Shiyang Huang v. Equifax Inc. (In re Equifax Inc. Customer Data Sec. Breach Litig.), 20-10249

999 F.3d 1247

IN RE EQUIFAX INC. CUSTOMER DATA SECURITY BREACH LITIGATION

Shiyang Huang, et al., Movants-Appellants,

Brian F. Spector, et al., Plaintiffs-Appellees,

v.Equifax Inc., et al., Defendants-Appellees.

No. 20-10249

United States Court of Appeals, Eleventh Circuit.

June 3, 2021

Shiyang Huang, Topeka, KS, Pro Se.

Theodore H. Frank, Hamilton Lincoln Law Institute, Washington, DC, for Movants-Appellants Theodore H. Frank, David R. Watkins.

Roy E. Barnes, John R. Bevis, James Cameron Tribble, Barnes Law Group, LLC, Marietta, GA, Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, LLC, Atlanta, GA, Amy Elisabeth Keller, Adam J. Levitt, DiCello Levitt Gutzler, LLC, Chicago, IL, Marisa Kendra Glassman, John Yanchunis, Morgan & Morgan, Complex Litigation Group, Tampa, FL, Justin Hawal, AT, DiCello Levitt Gutzler, LLC, Mentor, OH, for Plaintiff-Appellee Brian F. Spector.

Roy E. Barnes, John R. Bevis, James Cameron Tribble, Barnes Law Group, LLC, Marietta, GA, Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, LLC, Atlanta, GA, Marisa Kendra Glassman, John Yanchunis, Morgan & Morgan, Complex Litigation Group, Tampa, FL, for Plaintiff-Appellee James McGonnigal.

Robert William Clore, Bandas Law Firm, PC, Corpus Christi, TX, Jerome J. Froelich, Jr., McKenney & Froelich, Atlanta, GA, for Movant-Appellant Mikell West.

Roy E. Barnes, John R. Bevis, James Cameron Tribble, Barnes Law Group, LLC, Marietta, GA, Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, LLC, Atlanta, GA, Norman E. Siegel, Barrett Jay Vahle, John Austin Moore, Stueve Siegel Hanson, LLP, Kansas City, MO, for Plaintiffs-Appellees Randolph Jefferson Cary, III, Robin D. Porter, William R. Porter.

George Willard Cochran, Jr., Kent, OH, Pro Se.

Charles Benjamin Nutley, Law Office of Charles Benjamin Nutley, Pasadena, CA, Eric Alan Isaacson, Law Office of Eric Alan Isaacson, La Jolla, CA, for Movant-Appellant John W. Davis.

John W. Davis, Tampa, FL, Pro Se.

David L. Balser, Elizabeth Dees Adler, Robert Douglas Griest, Sidney Stewart Haskins, II, Phyllis B. Sumner, John C. Toro, King & Spalding, LLP, Stephen P. Drobny, Jones Walker, LLP, Atlanta, GA, Jordan S. Bolton, Clark Hill, PLC, Detroit, MI, Matthew Vernon Burrows, Gallagher Callahan & Gartrell PC, Concord, NH, Jayna Morse Cacioppo, Taft Stettinius & Hollister LLP, Indianapolis, IN, Melissa A. Campbell, Law Office of Mark S. Roher, PA, Plantation, FL, Charles Henry Carpenter, Pepper Hamilton-DC, Adam Cooke, Michelle Anne Kisloff, Hogan Lovells US, LLP, Noam B. Fischman, Mintz Levin Cohn Ferris Glovsky & Popeo, PC, Edith Ramirez, Federal Trade Commission, Office of the General Counsel, Washington, DC, Peter Corsale, Polsinelli PC, Saint Louis, MO, Alicia Bliss Gilbert, Peter Isajiw, King & Spalding, LLP, Joann Needleman, Clark Hill PLC-PA, New York, NY, Wesley B. Gilchrist, Harlan Irby Prater, IV, Lightfoot Franklin & White, LLC, Birmingham, AL, Molly Renee Hamilton Cawley, MHC Law, LLC, Charleston, SC, Christopher J. Haugen, Joseph W. Lawver, Messerli & Kramer, P.A, Minneapolis, MN, Benjamin C. Jensen, Robinson & Cole, LLP, Hartford, CT, John R. Lawless, Jr., King and Spalding LLP, Los Angeles, CA, William O. Luckett, Jr., Luckett Tyner Law Firm, P.A., Clarksdale, MS, Daniel D. McGuire, Polsinelli, PC, Dallas, TX, Stewart O. Peay, Snell & Wilmer, LLP, Salt Lake City, UT, Roger D. Rowe, Ralph Downing Scott, III, Lax Vaughn Fortson Rowe Threet P.A, Little Rock, AR, Rachel M. Wertheimer, Verrill & Dana, Portland, ME, John M. Williams, Williams, Kilpatrick & True, PLLC, Lexington, KY, Patricia Williams, Wiggins, Williams & Wiggins, Albuquerque, NM, G. Gabriel Zorogastua, Polsinelli PC-MO, Kansas City, MO, for Defendant-Appellee Equifax, Inc.

David L. Balser, Elizabeth Dees Adler, Robert Douglas Griest, Zachary Andrew McEntyre, Phyllis B. Sumner, John C. Toro, King & Spalding, LLP, John M. Williams, Savell & Williams, Atlanta, GA, Bradley Austin, Snell & Wilmer, LLP, Las Vegas, NV, Jayna Morse Cacioppo, Taft Stettinius & Hollister LLP, Indianapolis, IN, Molly Renee Hamilton Cawley, MHC Law, LLC, Charleston, SC, Christopher J. Haugen, Joseph W. Lawver, Messerli & Kramer, P.A, Minneapolis, MN, John R. Lawless, Jr., King and Spalding LLP, Los Angeles, CA, William O. Luckett, Jr., Luckett Tyner Law Firm, P.A., Clarksdale, MS, Edith Ramirez, Federal Trade Commission, Office of the General Counsel, Washington, DC, Vincent M. Roskovensky, Clark Hill Strasburger, Pittsburgh, PA, Roger D. Rowe, Ralph Downing Scott, III, Lax Vaughn Fortson Rowe Threet P.A, Little Rock, AR, Rachel M. Wertheimer, Verrill & Dana, Portland, ME, Patricia Williams, Wiggins, Williams & Wiggins, Albuquerque, NM, for Defendant-Appellee Equifax Information Services LLC.

Kirkland E. Reid, The Finley Firm, PC, Columbus, GA, Phyllis B. Sumner, King & Spalding, LLP, Atlanta, GA, for Defendant-Appellee Equifax Information Solutions, LLC.

Ryan D. Andrews, Edelson, PC, Chicago, IL, John Aaron Lawson, Edelson PC, San Francisco, CA, for Amicus Curiae Jay Edelson.

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge:

This appeal arises from the 2017 data privacy breach of Equifax Inc. and its affiliates (collectively "Equifax"). After the breach came to light, scores of class actions against Equifax flooded the courts. The cases were consolidated in the Northern District of Georgia, where Plaintiffs and Equifax eventually settled their dispute, resulting in "the largest and most comprehensive recovery in a data breach case in U.S. history by several orders of magnitude." But try as they might, the parties could not please everyone. Of the approximately 147 million class members, 388 people objected to the settlement. Even so, the District Court approved the settlement, certified the settlement class, awarded attorney's fees and expenses, and approved incentive awards for the class representatives. Several of the objectors appealed, challenging the District Court's approval order as well as some related rulings.

This case highlights the role objectors play in the settlement of class actions. We begin with the knowledge that settlements are "highly favored in the law" because "they are a means of amicably resolving doubts and uncertainties and preventing lawsuits." In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir. 1977) (quotation marks omitted).¹ The settlement here is a prime example. Absent the settlement, the class action could have faced serious hurdles to recovery, and now the class is entitled to significant settlement benefits that may not have even been achieved at trial. And you need not take our word for this. The Federal Trade Commission, the Consumer Financial Protection Bureau, and the Attorneys General for 48 states, the District of Columbia, and Puerto Rico all support the settlement.

Yet as we mentioned, not everyone bound by this class action settlement agrees with it, and class members who oppose the settlement have the right to object. See Fed. R. Civ. P. 23(e)(5)(A). Often times objectors play a "beneficial role in opening a proposed settlement to scrutiny and identifying areas that need improvement." David F. Herr, Annotated Manual for Complex Litigation § 21.643 (4th ed. 2021) [hereinafter "Manual for Complex Litigation"]. And because objectors have the right to object, it is our obligation to closely review the issues they present. Consistent with our obligation, we have studied the hundreds of pages of briefing, sifted through the flurry of Rule 28(j) letters, and familiarized ourselves with the enormous record in this case. After this careful consideration, and with the benefit of oral argument, we affirm the District Court's rulings in full, subject to one small asterisk. Specifically, after the District Court approved incentive awards for the class representatives, a panel of this Court held that such awards are prohibited. See Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1260 (11th Cir. 2020). As in NPAS Solutions, we must reverse the District Court's ruling on the incentive awards alone and remand this case to the District Court solely for the limited purpose of vacating those awards. See id.

I. BACKGROUND

In 2017, Equifax, a consumer reporting agency, announced it had been subject to a data privacy breach affecting the personal information of almost 150 million Americans. The breach involved some of the most sensitive personal information possible: all nine digits of Americans’ Social Security numbers, coupled with their names, dates of birth, and addresses, among other things. Over 300 class actions against Equifax were filed across the nation, all of which came to be consolidated and transferred by the Judicial Panel on Multidistrict Litigation to then-Chief Judge Thomas W. Thrash in the Northern District of Georgia.² The District Court established separate tracks for the consumer claims and the financial institution claims. This appeal relates to the consumer claims.

In 2018, Plaintiffs filed a 559-page consolidated class action complaint against Equifax. The complaint included 96 named plaintiffs who brought a host of statutory and common law claims under federal and state law. These claims included violations of the Fair Credit Reporting Act, the Georgia Fair Business Practices Act, and various state consumer protection and data breach statutes. Plaintiffs also brought claims for negligence, negligence per se, unjust enrichment, and breach of contract. Plaintiffs alleged that, due to the data breach, they are "subject to a pervasive, substantial and imminent risk of identity theft and fraud." They also alleged that they have spent time, money, and effort attempting to mitigate the risk of identity theft and that many have already been victims of identity theft.

Equifax filed a motion to dismiss the complaint in its entirety, which the District Court granted in part and denied in part. The District Court dismissed the Fair Credit Reporting Act claims, the Georgia...