Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. Here's what's happening: Why did U.S. District Judge Lucy Koh reject the Yahoo data breach settlement? PG&E's bankruptcy could spark a fight with wildfire victims. Data breach consumers get an early edge over Equifax in their court fight.

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Why Didn't Koh Love Yahoo's Deal? Let Her Count the Ways…

U.S. District Judge Lucy Koh rejected the $85 million settlement over Yahoo's data breach.

This story, by my colleague Ross Todd, said Koh's order on Monday questioned why it took 32 plaintiffs' firms to handle a “not particularly novel” case, then called their $35 million fee request “extraordinarily high.” Sounds a lot like the gripes she had in the $115 million Anthem data breach settlement last year.

But her order also focused on particulars of the settlement, such as a release of claims that weren't part of the complaint and attorney fees that, if reduced, would revert back to Yahoo. She also chastised Yahoo for its “egregious” track recordof nondisclosure and lack of transparency. Those concerns sounded more like the Northern District of California's new class action guidelines (after all, she had asked lawyers to address them). Her order said the notice and agreement failed to disclose:

➤ The total settlement fund  

➤ The total size of the settlement class  

➤ The amount Yahoo planned to spend on security improvements.

Lawyers said the Yahoo deal was better than the Anthem settlement. But that argument backfired when she outlined the ways in which Anthem deal surpassed the Yahoo accord. Ross told me:

“Judge Koh points at all the hard work they did and the great outcomes they got for their clients. But the judge doesn't mention the fact that she significantly cut the fees of the lawyers who did all that hard work and got those solid results.”  

 

PG&E's Bankruptcy: What About Wildfire Lawsuits?

Exposed to $30 billion in wildfire liability, PG&E Corp. filed for Chapter 11 bankruptcy Tuesday. Bloomberg reported that the judge in the case was U.S. Bankruptcy Judge Dennis Montali, who handled the San Francisco-based utility's previous bankruptcy in 2001.

Even though wildfire victims could end up with less, my reporting found that their lawyers are preparing to fight. Appearing in the bankruptcy filing for wildfire victims were Frank Pitre (Cotchett Pitre), Michael Kelly (Walkup Melodia) and Bill Robins (Robins Cloud). Meanwhile, Sander Esserman (Stutzman Bromberg), Scott Summy (Baron & Budd) and Greg Nuti (Nuti Hart) made appearances for cities, counties and other public entities with wildfire losses.  

 

Equifax Loses Bid to Derail Data Breach Lawsuit

U.S. District Judge Thomas Thrash allowed the consolidated class action against Equifax to go forward on behalf of victims of its 2017 data breach.Law.com's Robin McDonald had this story about Monday's ruling against dismissal.

Thrash, the same Atlanta judge who oversaw the Home Depot data breach case, dismissed some of the claims but brushed aside most of Equifax's defense arguments, including whether the massive hack was foreseeable.

Robin told me:

“Thrash saw similarities in Equifax and in Home Depot (and also Arby's which was handled by Amy Totenberg here and was another data breach suit). If you read through the consumer order, he actually cites to Home Depot and to Arby's rulings.”

Who Got the Work?

The family of 22-year-old Stephon Clark, a black father of two who was shot last year in the backyard of his home, hired Brian Panish (Panish Shea & Boyle) and Ben Crump (Ben Crump Law) to bring a $20 million wrongful death lawsuit on Monday against the two police officers who shot him and the city of Sacramento. Panish and Crump are working with Dale Galipo of The Law Offices of Dale K. Galipo.

Here's what else you need to know:

PACER's Problem: Seven retired federal judges weighed in on a class action over PACER fees that's now before the U.S. Court of Appeals for the Federal Circuit. In an amicus brief, they wrote that PACER's charges harm the federal judiciary's credibility and specifically hurt pro se litigants. One judge happens to be former Seventh Circuit Judge Richard Posner, who founded the Posner Center of Justice for Pro Se's after retiring from the bench in 2017.

Flagging Funders: Do district judges have supervision over third-party litigation funding agreements in class actions? That's the question before the U.S. Court of Appeals for the Third Circuit, which heard oral arguments last week in the $1 billion NFL concussion settlement, according this Law.com report. Peter Buckley (Fox Rothschild) represented the lending company against Samuel Issacharoff (NYU School of Law), who argued on behalf of the class.

Checking In: Where will all the Marriott data breach cases go? The U.S. Judicial Panel on Multidistrict Litigation is set to hear arguments on Thursday in Miami on whether to coordinate more than 75 class actions brought over last year's breach, which impacted 500 million hotel guests of its Starwood properties. Lead contenders are the federal districts of Maryland, supported by Maryland-based Marriott, and Connecticut, home to Starwood.

Thanks for reading Critical Mass! See you next week.