Case No. 5:16-md-02752-LHK 

BRIEF IN RESPONSE TO MOTIONS FOR APPOINTMENTS OF PLAINTIFFS’ LEAD COUNSEL

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KAPLAN FOX & KILSHEIMER LLP 

Laurence D. King (SBN 206423) 

Linda M. Fong (SBN 124232) 

Matthew B. George (SBN 239322) 

Mario M. Choi (SBN 243409) 

350 Sansome Street, Suite 400 

San Francisco, CA 94104 

Telephone: 415-772-4700 

Facsimile: 415-772-4707 

lking@kaplanfox.com 

lfong@kaplanfox.com 

mgeorge@kaplanfox.com 

mchoi@kaplanfox.com 

KAPLAN FOX & KILSHEIMER LLP 

Frederic S. Fox (admitted pro hac vice) 

Jeffrey P. Campisi (admitted pro hac vice) 

David A. Straite (admitted pro hac vice) 

850 Third Avenue, 14th Floor 

New York, NY 10022 

Telephone: 212-687-1980 

Facsimile: 212-687-7714 

ffox@kaplanfox.com 

jcampisi@kaplanfox.com 

dstraite@kaplanfox.com 

Attorneys for Plaintiff Dr. Gerald Cleaver

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

IN RE: YAHOO! INC. CUSTOMER DATA 

SECURITY BREACH LITIGATION 

Case No. 5:16-md-02752-LHK 

BRIEF IN RESPONSE TO MOTIONS 

FOR APPOINTMENT OF 

PLAINTIFFS’ LEAD COUNSEL 

Hearing Date: February 9, 2017 

Hearing Time: 1:30 p.m. 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

Case 5:16-md-02752-LHK Document 36 Filed 01/12/17 Page 1 of 6
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BRIEF IN RESPONSE TO MOTIONS FOR APPOINTMENTS OF PLAINTIFFS’ LEAD COUNSEL

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I. INTRODUCTION 

Plaintiff Dr. Gerald Cleaver, by and through his attorneys of record, and pursuant to this 

Court’s order dated December 13, 2016, hereby responds to the January 5, 2017 motions of Gayle M. 

Blatt, Stuart A. Davidson, Karen Hanson Riebel, Ariana J. Tadler, and John A. Yanchunis jointly 

(ECF No. 19) (the “Joint Application”); Jennifer L. Joost (ECF No. 23) (the “Joost Application”); 

and Mark M. Seltzer (ECF No. 24) (the “Seltzer Application”) for appointment as lead plaintiffs’ 

counsel in this action. Kaplan Fox filed its motion the same day (ECF No. 21) (the “Kaplan Fox 

Application”). 

As demonstrated in its application, Kaplan Fox believes that it is best suited to lead this action, 

and if the Court determines that a multi-firm structure is best, we would be willing and able to work 

with any of the individuals and firms who seek leadership, and have successfully worked with many 

in the past. As noted below, however, the Joint Application proposes a five-applicant structure that 

may not be necessary in a relatively straight-forward data breach case against a single defendant and 

it does not articulate why five firms are superior to a single firm (or small group) assisted by a steering 

committee. 

II. KAPLAN FOX IS BEST ABLE TO LEAD THIS MDL 

Kaplan Fox is extremely well-qualified to lead this MDL. As set forth in our initial 

application, the Kaplan Fox attorneys who would work on this matter have deep experience in 

consumer class actions generally as well as the data privacy issues implicated by this case. Indeed, 

Frederic Fox (a senior partner), Laurence King (founder of Kaplan Fox’s consumer practice and 

resident in the District), David Straite, Linda Fong, Mario Choi and Matthew George recently led 

another data privacy case against Yahoo to a successful conclusion before this Court after securing 

class certification and completing all summary judgment and Daubert briefing. In re: Yahoo Mail 

Litig., 5:13-cv-4980-LHK (N.D. Cal.) (“Yahoo Mail”). This team has been reassembled for this case. 

While other applicants have similar experience prosecuting class actions generally, Kaplan 

Fox has some of the broadest experience with and knowledge of data privacy law specifically. For 

example, as noted in the Kaplan Fox Application, attorneys at the firm have led or co-led In re: 

Facebook Internet Tracking Litigation, 5:12-md-2314-EJD (N.D. Cal.); In re: LinkedIn User Privacy 

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Litigation, 12-cv-3088-EJD (N.D. Cal.); In re Home Depot, Inc. Customer Data Security Breach 

Litigation, 1:14-md-2583-TWT (N.D. Ga.) (financial institution track); and In re 21st Century 

Oncology Customer Data Security Breach Litigation, 8:16-md-2737-MSS-AEP (M.D. Fla.). In In re 

Google Inc. Cookie Placement Consumer Privacy Litigation, 12-md-2358-SLR (D. Del.), Kaplan Fox 

partner David Straite was on the appellate team that secured important pro-privacy rulings on standing 

and invasion of privacy under California law. In Rodriguez v. Universal Property & Casualty 

Insurance Company, 16-cv-60442-JIC (S.D. Fla.), Kaplan Fox filed one of the first (if not the first) 

data privacy cases under seal to prevent a potentially catastrophic breach. Just this week the court reaffirmed an earlier ruling (and denied a motion for interlocutory appeal) affirming privacy rights 

under a federal statute and state common law, and affirming Article III standing post-Spokeo related 

to the failure to provide promised data security. See Order dated January 10, 2017, Universal 

Property (ECF No. 72). And Kaplan Fox is currently leading two appeals addressing several issues 

of first impression involving data privacy, consumer protection laws, and standing. See In re Horizon 

Healthcare Services Inc. Data Breach Litigation, 13-7418-CCC (D.N.J.) and Mount v. PulsePoint, 

Inc., 1:13-cv-6592-NRB (S.D.N.Y.). 

Kaplan Fox’s substantial data privacy experience weighs heavily in favor of Kaplan Fox’s 

appointment, either as sole lead counsel or as a member of a group of counsel selected by the Court. 

See, e.g., In re Terazosin Hydrochloride, 220 F.R.D. 672, 702 (S.D. Fla. 2004) (finding “experience 

in, and knowledge of, the applicable law in this field” to be the “most persuasive” 23(g) factor); 

accord, Outten v. Wilmington Trust Corp., 281 F.R.D. 193, 200 (D. Del. 2012) (“Experience and 

knowledge of the law is of the utmost importance when determining lead counsel”). The experience 

summarized above is amplified by the efforts of Kaplan Fox attorneys outside the courtroom, 

including authoring articles and participating on data-privacy-specific CLE panels, as noted in the 

Kaplan Fox Application. 

Similarly, while some have identified sufficient resources to litigate this case against a wellresourced opponent, only Kaplan Fox has offered to self-host the document production on premises 

that will save the class significant expenses. Kaplan Fox attorney Matthew George was also 

plaintiffs’ designated e-discovery liaison in Yahoo Mail and efficiently coordinated e-discovery with 

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Yahoo over two years without requiring Court intervention in any discovery disputes. In short, while 

the impressive group of attorneys applying for lead counsel can assemble the necessary skills in a 

group, Kaplan Fox best demonstrates that it alone could meet the Court’s chief criteria for 

appointment.

III. IF A MULTI-LEAD STRUCTURE IS APPROPRIATE THE COURT SHOULD 

EVALUATE EACH FIRM INDIVIDUALLY AND APPOINT KAPLAN FOX LEAD 

OR CO-LEAD COUNSEL 

As noted above, Kaplan Fox does not oppose leadership roles for any firm or individual 

seeking a role in this case, and we recognize that if the Court believes a multi-firm structure could 

benefit the class, the Court should evaluate each firm’s application separately and keep the structure 

lean to increase efficiency. For example, in In re Anthem Data Breach Litig., No. 15-MD-02617-

LHK (N.D. Cal.), a case involving numerous defendants, this Court only appointed two co-lead firms 

supported by a steering committee of two additional firms, and three of these firms were located in 

the Northern District. Anthem (ECF No. 284). Similarly, in In re Adobe Sys. Privacy Litig., No. 5:13-

cv-05226-LHK (N.D. Cal.). this Court appointed sole-lead counsel supported by a steering 

committee. Adobe (ECF No. 34). 

By contrast, the Joint Application proposes a five-member Executive Committee. Perhaps 

implicitly recognizing the inefficiency of the proposal, the group has admirably pre-identified some 

specific tasks that would be assigned to each firm. For example, the applicants propose assigning 

e-discovery to one firm, and brief writing to another firm, and pleadings to yet another. See Joint 

Application at 4-5. But the application never explains why any one firm is incapable of two of these 

tasks, or even all of them. Naturally, the management of any case could be divvied up among five 

lead firms but the Joint Application never articulates why that many is necessary in this relatively 

straightforward data breach case against a single defendant. And the Joint Application did not file 

a proposed order with its motion as required by the Local Rules, which makes it unclear how they 

would delegate the specific duties of the Executive Committee, how they would coordinate and 

assign work with the many other firms in the litigation, and they did not disclose the nature of any 

agreements to distribute work among the various firms voicing their support for the Joint 

Application. While Kaplan Fox recognizes that private ordering amongst plaintiffs’ counsel may be 

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helpful in some circumstances, Kaplan Fox believes each firm should be evaluated on its own merits 

and that it is uniquely suited to lead the case here, supported by other firms as the Court deems 

appropriate.1

 

A sampling of the cases cited in the Joint Application illustrate the point. For example, in In 

re Incretin-Based Therapies Prods. Liability. Litig., 3:13-md-02452-AJB-MDD (S.D. Cal. 2015), 

the court appointed more than a dozen firms to leadership roles, but only three firms led the action. 

Incretin (ECF No. 157). In In re Hydroxycut Marketing and Sales Practices Litig., No. 09-2087-

BTM-KSC (S.D. Cal.), a dozen firms were appointed to leadership rules, but only two firms co-lead 

the action. Hydroxycut (ECF No. 112). In In re Home Depot, Inc. Customer Data Sec. Breach 

Litig., No. 14-02583-TWT (N.D. Ga.), the court created a “consumer” track and a “financial 

institution” track and allocated more than 20 firms among them. Home Depot (ECF No. 60, 62). 

But each track was led by only three co-lead firms. A leaner structure led by Kaplan Fox, with its 

extensive expertise in data breach cases, its successful experience litigating against Yahoo, and its 

Northern District presence and familiarity is sufficient here. 

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1

 Kaplan Fox also notes that at least one firm in the Joint Application is counsel in a related statecourt proceeding, but does not specify whether it will also seek lead appointment to manage litigation 

that may have competing interests. See Gujarathi v. Yahoo, Inc., Case No. 37-2016-00033494-CUMT-CTL (Calif. Super. Ct., San Diego County), Complaint attached as Exhibit A. Kaplan Fox has 

been actively monitoring state court proceedings, has experience with Judicial Council Coordinated 

Proceedings in California, and will coordinate with counsel in those matters as appropriate to ensure 

efficiency in discovery, avoid inconsistent rulings, and protect the interests of the class(es) in the 

MDL. 

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IV. CONCLUSION 

Kaplan Fox respectfully requests that its Application be granted and the firm be appointed 

lead plaintiffs’ counsel in this action. Should the Court deem a multi-firm structure appropriate, 

Kaplan Fox will work with additional co-lead counsel and/or a steering committee as deemed 

appropriate by the Court, each of whose qualifications should be independently evaluated. 

DATED: January 12, 2017 KAPLAN FOX & KILSHEIMER LLP 

 By: /s/ Laurence D. King 

Laurence D. King (SBN 206423) 

Linda M. Fong (SBN 124232) 

Matthew B. George (SBN 239322) 

Mario M. Choi (SBN 243409) 

350 Sansome Street, Suite 400 

San Francisco, CA 94104 

Telephone: 415-772-4700 

Facsimile: 415-772-4707 

lking@kaplanfox.com 

lfong@kaplanfox.com 

mgeorge@kaplanfox.com 

mchoi@kaplanfox.com 

KAPLAN FOX & KILSHEIMER LLP 

Frederic S. Fox (admitted pro hac vice) 

Jeffrey P. Campisi (admitted pro hac vice) 

David A. Straite (admitted pro hac vice) 

850 Third Avenue, 14th Floor 

New York, NY 10022 

Telephone: 212-687-1980 

Facsimile: 212-687-7714 

ffox@kaplanfox.com 

jcampisi@kaplanfox.com 

dstraite@kaplanfox.com 

Attorneys for Plaintiff Dr. Gerald Cleaver 

Case 5:16-md-02752-LHK Document 36 Filed 01/12/17 Page 6 of 6