Krefting v. OneTouchPoint Inc
2:22-cv-01052
E.D. Wis.Sep 29, 2022Background
- OneTouchPoint disclosed a data breach discovered around April 28, 2022 that exposed names, member IDs, and health information of over one million individuals.
- Twelve separate but substantially similar putative class actions were filed in the Eastern District of Wisconsin alleging harms from the same breach.
- Plaintiff Richard Dusterhoft moved to consolidate the actions and to appoint interim class counsel and a plaintiffs’ steering committee.
- Defendant OneTouchPoint did not oppose consolidation and took no position on appointment of interim counsel.
- The Court granted consolidation, designated Dusterhoft v. OneTouchPoint, Inc., No. 22-cv-0882-bhl, as the master docket, administratively closed the other cases, and provided a mechanism to add future related cases.
- The Court appointed Gary M. Klinger and Gary F. Lynch as Interim Co-Lead Counsel and six lawyers to the Plaintiffs’ Steering Committee, set their duties and limits on common-benefit work, and ordered a consolidated complaint within 30 days (defendant response in 45 days).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to consolidate multiple related putative class actions under Fed. R. Civ. P. 42(a) | Dusterhoft: cases involve common questions of law/fact from the same breach; consolidation will conserve resources and avoid inconsistent rulings | OneTouchPoint: did not oppose consolidation | Granted — cases consolidated; Dusterhoft master docket; other actions administratively closed |
| Whether to appoint interim class counsel under Fed. R. Civ. P. 23(g) | Dusterhoft: proposed leadership group has substantial experience, has investigated claims, and has resources to prosecute the litigation | OneTouchPoint: took no position on appointment | Granted — Klinger and Lynch appointed Interim Co-Lead Counsel; others appointed to Steering Committee |
| Scope and duties of appointed leadership and limits on non-lead counsel | Plaintiffs: proposed detailed coordination structure (co-leads, steering committee) to manage pretrial work and common-benefit tasks | OneTouchPoint: no opposition noted to structure | Court adopted proposed structure and enumerated duties, authority, and limits on non-lead counsel performing common-benefit work |
| Handling of subsequently filed related cases | Plaintiffs: future related cases should be added to the master docket | OneTouchPoint: no opposition noted | Court ordered mechanism for notice of related actions and automatic consolidation into master docket, subject to later motions to deconsolidate |
Key Cases Cited
- Hall v. Hall, 138 S. Ct. 1118 (2018) (district courts have substantial discretion in deciding whether and to what extent to consolidate cases)
- Levey v. Concesionaria Vuela Compañía de Aviación, S.A.P.I. de C.V., 529 F. Supp. 3d 856 (N.D. Ill. 2021) (discussing appointment of interim class counsel under Rule 23(g)(3))
- In re TikTok, Inc., Consumer Priv. Litig., 565 F. Supp. 3d 1076 (N.D. Ill. 2021) (example of appointing a steering committee to facilitate complex consumer privacy litigation)