Pro se objector Shiyang Huang said the 11th Circuit’s reasoning on Article III standing means “defendants in this circuit should expect to get sued a lot more.” (Equifax counsel David Balser of King & Spalding declined to provide a statement.”) “That doesn’t contribute to public trust,” he said. Isaacson said he was surprised that the 11th Circuit was willing to tolerate a ghostwritten opinion. “It’s plainly false that a novel claim doesn’t have settlement value,” said Frank, who told me his group will continue to call for subclasses in nationwide class actions implicating state laws. Frank said by email that the 11th Circuit is at odds with other federal appellate courts both on allowing ghostwritten opinions and disregarding disparities among class members from states with varying statutory damages for privacy violations. The 11th Circuit ruled after Thrash approved the Equifax deal that such awards are prohibited.)įrank and Eric Alan Isaacson, who represented another Equifax objector, pledged to seek en banc review. No wonder class counsel told me in an email statement that they’re “obviously pleased with the 11th Circuit’s rejection of the objectors’ arguments.” (The appeals court did remand the case to Thrash, but only so he can vacate incentive awards for class representatives. Meanwhile, the 11th Circuit said, “all class members had negligence and negligence per se claims under Georgia law that united the class.” Any purported conflict was inconsequential, the court said, since Frank failed to show those statutory damage claims were valuable. The appeals court disposed just as easily with Frank’s assertion of an intraclass conflict because some class members from some states, notably Utah and the District of Columbia, are entitled to statutory damages. The Equifax plaintiffs, though, easily met the Tsao test, according to the 11th Circuit’s decision on Thursday, because of “the colossal amount of sensitive data stolen, including Social Security numbers, names, and dates of birth, and the unequivocal damage that can be done with this type of data.” Captiva MVP that data breach victims must show more than an increased risk of identity theft or costs incurred to address that increased risk in order to establish their constitutional right to sue. I had predicted that Article III standing would be an issue in the Equifax appeal after the 11th Circuit ruled last year in Tsao v. They also had an opportunity to move for reconsideration of parts of the opinion after it was issued, as one objector did, the 11th Circuit said.Īnd besides, the appeals court said, whatever vituperation the opinion directed at objectors was “largely unrelated to the merits of this appeal and may be dicta in any event.” Objectors did not protest the trial judge’s request for a draft opinion from class counsel. Thrash independently decided to approve the settlement after hearing arguments from objectors at the final approval hearing, the appeals court said. Here, the 11th Circuit said, the process wasn’t unfair at its core. Instead, the appeals court must determine whether a trial judge’s adoption of an ex parte draft was fundamentally unfair. Nevertheless, wrote Martin in Thursday’s opinion, 11th Circuit precedent doesn’t establish a per se rule prohibiting ghostwritten opinions.
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