Doe v. Weiss

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JANE DOE I, individually and on behalf of ) CASE NO. 5:25-cv-827

all individuals similarly situated, )

)

)

PLAINTIFFS, ) CHIEF JUDGE SARA LIOI

)

vs. )

) MEMORANDUM OPINION

) AND ORDER

MATTHEW WEISS, et al., )

)

)

DEFENDANTS. )

In this putative class action, plaintiff Jane Doe I (“Doe”) moves for the appointment of

interim class counsel under Rule 23(g)(3) of the Federal Rules of Civil Procedure. (Doc. No. 7

(Motion).) For the following reasons, the motion is denied without prejudice.

I. BACKGROUND

Doe seeks to represent two classes of students who are alleged to have been negatively

impacted by the “unauthorized access and misuse of personal information” by defendant Matthew

Weiss (“Weiss”), a former University of Michigan and Baltimore Ravens football coach. (Doc.

No. 1 (Complaint), at 11 & ¶¶ 110–11.) According to the Complaint, between 2015 and 2023,

Weiss unlawfully accessed electronically stored personal identifying information (“PII”) and

personal health information (“PHI”) of over 150,000 students nationwide (many of whom were

1 All page number references herein are to the consecutive page numbers applied to each individual document by the

Court’s electronic filing system.

student-athletes). (Id. ¶¶ 18–19, 21, 26.) Using this information, Weiss was also able to access the

social media, email and/or cloud storage accounts of over 3,300 students, which then enabled him

to download “personal, intimate digital photographs and videos that were never intended to be

shared beyond intimate partners.” (Id. ¶ 22.) On March 25, 2025, Weiss was indicted in the United

States District Court for the Eastern District of Michigan on 24 counts of unauthorized access to

computers and aggravated identity theft. (Id. ¶ 11; see Doc. No. 7-1 (Indictment).)

Doe was a student-athlete at Malone University from 2017 to 2022. (Doc. No. 1 ¶ 1.) Doe

received a letter, dated March 31, 2025, from the United States Department of Justice advising her

that she was identified as a potential victim in the federal criminal action against Weiss. (Id. ¶ 81;

see Doc. No. 1-1 (Letter).) In addition to Weiss, Doe brings this action against her former

university (Malone), and Keffer Development, LLC (“Keefer”), the technology and data vendor

Malone employed to store and maintain electronic student PII and PHI. (Doc. No. 1, at 1 & ¶¶ 8,

30, 32.) She alleges that Malone and Keffer were negligent in failing to ensure the security of this

sensitive and confidential information. (See id. ¶¶ 37, 49–53, 64, 67.)

The present lawsuit is one of many that have been filed across the country in the wake of

the discovery of the Weiss data breach. The first actions were filed in the Eastern District of

Michigan and were brought against Weiss, Keffer, and the University of Michigan. See, e.g., Doe

I, et al. v. Weiss, et al., No. 2:25-cv-10806; Doe I, et al. v. Weiss, et al., No. 2:25-cv-10855; Roe

CLF 001 v. Weiss, et al., No. 2:25-cv-10870; Doe v. University of Michigan Board of Regents, et

al., No. 2:25-cv-10876; Doe 1, et al. v. The Regents of the University of Michigan, et al., 2:25-cv-

10946; Doe v. Board of Regents of the University of Michigan, et al., No. 25-cv-10951; Doe I, et

al. v. Weiss, et al., 2:25-cv-10988; Doe v. Board of Regents of the University of Michigan, et al.,

2

No. 2:25-cv-10999. These Michigan actions all appear on the docket of the Honorable Mark A.

Goldsmith.

Several of the attorneys who seek appointment as interim counsel in the present case belong

to a coalition of attorneys that sought appointment as interim class counsel in the Michigan cases.

(See No. 2:25-cv-10806, Doc. No. 51 (Motion for Appointment of Interim Counsel).) At least one

other set of attorneys requested appointment as interim class counsel in Michigan. (See id., Doc.

No. 19 (Motion to Consolidate and to Appoint Interim Lead Counsel); see also id., Doc. No. 55

(Response to Motion for Appointment of Interim Counsel), at 1 fn. 1 & 2 (identifying attorney

groups vying for appointment as interim class counsel).) On May 23, 2025, Judge Goldsmith

issued an order consolidating the Michigan cases and appointing interim class counsel. (See No.

2:25-cv-10806, Doc. No. 58 (Order for Consolidation and Related Matters).) Doe’s counsel were

not among the attorneys who were appointed as interim class counsel in the Michigan cases. (See

id. at 1.)

A smattering of cases were subsequently filed in other district courts around the country

against Weiss, Keffer, and various other educational institutions. See, e.g., Doe v. Weiss, et al.,

N.D. Ill. No. 1:25-cv-4233; Doe 1 v. Weiss, et al., C.D. Cal. No. 5:25-cv-997; Doe v. Weiss, et al.,

D. Mass. No. 1:25-cv-11151; Doe 1, et al. v. High Point University, et al., M.D. N.C. No. 1:25-

cv-303. These cases were all filed within days of the action in this Court.

This case is the only action related to the Weiss data breach pending in the Northern District

of Ohio. Within a week of filing the complaint, Doe moved for the appointment of interim class

counsel. By the present motion, Doe seeks appointment of her current counsel—attorneys from

the law firms of Barkan Meizlish DeRose Cox, LLP, Sommers Schwartz, P.C., and Pitt McGehee

3

Palmer Bonanni & Rivers, P.C.—arguing that these attorneys “possess the requisite experience,

commitment, resources and leadership qualities under the Federal Rules of Civil Procedure 23(g).”

(Doc. No. 7, at 6.)

II. LAW AND ANALYSIS

A district court may “designate interim counsel to act on behalf of a putative class before

determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). Appointment

of interim counsel is appropriate where it is necessary to protect the interests of the putative class.

See Fed. R. Civ. P. 23 advisory committee’s note, 2003 amend. (Former Rule 23(g)(2)(A), now

Rule 23(g)(3), “authorizes the court to designate interim counsel during the pre-certification period

if necessary to protect the interests of the putative class”). Such an appointment is discretionary

and is particularly suited to complex actions, as explained in the Manual for Complex Litigation

(Fourth):

If the lawyer who filed the suit is likely to be the only lawyer seeking appointment

as class counsel, appointing interim class counsel may be unnecessary. If, however,

there are a number of overlapping, duplicative, or competing suits pending in other

courts, and some or all of those suits may be consolidated, a number of lawyers

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.

Manuel for Complex Litigation (Fourth) § 21.11. For these reasons, “courts that appoint interim

counsel generally do so when a large number of putative class actions have been consolidated or

are pending before a single court.” Dudenhoefer v. Fifth Third Banc., No. 1:08-cv-538, 2009 WL

10678975, at *2 (S.D. Ohio Mar. 25, 2009) (collecting cases); see also, e.g., Troy Stacy Enters.

Inc. v. Cincinnati Ins. Co., 337 F.R.D. 405, 409 (S.D. Ohio 2021) (appointing interim class counsel

when “multiple duplicative lawsuits” were pending before a single court in a consolidated action).

4

The Court finds that appointment of interim class counsel would be premature. At the

present time, there are no competing actions consolidated or pending before this Court. The only

other related cases are pending in other districts and have not been consolidated with this case.

“Typically, courts find interim counsel necessary only where a large number of putative class

actions have been consolidated or otherwise are pending in a single court.” Levey v. Concesionaria

Vuela Compañía de Aviación, S.A.P.I. de C.V., 529 F. Supp. 3d 856, 867 (N.D. Ill. 2021) (quotation

marks and citation omitted) (emphasis in original); see In re Seagate Tech. LLC Litig., 16-cv-523,

2016 WL 3401989, at *3 (N.D. Cal. June 21, 2016) (“Where there are no competing lawsuits or

firms, courts in this district have been unwilling to appoint interim class counsel.” (collecting

cases)); see also Bielski v. Coinbase, Inc., No. C 21-7478, 2022 WL 17650535, at *2–3 (N.D. Cal.

Dec. 13, 2022) (finding no need to appoint interim class counsel where the only related cases were

pending in other federal and state courts); Mey v. Patriot Payment Grp., LLC, No. 5:15-cv-27,

2016 WL 11501481, at *2 (N.D. W.V. 2016) (holding that “[t]he fact that another similar suit is

pending in another court does not, without more, create the sort of rivalry or uncertainty that

justifies the appointment of interim counsel” (quotation marks and citation omitted)).

Additionally, Doe’s counsel are the only attorneys seeking to represent the putative class

in this case. As noted, the Manual for Complex Litigation provides that appointment of interim

counsel is often unnecessary in those circumstances. Manuel for Complex Litigation (Fourth) §

21.11; see, e.g., In re Nest Labs Litig., No. 14-cv-1363, 2014 WL 12878556, at *2 (N.D. Cal. Aug.

18, 2014) (denying motion for appointment of interim class counsel as unnecessary where the only

two law firms on the case sought appointment as co-interim class counsel).

While Doe suggests that interim counsel is necessary to, among other things, “secure

5

agreement on ESI preservation, request and respond to initial disclosures, conduct discovery, and

negotiate a schedule” (see Doc. No. 7, at 21), the appointment of interim class counsel is not

necessary to ensure that these common pretrial activities take place. “Whether or not formally

designated interim counsel, an attorney who acts on behalf of the class before certification must

act in the best interests of the class as a whole.” See Fed. R. Civ. P. 23(g)(3) advisory committee’s

notes, 2003 amend.; see also Wolpert v. Branch Banking Trust & Co., No. 3:19-cv-138, 2023 WL

3263487, at *4 (E.D. Tenn. Mar. 23, 2023) (“Here, there are no pending competing matters, and

at this time[,] the responsibility for protecting the interests of the class in this Court is clear.”

(quotation marks and citation omitted)).

Doe also believes that the appointment of interim counsel in this case will help protect the

putative class’s rights in the cases pending in Michigan. (Doc. No. 7, at 21–24.) Noting the

considerable overlap between the class definitions in this case and those in Michigan, Doe argues

there is a need for coordination amongst the cases to ensure that the interests of all of the affected

victims of the Weiss data breach are considered. (Id. at 21–22.) She represents her counsel have

“been working to practically and carefully manage this growing litigation” across multiple cases.

(Id. at 23.) “Indeed,” Doe notes, “no other counsel have addressed the topic of coordination or

centralization as an MDL, let alone filed complaints on behalf of individuals alleging liability by

other schools or data providers.” (Id.) Doe insists “[a]ppointing interim class counsel . . . provides

a clear line of accountability between interim class counsel and the class, this court and the Eastern

District of Michigan Judge Mark Goldsmith.” (Id. at 23–24.)

6

Given the procedural posture in this judicial district—one pending case with one set of

lawyers seeking appointment as interim class counsel—Doe’s arguments seem designed either to

gain an advantage in the Michigan cases or to position counsel for possible representation in a

future MDL.2 See Davis v. GEICO Cas. Co., No. 2:19-cv-2477, 2021 WL 4876213, at *3 (S.D.

Ohio May 20, 2023) (refusing to appoint interim class counsel where granting the motion would

give plaintiffs’ attorneys “leverage” over counsel in a related action to negotiate a class settlement);

Bielski, 2022 WL 17650535, at *3 (denying motion for appointment of interim counsel without

prejudice where the motion “seems more like an attempt by plaintiffs’ lawyers to jockey for

position among different cases that may eventually wind up in an MDL”); see also Mey, 2016 WL

11501481, at *3 (finding “overlapping allegations and class definitions . . . not sufficient to

mandate interim counsel appointment”). These arguments are more appropriately raised before an

MDL judge should these cases ultimately get reorganized into an MDL.

While the Court has the discretion to appoint interim counsel to act on behalf of the putative

class, it exercises its discretion not to do so at this time. Should the circumstances change in this

case to warrant the appointment of interim class counsel, Doe may renew her motion.

2 Such a conclusion is bolstered by the fact that Doe invited this Court to rule on the pending motion before the date

of the initial conference in the Michigan cases, where the court and counsel were expected to discuss issues including

consolidation and the appointment of interim counsel. (See Doc. No. 7, at 23 (noting that “[a]lthough this case is in its

infancy . . . , it is part of a larger set of cases. The May 14th case management conference in the Michigan cases is a

good example of the activities that are likely to take place in the various cases now on file, and a good basis to make

an early interim class counsel appointment in this case”).). This Court does not wish to be a party to what appears to

be a jockeying for position, particularly when there are multiple older consolidated cases pending in another district.

7

Wl. CONCLUSION

For the foregoing reasons, the motion for the appointment of interim class counsel (Doc.

No. 7) is denied without prejudice.

IT IS SO ORDERED.

Dated: May 30, 2025 Bis we

HONORABLE SARA LIOI

CHIEF JUDGE

UNITED STATES DISTRICT COURT