MDL No. 2357 - IN RE: Zappos.com, Inc., Customer Data Security Breach Litigation

Filing 68

ORDER granting 15 Motion to Seal; granting 45 Motion for Leave to File Applications for Appointment of Interim Lead Counsel. (Applications due by 1/4/2013.) Previous order in 2:12-cv-182 (#10) VACATED with respect to appointment of lead counsel. Signed by Chief Judge Robert C. Jones on 12/19/12. (Copies have been distributed pursuant to the NEF - JC) Modified on 12/21/2012 to clarify(JC).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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IN RE ZAPPOS.COM, INC., CUSTOMER
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DATA SECURITY BREACH LITIGATION, )
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This Document Relates to:
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ALL ACTIONS
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___________________________________ )

3:12-cv-00325-RCJ-VPC
MDL No. 2357
ORDER

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Currently before the Court are Defendant Zappos.com Inc.’s (“Zappos”) Motion to Seal

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Exhibit A (#15) and Plaintiffs Stevens, Penson, Elliot, Brown, and Seal’s (collectively, the

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“Stevens Plaintiffs”) Motion for Leave to File Rule 23(G) Applications for Appointment of Interim

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Class Counsel (#45).
Motion to Seal Exhibit A (#15)

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Zappos requests that Exhibit A to the Joinder of Additional Plaintiffs to Motion to Compel

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Arbitration and Stay Action filed by Zappos be filed under seal. Exhibit A contains customer

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information such as customer purchase history, which contains personal information of Zappos’

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customers. Plaintiffs do not oppose the Motion (#15).

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The Ninth Circuit has recognized that there are exceptions to the presumption of access

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to judicial records when there is a need for confidentiality. Kamakana v. City and Cty. of

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Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006). The exhibit to be sealed contains little

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information of interest to the public, and sealing it would protect private information of

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customers and Zappos. The Motion (#15) shall, therefore, be granted.
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Motion For Leave to File Applications for Appointment of Interim Class Counsel

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(#45)

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On June 14, 2012, the United States Judicial Panel on Multidistrict Litigation transferred

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nine actions pending in five districts to the District of Nevada for consolidated pretrial

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proceedings. The transfer included the following cases: Stevens v. Amazon.com, Inc. d/b/a

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Zappos.com, No. 3:12-cv-00032-CRS-JDM (W.D. Ky.) (filed Jan. 16, 2012); Penson v.

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Amazon.com, Inc. d/b/a Zappos.com, No. 3:12-cv-00036 (W.D. Ky.) (filed Jan. 19, 2012); Elliott

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et al. v. Amazon.com, Inc. d/b/a Zappos.com, No. 3:12-cv-00037-ECR (W.D. Ky.) (filed Jan.

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20, 2012). The Stevens Plaintiffs are plaintiffs to actions that were transferred on June 14,

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2012.

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On February 29, 2012, prior to the transfer of the MDL cases, a stipulation and

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proposed order was submitted to the Court by counsel in three later-filed cases in this district.

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(Priera v. Amazon.com, No. 2:12-cv-00182-RCJ-VCF (#6).) Those cases are Priera, filed

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February 2, 2012; Ree v. Amazon.com d/b/a Zappos.com, Inc., No. 3:12-cv-00072-RCJ-WGC,

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filed February 7, 2012; and Simon, et. al. v. Amazon.com d/b/a Zappos.com, Inc., No. 2:12-cv-

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00232-RCJ-VCF, filed February 14, 2012. On March 6, 2012, the Court entered (Priera, 2:12-

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cv-00182 (#10)) the unopposed stipulation appointing Ms. Priera, Mr. Ree, Ms. Simon, Ms.

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Vorhoff and Ms. Hasner interim Lead Plaintiffs and Levin Papantonio Thomas Mitchell Rafferty

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& Proctor, P.A.; Meiselman Denlea Packman Carton & Eberz, P.C. and Glancy Binkow &

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Goldberg LLP interim Co-Lead Counsel, and Winner & Carson PC. interim liaison counsel.

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While the Order (#10) included: “[t]his Court requests the assistance of counsel in calling to

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the attention of the clerk of this Court the filing or transfer of any case which properly might be

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consolidated as part of the In re Zappos Security Breach Litigation,” the Stevens Plaintiffs’

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cases, which were filed prior to Priera, were not brought to the Court’s attention at that time.

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Counsel for the Stevens Plaintiffs, whose cases were consolidated after the Court

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entered the stipulation appointing Lead Plaintiffs and interim Co-Lead Counsel, request an

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opportunity to present their qualifications and experience to the Court in conjunction with an

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application for appointment of interim class counsel under Rule 23(g). Zappos takes no
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position in the matter, and the Priera plaintiffs oppose.

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Federal Rule of Civil Procedure 23(g)(3) provides that the court “may designate interim

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counsel to act on behalf of a putative class before determining whether to certify the action as

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a class action.” FED. R. CIV. P. 23(g)(3). In appointing class counsel, the court considers: (i0

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the work counsel has done in identifying or investigating potential claims; (ii) counsel’s

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experience in handling complex litigation and the types of claims asserted in the action; (iii)

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counsel’s knowledge of the applicable law; (iv) the resources that counsel will commit to

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representing the class; and any other matters pertinent to fair and adequate representation.

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FED. R. CIV. P. 23(g).

When more than one applicant seeks appointment, the court “must

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appoint the applicant best able to represent the interests of the class.” FED. R. CIV. P. 23(g)(2).

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Prior to consolidation of the MDL cases, this Court designated interim class counsel

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pursuant to the unopposed stipulation submitted in the Nevada cases. Ordinarily, “a court is

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generally precluded from reconsidering an issue previously decided by the same court, or a

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higher court in the identical case.” In re Oreck Corp. Halo Vacuum and Air Purifiers Mktg. and

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Sales Practices Litig., 282 F.R.D. 486, 491 (C.D. Cal 2012) (quoting Milgard Tempering, Inc.

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v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990)). However, a court has discretion to

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depart from the law of the case when changed circumstances exist. Id. (citing United States

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v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). When interim lead class counsel are

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appointed prior to other cases being consolidated and transferred to the Court, “circumstances

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have changed substantially.” Id.

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For that reason, the Court shall vacate the previous Order appointing interim lead

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counsel. The parties shall have fourteen (14) days within which to submit applications for

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appointment of interim class counsel.

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CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Motion to Seal (#15) is GRANTED.

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IT IS FURTHER ORDERED that the Motion for Leave to File Applications for

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Appointment of Interim Lead Counsel (#45) is GRANTED. The previous Order filed in 2:12-cv-

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182 (#10) is VACATED with respect to the appointment of lead counsel. The parties shall
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submit applications for appointment of interim class counsel within fourteen (14) days of this

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Order.

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Dated: This _____ day November, 2012.
DATED:This 19th day of December, 2012.

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_________________________________
United States District Judge

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