McCall et al v. Equifax Information Services, LLC

Filing 12

CERTIFIED COPY of ECF No. 11 MDL TRANSFER ORDER In Re: Equifax, Inc., Customer Data Security Breach Litigation. MDL No. 2800; 1:17-md-2800-TWT. IT IS ORDERED that the actions listed on Schedule A and pending outside the No rthern District of Georgia are transferred to the Northern District of Georgia, and, with the consent of that court, assigned to the Honorable Thomas W. Thrash for coordinated or consolidated pretrial proceedings.Signed by Marjorie O. Rendell, Acting Chair, Panel on Multidistrict Litigation (Copies have been distributed pursuant to the NEF - DRM)

Case MDL No. 2800 Document 550 Filed 12/06/17 Page 1 of 9

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: EQUIFAX, INC., CUSTOMER DATA
SECURITY BREACH LITIGATION

MDL No. 2800

TRANSFER ORDER
Before the Panel: Three motions have been filed by plaintiffs who move under 28 U.s.c.
§ 1407 to centralize this litigation in, respectively, the Northern District of Georgia and the Eastern
District of Pennsylvania (or, alternatively, the District of Minnesota). Plaintiffs’ motions include
97 actions pending in various districts, as listed on schedule A.’ The Panel also has been notified
of more than 200 potentially-related actions filed in over 60 federal districts.2
Though a handfi.il of plaintiffs oppose inclusion of their claims in centralized proceedings,
the vast majority of responding parties do not oppose centralization. Plaintiffs in over 85 actions
support centralization in the Northern District of Georgia, as do defendants Equifax, Inc., Equifax
Information Services LLC, and Equifax Consumer Services, LLC (together, Equifax). Other
suggested districts include the Northern District of Alabama, the Northern District of california, the
Central District of California, the Southern District of-California, the southern District of Florida,
the Northern District of Illinois, the Eastern District of Kentucky, the District of Minnesota, the
Eastern District of Missouri, the District of New Jersey, the Western District of Oklahoma, the
Eastern District of Texas, and the Eastern District of Virginia.
Plaintiffs in one District of New Mexico action support centralization, but seek to sever and
remand part of their invasion of privacy claim. Plaintiffs in one District of New Jersey action and
Judge Sarah S. Vance, Judge Lewis A. Kaplan, and Judge Ellen Segal Huvelle took no part
in the disposition of this matter. Additionally, the remaining participating Panel members appear
to have interests that would usually disqualify them under 28 U.S.C. § 455 from participating inthe
decision of this matter. Accordingly, the Panel invoked the Rule of Necessity, and the remaining
Panel members participated in the decision of this matter in order to provide the forum created by
the governing statute, 28 U.S.C. § 1407. See In re: Adeiphia Comrnc’ns Corp. Sec. & Derivative
Litig. (No. ID, 273 F. Supp. 2d 1353 (J.P.M.L.2003); In re: Wireless TeL Radio Frequency Em issions
Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1357—58 (J.P.M.L.2001).
*

Since the filing of the motions, two actions pending in the Northern District of Georgia and
the District of Nevada were dismissed.
2

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),

7.1, and 7.2.

Case MDL No. 2800 Document 550 Filed 12/06/17

Page 2 of 9

-2two potential tag-along actions oppose inclusion of their actions in centralized proceedings.
Plaintiffs in one potential tag-along action oppose centralization.
On the basis of the papers filed and the hearing session held, we find that centralization under
Section 1407 in the Northern District of Georgia will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of this litigation. These actions—all of which
are putative nationwide and/or statewide consumer class actions3—share factual issues concerning
the recent cybersecurity incident involving Equifax in which the personally identifiable information
of more than 145 million consumers was compromised. Centralization will eliminate duplicative
discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve
the resources of the parties, their counsel, and the judiciary.
Plaintiffs in one District of Maryland potential tag-along action oppose centralization—the
only parties to do so. They argue that there is a deep circuit split on the issue of Article III standing,
making centralization before rulings on motions to dismiss inefficient. Similar arguments were
advanced by plaintiffs arguing in favor of centralization in particular districts with precedent
favorable to plaintiffs on the issue of Article Ill standing. We are not persuaded by these arguments.
Transferee courts consider a wide variety of legal issues that are subject to differing precedent in
their transferor courts. Moreover, the Panel does not consider the possible implications with respect
to standing or other potential rulings when it selects atransferee district. See In re: Payment Card
Interchange Fee & Merchant Discount Antitrust Litig., MDL No. 1720, 2017 WL 4582708 at * 1
(J.P.M.L. Aug. 2,2017) (“Section 1407 does not empowerthe MDL Panel to decide questions going
to the jurisdiction or the merits of a case, including issues relating to a motion to remand.”) (citing
In relvy, 901 F.2d 7,9 (2d Cir. 1990)).
Plaintiffs in a few actions request exclusion of their actions from centralized proceedings,
variously arguing, inter alia, that they assert unique claims and informal coordination is feasible.4
Plaintiffs in one action also argue that their motion for a temporary restraining order is pending.
Further, plaintiffs in one action ask the Panel to sever and remand part of their privacy invasion
claim, which they argue is straightforward. These arguments are not convincing. Section 1407
“does not require a complete identity ofcommon factual issues or parties as a prerequisite to transfer,
and the presence of. differing legal theories is not significant where, as here, the actions still arise
from a common factual core.” See In re: Auto Body Shop Antitrust Litig., 37 F. Supp. 3d 1388, 1390
(J.P.M.L. 2014). Here, the substantial factual overlap among all actions, including those in which
. .

Although the Section 1407 motions before the Panel do not include any actions asserted
by financial institutions, such claims are asserted in a number of the potential tag-along actions. Any
objections to their inclusion in centralized proceedings would come before the Panel should any
involved party oppose their conditional transfer. See Panel Rules 7.4 and 7.5.
~ Arguments advanced by potential tag-along plaintiffs opposing inclusion of their actions
in centralized proceedings will be considered in due course through the conditional transfer order
process, as these actions are not now before the Panel.

Case MDL No. 2800 Document 550 Piled 12/06/17 Page 3 of 9

-3plaintiffs seek exclusion, is undeniable, and any slight variations in the claims, alleged is immaterial
to the benefits to be had from centralized proceedings. Given the scope of this nationwide litigation,
informal coordination with some cases would be unworkable here. Furthermore, the Panel cannot
sever and remand only part of a claim. See 28 U.S.C. § 1407(a) (“[T]he panel may separate any
claim, cross-claim, counter-claim, or third-party claim
“). Finally, plaintiffs’ motion for a
temporary restraining order has been denied.
Some financial institution plaintiffs in a potentially-related action request that actions filed
by financial institutions not be consolidated, but rather centralized with the other related actions, and
that a separate track be created for these actions, but the Panel has left to the transferee court “the
extent and manner of coordination or consolidation” of actions in an MDL. See In re: Cook Med.,
Inc., Pelvic Repair Sys. Prods. Liab. Litig., 949 F. Supp. 2d 1373, 1375 (J.P.M.L. 2013).
We select the Northern District of Georgia as the transferee district for this litigation.
Equifax is headquartered in that district, and relevant documents and witnesses thus likely will be
found there. Selection of the district is supported by defendants and the vast majority of responding
plaintiffs. Far more actions are pending in this district than in any other court in the nation. We are
assigning the litigation to an experienced transferee judge who we are confident will steer this
litigation on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the Northern District of Georgia are transferred to the Northern District of Georgia, and, with the
consent of that court, assigned to the Honorable Thomas W. Thrash for coordinated or consolidated
pretrial proceedings.
PANEL ON MULTIDISTRICT LITIGATION

~ Qb~t4\
Lj1arjorie 0. Rendell
Acting Chair
CarIes R. Breyer
Catherine D. Perry

R. David Proctor

ATTEST: A TRUE COPY
CERflHED THIS
DEC Oh
°5~CLtQcü