fees and expenses subject to Court approval; and
- Otherwise direct, coordinate, and supervise the prosecution of plaintiffs’ claims in the consolidated action and perform such other duties as may be needed to ensure proper coordination of Plaintiffs’ pretrial activities and prosecution of the claims or as may be further directed by the Court.
ADDITIONAL MATTERS
5. Interim Class Counsel shall confer with counsel for Defendants an attempt to agree on appropriate preservation and confidentiality orders. If agreement cannot be reached, each side shall present its own proposal for the Court’s determination.
6. Within seven (7) days of entry of this Order Interim Class Counsel shall submit to the Clerk a detailed timekeeping protocol for monitoring and documenting costs and computing of potential common benefit or class action time including timekeeping, submission of records, and other procedures applicable to attorneys’ fees and expenses. All Plaintiffs’ counsel shall then comply with the terms of this protocol.
7. Within forty-five (45) days of entry of this order Interim Class Counsel shall file a Consolidated Complaint.
IT IS SO ORDERED.
Dated: February 22, 2023
JAMES L. ROBART
United States District Judge
Kelly Iverson appointed by Judge Benita Y. Pearson to the Plaintiffs’ Steering Committee in a consolidated action against Norfolk Southern Railway Co.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
HAROLD R. FEEZLE, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0242
JUDGE BENITA Y. PEARSON
ORDER
[Resolving ECF No. 25]
GRAYCE EISLEY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant.
CASE NO. 4:23CV0250
JUDGE BENITA Y. PEARSON
ORDER
RAY E. HALL, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0257
JUDGE BENITA Y. PEARSON
ORDER
ANDREW ERDOS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION., et al.,
Defendants.
CASE NO. 4:23CV0268
JUDGE BENITA Y. PEARSON
ORDER
CHASE KINDER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0292
JUDGE BENITA Y. PEARSON
ORDER
AYSIA CANTERBURY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0298
JUDGE BENITA Y. PEARSON
ORDER
KRISTIN BATTAGLIA, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0303
JUDGE BENITA Y. PEARSON
ORDER
JESSICA DAVIS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0308
JUDGE BENITA Y. PEARSON
ORDER
TINA IBEL, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0315
JUDGE BENITA Y. PEARSON
ORDER
KAYLA BAKER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0324
JUDGE BENITA Y. PEARSON
ORDER
SCOTT SNYDER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0344
JUDGE BENITA Y. PEARSON
ORDER
AMY DETTMER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CO., et al.,
Defendants.
CASE NO. 4:23CV0345
JUDGE BENITA Y. PEARSON
ORDER
WILLIAM LEE FISHER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.
Defendants.
CASE NO. 4:23CV0350
JUDGE BENITA Y. PEARSON
ORDER
ROBERT ATKINSON, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0363
JUDGE BENITA Y. PEARSON
ORDER
CHRISTINA BODNAR, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0380
JUDGE BENITA Y. PEARSON
ORDER
ROSEMARY MOZUCH, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0415
JUDGE BENITA Y. PEARSON
ORDER
BRENDA SMITH, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0429
JUDGE BENITA Y. PEARSON
ORDER
JON LUKE AFFELTRANGER, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0440
JUDGE BENITA Y. PEARSON
ORDER
GIOVANI IRIZARRY, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION, et al.
Defendants.
CASE NO. 4:23CV0479
JUDGE BENITA Y. PEARSON
ORDER
FRANK POLICARO, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0495
JUDGE BENITA Y. PEARSON
ORDER
CERAMFAB, INC., et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0509
JUDGE BENITA Y. PEARSON
ORDER
EDWARD E. BARNHOUSE, etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0510
JUDGE BENITA Y. PEARSON
ORDER
ROBERT KURTZ, JR., et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORPORATION,
Defendants.
CASE NO. 4:23CV0529
JUDGE BENITA Y. PEARSON
ORDER
MICHAEL BUNTS, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY CORPORATION, et al.,
Defendants.
CASE NO. 4:23CV0586
JUDGE BENITA Y. PEARSON
ORDER
DAVIDSON CULIXTE,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0600
JUDGE BENITA Y. PEARSON
ORDER
JERROLD GURNEY, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.
Defendants.
CASE NO. 4:23CV0601
JUDGE BENITA Y. PEARSON
ORDER
TIM HAMILTON, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0602
JUDGE BENITA Y. PEARSON
ORDER
JIBRIL EMMANUEL HAMMOND,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0603
JUDGE BENITA Y. PEARSON
ORDER
SCOTT MCALLER, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0604
JUDGE BENITA Y. PEARSON
ORDER
MICHAEL LOYD, et al., etc.,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, et al.,
Defendants.
CASE NO. 4:23CV0634
JUDGE BENITA Y. PEARSON
ORDER
LAURA MANN, et al.,
Plaintiffs,
v.
NORFOLK SOUTHERN CORP., et al.,
Defendants.
CASE NO. 4:23CV0672
JUDGE BENITA Y. PEARSON
ORDER
I.
Pending is Plaintiffs’ Motion to Appoint Interim Class Counsel and a Plaintiffs’ Leadership Structure (ECF No. 25 in Case No. 4:23CV0242 (i.e. the first-filed case)). The Feezle Leadership Group and Team Ohio seek appointment as interim class counsel to act on behalf of the putative class prior to class certification. The Cory Watson Attorneys contend the Court should not force non-class-seeking Plaintiffs to place their claims under the control of a class counsel organizational structure. After notice to the parties, the Court conducted a hearing on the motion via Zoomgov.com. The Court has been advised, having reviewed the record, the motion, supporting documentation (ECF Nos. 25-1, 25-2, 25-3, 25-4, 25-5, 25-6, and 25-7 in Case No. 4:23CV0242), and the applicable law. The Court has also considered the oral arguments of counsel offered during the hearing.
The appointment of interim class counsel is critically important in a case of this nature, as it is an ongoing event affecting potentially thousands of residents, property owners, and businesses in East Palestine, Ohio and the surrounding area, all of whom are members of the putative classes that have been proposed. For the reasons set forth below, the Court grants Plaintiffs’ Motion (ECF No. 25 in Case No. 4:23CV0242; and appoints Interim Class Counsel as proposed by the Feezle Leadership Group and adopts the Feezle Leadership Group’s proposed leadership structure with slight modification. 1
At the outset, the Court notes that both the Feezle Leadership Group and Team Ohio have demonstrated the qualifications, experience, and commitment to adequately represent the putative class. While both sets of counsel raise compelling arguments, the Court finds that the Feezle Leadership Group will best serve the interests of the putative class.
Fed. R. Civ. P. 23(g)(3) gives a district court discretion to “designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.” See also Smith v. FirstEnergy Corp., Nos. 2:20-cv-03755, 2:20-cv-03987, 2:20-cv-03954, 2021 WL 9032912 at, *1 (S.D. Ohio May 13, 2021). When there are a number of overlapping, duplicative or competing class actions filed, appointment of interim class counsel may be helpful to clarify “responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement.” Manual for Complex Litigation (“MCL”) § 21.11 (4th Edition, 2004).
Rule 23(g)(1)(A) specifically directs the Court to consider the following factors before appointing interim class counsel: “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Rule 23(g)(1) also lists other matters the Court may consider and actions the Court may take in appointing class counsel. Fed. R. Civ. P. 23(g)(1)(B)-(E). Rule 23(g)(4) requires class counsel to “fairly and adequately represent the interests of the class.” When “more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.” Fed. R. Civ. P. 23(g)(2).
The Court has conducted an independent review to ensure that counsel appointed to leading roles in the case at bar are qualified and responsible, that they will fairly and adequately represent all of the parties on their side, and that their charges will be reasonable. See MCL § 10.22. In the case at bar, Attorneys Seth A. Katz, M. Elizabeth Graham, and Jayne Conroy have done significant work in identifying and investigating the potential claims in the February 3, 2023 Norfolk Southern train derailment in East Palestine, Ohio. These three lawyers and their respective law firms have extensive experience in the areas of class actions, complex litigation, toxic torts, railroad litigation, regulatory, and environmental litigation. The proposed team of attorneys is knowledgeable and experienced in the applicable law. Finally, the proposed Interim Class Counsel and their organizational structure are dedicated to committing substantial economic and legal resources to represent the putative class. The Court has no reason to believe that the Feezle Leadership Group, as supplemented herein, will be unable to commit the resources necessary to represent the class. Therefore, because the Court finds the Feezle Leadership Group clearly satisfies the requirements of Rule 23(g), it approves their proposed organizational structure consisting of Interim Class Counsel, Co-Lead Counsel, an Executive Committee (which includes Plaintiffs’ Liaison Counsel), Plaintiffs’ Steering Committee (which includes Plaintiffs’ Co-Liaison Counsel, Community Liaison Counsel, and several Subcommittees such as Discovery, Law and Briefing, Science, and Experts. See MCL § 10.221.2
- The Court finds that Burg Simpson Eldredge Hersh & Jardine, P.C., Grant & Eisenhofer P.A., and Simmons Hanly Conroy LLC meet the standards set forth in Fed. R. Civ. P. 23(g)(l) and (4) to serve as Interim Class Counsel. Pursuant to Rule 23(g)(3), the Court appoints the following attorneys as Interim Class Counsel:
- Seth A. Katz of Burg Simpson Eldredge Hersh & Jardine, P.C.
- M. Elizabeth Graham of Grant & Eisenhofer P.A.
- Jayne Conroy of Simmons Hanly Conroy LLC
- The Court finds that Burg Simpson Eldredge Hersh & Jardine, P.C., Grant & Eisenhofer P.A., Simmons Hanly Conroy LLC, and Morgan & Morgan, P.A. are competent to serve as Co-Lead Counsel to manage the putative class actions and the individual actions. Pursuant to the Court’s inherent authority, the Court appoints the following attorneys as Co-Lead Counsel:
- Seth A. Katz of Burg Simpson Eldredge Hersh & Jardine, P.C.
- M. Elizabeth Graham of Grant & Eisenhofer P.A.
- Jayne Conroy of Simmons Hanly Conroy LLC
- T. Michael Morgan of Morgan & Morgan, P.A. 3
- The Court finds that the following attorneys and their firms meet the standards set forth in Fed. R. Civ. P. 23(g)(l) and (4) to serve in the following capacities in the organizational structure of the Feezle Leadership Group:
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Executive Committee:
- Mark P. Chalos of Lieff Cabraser Heimann & Bernstein, LLP
- Vincent L. Greene IV of Motley Rice LLC
- Christopher A. Seeger of Seeger Weiss LLP
- Mikal C. Watts of Watts Guerra LLP
- Charles E. Schaffer of Levin Sedran & Berman LLP
- James J. Bilsborrow of Weitz & Luxenberg, PC
- Michelle L. Kranz of Zoll & Kranz, LLC (Plaintiffs’ Liaison Counsel)
- Jeffrey S. Goldenberg of Goldenberg Schneider, LPA
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Steering Committee:
- Daniel R. Karon of Karon LLC
- Roger C. Denton of Wright & Shulte, LLC
- Neal E. Shapero of Shapero Roloff Co., LPA
- Brian P. Kopp of Betras Kopp & Markota
- Alyson Steele Beridon of Herzfeld Suetholz Gastel Leniski and Wall PLLC
- Margaret M. Murray of Murray & Murray Co., L.P.A.
- Joyce Chambers Reichard of Kelley Ferraro, LLC
- Gary A. Corroto of Plakas Mannos
- Ashlie Case Sletvold of Peiffer Wolf Carr Kane Conway & Wise, LLP (Plaintiffs’ Co-Liaison Counsel)
- Wesley D. Merillat of The Charles E. Boyk Law Offices, LLC
- Kelly K. Iverson of Lynch Carpenter, LLP
- Douglas J. Olcott of Edgar Snyder & Associates, LLC
- Daniel Aaron Rihn of Robert Pierce & Associates
- Dena R. Young of Berger Montague PC
- Stephen R. Basser of Barrack Rodos & Bacine
- Gary M. Klinger of Milberg Coleman Bryson Phillips Grossman, PLLC
- Andrew D. Schlichter of Schlichter Bogard & Denton, LLP
- Daniel Thornburgh of Aylstock, Witkin, Kreis & Overholtz, PLLC
- Ronald R. Parry of Strauss Troy Co., LPA
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys as Community Liaison Counsel:
- Nicholas T. Amato of Amato Law Office, LPA
- Nils P. Johnson, Jr. of Johnson & Johnson Law Office 4
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ current Subcommittees focused on specific aspects of this litigation to work on tasks assigned to them by Co-Lead Counsel:
- Gregory R. Farkas of Frantz Ward
- Grant W. MacKay of Law Office of Grant W. MacKay LLC
- Zachary J. Murry of Barkan & Robon, Ltd.
- Michael J. O’Shea of Lipson O’Shea Legal Group
- Patrick J. Perotti of Dworken & Bernstein, Co., L.P.A.
- Thomas W. Pirtle of Laminack Pirtle & Martines, LLP
- J. Scott Bertram of Bertram & Graf, L.L.C. 5
- Pursuant to Rule 23(g)(3), the Court appoints the following attorneys to Plaintiffs’ Executive Committee:
- Co-Lead Counsel, in consultation with the Members of the Executive Committee, shall have the following responsibilities on behalf of all Plaintiffs in this action and any additional related actions that are consolidated with this action (collectively, “the Action”):
- To determine and to present in motions, briefs, oral argument (subject to permission of the Court) or such other fashion as may be appropriate, either personally or by designee, to the Court and opposing party, the position of all Plaintiffs as to all matters arising during all pretrial and trial proceedings in the Action;
- To designate attorneys to appear and present oral argument (subject to permission of the Court) at status, pretrial and other conferences and hearings in the Action;
- To conduct or coordinate discovery on behalf of Plaintiffs consistent with the Local and Federal Civil Rules, including the preparation of interrogatories, requests for production of documents, requests for admission, and the examination of witnesses in depositions in the Action;
- To designate an attorney to enter into stipulations with Defendants’ counsel in connection with the Action;
- To direct, supervise, and monitor the activities of Plaintiffs’ counsel and to implement procedures to ensure that schedules are met and unnecessary expenditures of time and funds by counsel are avoided in the Action;
- To conduct all pretrial, trial, and post-trial proceedings on behalf of all Plaintiffs in the Action, including appointing trial counsel;
- To employ and consult with experts;
- To call meetings of the Executive Committee and other attorneys involved in this litigation when appropriate;
- To conduct settlement discussions in the Action with Defendants’ counsel on behalf of Plaintiffs and the proposed Class and to enter into a settlement with Defendants, subject to Court approval;
- To ensure that all Plaintiffs and all Plaintiffs’ counsel are kept informed of the progress of the Action as necessary;
- To be responsible for forwarding, as necessary, to all Plaintiffs’ counsel all Orders, discovery, filings, and other documents served on Interim Class Counsel in the Action;
- To make all work assignments to Plaintiffs’ counsel in the Action and to do so in such a manner as to promote the orderly and efficient prosecution of the Action and to avoid unnecessary duplication and unproductive efforts;
- To ensure that work assignments to all Plaintiffs’ counsel in the Action are made in the best interests of Plaintiffs and the proposed Class and are made on the basis of the qualifications and expertise of the persons assigned particular tasks or responsibilities, counsel’s knowledge of the law, facts and issues, efficiency, and cost-effectiveness;
- To assess Plaintiffs’ counsels’ common litigation costs in the Action and to collect all assessments on a regular basis;
- To collect time, lodestar, and expense reports from all Plaintiffs’ counsel in the Action, including paralegals and any other staff members whose time is expected to be included in any fee petition in the Action;
- To coordinate and communicate with Defendants’s counsel in the Action, including the scheduling of depositions;
- To coordinate and communicate with Plaintiffs’ counsel in any other actions involving the February 3, 2023 Norfolk Southern train derailment in East Palestine, Ohio at issue in this Action, if any, when those other actions are not formally related to this Action; and
- To otherwise coordinate the work of all Plaintiffs’ counsel in the Action and to perform such other duties as necessary or as authorized by further Order of the Court.
- Co-Lead Counsel shall serve as the principal point of contact for the Court with Plaintiffs’ counsel in the Action and, in that role, shall have the following responsibilities:
- Receive Orders, notices, and telephone calls from the Court on behalf of all Plaintiffs’counsel in the Action;
- Attend all in-person and telephonic/Zoomgov.com hearings and conferences before the Court in the Action;
- Coordinate the filing and service of all pleadings and other documents that are filed by Plaintiffs’ counsel in the Action;
- Sign any consolidated complaint, motions, briefs, discovery requests, objections and responses, and subpoenas or notices on behalf of all Plaintiffs in the Action; and
- Ensure that all actions by Plaintiffs’ counsel in the Action are in conformance with the applicable Local Civil Rules of the Court.
- Defendants’ counsel may rely upon all agreements made with and representations made by Co-Lead Counsel in connection with the prosecution of the Action.
II.
The Court has also considered the parties’ Joint Status Report (ECF No. 26 in Case No. 4:23CV0242 Counsel for Plaintiffs in all but one of the 22 filed cases identified in Paragraph A of the parties’ Joint Status Report have agreed to consolidation of all cases for pretrial purposes. 6 Defendants’ Counsel also agrees that consolidation for pretrial purposes of all cases in Paragraph A is appropriate.
- Case Nos. in 4:23-cv-00242, 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672 are hereby consolidated pursuant to Fed. R. Civ. P. 42. On or before May 4, 2023, Co-Lead Counsel shall serve and file a Master Consolidated Class Action Complaint in Case No. 4:23-cv-00242 (i.e. the first-filed case) joining the claims from the consolidated cases (including cases filed by individual plaintiffs that are not putative class actions) that reflects their joint representation of Plaintiffs. Therefore, Defendants need not respond to the Complaint (ECF No.1) in Case No. 4:23-cv-00242.
- The record, including the docket sheet for Case No. 4:23-cv-00242 shall be changed to reflect that “In re: East Palestine Train Derailment” is the name of this litigation, in lieu of “Feezle et al v. Norfolk Southern Railway Co. et al.”
- Further proceedings in the following cases are stayed: Case Nos. 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672. 7
- Defendants shall have until 30 days after service of the Master Consolidated Class Action Complaint to answer, plead or otherwise move in response to the affirmative pleading.
- If Defendants serve and file a motion in response to the Master Consolidated Class Action Complaint, Plaintiffs must serve and file a memorandum in opposition within 30 days after service of the motion.Defendants may serve and file a reply memorandum in support of any motion filed in response to the Master Consolidated Class Action Complaint within 14 days after service of the memorandum in opposition.
- The Fed. R. Civ. P. 26(f) conference shall be completed on or before May 18, 2023. The participation of parties represented by counsel is left to the discretion of their counsel. The Court does not require the personal participation of the parties at this conference. A party may not seek formal discovery from any source before the parties have met and conferred at the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(1).
As part of their pre-Case Management Conference planning conference, counsel must determine whether there will be discovery of electronically stored information (“ESI”) [E-discovery]. If counsel anticipates E-discovery, they must decide on a method for conducting such discovery or agree to abide by the default standard set forth in Appendix K to the Local Civil Rules.
The parties (through counsel or personally, if unrepresented) shall file a report on their discussion, including a proposed discovery plan, in a form substantially similar to Attachment No. 1, signed by all counsel and/or unrepresented parties and submit this report to the Court no later than five days after the Rule 26(f) conference. See Attachment No. 2 for an example of an agreement regarding the handling of disclosed privileged material.
IT IS SO ORDERED.
Date: April 5, 2023
Benita Y. Pearson
United States District Judge
1 As suggested during the hearing, the Court adds Attorney Jeffrey S. Goldenberg to Plaintiffs’ Executive Committee and Attorney Ronald R. Parry to Plaintiffs’ Steering Committee. The Court also adds Attorney Nils P. Johnson, Jr. to be another Community Liaison Counsel.
2 Committees of counsel can sometimes lead to substantially increased costs. Therefore, Interim Class Counsel should try to avoid unnecessary duplication of efforts and control fees and expenses.
3 Attorney Morgan will represent individuals and entities who have elected to file cases outside the class action, but are not opposed to the class structure.
4 Attorney Johnson is not currently receiving Notices of Electronic Filing (“NEFs”) from the Court. In order to effectively use the electronic filing system and retrieve documents from the electronic filing system, users must have a PACER (Public Access to Court Electronic Records) account. NextGen CM/ECF registration for e-filing and notification is required in the Northern District of Ohio unless otherwise ordered by the Court. Register online at https://www.pacer.gov/; and the registration form can be completed at: https://pacer.psc.uscourts.gov/pscof/registration.jsf. Attorney Johnson is, hereby, ordered to act, forthwith, to cure this deficiency.
NextGen CM/ECF Registration for the Northern District of Ohio is located on the Court’s web site at: https://www.ohnd.uscourts.gov/electronic-filing-registration.
Once registration is completed and approved by the Court, the party will be notified via email that filing privileges have been granted. The user’s login and password required to submit documents to the electronic filing system serve as the user’s signature on all electronic documents filed with the Court.
5 The Court will look with favor on Co-Lead Counsel invoking Local Rule 83.6, to allow qualified law students from regional law schools (e.g., Akron, Cleveland State, Case Western Reserve, Capital, and/or Ohio State) to participate in court-approved facets of this litigation.
6 Counsel for Plaintiffs in CeramFab, Inc. et al. v. Norfolk Southern Corporation et al. No. 4:23-cv-00509 (N.D. Ohio filed March 13, 2023) have not agreed that consolidation is appropriate and did not consent to being part of a Master Consolidated Class Action Complaint. Despite that original mindset, upon the issuance of this Order, the Court encourages the plaintiffs and their counsel in that case to consider the benefits of consolidation.
7 It is the intention of the undersigned to administratively close these cases upon the filing of the Master Consolidated Class Action Complaint in Case No. 4:23-cv-00242.
Nick Colella appointed by Judge Denise J. Casper as Co-Lead Class Counsel in a consolidated action against Suffolk University (D. Mass.)
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
MEGAN JACKSON, Individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SUFFOLK UNIVERSITY,
Defendant.
Case No. 1:23-CV-10019-DJC
SUSANNAH SMITH, Individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SUFFOLK UNIVERSITY,
Defendant.
Case No. 1:23-CV-10261-DJC
[PROPOSED] ORDER CONSOLIDATING ACTIONS, APPOINTING CO-LEAD INTERIM CLASS COUNSEL, AND SETTING A BRIEFING SCHEDULE
THIS MATTER, having come before the Court by the Plaintiffs in the above-captioned cases by their Unopposed Motion for Consolidation Pursuant to FED. R. CIV. P. 42 and Appointment of Co-Lead Interim Class Counsel Pursuant to FED. R. CIV. P. 23(g), and supporting materials, and the Court having read the papers, IT IS ORDERED that the Motion is GRANTED as set forth below:
1. The Court hereby consolidates Jackson v. Suffolk University, 1:23-CV-10019 (the “Jackson Action”) and Smith v. Suffolk University, 1:23-CV-10261 (the “Smith Action”) (collectively, the “Class Actions”), as well as any future related actions (collectively the “Related Actions”), under the docket number of this, first filed case: 1:23-cv-10019-DJC (the “Consolidated Action”).
2. All papers previously filed and served to date in the Related Actions are deemed part of the record in the Consolidated Action.
3. The Court hereby appoints Nicholas A. Colella of Lynch Carpenter LLP and Kevin Laukaitis of Laukaitis Law Firm LLC as Co-Lead Interim Class Counsel to act on behalf of the Plaintiffs in the Consolidated Action, and the putative Class, with the responsibilities set forth below:
-
- Determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pre-certification proceedings;
- Coordinate the initiation and conduct of discovery on behalf of Plaintiffs and the putative Class consistent with the requirements of the Federal Rules of Civil Procedure;
- Convene meetings amongst counsel;
- Conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
- Negotiate and enter into stipulations with opposing counsel as necessary for the conduct and efficient advancement of the litigation;
- Monitor the activities of all counsel to ensure that schedules are being met and unnecessary expenditures of time and funds are avoided;
- Perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of this Court;
- Serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
- Ensure that all notices, orders, and material communications are properly distributed (to the extent that they are not otherwise served on Plaintiffs’ counsel via the Court’s electronic filing system);
- Communicate with Defense counsel as necessary to promote the efficient advancement of this litigation; and
- Make available to other Plaintiffs’ counsel documents produced by the Defendant.
4. Co-Lead Interim Class Counsel shall have the authority to communicate with Defendant’s counsel and the Court on behalf of any Plaintiffs unless that authority is expressly delegated to other counsel. Defendant’s counsel may rely on all agreements made with Co-Lead Interim Class Counsel, and such agreements shall be binding on all other Plaintiffs’ counsel.
5. The Court hereby appoints Jason Leviton of Block & Leviton as Interim Liaison Counsel for Plaintiffs. Interim Liaison Counsel is responsible for performing the duties and responsibilities described in the MANUAL FOR COMPLEX LITIGATION § 21.221 (4th ed. 2004), including facilitating and expediting communications with and among Plaintiffs’ counsel and fulfilling such other duties as requested by the Court or Interim Co-Lead Counsel. The Court also orders the following:
-
-
- Interim Liaison Counsel is authorized to: (i) receive orders, notices, correspondence, and telephone calls from the Court and the Clerk of the Court on Plaintiffs’ behalf; (ii) prepare and transmit copies of such orders and notices on Plaintiffs’ behalf; and (iii) receive orders and notices from the District of Massachusetts, if any;
- Interim Liaison Counsel shall maintain complete files with copies of all documents served and make such files available to all Plaintiffs’ counsel on request;
- Interim Liaison Counsel must maintain and make available to all counsel and the Court an up-to-date service list; and
- Interim Liaison Counsel shall assume other responsibilities as may be deemed appropriate by Interim Lead Counsel or as ordered by the Court.
-
6. Unless otherwise ordered by the Court upon a showing of good cause, this Order shall apply to any action filed in, transferred to, or removed to this Court that relates to the subject matter at issue in this case.
7. The Court shall enter a Case Management Order as soon as practicably possible.
8. Plaintiffs in the Consolidated Action shall file an operative, consolidated complaint within fourteen (14) days of this Order.
9. Defendant shall have forty-five (45) days from the date on which Plaintiffs file the consolidated complaint to file a responsive pleading thereto.
10. In the event that Defendant’s response is a motion to dismiss, Plaintiffs shall have thirty (30) days to file their opposition thereto, and Defendant shall have twenty-one (21) days to file its reply
SO ORDERED.
DATED: March 7, 2023
HON. DENISE J. CASPER, U.S.D.J.
Kelly Iverson appointed Chair of Liability Expert Committee
Congratulations to Lynch Carpenter Partner, Kelly Iverson for being appointed Chair of Liability Expert Committee for the Samsung Customer Data Security Breach Litigation. Lynch Carpenter is proud to be a part of the team fighting for the rights of the people.
Read the full appointment order:
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
IN RE: SAMSUNG CUSTOMER DATA
SECURITY BREACH LITIGATION
This Document Relates To All Actions
Civil Action No. 23-md-3055(CPO)(EAP)
ORDER
THIS MATTER having been opened to the Court by counsel for Plaintiffs Naeem Seirafi, Shelby Holtzclaw, Roald Mark, Andrew Becker Anthony Dipaola, Keanna Cole, Peggy Rodriguez, Indea Sanchez, Angelina Alvarado Scott, Angela Robinson, Jorge Fernandez, Joseph Rollins, Jorge Newbery, Holly Ringling, and Tammy Gutierrez, on notice to counsel for Defendants, and good cause appearing,
IT IS THIS day of March, 2023
ORDERED as follows:
1. The Court hereby appoints James E. Cecchi as Interim Lead Class Counsel to act on behalf of the Plaintiffs in the above matters.
2. Interim Class Counsel shall have the responsibilities set forth below:
- determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on all matters arising during pretrial proceedings;
- coordinate the initiation and conduct of discovery on behalf of Plaintiffs and the putative Class consistent with the requirements of the Federal Rules;
- convene meetings among Plaintiffs’ counsel;
- conduct settlement negotiations on behalf of Plaintiffs and the putative Class;
- delegate specific tasks to other counsel in a manner to ensure that pretrial preparation for the Plaintiffs and the putative Class is conducted efficiently and effectively;
- enter into stipulations with opposing counsel as necessary for the conduct of the litigation;
- monitor the activities of all counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
- perform such other duties as may be incidental to the proper coordination of Plaintiffs’ pretrial activities or authorized by further order of the court.
- serve as the primary contact for communications between the Court and other Plaintiffs’ counsel;
- ensure that all notices, orders, and material communications are properly distributed (to the extent that they are not otherwise served on Plaintiffs’ counsel via the Court’s electronic filing system);
- negotiate and enter into stipulations with defense counsel as necessary to promote the efficient advancement of this litigation;
- communicate with defense counsel as necessary to promote the efficient advancement of this litigation; and
- make available to other Plaintiffs’ counsel documents produced by the defendant.
3. The following counsel are appointed as chair(s) of the indicated committees:
- Chairs of Law and Briefing: Roberta Liebenberg Sabita Soneji
- Chair of Discovery: Linda Nussbaum
- Chair of Liability Experts: Kelly Iverson
- Chair of Damage Experts: Nada Djordjevic
- Chair of Settlement: Christopher Seeger
- Chair of Third Party Discovery: Ryan Clarkson
- Chairs of Plaintiffs’ Discovery: Steve Nathan Caroline Bartlett
- Chair of Electronic Discovery Christopher Ayers
- Liaison Counsel: Catherine DeRenze
TikTok to Pay $92 Million in Final Approval of Settlement Agreement
On July 28, 2022, Judge John Z. Lee granted final approval in the class action settlement against TikTok and parent company ByteDance awarding $92 million to the class of 1.4 million people for the company’s violation of users’ private data.
“We are pleased that the court recognized the substantial value of this landmark settlement. More importantly, we believe that TikTok will make substantial changes in its practices going forward to ensure the privacy of its users is protected," says Katrina Carroll, Lynch Carpenter Partner. Carroll served as Co-Lead Attorney for TikTok users in the Illinois Subclass which asserted claims under the Illinois Biometric Information Privacy Act.
To read the full court opinion, click here.
Carlson Lynch Announces Switch to Lynch Carpenter
National law firm welcomes new partners and official name change
PITTSBURGH (March 1, 2022) — Carlson Lynch has announced their conversion to Lynch Carpenter, along with their new mission- Pursuit with Purpose. Lynch Carpenter will be comprised of partners Todd Carpenter, Katrina Carroll, Eddie Kim, Jamisen Etzel, Kelly Iverson, Ed Ciolko, Ed Kilpela, Kyle Shamberg, Kate Lally, and founding partner, Gary Lynch. Bruce Carlson and new partner Ian Brown will be focused solely on disability rights (ADA), a cause Bruce has long supported. The two will continue to work alongside Lynch Carpenter to deliver justice to their clients. Lynch Carpenter will continue to target worker’s rights violations and class action lawsuits.
“The transition of Carlson Lynch to Lynch Carpenter was a natural progression. As a firm, we have strengthened our commitment around consumer protection and justice for the American people when it comes to data protection and anti-trust. Bruce has always been solely committed to fighting for ADA rights in the disabled community. We support his calling and will continue to align with him and his team when needed. On a personal note, we’ve been friends for more than 40 years. This transition is about firm focus. I’m excited for the opportunities of both firms.
Partner, Todd Carpenter, has been with our firm for the better part of 5 years. Bruce Carlson has partnered with Ian Brown, a former Carlson Lynch attorney.” said Gary Lynch of Lynch Carpenter.
The firm’s name change to Lynch Carpenter will be made official on Tuesday March 1, 2022.
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 Carlson Brown
Carlson Brown is a Pittsburgh-based law firm specializing in Americans with disabilities act (ADA) violations. The firm, founded by partners Bruce Carlson and Ian Brown, is primarily interested in the impact of accessibility, and evolving technology on disadvantaged communities, particularly the disabled community. Carlson Brown believes in defending the rights of all individuals, regardless of physical or mental ailments.