JOINT APPLICATION FOR APPOINTMENT OF PLAINTIFFS’ 

PROPOSED LEADERSHIP STRUCTURE - 1

Kim D. Stephens, OSB #030635

Chase C. Alvord, OSB #070590

Christopher I. Brain, admitted pro hac vice

Jason T. Dennett, admitted pro hac vice

TOUSLEY BRAIN STEPHENS PLLC

1700 Seventh Avenue, Suite 2200

Seattle, WA 98101

Telephone: (206) 682-5600

Facsimile (206) 682-2992

Attorneys for Plaintiffs Colcord and Guenser

Ari J. Scharg, admitted pro hac vice

EDELSON PC 

350 North LaSalle Street, Suite 1300

Chicago, IL 60654 

Telephone: (312) 589-6370 

Facsimile: (312) 589-6378

Email: ascharg@edelson.com

Attorneys for Plaintiff Cushnie

Tina Wolfson, admitted pro hac vice

AHDOOT AND WOLFSON, PC

1016 Palm Avenue 

West Hollywood, CA 90069

Telephone: (310) 474-9111 

Fax: (310) 474-8585 

Email: twolfson@ahdootwolfson.com

Attorneys for Plaintiffs Archibald, Purcell, and Fuerst

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AT PORTLAND

IN RE: Premera Blue Cross Customer Data 

Security Breach Litigation

This Document Relates to: All Cases

Case No. 3:15-md-2633-SI

JOINT APPLICATION FOR 

APPOINTMENT OF

PLAINTIFFS’ PROPOSED 

LEADERSHIP STRUCTURE

Pursuant to Pretrial Order No. 1 (Dkt. 7) and Federal Rule of Civil Procedure 23(g), Kim 

D. Stephens of Tousley Brain Stephens PLLC (“Stephens”), Ari Scharg of Edelson PC 

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(“Scharg”), and Tina Wolfson of Ahdoot & Wolfson, PC (“Wolfson”) (collectively, “Proposed 

Class Counsel”), respectfully request appointment as co-lead interim class counsel of the actions 

that have been centralized in this MDL.

I. INTRODUCTION

These 39 centralized putative class actions arise from a protracted health care data breach 

that Defendant Premera Blue Cross (“Defendant”) did not detect for almost a full year. On 

March 17, 2015, Defendant announced that its IT database had been accessed without 

authorization and that hackers had obtained the personal medical and financial information of 

more than 11 million of its members and employees. While several plaintiffs’ firms now seek 

appointment, Proposed Class Counsel bring unique perspective and experience to this MDL. 

First, Ari Scharg of Edelson PC leads the firm’s Data Breach Litigation Group, and has 

successfully litigated and settled the highest profile data breach cases to date—including the 

seminal case of Resnick v. AvMed, Inc., 693 F.3d 1317 (11th Cir. 2012). Scharg and Edelson PC 

are routinely appointed as lead in state and federal courts across the country, and have extensive 

experience litigating health care data breach class actions. Unique to its practice (which focuses 

exclusively on cutting edge privacy matters), Edelson PC employs full time computer forensic 

investigators, which enables the firm to perform highly complex in-house analyses of novel and 

proprietary technologies. This forensic team—whose investigation led to the first-filed Cushnie

action—works closely with Scharg and will remain actively involved throughout the pendency of 

this MDL.

Tina Wolfson has been prosecuting cutting edge privacy cases on behalf of consumer 

classes since the late 1990s. She was among the first group of attorneys who successfully 

litigated the privacy rights of millions of consumers against major financial institutions based on 

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defendants’ compilation and sale of detailed financial dossiers to third party telemarketers 

without their consent. Such practices later became the subject of Graham Leach Bliley Act 

regulation, but at the time Wolfson was successfully prosecuting them they were cutting edge 

law. In the course of litigating numerous data breach class actions on behalf of plaintiffs, 

including those involving medical privacy rights, Ms. Wolfson has gained invaluable experience 

and has achieved important results. Most recently, Ms. Wolfson helmed plaintiffs’ appellate 

efforts in the Neiman Marcus data breach case. Remijas v. Neiman Marcus Group, LLC, No. 14-

3122, Docket No. 27, Slip Op. (7th Cir. July 20, 2015).

Kim D. Stephens of Tousley Brain Stephens PLLC is one of the Northwest’s leading 

class action lawyers. He and his firm have recovered over a billion dollars for class members in 

consumer, products, employment, and securities cases. Stephens practices in Seattle where 

Premera is located and where a majority of the discovery in this case will occur, as well as in this 

jurisdiction. 

Given their collective experience and coalition building efforts, 17 out of 39 cases, 

including 11 separate counsel groups’ cases1in addition to their own six cases,

2

support Scharg, 

 

1 The cases are: Hoirup v. Premera, 3:15-cv-01104 (D.Or.), represented by Darrell L. Cochran, Kevin M. 

Hastings of Pfau Cochran Vertetis Amala PLLC; Burkhardt v. Premera, 3:15-cv-01155 (D.Or.), 

represented by Katrina Carroll of Lite DePalma Greenberg, LLC, Konstantine W. Kyros of Kyros Law 

Office and Matthew J. Ide; Welch v. Premera, 3:15-cv-01158 (D.Or.) represented by Joseph N. Kravec, 

Jr. of Feinstein Doyle Payne & Kravec, LLC and David A. Leen of Leen & O’Sullivan; Facchinello v. 

Premera, 3:15-cv-01162 (D.Or.) represented by Nick Suciu III of Barbat, Mansour & Suciu PLLC and 

Matthew J. Ide; Christopherson v. Premera, 3:15-cv-01164 (D.Or.) represented by Daniel J. Wasserberg 

of Meirowitz & Wasserberg, LLP and Matthew J. Ide; Prothero v. Premera, 3:15-cv-01165 (D.Or.) 

represented by Christopher P. Ridout and Caleb Marker of Ridout Lyon & Ottoson, LLP and Matthew J. 

Ide; Green v. Premera, 3:15-cv-01264 (D.Or.) represented by Johnathan Shub of Kohn Swift & Graf, PC 

and Matthew J. Ide; Fitch v. Premera, 3:15-cv-01265 (D.Or.) represented by William Anderson and 

Charles LaDuca of Cuneo Gilbert & LaDuca and Matthew J. Ide; Flint v. Premera, 3:15-cv-01266 

(D.Or.), represented by Abbas Kazerouni of Kazerouni Law Group APC and Matthew J. Ide; Cummings 

v. Premera, 3:15-cv-01267 (D.Or.) represented by David Bower of Faruqi & Faruqi, LLP and Matthew J. 

Ide; and Shores v. Premera, 3:15-cv-01268 (D.Or.) represented by Deborah M. Nelson and Jeffrey D. 

Boyd of Nelson Boyd, PLLC.

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Wolfson, and Stephens as co-lead interim class counsel, more than any other group vying for 

leadership.

3

 With these attorneys, Proposed Class Counsel have achieved consensus on the key 

factual and legal issues in these centralized cases, and assembled a proposed leadership structure 

designed to effectuate their shared vision and focus the issues to be litigated so as to best protect 

the interests of the class. Indeed, Proposed Class Counsel have already significantly advanced 

those interests. For example, they are the only group to have met with Defendant’s lead counsel 

to discuss the parties’ respective views of the case, the coordination of an early reciprocal 

exchange of documents and information, evidence preservation procedures (for both sides), and a 

proposed protocol for the production and handling of electronically stored information (“ESI”). 

In light of their experience and expertise, and their demonstrated ability to advance the 

interests of the putative class in an efficient and collaborative way, Scharg, Wolfson, and 

Stephens provide the best option for leading these cases. Accordingly, Proposed Class Counsel 

respectfully request that the Court (i) grant their leadership application, and (ii) appoint the 

following attorneys to the Plaintiffs’ Steering Committee (“PSC”): James J. Pizzirusso of 

Hausfeld LLP, and Gary Lynch of Carlson Lynch Sweet & Kilpela LLP.

 

2 Those cases are: Cushnie v. Premera, 3:15-cv-01101 (D.Or.), represented by Ari J. Scharg and Rafey S. 

Balabanian of Edelson PC; Guenser v. Premera, 3:15-cv-01103 (D.Or.), represented by Kim D. Stephens, 

Christopher I. Brain, Chase C. Alvord and Jason T. Dennett of Tousley Brain Stephens PLLC and James 

J. Pizzirusso and Swathi Bojedla of Hausfeld LLP; Colcord v. Premera, 3:15-cv-00516 (D.Or.), 

represented by Kim D. Stephens, Christopher I. Brain, Chase C. Alvord and Jason T. Dennett of Tousley 

Brain Stephens PLLC and James J. Pizzirusso and Swathi Bojedla of Hausfeld LLP; Archibald v. 

Premera, 3:15-cv-01107 (D.Or.), represented by Tina Wolfson, Robert Ahdoot and Theodore Maya of 

Ahdoot & Wolfson, PC and Matthew J. Ide; Purcell v. Premera, 3:15-cv-00572 (D.Or.), represented by 

Tina Wolfson, Robert Ahdoot, Theodore Maya of Ahdoot & Wolfson, PC and Anthony L. Rafel of Rafel 

Law Group; and Fuerst v. Premera, 3:15-cv-01170 (D.Or.), represented by Tina Wolfson, Robert Ahdoot, 

Theodore Maya of Ahdoot & Wolfson, PC, Konstantine W. Kyros of Kyros Law Offices and Thomas V. 

Wang, Jr. of Ashburn & Mason, P.C.

3

Further, while Proposed Class Counsel do not believe it to be a critical metric, it should be noted that 

coalition member Darrell Cochran represents over 2,000 Premera customers. 

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II. STANDARD FOR APPOINTING INTERIM CLASS COUNSEL

“Rule 23(g)(3) grants the Court authority to appoint pre-certification ‘interim’ class 

counsel . . . ‘if necessary to protect the interests of the putative class,’” prior to class certification. 

White v. Experian Info. Solutions, 993 F. Supp. 2d 1154, 1169, amended, 2014 U.S. Dist. LEXIS

61433 (C.D. Cal. May 1, 2014). Particularly where, as here, multiple related cases are pending, 

“the selection and activity of class counsel are often critically important to the successful 

handling of the class action.” Fed. R. Civ. P. 23(g) (Notes of the Advisory Committee); see also 

Manual for Complex Litigation (Fourth) §21.271 (2004). The Manual advises that:

If . . . there are a number of overlapping, duplicative, or competing suits . . . and 

some or all of those suits may be consolidated, a number of attorneys may 

compete for class counsel appointment. In such cases, designation of interim 

counsel clarifies responsibility for protecting the interests of the class during 

precertification activities, such as making and responding to motions, conducting 

any necessary discovery, moving for class certification, and negotiating 

settlement.

Id., §21.11. “Early organization of the counsel who have filed the various cases transferred or 

consolidated for pretrial purposes is a critical case-management task.” Id., §22.62. 

In selecting interim class counsel, Rule 23(g)(2) requires the appointment of counsel 

“best able to represent the interests of the class.” White, 993 F. Supp. 2d at 1169-70. Thus, the 

courts typically consider:

(i) the work counsel has done in identifying or investigating potential claims in

the action;

(ii) counsel’s experience in handling class actions, other complex litigation, and

the types of claims asserted in the action;

(iii) counsel’s knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class.

Fed. R. Civ. P. 23(g)(1)(A). Likewise, the Court has indicated through Pretrial Order No. 1 that 

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the main criteria for appointment as interim lead class counsel in this MDL are (1) willingness 

and ability to commit to a time-consuming process; (2) ability to work professionally, civilly, 

and cooperatively with others; (3) professional experience in complex litigation; and (4) access 

to sufficient resources to advance the litigation in a timely manner. (See Dkt. 7 at ¶ 14.) 

As detailed below (and in their respective law firm resumes), Proposed Class Counsel 

easily satisfy these factors. They have diligently identified and investigated the claims and 

potential defenses in this matter, successfully lead multidistrict litigation and large consumer 

privacy and technology cases, have the support of the largest coalition of counsel groups in this 

MDL, and have already demonstrated their ability to effectively and efficiently advance the 

interests of the putative class here. 

III. PROPOSED CLASS COUNSEL HAVE SUBSTANTIAL EXPERIENCE IN 

CASES OF SIMILAR SIZE, SCOPE, AND SUBJECT MATTER.

In selecting interim class counsel, courts place great emphasis on proposed lead counsel’s 

experience with and knowledge of the applicable law. See, e.g., In re Terazosin Hydrochloride 

Antitrust Litig., 220 F.R.D. 672, 702 (S.D. Fla. 2004); Fed. R. Civ. P. 23(g)(1)(A)(ii), (iii). In 

this regard, Proposed Class Counsel are well-suited for appointment to a leadership position—

they have litigated claims very similar to those asserted here and have served in leadership roles 

in other consolidated and/or multidistrict complex class actions.

A. Ari J. Scharg, Edelson PC (Chicago)

As the Chair of Edelson PC’s Data Breach Litigation Team, Ari Scharg has extensive 

experience litigating data breach and other consumer privacy class actions, and is routinely 

appointed as class counsel in high-profile privacy class actions in state and federal courts across 

the country. (See Edelson PC resume, attached as Exhibit 1; see also Scharg’s certificate of good 

standing, attached as Exhibit 2.)

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Ari Scharg and the other attorneys at Edelson PC have successfully litigated and resolved 

some of the most high profile data breach cases to date. This includes the seminal case of 

Resnick v. AvMed—the healthcare data breach case that arguably set the bar for every data 

breach lawsuit to follow, including this one. There, Scharg and his firm represented a class of 

consumers affected by a massive data breach, and pursued class claims to recover both (1) 

damages relating to identity theft (the typical claims sought by every data breach class action), as 

well as (2) damages stemming from the class’s “overpayment” for data protection services that 

the defendant-insurer failed to deliver—a unique theory that would allow class members to 

recover a portion of their paid insurance premiums, regardless of whether or not they suffered 

actual identity theft. Even though the district court dismissed all of the classes’ claims twice 

over, the AvMed litigation ultimately produced two, first-of-their-kind results:

(1) In winning reversal, Scharg and the attorneys at Edelson PC secured a 

landmark appellate decision, where the Eleventh Circuit Court of Appeals 

held that (i) the plaintiffs demonstrated a causal link between the data 

breach at issue and allegations of identity theft, and (ii) that the plaintiffs 

successfully pleaded a separate and viable unjust enrichment theory, 

allowing all class members that paid money for health insurance to pursue 

money damages against the defendant. See AvMed, 693 F.3d at 1328. The 

first holding was (and is) a rarity in consumer data breach cases; the 

second was a landmark ruling.

(2) Just as important, Scharg and the attorneys at Edelson PC ultimately 

negotiated a class settlement in AvMed where—for the first time ever—

data breach victims who paid for promised but un-received data protection 

received monetary settlement payments, regardless of whether they 

suffered identity theft. Resnick v. AvMed, No. 10-cv-24513, Dkts. 82, 91 

(S.D. Fla. October 25, 2013). In an article titled “AvMed’s $3M Pact 

Blazes New Path for Data Breach Settlements,” the settlement was 

described as “a groundbreaking pact . . . likely to serve as a template for 

other plaintiffs in class actions over data breaches.”4

Further, Scharg and the attorneys of Edelson PC are, to date, the only attorneys in the 

 

4

 See Grande, Allison, available at http://www.law360.com/articles/484008/avmed-s-3m-pact-blazesnew-path-for-data-breach-plaintiffs (last visited July 28, 2015). 

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country to have successfully negotiated settlements of this kind—i.e., where nearly all members 

of a putative data breach class (not just those suffering identity theft) are eligible to recover 

monetary settlement payments. This includes not only AvMed, but also the class settlement that 

they reached in In re: LinkedIn User Privacy Litigation—a consumer class action concerning a 

2012 data breach that affected LinkedIn members. See In re: LinkedIn User Privacy Litigation, 

No. 5:12-cv-03088, Dkt. 136 (N.D. Cal. January 29, 2015) (preliminarily approving class 

settlement against LinkedIn, based on allegations that users paid for—but did not receive—data 

security. Under the settlement, class members receive up to $50 without demonstrating identity 

theft or other injuries beyond overpayment). Beyond these landmark successes, Scharg is 

actively litigating four other health care data breach class actions in federal and state courts 

throughout the country.5

Outside of data breach litigations, the attorneys of Edelson PC have been specifically 

recognized as “pioneers in the electronic privacy class action field, having litigated some of the 

largest consumer class actions in the country on this issue.” See, e.g., In re Facebook Privacy 

Litig., No. C 10-02389, Dkt. 69 at 5 (N.D. Cal. Dec. 10, 2010) (order appointing Edelson PC 

interim co-lead of privacy class action); In re Netflix Privacy Litig., No. 11-cv-00379, Dkt. 59 at 

5 (N.D. Cal. Aug. 12, 2011) (appointing Edelson PC as sole lead counsel due, in part, to its 

“significant and particularly specialized expertise in electronic privacy litigation and class 

actions”). Simply put, Edelson PC has obtained the most decisive decisions—and negotiated the 

most influential settlements—for consumer privacy class actions. See, e.g., Fox v. Time, Inc., No. 

12-cv-14390, Dkt. 117 (E.D. Mich. July 27, 2015) (in case accusing a public magazine publisher 

 

5

 Scharg’s other pending data breach cases are Lozada, et al. v. Advocate Health and Hospitals Corp., et 

al, No. 2013-CH-20390 (Cir. Ct. Cook County, Ill.); Faircloth, et al. v. Adventist Health System/Sunbelt, 

Inc., et al., No. 2013-CA-009369 (Cir. Ct. Orange County, Fla.); Ross v. Blue Cross Blue Shield Assoc., et 

al., No. 15-cv-2006 (N.D. Ill.); and Case v. Hospital Corp. of Am., et al., No. 15-cv-20683 (S.D. Fla.).

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of improper data disclosure practices, Scharg secured adversarial class certification of claims 

under the Michigan Preservation of Personal Information Act (“PPIA”) and was amongst the 

Edelson PC attorneys that were appointed lead class counsel); Halaburda v. Bauer Publishing 

Co., No. 12-cv-12831 (E.D. Mich.) (securing first ever class settlement under the PPIA); 

Dunstan v. comScore, No. 11-cv-5807, Dkts. 186, 369 (N.D. Ill.) (in case accusing a public 

internet analytics company of improper data collection practices, Edelson PC secured adversarial 

certification of largest ever privacy class comprised of millions of consumers for claims arising 

under federal privacy statutes, including the Computer Fraud and Abuse Act, and ultimately 

negotiated a $14 million settlement, which resulted in claiming class members receiving 

approximately $500 each); In re Netflix Privacy Litigation, No. 11-cv-00379 (N.D. Cal.) 

(appointing Edelson PC sole lead counsel, and finally approving $9 million settlement); In re 

Jiffy Lube Int’l Text Spam Litigation, No. 11-md-2261, 2012 WL 762888 (S.D. Cal.) (appointing 

Edelson PC co-lead counsel and finally approving $35 million text spam settlement).

Next, Scharg and Edelson PC have already devoted significant human and financial 

resources to representing the interests of the putative class here, and they will continue to devote

the necessary resources to effectively represent and advance the interests of the putative class as 

the cases proceed. For example, Edelson employs not only a team of attorneys (and support 

staff), but also a full-time, in-house digital forensic investigations team comprised of computer 

forensic investigators, who assisted with the investigation that led to the filing of the first-filed 

Cushnie action, and will remain actively involved in ongoing information gathering and analysis. 

These resources, along with the firm’s substantial subject-matter expertise, have allowed the firm 

to undertake in-house, highly complex review of novel and proprietary technology in the past, 

including the routine investigation and analysis of highly confidential and complex software 

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source code. Given its substantial experience in investigating and litigating complex technology 

and privacy class actions, Edelson unquestionably has the resources necessary to prosecute the 

putative class’s claims diligently and efficiently.

B. Tina Wolfson, Ahdoot & Wolfson, PC (Los Angeles)

As a founding member of Ahdoot & Wolfson (“AW”), Ms. Wolfson has been appointed 

class counsel in numerous class actions, and has obtained extensive experience in prosecuting 

complex class action and representative lawsuits. She has have served as class counsel in 

numerous class and representative actions against large corporate defendants involving varied 

consumer rights claims, with an emphasis on privacy rights. 

Wolfson has been prosecuting cutting edge privacy cases on behalf of consumer classes 

since the late 1990’s. She was among the first group of attorneys who successfully litigated the 

privacy rights of millions of consumers against major financial institutions. Plaintiffs alleged 

that the defendants used their personal information to compile detailed financial dossiers to use 

for internal marketing purposes and to sell to third party telemarketers, without their consent. As 

lead counsel in these privacy class actions, Wolfson brought the consumer claims to successful 

conclusion on a class-wide basis, conferring millions of dollars of benefits to consumers. The 

business practices that her clients challenged in these cases later became the subject of Graham 

Leach Bliley Act regulation. At the time that Wolfson and her team were litigating and 

successfully resolving these cases, however, they were new territory. These consumer privacy 

class actions included, without limitation:

 Zadeh v. Chase Manhattan Bank, et al., Case No. 323715 (Cal. Super. Ct., San 

Francisco Cty. (“SFSC”)).

 Steinhaus v. American Express Travel Related Services Co. et al., Case No. 

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416248 (SFSC).

 Bernard v. MBNA America Bank, et al., Case No. 408700 (SFSC).

 Shakib v. Discover Bank, et al., Case No. 416194 (SFSC).

 Baumsteiger v. FleetBoston, et al., Case No. 408698 (SFSC).

 Lanchester v. Washington Mutual Bank, et al., Case No. 429754 (SFSC).

Wolfson has also prosecuted medical privacy class actions on behalf of victims of data 

breaches under the California Confidentiality of Medical Information Act (CMIA). For example, 

AW was a member of the Executive Committee in the consolidated actions entitled Whitaker v. 

Health Net, Case No. 2:11-cv-00910-KJM (E.D. Cal.), and in the Sutter Medical Information 

Cases, Case No. JCCP 4698 (Cal. Super. Ct., Sacramento Cty.). 

AW was also instrumental to the plaintiffs’ efforts in the Target data breach litigation. 

AW contributed considerable effort to vetting hundreds of potential class representatives, legal 

research involving the different state laws in play, the consolidated complaint, and significant 

discovery efforts. 

Wolfson is currently serving, by court appointment, on the Consumer Plaintiffs’ Steering 

Committee in The Home Depot, Inc., Customer Data Security Breach Litigation.

Wolfson was elected as co-lead class counsel in the consumer class action stemming out 

of the Neiman Marcus data breach, entitled Remijas, et al. v. Neiman Marcus Group, LLC, No. 

14-cv-1735 (N.D. Ill.). AW, with Wolfson at the helm, was responsible for briefing and arguing 

the groundbreaking appeal from the trial court’s order granting the Motion to Dismiss on the 

pleadings based on lack of Article III standing. The Seventh Circuit’s landmark opinion was the 

first appellate decision issued after the Supreme Court ruled in Clapper v. Amnesty Intern. USA, 

133 S.Ct. 1138 (2013). The defense bar has aggressively advocated that Clapper set a more 

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rigorous standard for Article III standing inquiries and required a finding of no standing on 

behalf of plaintiffs in a data breach case, unless plaintiffs were able to show that they suffered 

unreimbursed fraudulent charges. Thanks to Wolfson’s efforts, the Neiman Marcus opinion was 

the first appellate court to reject this view of Clapper and, adopting plaintiff’s reasoning, 

established, among other things, that data breach victims have standing to pursue claims based 

on the increased risk of identity theft and fraud, even before that theft or fraud materializes. 

Remijas v. Neiman Marcus, No. 14-3122 (July 20, 2015, 7th Cir.) (reversed and remanded). 

AW is currently litigating other privacy-related and data breach cases, including: 

 Bishop v. Shorter University, Inc., No. 4:15-cv-00033-HLM (N.D. Ga.)

 Moyer v. Michaels Stores, Inc., No. 14-cv-561 (N.D. Ill.)

 Antman v. Uber Technologies, Inc., No. 3:15-cv-01175-LB (N.D. Cal.)

 In re: Anthem, Inc. Customer Data Sec. Breach Litig., No. 15-md-02617-

LHK (N.D. Cal.)

 In re: Sony Gaming Networks & Customer Data Security Breach 

Litigation, No. 11-md-2258 (S.D. Cal.)

 Wood v. American Eagle Outfitters, Inc., No. 1:15-cv-02370-VEC 

 (S.D.N.Y.)

 In re: Holiday Cruise Line Telephone Consumer Protection Act (TCPA) 

 Litigation, MDL No. 2637 (motion to transfer pending); underlying case: 

Moran v. Consolidated World Travel, Inc., No. 0:15-cv-60482-BB (S.D. 

Fla.)

 Chimeno-Buzzi v. Hollister Co., No. 1:14-cv-23120-MGC (S.D. Fla.)

 Tucker v. Scout Industries, LLC, No. 3:15-cv-05490-KLS (W.D. Wash.)

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 Maldonado v. Wells Fargo Bank, N.A., 3:15-cv-01646-BTM-JLB (S.D. 

Cal.)

In addition to privacy-related class actions, AW has been appointed lead counsel in 

numerous other complex consumer class actions, sometimes in contested leadership applications. 

Wolfson’s resume is Exhibit 3 and her certificate of good standing is Exhibit 4.

Wolfson and AW are fully committed to this action and have the necessary financial 

resources and legal experience to prosecute this action to a successful conclusion. AW intends to 

dedicate substantial resources to this action and work collaboratively and cooperatively with 

defense counsel, the other proposed co-lead and liaison counsel, as well as those firms who are 

filing competing applications for lead in this matter.

C. Kim D. Stephens, Tousley Brain Stephens PLLC (Seattle)

Stephens has 34 years of trial experience, emphasizing commercial, real property and 

class action litigation. With his Seattle firm, Tousley Brain Stephens PLLC (“TBS”), he has 

litigated numerous nine figure class action cases. He is licensed to practice in Washington and 

Oregon and has practiced before the United States District Court for the District of Oregon for 20 

years. 

Stephens and TBS have been appointed lead or co-lead counsel in numerous class actions 

and MDLs over a broad spectrum of areas, including:

Products: In re Louisiana-Pacific Inner Seal Siding, ($500 million settlement), Richison 

v. American Cemwood Corp.( $188 million settlement), Behr Wood Sealants ($132 million 

settlement), Williams et al. v. Weyerhaeuser Company ($85 million settlement), Zwicker v. 

General Motors, Inc. (settlement entitled class members to replacement of defective 

speedometers), Grays Harbor Christian School v. Carrier Corporation (settlement valued in 

excess of $300 million entitled class members to free furnace repairs and past expenses), 

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Clemans v. New Werner Co. (settlement valued at $48 million entitled all class members to free 

replacement ladders).

Consumer: Odom v. Microsoft (settlement entitled each class member up to $75 of 

internet account charges), Nelson v. Appleway Chevrolet, In. (settlement entitled class members 

to full refund of all illegally collected taxes); Cole v. Wells Fargo Bank N.A. (settlement entitled 

class members to full refunds of all excessive fees).

Employment: Barnett et al. v. Wal-Mart Stores, Inc. ($35 million settlement)

Securities: Johnson v. Amgen Boulder, Inc. ($82 million settlement), In re Washington 

Mutual Mortgage-Backed Securities ($26 million settlement). 

Data Breach. Stephens has committed considerable time and resources to prosecuting 

cases in the growing area of data breach class actions, including In re The Home Depot, Inc. 

Customer Data Security Breach Litigation, No. 14-md-02583 (N.D. Georgia), where he serves 

on the financial institutions experts and damages committee. He represents a putative class of 

financial institutions damaged when Home Depot failed to secure its customers’ names, account 

numbers, card security codes, card expiration dates, and card PIN numbers against data breach. 

Mr. Stephens also represents a putative class in In re Anthem, Inc. Data Breach Litigation, No. 

15-md-02617 (N.D. Cal.). Anthem, the second largest health insurer in the United States, failed 

to secure the confidential information of up to 80 million customers, including private medical 

records and social security numbers, from unauthorized access by third party hackers. 

Stephens is often retained by other lawyers to handle trials and appeals. He has tried and 

arbitrated numerous cases to judgment. He brings a wealth of practical experience and court 

knowledge to this group from both sides of the bench, clerking and trying cases. See Kim D. 

Stephens’ resume, Exhibit 5. For thirty years, Mr. Stephens has litigated cases with multiple 

firms as lead counsel, effectively assembling a single focused virtual law firm from many firms 

across the country. He maintains an active hourly practice and is keenly aware of cost effective 

case management and budgeting procedures. Stephens’ certificate of good standing is Exhibit 6. 

Tousley Brain Stephens PLLC’s resume is Exhibit 7.

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D. Proposed Class Counsel is collectively responsible for the relevant 

appellate precedent that establishes plaintiffs’ claims in the specialized 

area of data breach litigation: Neiman Marcus and AvMed.

Data breach litigation is a fast-evolving area of the law. The proposed leadership group, 

collectively, has been at the forefront of this cutting edge litigation and its efforts are responsible 

for creating important legal precedent establishing that plaintiffs have viable causes of action in 

this case. It is the only group being proposed to the Court that has established important appellate 

precedent in this field.

Most recently, in Remijas v. Neiman Marcus Group, LLC, No. 14-3122, Docket No. 27, 

Slip Op. (7th Cir. July 20, 2015), the Seventh Circuit issued an opinion reversing the trial court’s 

dismissal of a data breach case for lack of Article III standing. This is the first appellate decision 

issued after the Supreme Court ruled in Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138 (2013). 

The defense bar has aggressively advocated that Clapper set a more rigorous standard for Article 

III standing inquiries and required a finding of no standing on behalf of plaintiffs in a data breach

case, unless plaintiffs were able to show that they suffered unreimbursed fraudulent charges. The 

Neiman Marcus opinion was the first appellate court to reject this view of Clapper and, adopting 

plaintiff’s reasoning, established, among other things, that data breach victims have standing to 

pursue claims based on the increased risk of identity theft and fraud, even before that theft or 

fraud materializes. Proposed co-lead counsel Tina Wolfson of Ahdoot & Wolfson led the 

plaintiffs’ efforts in this seminal appeal. 

Similarly, in winning reversal in Resnick v. AvMed, 693 F.3d 1317 (11th Cir. 2012), 

plaintiffs, represented by Scharg, secured a landmark appellate decision, when the Eleventh 

Circuit Court of Appeals held that (i) the plaintiffs demonstrated a causal link between the data 

breach at issue and allegations of identity theft, and (ii) that the plaintiffs successfully pleaded a 

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separate and viable unjust enrichment theory, allowing all class members who paid money for 

health insurance to pursue money damages against the defendant. See AvMed, 693 F.3d at 1328. 

A majority of the complaints filed in the centralized Premera actions adopted key 

allegations from the AvMed complaint, such as those giving rise to the “overpayment” theory of 

recovery, and virtually all of the complaints incorporated the “increased risk of future harm” 

theory that was recently endorsed by the Seventh Circuit in Neiman Marcus. 

In sum, Scharg and Wolfson not only have extensive experience litigating data breach 

class actions—they have shaped the landscape in this area by securing the two landmark circuitlevel rulings that form the basis for each and every one of the complaints in this MDL.

IV. PROPOSED LEAD COUNSEL HAVE LED THIS CASE FROM THE 

BEGINNING.

In addition to establishing the legal precedent on which all of the cases relied, Proposed 

Lead Counsel have done more for the benefit of the putative class than any other plaintiffs’

counsel. After thorough investigation—including by Edelson’s in-house Digital Forensics 

Investigations Team—Scharg filed the first-filed case in this MDL, Cushnie, in Washington. 

Stephens filed the first Oregon case, Colcord. Wolfson filed the first Alaska case, Fuerst, and 

the second Oregon case, Purcell. From there, Proposed Lead Counsel have devoted substantial 

efforts toward prosecuting this case, including by:

(1) Organizing and participating in several meetings of plaintiffs’ counsel, 

where they presented their views of the case, and organized a coalition of 

attorneys committed to their vision and strategy. 

(2) Moving for consolidation and centralization of the cases in this MDL.

(3) Meeting in person with Defendant’s lead counsel—Paul Karlsgodt—to 

discuss the parties’ respective views of the case, the possibility of 

coordinating an early reciprocal exchange of certain documents and 

information, and to open a dialogue regarding evidence preservation 

procedures (for both sides) and a proposed protocol for the production and 

handling of electronically stored information (“ESI”). 

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(4) Exchanging draft ESI stipulations and protocols with Defendant, as well as 

proposed preservation procedures. (Scharg and Stephens Letter to 

Karlsgodt, attached hereto as Exhibit 8; Karlsgodt Letter to Scharg and 

Stephens, attached hereto as Exhibit 9.)

(5) Coordinating and drafting both the preliminary report and proposed pretrial 

order, which will be timely filed on July 31, 2015 on behalf of their 23-

plaintiff coalition.

Proposed Class Counsel also coordinated and drafted both the preliminary report and 

proposed pretrial order, which will be timely filed on July 31, 2015 on behalf of their coalition.

They have maintained constant communication with the other attorneys involved in this case, 

listening to others’ views on how the case should proceed and, at times, demonstrating why 

Proposed Lead Counsel’s vision for the case would result in the most efficient and effective 

strategy for the plaintiff class.

V. PROPOSED LEAD COUNSEL HAVE WIDE-RANGING SUPPORT FOR THEIR 

LITIGATION STRATEGY AND PROPOSED STRUCTURE FOR THE 

CENTRALIZED ACTIONS.

Proposed Lead Counsel have already organized support for their vision of the best way to 

litigate the putative class members’ claims. That vision, in turn, is informed both by their 

experience in this area and their investigation into the facts and claims at issue. See Fed. R. Civ. 

P. 23(g)(1)(A)(i).

A. Proposed Lead Counsel investigated, identified, and built support for their 

vision of the putative class members’ claims, which is chiefly built upon the 

Neiman Marcus and AvMed frameworks.

Counsel for the plaintiffs in the centralized actions all agree on one point: the data breach 

framework endorsed by Seventh Circuit in Neiman Marcus and the Eleventh Circuit in AvMed is 

key to the prosecution of this matter. Under that approach, Proposed Lead Counsel built 

consensus that the claims of the putative class members should be pursued through traditional 

common law theories, and that the goal is to recover (1) out-of-pocket expenses relating to actual 

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identity theft, (2) the cost associated with protecting oneself against future identity theft (i.e., the 

cost of credit monitoring, identity theft insurance, etc.), and (3) “overpayment” for the data 

protection services that the class paid for, and that Defendants promised, but never delivered. See 

Neiman Marcus; Resnick, 693 F.3d at 1322 (identity theft), 1328 (overpayment).

B. Proposed Lead Counsel’s leadership efforts have generated substantial 

support for their vision for prosecuting the centralized actions.

Proposed Lead Counsel have gathered the support of largest coalition of counsel groups

in this MDL. Proposed Lead Counsel have made no explicit, implicit, direct or indirect financial 

deals or understandings of any kind. Rather, the discussions have centered on a meritocracy: (1) 

Proposed Lead Counsel’s experience in litigating cases of the same size and scope of the 

centralized actions; (2) Proposed Lead Counsel’s ability to organize and lead the various firms 

involved;

6

and (3) the best substantive and procedural frameworks through which to prosecute 

the putative class members’ claims. As detailed above, Proposed Lead Counsel have built 

consensus amongst the attorneys on this case and successfully communicated with the other 

plaintiffs’ attorneys—something that will be absolutely vital to the effective and efficient 

prosecution of the cases in this MDL. 

C. The proposed leadership structure nominates additional talented and 

experienced attorneys to prosecute the centralized actions.

Proposed Lead Counsel proposes a Plaintiffs’ Steering Committee of five lawyers in 

addition to lead counsel. Proposed Lead Counsel nominates the following attorneys for the 

Plaintiffs’ Steering Committee, and is open to working with whomever the court finds qualified 

to appoint to the remaining seats. Proposed Class Counsel also intends to bring in the expertise 

of veteran trial attorney Darrell Cochran and his firm Pfau Cochran Vertetis Amala PLLC from

 

6

 In appointing interim class counsel, Rule 23(g) also permits the Court to consider any other matters 

“pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. 

23(g)(1)(B).

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Tacoma to assist on a trial committee. 

1. James J. Pizzirusso, Hausfeld, LLP (Washington, D.C)

Mr. Pizzirusso is the head of the Consumer Protection/Privacy practice group for 

Hausfeld LLP, routinely recognized as one of the country’s top plaintiff firms. He has served as 

co-lead counsel in numerous successful class actions and MDLs. See, e.g., In re Warner Music 

Group Corp. Digital Downloads Litigation, No. 12-0559 (N.D. Cal.) ($11.5 million nationwide 

settlement for past damages with future increased royalties going forward.); Wolph v. Acer 

America Corp., No. 09-01314 (N.D. Cal.) (certified nationwide class action involving defective 

computers, $22 million settlement later achieved); Radosti v. Envision EMI, LLC, No. 09-cv00887 (D.D.C.)($17.5 million nationwide settlement); In re Tyson Foods, Inc. Chicken Raised 

Without Antibiotics Consumer Litigation, C.A08-1982, 2010 WL 1924012 (D. Md. May 11, 

2010)($8 million nationwide settlement). Mr. Pizzirusso serves as chair of the PSC in In re The 

Home Depot, Inc. Customer Data Security Breach Litigation, No. 14-md-02583 (N.D. Georgia). 

He serves on the financial institution steering committee in In re Target Corporation Customer 

Data Security Breach Litigation, MDL No. 14-25522 (D. Minn.). He is counsel for the class in 

the Anthem data breach case and in In re Kmart Corporation Customer Data Security Breach 

Litigation. Hausfeld, LLP’s resume is attached as Exhibit 10. Mr. Pizzirusso’s resume is 

Exhibit 11, and his certificate of good standing is attached as Exhibit 12. 

2. Gary Lynch, Carlson Lynch Sweet & Kilpela LLP (Pittsburg)

Carlson Lynch Sweet & Kilpela LLP (“Carlson Lynch”) litigates complex class-action 

matters involving financial fraud (including securities fraud, derivative actions, and mortgage 

fraud), antitrust, consumer fraud, labor and employment, disability access and wage and hour, in 

federal and state courts throughout the country. Litigation prosecuted by Carlson Lynch has 

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resulted not only in the substantial monetary recoveries and injunctive benefits on behalf of class 

members, but Carlson Lynch cases also continue to generate seminal legal authority. 

Carlson Lynch is currently involved in several high-profile privacy/data breach matters. 

For example, Gary Lynch serves as co-lead counsel in In re Home Depot Customer Data 

Security Breach Litigation, representing the financial institution plaintiffs. Mr. Lynch also 

serves on the overall executive committee in In re Target Corporation Customer Data Security 

Breach Litigation. 

Mr. Lynch also serves as a member of the plaintiffs’ steering committee in In re 

Community Health Systems Customer Data Security Breach Litigation, MDL 2595 (N.D. Ala.), a 

medical information data breach involving current and former patients of a national health care 

organization. Carlson Lynch represents plaintiffs in numerous additional consolidated and 

individual data beach actions. Gary Lynch has also assisted the Massachusetts Bankers 

Association in the drafting of proposed legislation setting standards for cyber security in the 

payment card industry.

Mr. Lynch’s resume is Exhibit 13, and his certificate of good standing is attached as 

Exhibit 14. 

Numerous other law firms support this leadership structure and will be tasked with work 

when their assistance is most effective. In the interest of judicial economy, we will not labor the 

court with their achievements or accolades at this time. Each of them is accomplished class 

action firms and each have unique talents to offer this team.

IV. CONCLUSION

Proposed Class Counsel have the most experience relevant to assuming a leadership role 

here, have a clear and supported vision for prosecuting the centralized actions, and are able to 

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devote substantial resources to the on-going prosecution of this case. Proposed Class Counsel 

have relied, and will continue to rely, upon their experience to lead and organize all other firms 

involved in the centralized actions—including those who presently support the instant request for 

leadership appointment and those who seek appointment themselves. Accordingly, Plaintiffs 

respectfully request that the Court enter an Order (1) appointing Ari Scharg of Edelson PC, Tina 

Wolfson of Ahdoot & Wolfson, PC, and Kim D. Stephens of Tousley Brain Stephens PLLC as 

Interim Lead Class Counsel, (2) appointing James J. Pizzirusso and Gary Lynch to the PSC, and 

(3) providing such other and further relief as the Court deems reasonable. 

Dated: July 28, 2015

Respectfully Submitted,

TOUSLEY BRAIN STEPHENS PLLC

/s/ Kim D. Stephens

Kim D. Stephens, OSB #030635

Chase C. Alvord, OSB #070590

Christopher I. Brain, WSBA #5054

Jason T. Dennett, WSBA #30686

1700 Seventh Avenue, Suite 2200 

Seattle, WA 98101 

Telephone: (206) 682-5600 

Fax: (206) 682-2992 

Email: kstephens@tousley.com

Proposed Liaison and Co-Lead Counsel

Ari J. Scharg

EDELSON PC 

350 North LaSalle Street, Suite 1300

Chicago, IL 60654 

Telephone: (312) 589-6370 

Fax: (312) 589-6378

Email: ascharg@edelson.com

Proposed Co-Lead Counsel

Tina Wolfson

AHDOOT AND WOLFSON, PC

1016 Palm Avenue 

West Hollywood, CA 90069

Telephone: (310) 474-9111 

Fax: (310) 474-8585 

Email: twolfson@ahdootwolfson.com

Proposed Co-Lead Counsel

The following firms join this application:

James J. Pizzirusso

Hausfeld LLP

1700 K Street NW, Suite 650

Washington, DC 20006

Telephone: (202) 540-7154

Email: jpizzirusso@hausfeld.com

Darrell L. Cochran

Kevin M. Hastings 

Katrina Carroll

Lite DePalma Greenberg, LLC

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Pfau Cochran Vertetis Amala PLLC

911 Pacific Avenue, Suite 200

Tacoma, WA 98402

Telephone: (253) 777-0799 

Email: darrell@pcvalaw.com

211 West Wacker Drive

Suite 500

Chicago, IL 60606

Telephone: (312) 750-1265

Email: kcarroll@litedepalma.com

Konstantine W. Kyros

Kyros Law Offices

17 Miles Road

Hingham, MA 02043

Telephone: (800) 934-2921

Email: kon@kyroslaw.com

Matthew J. Ide

7900 SE 28th Street, Suite 500

Mercer Island, WA 98040

Telephone: (206) 625-1326

Email: mjide@yahoo.com

Joseph N. Kravec, Jr.

Feinstein Doyle Payne & Kravec LLC

Allegheny Bldg., 17th Floor

429 Forbes Avenue

Pittsburgh, PA 15219

Telephone: (412) 281-8400

Email: jkravec@fdpklaw.com

David A. Leen

Leen & O’Sullivan

520 E. Denny

Seattle, WA 98122

Telephone: (206) 325-6022

Email: david@leenandosullivan.com

Nick Suciu III

Barbat, Mansour & Suciu PLLC

434 W. Alexandrine, #101

Detroit, MI 48201

Telephone: (313) 303-3472

Email: nicksuciu@bmslawyers.com

Daniel J. Wasserberg

Meirowitz & Wasserberg, LLP

845 Third Ave., 11th Floor

New York, NY 10022

Telephone: (212) 897-1988

Email: dw@mwinjurylaw.com 

Christopher P. Ridout

Caleb Marker

Ridout Lyon & Ottoson, LLP

555 E. Ocean Blvd., Suite 500

Long Beach, CA 90802

Telephone: (562) 216-7380

Email: c.ridout@rlollp.com

Email: c.marker@rlollp.com

Johnathan Shub

Kohn Swift & Graf, PC

One South Broad Street

Philadelphia, PA 19107

Telephone: (215) 238-1700

Email: jshub@kohnswift.com

William Anderson

Cuneo Gilbert & LaDuca, LLP

507 C Street, NE

Washington, DC 20002

Telephone: (202) 789-3960

Email: wanderson@cuneolaw.com

Abbas Kazerouni

Kazerouni Law Group APC

245 Fischer Ave., Suite D1

Costa Mesa, CA 92626

Telephone: (800) 400-6808

David Bower Deborah M. Nelson

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Faruqi & Faruqi, LLP

369 Lexington Ave., 10th Floor

New York, NY 10017

Telephone: (877) 247-4292

Email: dbower@faruquilaw.com

Jeffrey D. Boyd

Nelson Boyd, PLLC

411 University Street, Suite 1200

Seattle, WA 98101

Telephone: (206) 971-7601

Email: nelson@nelsonboydlaw.com

Email: boyd@nelsonboydlaw.com

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CERTIFICATE OF SERVICE

I hereby certify that on this day I served the above and foregoing on all parties by causing 

a true and correct copy to be filed with the court’s electronic filing system, which automatically 

sends a copy to all counsel of record.

/s Kim D. Stephens 

Kim D. Stephens

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