1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

NORTHERN DISTRICT OF CALIFORNIA

8

9

10 No. C 23-02132 WHA 11 In re No. C 23-02291 WHA No. C 23-02503 WHA 12 DATA BREACH SECURITY No. C 23-02909 WHA

LITIGATION AGAINST

13 BRIGHTLINE, INC. (Consolidated)

14 ORDER RE MOTIONS FOR

APPOINTMENT AS INTERIM

15 CLASS COUNSEL

16 17 This putative class action currently consists of four consolidated actions regarding the 18 same alleged data breach involving defendant Brightline, Inc., which is a telehealth provider 19 focused on pediatric behavioral health. All four different plaintiffs’ counsel in those actions 20 jointly moved for consolidation, and defendant did not oppose (Dkt. No. 25). A prior order 21 found consolidation appropriate since there were overlapping issues of fact and law (Dkt. No. 22 26). Counsel in the consolidated action have now filed three different motions to be appointed 23 interim class counsel under Rule 23(g). Defendant neither endorses nor opposes the motions. 24 The three factions are as follows. Counsel for plaintiffs Terrance Rosa, Ryan Watson, 25 and Anthony Ndifor, representing the first and third-filed actions, have jointly moved to be 26 appointed co-lead counsel. These are the firms of Morgan & Morgan Complex Litigation 27 Group (“Morgan”) and Glancy, Prongay & Murray LLP (“Glancy”), led in this action by John 1 breach class actions, including the largest and most successful of such cases to date, as well as 2 hundreds of class actions in California and elsewhere,” including a similar data breach action 3 before the undersigned (Br. 2, Dkt. No. 30). Morgan has over 800 lawyers with offices 4 nationwide, while Glancy is approximately 35 lawyers with offices in Los Angeles, New York, 5 and Berkeley. 6 Counsel for plaintiff Donisha Jackson, the second-filed action, is Mason A. Barney of 7 Siri & Glimstad LLP (“Siri”). Mr. Barney “has significant experience successfully prosecuting 8 complex consumer class actions and data breach cases across the country,” having been 9 appointed “interim co-lead counsel” in five current data breach actions across jurisdictions (Br. 10 5–6, Dkt. No. 29). Nevertheless, Mr. Barney claims that Siri is “not currently leading another 11 large data breach case” so that “he and other attorneys at the firm are ready and able to lead 12 this case, and it will be a top priority” (Br. 6). Mr. Barney alternatively seeks appointment to a 13 plaintiffs’ executive committee, explaining that he has experience working with Morgan in 14 such capacity. Mr. Barney further represents that Siri will not accept third-party litigation 15 funding. Siri has eight offices around the country. 16 Counsel for plaintiff Kyle Castro, the fourth-filed, are Peter J. Jannace of Herzfeld, 17 Suetholz, Gastel, Leniski & Wall (“Herzfeld”), and Caren Sencer of Weinberg, Roger & 18 Rosenfeld (“Weinberg”). They seek appointment as “Interim Co-Lead Class Counsel” and 19 “Interim Liaison Counsel,” respectively, or in the alternative to be appointed to plaintiffs’ 20 executive committee (Br. 3, Dkt. No. 31). Mr. Jannace provides a sampling of nine data 21 breach actions he has worked on, one of which was in federal court. Ms. Sencer lists nine 22 California state court data breach actions for which she has been approved as class counsel. 23 Herzfeld has four offices in Nashville, Louisville, Cincinnati, and Washington, D.C., while 24 Weinberg has three offices in Los Angeles, Sacramento, and Emeryville. 25 Rule 23(g)(3) permits designation of interim counsel to “act on behalf of a putative 26 class.” A prerequisite to class action certification under Rule 23 is that “the representative 27 parties will fairly and adequately protect the interests of the class.” FRCP 23(g)(4). Rule 1 investigating potential claims in the action; (ii) counsel’s experience in handling class actions, 2 other complex litigation, and the types of claims asserted in the action; (iii) counsel’s 3 knowledge of the applicable law; and (iv) the resources that counsel will commit to 4 representing the class. Generally, “a court may consider the proposed counsel’s professional 5 qualifications, skill, and experience, as well as such counsel’s performance in the action itself.” 6 Scholl v. Mnuchin, 489 F. Supp. 3d 1008, 1045 (N.D. Cal. 2020) (Judge Phyllis J. Hamilton) 7 (citations omitted). 8 Here, it is largely the second and fourth factors that are relevant, given that the 9 consolidated action is in its infancy and a consolidated complaint has yet to be filed. Data 10 breaches do not involve relatively specialized areas of the law, as evidenced by all counsels’ 11 experience litigating multiple such actions throughout the nation, in both state and federal 12 courts. 13 Appointment of interim class counsel is appropriate here, given the “gaggle of law firms 14 jockeying to be appointed class counsel.” Parrish v. Nat’l Football League Players Inc., No. C 15 07-00943 WHA, 2007 WL 1624601, at *9 (N.D. Cal. June 4, 2007). There is evidenced 16 rivalry between the firms given the competing motions, and as a consolidated complaint has 17 yet to be filed, there is “uncertainty as to their respective roles” in this litigation. See In re Nest 18 Labs Litig., No. 14-CV-01363-BLF, 2014 WL 12878556, at *1–2 (N.D. Cal. Aug. 18, 2014) 19 (Judge Beth Labson Freeman). This order thus clarifies those roles and sets some ground 20 rules. 21 While the firms of Morgan and Glancy have adequate experience, there is also public 22 benefit in giving opportunities to gain experience. Here, the only woman is local counsel for 23 plaintiff Kyle Castro, and there are no persons of color seeking appointment as interim counsel. 24 As such, this order appoints Mason A. Barney of Siri as interim class counsel pursuant to Rule 25 23(g), given his position as second-most experienced counsel seeking appointment. 26 There shall be no executive committee nor broader structure beyond Attorney Barney and 27 his firm as interim class counsel. There shall be no settlement negotiations until there is a class 1 work shall be compensated from any class recovery or fee award unless it is approved in 2 advance in writing by interim counsel or by class counsel. No class work shall be 3 compensated unless it is corroborated by detailed time notes made contemporaneously with the 4 work. This order further reminds interim counsel that, as usual, duplicative or excessive 5 requests for attorney’s fees will be looked upon with disfavor. Appointment of Attorney 6 Barney as interim class counsel pursuant to these ground rules “further[s] the fair and adequate 7 representation of the putative class by clarifying who is responsible for their interests.” 8 Olosoni v. HRB Tax Grp., Inc., No. 19-CV-03610-SK, 2019 WL 7576680, at *6 (N.D. Cal. 9 Nov. 5, 2019), aff'd sub nom. Snarr v. HRB Tax Grp., Inc., 839 F. App’x 53 (9th Cir. 2020) 10 (Judge Sallie Kim). 11 As a final point, the unopposed motion to consolidate stated that consolidation was for a 12 pre-trial purposes only. However, this order finds that complete consolidation of all four

13 actions is appropriate. All involve common questions of law and fact. FRCP 42.

14 Indeed, the parties have not articulated any persuasive reasons for ordering separate trials. FRCP 42(b) states that separate trials 2 15 made be ordered for convenience, to avoid prejudice, or to 2 expedite and economize. If anything, separate trials in these 16 related putative . . . class actions would increase class costs and unnecessarily complicate case management. Complete consolidation, including for trial, is thus appropriate. 5 Z 18 Il Fornaio (Am.) Corp. v. Lazzari Fuel Co., LLC, No. C 13-05197 WHA, 2014 WL 806203, at 19 *2-3 (N.D. Cal. Feb. 27, 2014). 20 Instead of the seven days as stated in the order granting consolidation, a superseding 21 consolidated amended complaint shall be filed within FOURTEEN DAyYs of this order. This 22 order also corrects the case caption to include the initials “WHA” after every consolidated case 23 number, and not those of the initially assigned judge. 24 IT IS SO ORDERED. 25 Dated: September 18, 2023. 26 27 CA Pee > WILLIAM ALSUP 8 UNITED STATES DISTRICT JUDGE