Duqum v. Scottrade, Inc.

Filing 75

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that 32 Motion for Entry of Pretrial Order No. 1 Re: Appointment of Interim Class Counsel filed by Plaintiffs Andrew Duqum, Stephen Hine, and Matthew Kuhns is GRANTED IN PART and DENIED IN PART. To the extent that the motion seeks the appointment of Interim Class Counsel, it is GRANTED. To the extent that the motion seeks the appointment of Executive Committee members, it is DENIED without prejudice. IT IS FURTHER ORDERED that Joseph J. Siprut of Siprut PC and Timothy G. Blood of Blood Hurst & OReardon, LLP, are appointed Interim Class Counsel to act on behalf of the plaintiffs in the consolidated actions. See Order for further information. Signed by Magistrate Judge Shirley Padmore Mensah on 4/28/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREW DUQUM
Plaintiff,
vs.
SCOTTRADE, INC.,
Defendant.

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Case No. 4:15-CV-1537-SPM

MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Entry of Pretrial Order No. 1 Re:
Appointment of Interim Class Counsel filed by Plaintiffs Andrew Duqum, Stephen Hine, and
Matthew Kuhns (“the Moving Plaintiffs”). (Doc. 32). Defendant Scottrade, Inc. (“Defendant”)
does not oppose the motion. (Doc. 63). For the following reasons, the motion will be granted in
part and denied in part.
I.

BACKGROUND
The Moving Plaintiffs filed three separate class action complaints against Defendant

Scottrade arising out of a cyber-security incident in which Plaintiffs’ personal information was
allegedly compromised. Upon a joint motion to consolidate filed by the Moving Plaintiffs and
Defendant, those actions were consolidated under the instant case number. (Doc. 36). A fourth
Plaintiff, Angela Martin, filed another class action complaint arising out of the same incident.
Upon a second joint motion to consolidate, the Martin case was also consolidated with the others
under the instant case number. (Doc. 38). The parties have now filed a consolidated class action
complaint. (Doc. 40).

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In conjunction with their first motion to consolidate, the Moving Plaintiffs filed the
instant motion, seeking the appointment of interim class counsel pursuant to Fed. R. Civ. P.
23(g)(3). Plaintiffs seek an order appointing Joseph J. Siprut, P.C., and Timothy G. Blood of
Blood Hurst & O’Reardon, LLP, as interim class counsel. They also seek an order appointing
Anthony G. Simon of The Simon Law Firm, P.C., Katrina Carroll of Lite DePalma Greenberg,
LLC, J. Jason Hill of Cohelan Khoury & Singer, and Geoffrey J. Spreter of Spreter Law Firm,
APC, as Executive Committee members. Defendant Scottrade initially opposed the motion but
has withdrawn its opposition. (Doc. 63).
II.

DISCUSSION
Rule 23(g)(3) of the Federal Rules of Civil Procedure provides that “[t]he court may

designate interim counsel to act on behalf of a putative class before determining whether to
certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). “While not statutorily required, the
appointment of interim class counsel may be helpful in ‘clarify[ing] responsibility for protecting
the interests of the class during precertification activities, such as making and responding to
motions, conducting any necessary discovery, moving for class certification, and negotiating
settlement.’” Roe v. Arch Coal, Inc., No. 4-15-CV-910 (CEJ), 2015 WL 6702288, at *2 (E.D.
Mo. Nov. 2, 2015) (quoting Federal Judicial Center, Manual for Complex Litigation § 211.11
(4th ed. 2004)).
The Court finds that appointment of interim counsel is appropriate here because it will
clarify responsibility for protecting the interest of the class during precertification activities and
will promote efficient case management. See id. at *2; see also Delre v. Perry, 288 F.R.D. 241,
247 (E.D.N.Y. 2012) (“In cases . . . where multiple overlapping and duplicative class actions
have been transferred to a single district for the coordination of pretrial proceedings, designation

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of interim class counsel is encouraged, and indeed is probably essential for efficient case
management.”) (internal quotation marks omitted).
However, the Moving Plaintiffs have not explained why the appointment of Executive
Committee members is necessary at this time or what the role of the Executive Committee
members would be. Therefore, to the extent that the motion seeks to appoint Executive
Committee members, the motion will be denied without prejudice.
Although the Federal Rules of Civil Procedure do not specify the standards to be used in
evaluating whether to appoint a particular attorney as class counsel, “[c]ourts generally look to
the same factors used in determining the adequacy of class counsel under Rule 23(g)(1)(A).”
Arch Coal, 2015 WL 670228, at *2. See also Se. Mo. Hosp. v. C.R. Brand, Inc., No. 1:07cv0031
TCM, 2007 WL 4191978, *1 (E.D. Mo. Nov. 21, 2007). Rule 23(g)(1)(A) requires the Court to
consider:
(i)

the work counsel has done in identifying or investigating potential claims in the
action;

(ii)

counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;

(iii)

counsel’s knowledge of the applicable law; and

(iv)

the resources that counsel will commit to representing the class.

Fed. R. Civ. P. 23(g)(1)(A). Additionally, the court “may consider any other matter pertinent to
counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P.
23(g)(1)(B).
Upon consideration of these factors, the Court finds that Joseph J. Siprut and Timothy G.
Blood will fairly and adequately represent the best interests of the proposed class. As to the first
factor, the complaints filed by these attorneys in the Hine and Duqum actions illustrate that these

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attorneys have sufficiently and diligently investigated the facts and claims alleged by the
plaintiffs. As to the second and third factors, the documentation submitted by the Moving
Plaintiffs shows that these attorneys have extensive experience in class action litigation,
including cases involving electronic data breaches. See Docs. 32-1 & 32-2. As to the fourth
factor, the proposed interim class counsel’s actions in this case thus far and their experience in
other cases suggest that they have a willingness and ability to commit resources to this litigation.
For all of the above reasons,
IT IS HEREBY ORDERED that the Motion for Entry of Pretrial Order No. 1 Re:
Appointment of Interim Class Counsel filed by Plaintiffs Andrew Duqum, Stephen Hine, and
Matthew Kuhns (Doc. 32) is GRANTED IN PART and DENIED IN PART. To the extent that
the motion seeks the appointment of Interim Class Counsel, it is GRANTED. To the extent that
the motion seeks the appointment of Executive Committee members, it is DENIED without
prejudice.
IT IS FURTHER ORDERED that Joseph J. Siprut of Siprut PC and Timothy G. Blood
of Blood Hurst & O’Reardon, LLP, are appointed Interim Class Counsel to act on behalf of the
plaintiffs in the consolidated actions.
IT IS FURTHER ORDERED that Interim Class Counsel shall have authority over the
following matters on behalf of all plaintiffs in the consolidated actions: (1) initiating, responding
to, scheduling, briefing, and arguing all motions; (2) coordinating and conducting discovery on
behalf of plaintiffs in the consolidated actions; (3) coordinating the selection and preparation of
expert witnesses for the plaintiffs in the consolidated actions; (4) conducting settlement
negotiations on behalf of the plaintiffs in the consolidated actions; (5) delegating specific tasks to
other counsel as necessary to ensure that pretrial preparation for the plaintiffs in the consolidated

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actions is conducted efficiently and effectively; (6) entering into stipulations with opposing
counsel as necessary for the conduct of the litigation; (7) communicating with defense counsel
and the Court on behalf of all plaintiffs and the proposed class; and (8) performing such other
duties as may be incidental to proper coordination of plaintiffs’ activities or authorized by further
order of the Court. Defense counsel may rely on all agreements made with Interim Class
Counsel, and such agreement shall be binding. No communication among counsel for the
plaintiffs shall be construed as a waiver of any privilege or protection to which they would
otherwise be entitled.
IT IS FINALLY ORDERED that the designation of Interim Class Counsel does not
affect any issues relating to class certification of the consolidated actions. When appropriate, the
Court will separately assess and determine whether classes should be certified, and if necessary,
will determine whether the attorneys appointed as Interim Class Counsel should be appointed as
class counsel, allowing all parties to present their arguments and objections.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of April, 2016.

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