3 Considerations for Counsel Engaged in Multinational Data Breach Class Actions
Strategy, legal notice requirements and settlement coordination can be tricky to navigate when border-managing cross-class actions.
November 06, 2017 at 09:41 AM
5 minute read
Like cyber regulations, corporate data breach incidents tend to affect people across multiple jurisdictions. For multinational companies, this means the prospect of class action lawsuits across numerous countries. Counsel engaged in such wide-ranging class action data breach cases often need to navigate the nuances of each country's legal culture. And it's no easy task.
At the Baker & Hostetler's “Cross-Border Data Breach Litigation Settlements” webinar, legal and class action professionals highlighted the challenges of multinational data class actions, and offered advice on how best to approach, and prepare for, such cases.
Here are three considerations counsel needs to be mindful of when engaging in multinational data breach class actions:
1. Settlement strategies don't travel well.
For defense counsel in data breach class actions, the goal oftentimes is to get to a settlement for their client. And in the United States, there are some tried-and-true strategies to achieve this. “We've been partially winning on dispositive motions,” said Casie Collignon, partner at Baker & Hostetler.
If a judge allows such motions, which essentially seek to dismiss the claims of a certain “group of the plaintiffs,” she said, “this can be a trigger for settlement.”
But if that does not work, “another pressure point can be discovery,” Collignon added. Through discovery, defense can “really go after injury allegations” to see how a data security incident, such as a breach of health care data, specifically led to some injury, such an identity theft or financial loss.
Making those connections, she said, can be burdensome and complex, and motivate the opposing side to settle.
But while such strategies may prove successful in the United States, defense counsel shouldn't expect their strategies to work in other international jurisdictions where a data breach affected additional consumers.
In Canada, for example, “dispositive motions are relatively rare. If they happen at all, they are certainly not routine,” said W. Michael Osborne, partner at Toronto-based Affleck Greene McMurtry.
For the most part, such motions are not needed in the country, where damage amounts in class action suits are far more conservative than in the United States. “Class actions in Canada almost uniformly settle,” he said. “The settlement rate here is close to 100 percent.”
2. Coordinated cases are still separate actions.
Since data breaches in multinational corporations can affect consumers around the world, class action lawsuits happening in different countries sometimes need to be coordinated. But this doesn't mean the suits are necessarily connected. In fact, oftentimes, they are completely separate.
Collignon, for example, noted that there were data breach class action suits against Home Depot in both the United States and Canada. The suits, which were triggered by a 2014 cyber incident at the company, eventually settled out of court.
But while both the U.S. and Canadian class actions “required coordination of the settlement because the Canadian settlement trailed the U.S. settlement,” they had different settlement terms, and defense counsel in both countries had to send out separate notices to potential victims, she said.
What's more, “neither settlement referenced the other even though there was behind-the-scenes coordination,” Collignon added.
Osborne explained that there was a simple reason for that: “They didn't need to coordinate. It's a separate settlement. There is no need to link it to approvals in the U.S., but that's not to say it couldn't ever happen that way.”
He added that while “there is coordination at the court level in some areas,” between the United States and Canada, it does not generally extend to class actions.
3. Notice requirements aren't always standardized.
In the United States, the Federal Rules of Civil Procedure (FRCP) Rule 23 mandates when and how to issue notices to potential plaintiffs in a federal class action. Specifically, the rule describes the types of information that need be included in notices, such as the nature of the action, and the claims and issues at play, and requires that potential plaintiffs should be notified through a “reasonable effort.”
Patrick Ivie, senior executive vice president of class action services at Kurtzman Carson Consultants, explained that the standard of “reasonable effort” was clarified in U.S. case law to include “adequate reach, adequate notice—which concerns the design and content of the notice—and adequate time and ease of response.”
But while such requirements for class action notices are well established in the United States, they may be more ad hoc and circumstantial in other countries.
David Weir, senior vice president of Business Development at RicePoint Administration, explained that in Canada, courts set down notice requirements on a case-by-case basis. Among other factors “notice plans are approved based on the facts, the cost of giving the notice, the size of the claim, and the size of the individual claims,” he said.
Plaintiffs counsel, therefore, need to be familiar with the differences in notice requirements in different jurisdictions, which extend not just to what legal requirements such notices have, but oftentimes what languages they need to be written in as well.
Because Canada is bilingual country, Weir said, the notices and legal services in his country need to be able to serve the French-speaking local population at any given time.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250