Gerstein et al v. Equifax Information Services LLC

Filing 50

TRANSFER ORDER re: pldg. (2 in OHS/1:17-cv-00593) Transferring 1 action(s) to Judge Thomas W. Thrash, Jr. in the N.D. Georgia.Signed by Judge Marjorie O. Rendell, Acting Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/6/2017. Associated Cases: MDL No. 2800, OHS/1:17-cv-00593 (DP)

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.1 The Panel also has been notified
of more than 200 potentially-related actions filed in over 60 federal districts.2
Though a handful 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 in the
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: Adelphia Commc'ns Corp. Sec. & Derivative
Litig. (No. II), 273 F. Supp. 2d 1353 (J.P.M.L.2003); In re: Wireless Tel. Radio Frequency Emissions
Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1357–58 (J.P.M.L.2001).
1

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.

-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 III 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 a transferee 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 empower the 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 re Ivy, 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 of common 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

3

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.
4

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.

-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

Marjorie O. Rendell
Acting Chair
Carles R. Breyer
Catherine D. Perry

R. David Proctor

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

MDL No. 2800

SCHEDULE A

Northern District of Alabama
PANTAZE v. EQUIFAX INFORMATION SERVICES LLC, C.A. No. 2:17-01530
OSTOYA, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-01550
WALKER, ET AL. v. EQUIFAX, INC., C.A. No. 5:17-01527
HIGHFIELD v. EQUIFAX, INC., ET AL., C.A. No. 5:17-01567
Western District of Arkansas
GRAY, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC., C.A. No. 6:17-06095
Central District of California
RAFFIN v. EQUIFAX, INC., C.A. No. 2:17-06620
BANDOH AIDOO v. EQUIFAX, INC., C.A. No. 2:17-06658
JOOF, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-06659
TADA, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-06666
SCOTT v. EQUIFAX, INC., C.A. No. 2:17-06715
FAILLACE v. EQUIFAX, INC., C.A. No. 2:17-06721
MCSHAN, ET AL. v. EQUIFAX, INC., ET AL., C.A. No. 2:17-06764
BARKER v. EQUIFAX, INC., ET AL., C.A. No. 8:17-01560
COLLINS v. EQUIFAX, INC., C.A. No. 8:17-01561
AVISE v. EQUIFAX, INC., C.A. No. 8:17-01563
DURAN, ET AL. v. EQUIFAX, INC., ET AL., C.A. No. 8:17-01571
Eastern District of California
MILLER, ET AL. v. EQUIFAX, INC., ET AL., C.A. No. 2:17-01872
MYERS, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-01878
Northern District of California
SPICER v. EQUIFAX, INC., ET AL., C.A. No. 5:17-05228
ALEXANDER v. EQUIFAX, INC., C.A. No. 5:17-05230
BELDEN v. EQUIFAX, INC., C.A. No. 5:17-05260
MURPHY, ET AL. v. EQUIFAX, INC., C.A. No. 5:17-05262
GALPERN v. EQUIFAX, INC., ET AL., C.A. No. 5:17-05265
SALINAS, ET AL. v. EQUIFAX, INC., C.A. No. 5:17-05284

- A2 Southern District of California
GERSTEN, ET AL. v. EQUIFAX, INC., C.A. No. 3:17-01828
DREMAK v. EQUIFAX, INC., C.A. No. 3:17-01829
TANKS, ET AL. v. EQUIFAX, INC., C.A. No. 3:17-01832
VONWILLER v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 3:17-01839
SEYMORE, ET AL. v. EQUIFAX, INC., C.A. No. 3:17-01871
District of Colorado
MORRIS v. EQUIFAX, INC., C.A. No. 1:17-02178
District of District of Columbia
SANTAMAURO v. EQUIFAX, INC., C.A. No. 1:17-01852
Northern District of Georgia
MCGONNIGAL v. EQUIFAX, INC., C.A. No. 1:17-03422
CARY, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03433
KUSS v. EQUIFAX, INC., C.A. No. 1:17-03436
KEALY, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03443
RUSCITTO v. EQUIFAX, INC., C.A. No. 1:17-03444
LAPTER, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03445
MANAHER v. EQUIFAX, INC., C.A. No. 1:17-03447
SAMSON v. EQUIFAX, INC., C.A. No. 1:17-03448
WOLF v. EQUIFAX, INC., C.A. No. 1:17-03450
WASHBURN, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03451
FIORE v. EQUIFAX, INC., C.A. No. 1:17-03456
LIPCHITZ v. EQUIFAX, INC., C.A. No. 1:17-03457
MARTIN v. EQUIFAX, INC., C.A. No. 1:17-03458
MENZER v. EQUIFAX, INC., C.A. No. 1:17-03459
PAGLIARULO v. EQUIFAX, INC., C.A. No. 1:17-03460
PUGLIESE v. EQUIFAX, INC., C.A. No. 1:17-03461
PAVESI, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03476
BOUNDY, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03480
BEEKMAN, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-03492
Northern District of Illinois
NEILAN v. EQUIFAX, INC., C.A. No. 1:17-06508
LANG, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 1:17-06519

- A3 Southern District of Indiana
KING v. EQUIFAX, INC., C.A. No. 1:17-03157
District of Kansas
HOUSE v. EQUIFAX, INC., C.A. No. 2:17-02523
Eastern District of Kentucky
ANDERSON v. EQUIFAX, INC., C.A. No. 2:17-00156
TOMLIN, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC,
C.A. No. 2:17-00158
District of Maryland
GALLANT v. EQUIFAX, INC., C.A. No. 8:17-02712
District of Massachusetts
COLE v. EQUIFAX, INC., C.A. No. 1:17-11712
SKYE v. EQUIFAX, INC., C.A. No. 1:17-11742
Eastern District of Michigan
CHERNEY, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-12966
District of Minnesota
AMADICK, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC,
C.A. No. 0:17-04196
Northern District of Mississippi
BYAS, ET AL. v. EQUIFAX, INC., C.A. No. 4:17-00130
Western District of Missouri
KRAWCYK v. EQUIFAX, INC., C.A. No. 4:17-00760

- A4 District of Nevada
KNEPPER v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 2:17-02368
MCCALL, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC,
C.A. No. 2:17-02372
District of New Jersey
KENDALL v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 1:17-06922
DOWGIN v. EQUIFAX, INC., C.A. No. 1:17-06923
CHRISTEN, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-06951
FRIEDMAN, ET AL. v. EQUIFAX, INC., ET AL., C.A. No. 1:17-07022
ZAMORA v. EQUIFAX, INC., ET AL., C.A. No. 1:17-07085
District of New Mexico
KILGORE, ET AL. v. EQUIFAX INFORMATION SERVICES LLC,
C.A. No. 1:17-00942
Eastern District of New York
GROSSBERG, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-05280
LEVY v. EQUIFAX INFORMATION SERVICES, LLC, ET AL., C.A. No. 1:17-05354
ZWEIG v. EQUIFAX, INC., C.A. No. 1:17-05366
JORGE, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-05404
Southern District of New York
TIRELLI, ET AL. v. EQUIFAX INFORMATION SERVICES, LLC,
C.A. No. 7:17-06868
DAVIS, ET AL. v. EQUIFAX, INC., C.A. No. 7:17-06883
BITTON v. EQUIFAX INFORMATION SERVICES, LLC, ET AL.,
C.A. No. 7:17-06946
Northern District of Ohio
TORREY v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 1:17-01922
Southern District of Ohio
GERSTEIN, ET AL. v. EQUIFAX INFORMATION SERVICES LLC,
C.A. No. 1:17-00593

- A5 Northern District of Oklahoma
BAHNMAIER v. EQUIFAX, INC., C.A. No. 4:17-00512

Western District of Oklahoma
GIBSON, ET AL. v. EQUIFAX, INC., C.A. No. 5:17-00973
District of Oregon
MCHILL, ET AL. v. EQUIFAX, INC., C.A. No. 3:17-01405
Eastern District of Pennsylvania
AUSTIN v. EQUIFAX, INC., ET AL., C.A. No. 2:17-04045
CAPLAN v. EQUIFAX INFORMATION SERVICES, LLC, C.A. No. 2:17-04055
MANN v. EQUIFAX INFORMATION SERVICES LLC, C.A. No. 2:17-04100
HENSLEY v. EQUIFAX, INC., ET AL., C.A. No. 5:17-04105
Western District of Pennsylvania
DERBY v. EQUIFAX, INC., C.A. No. 2:17-01186
Middle District of Tennessee
MARTIN v. EQUIFAX, INC., C.A. No. 3:17-01246
Eastern District of Texas
LYNCH, ET AL. v. EQUIFAX, INC., C.A. No. 4:17-00640
Southern District of Texas
COLLINS v. EQUIFAX, INC., C.A. No. 1:17-00187
District of Utah
PARTRIDGE, ET AL. v. EQUIFAX, INC., ET AL., C.A. No. 2:17-01017
Western District of Washington
PAVITT, ET AL. v. EQUIFAX, INC., C.A. No. 2:17-01363

- A6 Eastern District of Wisconsin
MALONEY v. EQUIFAX, INC., C.A. No. 2:17-01238
Northern District of West Virginia
RICE, ET AL. v. EQUIFAX, INC., C.A. No. 1:17-00156