In Re Meta Pixel Healthcare Litigation

• Court: District Court, N.D. California
• Decided: December 21, 2022
• Docket: 3:22-cv-03580
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE META PIXEL HEALTHCARE Case No. 22-cv-03580-WHO LITIGATION 8 ORDER APPOINTING INTERIM 9 CLASS COUNSEL 10 Re: Dkt. Nos. 80, 86, 120 11

12 INTRODUCTION 13 There are currently seven cases consolidated before me involving a tracking tool known as 14 the Meta Pixel, through which defendant Meta Platforms, Inc. allegedly receives the health 15 information of millions of Facebook users in the United States. Since I consolidated the cases in 16 October, counsel from nine different firms have sought appointment as interim class counsel in 17 three different motions. All of the applicants are capable and experienced. 18 For the reasons described below, after considering the motions and the factors set forth in 19 Rule 23(g)(1), I find that the interests of the class would be best served by a leadership team 20 consisting of Jay Barnes of Simmons Hanly Conroy LLC and Geoffrey Graber of Cohen Milstein 21 Sellers & Toll PLLC, as Interim Co-Lead Class Counsel, with Beth Terrell of Terrell Marshall 22 Law Group PLLC, Jeffrey A. Koncius of Kiesel Law LLP, and Andre Mura of Gibbs Law Group 23 on the Executive Committee. This Order explains why and what I expect moving forward. 24 BACKGROUND 25 In June of 2022, plaintiff John Doe (represented by Simmons Hanly and Kiesel Law, 26 among others) brought the first case against Meta arising from the Pixel’s alleged interception and 27 transmission of protected health information. See Complaint [Dkt. 1]. Beginning in late July and 1 healthcare providers that allegedly used the Meta Pixel tool. See, e.g., Jane Doe v. Meta 2 Platforms, Inc., et al., No. 22-cv-04293-WHO (N.D. Cal.); Krackenberger v. Northwestern 3 Memorial Hospital, et al., No. 22-cv-04203 (N.D. Ill.); Doe v. Meta Platforms, Inc., No. 22-cv- 4 04680-WHO (N.D. Cal.); Jane Doe v. Meta Platforms, Inc., No. 22-cv-04963-WHO (N.D. Cal.). 5 In total, there are seven cases pending in the Northern District of California alleging Pixel-related 6 claims against Meta that have been assigned to me. 7 While cases continued to be filed over the summer, plaintiffs in the first-filed case pressed 8 forward. In late July, plaintiffs served discovery requests on Meta, and in August, plaintiffs 9 moved for a preliminary injunction. See Simmons Hanly / Cohen Milstein Motion for 10 Appointment of Interim Lead Counsel (“Simmons Cohen Mot.”) [Dkt. 80] at 5. 11 At the end of August, plaintiffs from one of the later-filed cases moved to consolidate all 12 of the related actions against Meta. Doe v. Meta Platforms, Inc., No. 22-cv-04680-WHO (N.D. 13 Cal.); Dkt. 21. In October, I granted the motion to consolidate and set a briefing schedule for the 14 appointment of interim class counsel. John Doe v. Meta Platforms, Inc., No. 22-cv-3580-WHO; 15 Dkt. 73 at 3. 16 Three sets of law firms have proposed leadership teams for me to consider. The first group 17 asks me to appoint Jay Barnes of Simmons Hanley Conroy and Geoffrey Graber of Cohen 18 Milstein Sellers & Toll as interim co-lead counsel, and to create an executive committee 19 comprised of Beth Terrell of Terrell Marshall Law Group, Jeffrey Koncius of Kiesel Law Group, 20 and Andre Mura of Gibbs Law Group.1 See Simmons Cohen Mot. at 5. Non-moving counsel 21 from two of the consolidated cases filed statements of support for the Simmons Cohen team. See 22 Dkt. Nos. 106, 108. 23 The second group proposes that I appoint two attorneys each from three different law firms 24 as interim co-lead counsel. See Motion to Appoint Lowey Dannenberg, Lynch Carpenter, and 25 Lockridge Grindal Nauen as Interim Class Counsel (“Lowey Lynch Lockridge Mot.”) [Dkt. 86] at 26 1. They nominate Margaret MacLean and Amanda Fiorilla of Lowey Dannenberg, Eddie Jae Kim 27 1 and Hannah Barnett of Lynch Carpenter, and Karen Riebel and Kate Baxter-Kauf of Lockridge 2 Grindal Nauen.2 Id. 3 Finally, Rebecca Gilliland of Beasley Allen seeks appointment as either a co-lead counsel 4 or to the executive committee. See Motion to Appoint Beasley Allen as Interim Class Counsel 5 (“Beasley Allen Mot.”) [Dkt. 120] at 2. 6 LEGAL STANDARD 7 Federal Rule of Civil Procedure 23(g)(3) authorizes courts to “designate interim counsel to 8 act on behalf of a putative class before determining whether to certify the action as a class action.” 9 Fed. R. Civ. P. 23(g)(3). Although Rule 23(g)(3) does not provide a standard for appointment of 10 interim counsel, “courts in this district typically consider the factors set forth in 23(g)(1).” 11 Gallagher v. Bayer AG, No. 14-cv-04601-WHO, 2015 WL 4932292, at *7 (N.D. Cal. Aug. 18, 12 2015) (citing Paraggua v. LinkedIn Corp., No. 12-cv-03088-EJD, 2012 WL 3763889, at *1 (N.D. 13 Cal. Aug. 29, 2012)). Under that section, I must consider: “(i) the work counsel has done in 14 identifying or investigating potential claims in the action; (ii) counsel’s experience in handling 15 class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s 16 knowledge of the applicable law; and (iv) the resources that counsel will commit to representing 17 the class.” Fed. R. Civ. Proc. 23(g)(1)(A). I may also consider “any other matter pertinent to 18 counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. Proc. 19 23(g)(1)(B). 20 DISCUSSION 21 To determine who to appoint as interim class counsel, I begin by analyzing the four 22 mandatory Rule 23(g)(1)(A) factors. Next, I consider other relevant factors under Rule 23 23(g)(1)(B): namely, the statements of support submitted by other counsel in the consolidated 24 cases, the proposed leadership structure, and diversity. 25 I. RULE 23(g)(1)(A) FACTORS 26 Although all the moving firms are qualified to lead the consolidated matters, the Rule 27 1 23(g)(1)(A) factors favor the Simmons Cohen group. 2 First, the Simmons Cohen group has done the most work to identify and investigate the 3 potential claims. See Fed. R. Civ. P. 23(g)(1)(A)(i). In addition to filing the first complaint and 4 moving for a preliminary injunction, the Simmons Cohen group has discussed the preservation 5 and production of relevant information with Meta, propounded written discovery, proposed an 6 expert stipulation, conducted conferences pursuant to Fed. R. Civ. P. Rule 26(f), served initial 7 disclosures, and took the lead at the initial conference. See Declaration of Jeffrey Koncius 8 (“Koncius Decl.”) [Dkt. 84] ¶ 9; Declaration of Geoffrey Graber (“Graber Decl.”) [Dkt. 82] ¶ 14. 9 And as part of the preliminary injunction briefing, counsel worked with a computer expert for 10 weeks to prepare the motion and supporting expert report. Koncius Decl. ¶ 2. Counsel also 11 successfully opposed Meta’s efforts to delay the preliminary injunction hearing. See Simmons 12 Cohen Opposition (“Simmons Cohen Opp.”) [Dkt. 113] at 5. 13 Second, the Simmons Cohen group has the advantage when it comes to experience and 14 knowledge that is highly relevant to this action. See Fed. R. Civ. P. 23(g)(1)(A)(ii) and (iii). 15 Members of the Simmons Cohen team were the first to sue healthcare providers over their use of 16 the Pixel; since June 2019, the Simmons Cohen group has filed at least eight such cases in state 17 and federal courts across the country. See Declaration of Jay Barnes (“Barnes Decl.”) [Dkt. 81] 18 ¶ 5. Members of the Simmons Cohen team serve as lead counsel for the already-certified patient 19 class in one of the medical provider cases in Washington. Id. ¶ 6. Additionally, attorneys from 20 the Simmons Cohen group held leadership roles in In re Facebook Internet Tracking Litig., 12- 21 md-02314-EJD (N.D. Cal.), which recently settled after more than a decade of litigation. Barnes 22 Decl. ¶ 7; Koncius Decl. ¶ 2. While Facebook and the cases brought against medical providers 23 implicate different facts and issues, they are highly pertinent to the present matter. See, e.g., In re 24 Facebook Internet Tracking Litig., 956 F.3d 589, 596, 601 (9th Cir. 2020) (finding that plaintiffs 25 stated claims for invasion of privacy, intrusion upon seclusion, breach of contract, and claims 26 under the Wiretap Act and CIPA where Facebook allegedly tracked users’ browsing histories via 27 plug-ins). The putative class will benefit from the knowledge and experience that Simmons 1 Finally, the Simmons Cohen group has committed considerable resources towards the 2 litigation. See Fed. R. Civ. P. 23(g)(1)(A)(iv). Each firm has designated a primary team of 3 attorneys who will work on the case. Simmons Cohen Mot. at 17; see also Simmons Cohen Reply 4 [Dkt. 145] at 5–7 (describing the team of associates). The five firms routinely advance the costs 5 of litigation and all expressed their willingness to dedicate substantial resources to the instant case. 6 See Graber Decl. ¶ 13; Koncius Decl. ¶ 13; Declaration of Beth Terrell (“Terrell Decl.”) [Dkt. 83] 7 ¶ 8; Declaration of Andre Mura (“Mura Decl.”) [Dkt. 85] ¶ 2; Barnes Decl. ¶ 9. 8 The other firms seeking appointment have put forward experienced class action and data 9 privacy attorneys who have much to offer this case. For instance, the Lowey Lynch Lockridge 10 group has litigated data privacy cases in this District and in the Third Circuit that may yield useful 11 insight into the instant case. See Lowey Lynch Lockridge Mot. at 4–5; Lowey Lynch Lockridge 12 Reply [Dkt. 112] at 3–4. And counsel from Beasley Allen can draw on years of experience 13 litigating against high-profile defendants. Beasley Allen Mot. [Dkt. 120] at 5. My consideration 14 of the Rule 23(g)(1)(A) factors leads me to conclude, though, that the interests of the putative class 15 would best be served by appointing the Simmons Cohen group to be interim class counsel. 16 II. RULE 23(g)(1)(B) FACTORS 17 I turn now to the “other matter[s] pertinent to counsel’s ability to fairly and adequately 18 represent the interests of the class” under Rule 23(g)(1)(B). Here, I consider the statements of 19 support issued by non-moving counsel, the relative merits of the different leadership structures, 20 and the diversity of the proposed interim counsel. 21 To start, two of the non-moving firms filed statements of support for the Simmons Cohen 22 leadership team. See Dkts. 106; 108. The Morgan & Morgan and the Casey Gerry Schenk 23 Francavilla Blatt & Penfield firms describe the Simmons Cohen team as knowledgeable and 24 experienced, and praise the group for its frank and direct communications. Id. These statements 25 merit weight. 26 The leadership structures put forward by Simmons Cohen and Lowey Lynch Lockridge are 27 different. As noted above, the Simmons Cohen group proposes appointing two co-lead interim 1 Lockridge group asks me to appoint six co-lead attorneys from three different firms. See 2 Simmons Cohen Mot. at 1; Lowey Lynch Lockridge Mot. at 1. Simmons Cohen asserts that their 3 structure is superior because it “is designed to provide clear leadership and effective 4 decisionmaking by the co-leads while ensuring that attorneys with the necessary skills and 5 resources are available to successfully prosecute this case.” Simmons Cohen Reply at 4. The 6 Simmons Cohen group further maintains that they “know from experience that this matter is not 7 one to be lightly resourced and leanly staffed by only four partners and two associates.” Id. at 7. 8 The Lowey Lynch Lockridge group, on the other hand, contends that their proposed leadership 9 structure is superior because it promotes efficiency and will expedite the litigation. Lowey Lynch 10 Lockridge Mot. at 19–20. Lowey Lynch Lockridge warns that a “bloated, oversized executive 11 committee” may create “duplication of work product, unnecessary billing, and outrageous 12 lodestar.” Id. at 1. 13 As I explained during the hearing, this case is not analogous to multi-district litigation: 14 while Meta is admittedly a high-profile defendant with ample resources, these cases raise similar 15 claims and remain single-defendant matters. I am not going to mix and match firms or structures: 16 I am going to choose one team. I am somewhat skeptical that the leadership team necessarily 17 requires five firms, as Simmons Cohen proposes. But I recognize that this case will likely involve 18 many discrete topics that may be parceled out among firms, and that litigating against Meta in a 19 case this significant will certainly demand a deep bench and substantial resources, which the 20 Simmons Cohen group has. Assuming that interim class counsel meet their responsibilities to 21 delegate appropriately and carefully monitor and approve time records to avoid duplication of 22 work product or unnecessary billing, the Simmons Cohen group’s proposed structure will offer 23 potential benefits with few disadvantages. 24 Diversity is also a factor that I weigh carefully, as do my colleagues in this District and 25 across the nation. See, e.g., In re JUUL Labs, Inc. Marketing, Sales Practices and Products 26 Liability Litig., No. 19-md-02913 (N.D. Cal.), Dkt. 821 at 16:3-5 (“I’d like to see what your 27 suggestions are as far as leadership, who are the people who are going to be responsible in a way 1 02951-HSG, 2020 WL 8669823, at *1 (appointing as co-lead interim counsel applicants who 2 “demonstrated careful attention to creating a diverse team”); In re Robinhood Outage Litig., No. 3 20-cv-01626-JD, 2020 WL 7330596, at *2 (noting the need for diversity and how “the attorneys 4 running this litigation should reflect the diversity of the proposed national class”); Sayce v. 5 Forescout Technologies, Inc., No. 20-cv-00076-SI, 2020 WL 6802469, at *9 (N.D. Cal. Nov. 19, 6 2020) (noting “the apparent lack of diversity, including by female lawyers” among co-lead counsel 7 and “strongly urg[ing] all parties to this case to make meaningful litigation opportunities available 8 to junior and underrepresented lawyers throughout the pendency of this action”) (emphasis 9 omitted). It matters to me that lawyers from groups that have been historically underrepresented 10 in the legal profession have meaningful opportunities to participate in this type of litigation. 11 Without doubt, the Lowey Lynch Lockridge team is more diverse in terms of gender, race, 12 experience, and age. There is a meaningful difference between having an underrepresented 13 attorney serve in a behind-the-scenes role and seeking to have such an attorney appointed as co- 14 lead counsel. I commend the Lowey Lynch Lockridge group for assembling such a diverse group 15 of counsel. The Simmons Cohen leadership group is somewhat diverse and has identified an array 16 of diverse attorneys to whom it has commited to delegate significant work. Had my analysis of 17 the Rule 23(g)(1)(A) factors come out differently, Lowey Lynch Lockridge’s focus on diversity 18 may well have put that group over the top. But the factors are not equal, and I will not emphasize 19 diversity to the exclusion of my analysis of the other Rule 23(g)(1) factors. 20 My analysis of the “other matter[s]” under Rule 23(g)(1)(B) tilts in favor of appointing the 21 Simmons Cohen group, as do the Rule 23(g)(1)(B) factors. Accordingly, I appoint Jay Barnes of 22 Simmons Hanly Conroy LLC and Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC as 23 Interim Co-Lead Class Counsel, and Beth Terrell of Terrell Marshall Law Group PLLC, Jeffrey A. 24 Koncius of Kiesel Law LLP, and Andre Mura of Gibbs Law Group as members of the Executive 25 Committee. 26 OBLIGATIONS 27 It should go without saying that I expect the highest level of professionalism, courtesy and 1 briefing of a perhaps misunderstood comment from a lawyer that falls below that standard, I 2 reiterate my expectations for all counsel involved in this case. And interim means interim: I will 3 not hesitate to replace lawyers in the leadership group who do not comply with the standards I 4 expect. 5 In general, Interim Co-Lead Counsel are responsible for coordinating the activities of 6 plaintiffs during the pretrial proceedings. They shall, among other duties as are necessary for 7 effective and efficient coordination of plaintiffs’ pretrial activities: 8 • Coordinate the scheduling and conduct of discovery on behalf of plaintiffs consistent with 9 the requirements of Fed. R. Civ. P. 26(b)(1), 26(2), and 26(g), as well as the preparation of 10 protocols for discovery and the development of platforms to allow for equitable and 11 efficient use of discovery; 12 • Suggest, in consultation with Meta, the ordering, priority and response to pending and 13 anticipated motions; 14 • Conduct settlement negotiations on behalf of plaintiffs but not enter binding agreements 15 except to the extent expressly authorized; 16 • Delegate specific tasks to other counsel in a manner that ensures that pretrial preparation 17 for the plaintiffs is conducted efficiently and effectively; 18 • Enter into stipulations with opposing counsel as necessary for the conduct of the litigation; 19 • Prepare and distribute periodic status reports to me and the parties; 20 • Monitor time and expenses of all plaintiffs’ counsel to ensure that the litigation moves 21 forward expeditiously while avoiding unnecessary expenditures of time and funds. In this 22 regard, Interim Co-Lead Counsel shall familiarize themselves with the timekeeping and 23 expenses protocol I am utilizing in In Re Juul Labs, Inc., Marketing, Sales Practices and 24 Products Liability Litigation, 19-md-2913-WHO (N.D. Cal.), Dkts. 352, 381, 1202 and 25 2307. I will apply the expense reimbursement requirements adopted there if plaintiffs are 26 entitled to costs in this case. I have found the timekeeping protocols helpful and suggest 27 that they, or something consistent with them, be followed in this case for submission to 1 e File ex parte a diversity report on a quarterly basis as described in the last paragraph of the 2 Third Amendment To Case Management Order No. 5 in In Re Juul Labs, Inc., Marketing, 3 Sales Practices and Products Liability Litigation, 19-md-2913-WHO (N.D. Cal.), Dkt. 4 2307. 5 The appointment to Interim Co-Lead Counsel and Executive Committee is a personal 6 appointment. The appointees cannot be substituted by other attorneys, including members of the 7 appointee’s law firm, except with my prior approval. 8 CONCLUSION 9 For the foregoing reasons, GRANT Simmons Cohen’s motion for appointment as interim 10 || class counsel and APPOINT interim class counsel as indicated above. A Case Management 11 Conference is set for January 17, 2023, at 2 p.m. The Joint Case Management Statement, due 12 || January 10, 2023, should address any matters that may help this litigation to proceed expeditiously 5 13 and efficiently. If Interim Co-Lead Class Counsel wish to suggest any deviations from the 14 || timekeeping and expense protocols discussed above, they should do so as an Addendum to the 3 15 Joint Statement. a 16 IT IS SO ORDERED. 3 17 || Dated: December 21, 2022

19 . William H. Orrick 20 United States District Judge 21 22 23 24 25 26 27 28