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

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

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

This Document Relates to:
All Cases

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

MDL No. 2969

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

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

 

1. APPOINTMENT OF INTERIM PLAINTIFFS’ CO-LEAD COUNSEL

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

Kelly K. Iverson
Carlson Lynch, 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


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

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

By: Ellen Bardash | April 19, 2021

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

But several objectors maintained that the deal is insufficient.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Ollie's Bargain Outlet

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

Read the judge’s opinion here.


Uber Driver

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

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

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

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

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

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

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

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

# # #

About Disability Rights Advocates

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

About Carlson Lynch LLP

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


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

US. District Judge Michelle Childs instructed lawyers to consider a diverse team to lead about 20 lawsuits against Blackbaud. Five weeks later, she followed through.

What has been hailed as one of the most diverse leadership teams to lead a multidistrict litigation docket, a group of eight women and four men, including lawyers of color, will pilot class actions brought over a data breach involving cloud management software firm Blackbaud.

The appointment order (//images.law.com/contrib/content/uploads/documents/292/Critical-Mass-nts-3.3.21-data-breach-leadership-appointment.pdf) did not come from just any judge. U.S. District Judge J. Michelle Childs is a 2010 appointee of President Barack Obama to the South Carolina bench. U.S. Rep. James Clyburn, D-South Carolina, recently floated Childs’ name (https://www.nytimes.com/2021/02/21/us/politics/biden-supreme-court-black-woman.html) as one to be considered as a top pick for the U.S. Supreme Court. If a vacancy is created and she is selected, Childs would be the first Black woman to serve on the high court. That would fulfill a campaign pledge of President Joe Biden.

In a Jan. 8 order, Childs instructed lawyers to consider a diverse team to lead about 20 lawsuits against Blackbaud, which is headquartered in Charleston, South Carolina.
“The court also seeks to develop the future generation of diverse MDL leadership by providing competent candidates with opportunities for substantive participation now,” she wrote.

Five weeks later, on Feb. 16, she followed through.

The team includes four co-lead counsel. Amy Keller (https://dicellolevitt.com/attorney/amy-e-keller/), of Chicago’s DiCello Levitt Gutzler, is a veteran MDL lawyer, having served as co-lead counsel in multidistrict litigation over three other data breaches, involving Equifax, Marriott and American Medical Collection Agency. She and Melissa Emert, of Kantrowitz, Goldhamer & Graifman in Chestnut Ridge, New York, who was appointed to the Blackbaud plaintiffs’ steering committee, had the most appointments in MDLs of any woman attorney from 2016 to 2019 (https://www.law.com/2020/07/06/there-are-new-faces-leading-mdls-and-they-arent-all-men/).

It is the first appointment for Krysta Pachman
(https://www.susmangodfrey.com/attorneys/krysta-kauble-pachman/), of Susman Godfrey in Los Angeles, and Marlon Kimpson (https://www.motleyrice.com/attorneys/marlon-e-kimpson), of Motley Rice, a Democratic state senator in South Carolina, who has worked on other mass torts with name partner Joe Rice (https://www.motleyrice.com/attorneys/joseph-f-rice). It’s the first co-lead counsel role for Harper Segui (https://milberg.com/attorney/harper-t-segui/), a partner in Raleigh, North Carolina, at Whitfeld Bryson, now known as Milberg Coleman Bryson Phillips Grossman. The plaintiffs’ steering committee also includes a lawyer from Pittsburgh’s Carlson Lynch.

Pachman, speaking for the leadership team, said in an email: “Not only did Judge Childs note her conscious effort to avoid implicit bias and not overlook candidates based on race, color, gender, sexual orientation, age or geography, but she also indicated in her case management order that she expected counsel to perform their duties in a way that is free of discrimination and bias, including choosing a diverse slate of vendors.

“She selected what is arguably the most diverse leadership team ever in an MDL to the benefit of the class.”

In the lawsuits, Blackbaud is accused of failing to adequately respond to hackers whose activities exposed its clients and their customers to exposure of personal data. Blackbaud has said, according to media reports, that it combatted and curtailed the threat from the hack.

On Dec. 15, the U.S. Judicial Panel on Multidistrict Litigation sent the Blackbaud lawsuits to Childs, who has handled one prior MDL.

In assembling the leadership team, Childs appointed lawyers from two competing proposed slates, then added three attorneys who applied individually. She appointed Frank Ulmer, of McCulley McCluer in Charleston, as liaison counsel. In addition to Emert, the plaintiffs’ steering committee is: Gretchen Cappio, of Seattle’s Keller Rohrback; Desiree Cummings of Robbins Geller Rudman & Dowd in New York; Kelly Iverson of Carlson Lynch; Howard Longman of Stull, Stull & Brody in New York; Douglas McNamara, of Washington, D.C.’s Cohen Milstein Sellers & Toll; and Melissa Weiner, of Pearson, Simon & Warshaw in Minneapolis.


Stonefire Naan $1.9 Million False Ad Settlement Gets Final Nod

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

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

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

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

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

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

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

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

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

The deal was preliminarily approved in October 2020.

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

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

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


Katrina Carroll Headshot

Katrina Carroll, Carlson Lynch Partner, Additional Lawyers Appeal Robocall Case to Protect Consumers

A total of thirty-four states and Washington, D.C. are appealing a ruling which held that companies were not liable for robocalls for 5 years while the Supreme Court was deciding an unrelated issue arising under the robocalling statute.

Carlson Lynch LLP Partner and Attorney Katrina Carroll commented on the appeal of the class action case saying, “We are pleased with the substantial outpouring of support we received from the majority of states, who came together and formed a bipartisan coalition to ensure that consumers are protected against illegal robocalls.”

This appeal comes after an Ohio federal judge became the second in the nation to adopt the argument that plaintiffs cannot press Telephone Consumer Protection Act claims related torobocalls or texts that were placed between the period when Congress permitted robocalls regarding federally backed debts and when the U.S. Supreme Court ruled that exception to be unconstitutional (Law360.com).

Plaintiff Roberta Lindenbaum is represented by Katrina Carroll of Carlson Lynch and Leah Marie Nicholls and Ellen L. Noble of Public Justice.

Defendant Realgy LLC is represented by Ryan D. Watstein, Paul A. Grammatico and Matthew A Keilson of Kabat Chapman & Ozmer LLP.

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Katrina Carroll is the founding partner of Carlson Lynch’s Chicago office and serves as Co-Chair of the Firm’s Executive Management Committee. She has been recognized as one of the top 25 class action lawyers in the State of Illinois and has been named multiple times as a SuperLawyer.

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Founded in Pittsburgh in 2004, Carlson Lynch has earned national acclaim for complex litigation for plaintiffs. Carlson Lynch LLP is a leading law firm that specializes in cyber security, anti-theft, and consumer protection for more than 30 years. The firm currently has offices in Pittsburgh, Philadelphia, San Diego, Los Angeles and Chicago.


plane seen flying in through the windows of the airport terminal

JAMISEN ETZEL OF CARLSON LYNCH LLP APPOINTED AS INTERIM CO-LEAD COUNSEL IN COVID-19 TRAVEL INSURANCE LITIGATION

A federal judge in the Southern District of New York appointed Jamisen Etzel of Carlson Lynch LLP to serve as interim co-lead counsel in litigation on behalf of consumers fighting travel insurance claim denials during the COVID-19 pandemic.

The Hon. John G. Koeltl of the United States District Court for the Southern District of New York granted a motion to appoint plaintiffs’ interim leadership counsel on January 29, 2021. The consolidated proceedings in New York include actions brought by consumers throughout the United States who allege that they purchased travel insurance policies from Generali Group and related entities.

The consumers were subsequently denied benefits or premium refunds when their travel plans were cancelled during the COVID-19 pandemic. In late 2020, the United States Judicial Panel on Multidistrict Litigation transferred all related federal suits against Generali to the Southern District of New York.

The other firms appointed as interim co-lead counsel in addition to Carlson Lynch LLP include Potts Law Firm and Cafferty Clobes Meriwether and Sprengel LLP. Kirby McInerney was appointed liaison counsel. The executive committee includes Raizner Slania LLP, Sauder Schelkopf LLC, Scott + Scott Attorneys at Law LLP, and Zimmermann Reed LLP.

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Founded in Pittsburgh in 2004, Carlson Lynch has earned national acclaim for complex litigation for plaintiffs. Carlson Lynch LLP is a leading law firm that specializes in cyber security, anti-theft, and consumer protection for more than 30 years. The firm currently has offices in Pittsburgh, Philadelphia, San Diego, Los Angeles and Chicago.


Carlson Lynch Wins Consumer Standing Appeal in Ninth Circuit

Carlson Lynch attorneys Jamisen Etzel and Kelly Iverson won a significant consumer rights ruling earlier this year from the United States Court of Appeals for the Ninth Circuit. The appeals court held in a published decision that the temporary loss of money is a sufficient “injury-in-fact” under Article III of the Constitution to confer standing on a consumer to file a federal lawsuit.

In the case, called Van v. LLR, Inc., Carlson Lynch and its client brought suit against the clothing company LuLaRoe, alleging it had improperly overcharged Ms. Van and a class of similarly situated Alaska residents by including a “tax” on its invoices, where the purchases should have been tax free. After being sued by Carlson Lynch and certain of its clients, but before Ms. Van’s suit was filed, LuLaRoe began refunding the improper charges directly to customer credit card accounts. Those refunds, however, did not credit its customers for all of their damages, nor did it pay compensation for the customers’ lost time value of their money.

The federal district court in Alaska, where Van’s suit was filed, dismissed the case based on lack of subject matter jurisdiction after finding that the consumers’ lost time value of money was “too little” to be a constitutionally recognizable harm conferring standing to sue. Carlson Lynch appealed that decision, arguing that there is no minimum monetary loss threshold required to obtain standing, and that federal courts traditionally recognize invasions of a person’s possessory interests and the lost time value of money as concrete injuries under the Constitution.

The Ninth Circuit held oral argument on June 3, 2020, and Jamisen Etzel argued on behalf of Ms. Van. The appellate panel agreed with Carlson Lynch’s position, and on June 24, 2020 reversed the lower court, finding that “[f]or standing purposes, a loss of even a small amount of money is ordinarily an ‘injury,’” and that “the temporary loss of use of one’s money constitutes an injury in fact for purposes of Article III.”

The decision is an important one for consumers because it confirms that they may go to court and obtain interest or other compensation when their money has been improperly held by others for significant periods of time.

You can read the full opinion at this link.  The judges of the Ninth Circuit panel were Morgan Christen, Paul J. Watford, and Bridget S. Bade. Jamisen Etzel led the appellate briefing and oral argument. Kelly Iverson assisted in the appeal and serves as lead counsel in Carlson Lynch’s cases against LuLaRoe.