Geico is facing five proposed class actions across the country, all stemming from a data breach in which attackers used illegally obtained personal data to gain unauthorized access to the insurer’s online sales system between January and March. (AP Photo/Jacob Kupferman)
The proposed class action led by California couple Mark Edward Vennerholm and Reanna Ann Vennerholm alleges a claim against Geico under the California Consumer Privacy Act, which does not have comparable statutes in other states, Michael Murphy, counsel for the Vennerholm plaintiffs, told the panel in oral arguments Thursday.
Geico is facing five proposed class actions across the country, all stemming from a data breach in which attackers used illegally obtained personal data to gain unauthorized access to the insurer’s online sales system between January and March.
Under the state law, the California plaintiffs can assert damages against Geico if they can show they provided the insurer written notice of its violation of the law and that the insurer failed to rectify the violation within 30 days of the notice. Because this claim is not common to the other cases, centralization would not be suitable, Murphy said during the oral arguments, which were conducted by videoconference.
If the current judge in the California case, U.S. District Court Judge Gonzalo Curiel, retains the case, the California plaintiffs would agree to amend their complaint to remove national claims and allege only California claims and a California class, Murphy told the panel.
When asked why the plaintiffs would not just amend their complaint without a stipulation, Murphy said that if they were to do so, they would still be made part of the question of whether to centralize the five cases.
“It certainly would make our job easier,” Judge Roger Benitez said in response to Murphy’s stipulation offer.
The California plaintiffs were alone in their opposition, as Geico and the four other class action plaintiffs all supported centralization in the Thursday arguments. Geico and plaintiffs for the three class actions filed in the Eastern District of New York supported centralizing the cases in New York, while the plaintiffs for a class action filed in the District of Maryland said Maryland would be the most suitable.
Geico announced the data breach in April; according to the insurer, about 150,000 individuals were affected.
Alexander Mirvis, Betty Butler and Lainie Froehlich filed the first proposed class action on April 21 in the Eastern District of New York, claiming that Geico and its parent company, Berkshire Hathaway Inc., could have prevented the data breach through basic security measures, authentications and training.
Two other lawsuits were filed in the district by Raquel Brody and Michael Viscardi, with all New York cases before U.S. District Judge Kiyo A. Matsumoto. The fifth suit, in the District of Maryland, was filed by Ryant Connelly and Belen Perez.
Murphy told the panel that Judge Curiel has experience in data breach cases. As the California law was only recently enacted, Judge Curiel’s location in California and experience with data breach cases meant he was a suitable judge to decide the case, Murphy said.
Panel Judge Catherine Perry asked John Marino, counsel for Geico, and Tina Wolfson, counsel for Viscardi, why informal coordination was not a possibility, noting that there were only three districts involved in the case.
Wolfson noted that the different plaintiffs had already attempted to work out a plan for informal coordination but that they had failed to reach a consensus. Wolfson also said that the three New York plaintiffs all support centralization, with New York as the preferred option.
Michelle Drake, counsel for Connelly and Perez, responded to a similar question from Judge Matthew Kennelly about whether the Maryland and New York plaintiffs had attempted coordination by noting that even between the Maryland and New York plaintiffs, there were “substantive disagreements” regarding the claims in each of the cases.
“They’re not perfectly contiguous. Not only are there different claims set forth on behalf of the California plaintiffs, but even the national claims are pled differently,” Drake said.
Drake also said in response to Judge Benitez’s musing about attempting to get the three judges to cooperate with each other that it would still be less efficient than centralizing all the cases.
“It does seem like a questionable use of judicial resources to involve three judges in coordinating five cases when we could coordinate five cases in front of a single judge,” Drake said.
The arguments for either New York or Maryland as the preferred location largely mirrored the parties’ previous positions. Marino, in support of New York, told the judges that about 85% of the individuals affected by the breach are located in New York and that Judge Matsumoto, who is already in charge of three of the cases, had indicated she would be willing to take on the rest of the cases.
Drake, in supporting Maryland as the preferred option, said that the district had the least crowded docket. Additionally, Geico is headquartered in Maryland, making litigation there more practical, Drake said. Databases, witnesses and other important information are likely to be located at headquarters, according to the Maryland plaintiffs’ previous filings in support of centralization in that district.
“The panel’s trend has been to send data breach cases to the jurisdiction where the defendant is headquartered. There’s no reason to deviate from that here,” Drake said.
Representatives of Brody and Viscardi declined to comment.
Representatives of Geico and the rest of the plaintiffs did not respond to requests for comment.
Geico is represented by John Marino and Kristen Wenger of Smith Gambrell & Russell LLP and Shari Lewis, Barry Levy and Amanda Gurman of Rivkin Radler LLP.
The Vennerholm plaintiffs are represented by Michael Murphy, Franklin Azar, Andrew Stolper and Brian Hanlin of Franklin D. Azar & Associates PC.
The Connelly and Perez plaintiffs are represented by Michelle Drake of Berger Montague PC.
The Viscardi plaintiffs are represented by Tina Wolfson of Ahdoot & Wolfson PC.
The Butler, Mirvis and Froelich plaintiffs are represented by Marc. J. Held and Philip Hines of Held & Hines LLP.
