In Re Meta Pixel Healthcare Litigation

Background

Seven cases were consolidated before the court. The cases allege that Meta Platforms, Inc. received the health information of millions of Facebook users through the Meta Pixel, a tracking tool. Nine law firms sought appointment as interim class counsel through three motions.

The first-filed case was brought by John Doe in June 2022. The plaintiffs represented by Simmons Hanly Conroy and Kiesel, among others, served discovery requests, moved for a preliminary injunction, and pursued other early litigation activity. In October 2022, the court consolidated the related actions and established a process for selecting interim class counsel.

Legal standard

Federal Rule of Civil Procedure 23(g)(3) allows a court to appoint interim counsel to act for a proposed class before deciding whether to certify the case as a class action. The court considered the factors listed in Rule 23(g)(1), including:

- the work counsel had done identifying or investigating potential claims; - counsel’s experience with class actions, complex litigation, and the asserted claims; - counsel’s knowledge of the applicable law; - the resources counsel would commit; and - other matters relevant to fair and adequate representation of the class.

Court’s analysis

The court found that all of the firms seeking appointment were qualified, but that the Simmons Cohen group had done the most work identifying and investigating the potential claims. Its work included filing the first complaint, moving for a preliminary injunction, discussing preservation and production of information with Meta, serving written discovery, proposing an expert stipulation, participating in a required pretrial conference, serving initial disclosures, and taking the lead at the initial conference.

The court also found that the Simmons Cohen group had an advantage in relevant experience and legal knowledge. Members of the group had sued healthcare providers over use of the Meta Pixel, served as lead counsel for a certified patient class in one medical-provider case in Washington, and held leadership roles in earlier Facebook internet-tracking litigation. The group also committed substantial resources, including primary attorney teams and a willingness to advance litigation costs.

The court considered competing proposals from the Lowey Lynch Lockridge group and Beasley Allen. It recognized that the Lowey Lynch Lockridge group had significant data-privacy experience and was more diverse in gender, race, experience, and age. The court nevertheless concluded that the other Rule 23(g) factors favored the Simmons Cohen group. It also gave weight to support from two non-moving firms and found that the Simmons Cohen leadership structure could provide clear leadership while supplying substantial resources, assuming the appointed counsel delegated work carefully and monitored time and expenses.

Ruling

Judge William H. Orrick granted Simmons Cohen’s motion for appointment as interim class counsel and appointed:

- Jay Barnes of Simmons Hanly Conroy LLC and Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC as Interim Co-Lead Class Counsel; - Beth Terrell of Terrell Marshall Law Group PLLC, Jeffrey A. Koncius of Kiesel Law LLP, and Andre Mura of Gibbs Law Group as members of the Executive Committee.

The interim co-lead counsel must coordinate the plaintiffs’ pretrial activities, including discovery, the handling of pending and anticipated motions, settlement negotiations, delegation of tasks, stipulations, status reports, and monitoring counsel’s time and expenses. They must also file a quarterly diversity report. The appointments are personal, so the appointees may not be replaced by other attorneys without the judge’s prior approval.

This order selected interim leadership for the consolidated litigation. It did not decide the underlying allegations against Meta or whether a class should ultimately be certified.