Petition for Writ of Certiorari — David R. Watkins, et al., Petitioners v. Brian F. Spector, et al.

No. ______

In the Supreme Court of the United States

DAVID R. WATKINS AND THEODORE H. FRANK,

Petitioners,

v.

BRIAN SPECTOR, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TYLER R. GREEN

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

October 27, 2021

PATRICK STRAWBRIDGE

CONSOVOY MCCARTHY PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

Attorneys for Petitioners

i

QUESTIONS PRESENTED

After a data breach at Equifax disclosed nearly

150 million Americans’ sensitive personal information, 300 class actions against Equifax were consolidated into one case. Nearly 70 claims in the master

complaint survived a motion to dismiss, including

some claims for one national class and distinct statespecific claims for dozens of proposed subclasses. The

proposed settlement agreement, however, neither included subclasses nor allocated relief for state-specific

claims. And every word in the 122-page final opinion

approving the settlement—and awarding $77.5 million in class attorney’s fees—was written by class

counsel. Those lawyers sent that opinion to the district court ex parte. Then, with no notice to or comments from anyone else, the district court entered it

on the docket as final without changing a word.

The two questions presented are:

1. Whether it violates due process for a district

court to adopt verbatim a final opinion on discretionary matters ghostwritten entirely by a prevailing

party’s lawyers and submitted to the court ex parte

with no notice to opposing parties or chance for them

to respond.

2. Whether the class representatives of a settlement class adequately represent class members who

hold unique state-specific statutory claims when they

agree to a settlement that extinguishes all state-specific claims for no additional settlement value.

ii

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Petitioners are David R. Watkins and Theodore H.

Frank. Petitioners were objectors in the district court

and appellants in the court of appeals.

Shiyang Huang, Mikell West, George W. Cochran,

Jr., and John W. Davis were objectors in the district

court and appellants in the court of appeals but are

not petitioners here.

Respondents are Brian F. Spector, James

McGonigal, Randolph Jefferson Cary III, Robin D.

Porter, and William R. Porter. Those Respondents

were plaintiffs-appellees below. Additional Respondents are Equifax, Inc.; Does 1 through 50, inclusive;

Equifax Information Services LLC; Equifax Information Solutions, LLC; and Does 1 through 10. Those

respondents were defendants-appellees below.

The related proceedings below are:

United States District Court (N.D. Ga.):

In re: Equifax Inc. Customer Data Security Breach

Litigation, MDL Docket No. 2800, No. 1:17-md2800-TWT (Mar. 17, 2020) (amended opinion

and order granting final settlement approval;

certifying settlement class; and awarding attorney’s fees, expenses, and service awards)

United States Court of Appeals (11th Cir.):

iii

In re Equifax Inc. Customer Data Security Breach

Litigation, Nos. 20-10249, 20-10609, 20-10610,

20-10611, 20-10612, 20-10613, 20-11470, 2014095 (June 3, 2021) (opinion)

iv

TABLE OF CONTENTS

Table of authorities .................................................. vii

Opinions below ............................................................1

Jurisdiction ..................................................................1

Constitutional and statutory provisions involved .....1

Introduction .................................................................1

Statement of the case ..................................................3

A. Due process, class actions, and data

breaches. .........................................................3

B. Equifax fails to properly secure nearly 150

million Americans’ sensitive financial

information, prompting one of the largest

data-breach class-action cases ever. ..............7

C. In a brief oral ruling, the district court

overruled Petitioners’ objections to the

proposed settlement’s lack of subclasses. ......9

D. Weeks later, the district court entered a

122-page final opinion written entirely by

class counsel and sent to the court ex

parte. ............................................................. 11

E. The Eleventh Circuit affirmed. .................... 13

Reasons for granting the petition ............................. 18

I.

The decision below conflicts with this

Court’s cases and other circuits’ precedent

on crucial due process questions. ................. 18

A. Does it violate due process if a district

court adopts a ghostwritten opinion as

a final opinion without giving the

v

opposing party notice or a chance to be

heard? ..................................................... 18

B. Can

substantive

ex

parte

communications ever be harmless

error? ...................................................... 23

II. The decision below conflicts with this

Court’s decisions in Amchem and Ortiz,

and creates a circuit split on subclassing

under Rule 23(a)(4)....................................... 26

III. This case is an excellent vehicle to resolve

these critical due-process and class-action

splits. ............................................................. 30

Conclusion ................................................................. 34

Appendix

Appendix A

Opinion in the United States

Court of Appeals for the Eleventh

Circuit

(June 3, 2021) ................... App. 1

Appendix B

Order Granting Final Approval of

Settlement, Certifying Settlement Class, and Awarding Attorney’s Fees, Expenses and Service

Awards in the United States District Court for the Northern District of Georgia Atlanta Division

(January 13, 2020) ........... App. 64

vi

Appendix C

Final Order and Judgment in the

United States District Court for

the Northern District of Georgia

Atlanta Division

(January 13, 2020) ......... App. 186

Appendix D

Order Denying Rehearing in the

United States Court of Appeals

for the Eleventh Circuit

(July 29, 2021) ............... App. 196

Appendix E

Transcript of the Final Settlement Approval Hearing in the

United States District Court for

the Northern District of Georgia

Atlanta Division

(December 19, 2019) ....... App. 199

Appendix F

Fed. R. Civ. P. 23 ............ App. 323

vii

TABLE OF AUTHORITIES

Cases

Aetna Life Ins. v. Lavoie,

475 U.S. 813 (1986) .............................................31

Aiken Cnty. v. BSP Div. of Envirotech Corp.,

866 F.2d 661 (4th Cir. 1989) ............................... 20

Alig v. Quicken Loans, Inc.,

990 F.3d 782 (4th Cir. 2021) ............................... 20

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ..................................... passim

Anderson v. City of Bessemer City,

470 U.S. 564 (1985) ............................. 2, 19, 20, 31

Ark. Tchr. Ret. Sys. v. State St. Bank & Tr. Co.,

2018 U.S. Dist. LEXIS 111409

(D. Mass May 14, 2018) ...................................... 32

BMW v. Gore,

517 U.S. 559 (1996) ............................................. 33

Bridge v. Phoenix Bond & Indem. Co.,

553 U.S. 639 (2008) ............................................. 33

Bright v. Westmoreland Cnty.,

380 F.3d 729 (3d Cir. 2004) .......................... 20, 31

Chicopee Mfg. Corp. v. Kendall Co.,

288 F.2d 719 (4th Cir. 1961) ......................... 20, 31

DiLeo v. Ernst & Young,

901 F.2d 624 (7th Cir. 1990) ......................... 19, 22

Edgar v. K.L.,

93 F.3d 256 (7th Cir. 1996) (per curiam) ........... 24

viii

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) ...............................................4

In re Literary Works in Electronic Databases

Copyright Litigation,

654 F.3d 242 (2d Cir. 2011) .............. 17, 27, 28, 29

Ga. Dep't of Labor v. McConnell,

828 S.E.2d 352 (Ga. 2019) .................................. 32

Guenther v. CIR,

939 F.2d 758 (9th Cir. 1991) ...............................25

Hansberry v. Lee,

311 U.S. 32 (1940) .................................................4

Herbst v. Cook,

260 F.3d 1039 (9th Cir. 2001) ............................. 23

Hill & Range Songs, Inc. v. Fred Rose Music, Inc.,

570 F.2d 554 (6th Cir. 1978) ............................... 21

In re Bridgestone/Firestone Tires Prods. Liab. Litig.,

288 F.3d 1012 (7th Cir. 2002) ............................. 33

In re Cmty. Bank of N. Va.,

418 F.3d 277 (3d Cir. 2005) ................................ 21

In re Kinion,

207 F.3d 751 (5th Cir. 2000) ............................... 23

In re Murchison,

349 U.S. 133 (1955) ......................................... 2, 30

In re Syngenta AG MIR 162 Corn Litig.,

357 F. Supp. 3d 1094 (D. Kan. 2018) ................. 32

Klay v. Humana, Inc.,

382 F.3d 1241 (11th Cir. 2004) ........................... 33

ix

Marcantel v. Michael & Sonja Saltman Fam. Tr.,

993 F.3d 1212 (10th Cir. 2021) .............................2

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ....................... 4, 19, 20, 22, 31

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ..................................... passim

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ......................................... 4, 26

Taylor v. Sturgell,

553 U.S. 880 (2008) ...............................................4

Texaco, Inc. v. Short,

454 U.S. 516 (1982) ................................... 4, 19, 20

Ward v. U.S. Postal Serv.,

634 F.3d 1274 (Fed. Cir. 2011) ........................... 26

Constitution and Statutes

U.S. Const. amend. V ........................................ passim

28 U.S.C. §1254(1) .......................................................1

Rules

Federal Rule of Civil Procedure 23(a)(4) .......... passim

N.D. Ga. Civ. L.R. 5.1(A)(1) ......................................11

N.D. Ga. Civ. L.R. 7.3 ................................................ 11

Sup. Ct. R. 10(c) ......................................................... 27

Other Authorities

Emily Birnbaum & Maggie Miller, Equifax breach

settlement sparks criticism, The Hill (July 22,

2019); bit.ly/2XFZuPw ..........................................9

x

Code of Conduct for United States Judges

Canon 3(A)(4) ...................................................... 15

David Endler, How Much Data Was Leaked To

Cybercriminals In 2020 — And What They’re

Doing With It, Forbes (Apr. 20, 2021),

bit.ly/3AEOC1J .....................................................6

Geoffrey A. Fowler, YourData Is Way More Exposed

Than You Realize, Wall St. J. (May 24, 2017),

on.wsj.com/3AHIC8G ............................................5

IBM Report: Cost of a Data Breach Hits Record High

During Pandemic (July 28, 2021),

ibm.co/3veDp6U ....................................................6

Jonathan Mayer, Data Protection Federalism,

Century Found. (Aug. 15, 2018),

bit.ly/3FPd18Q ......................................................6

Christopher Mims, Privacy Is Dead. Here’s What

Comes Next, Wall St. J. (May 6, 2018),

on.wsj.com/3aBayQY ............................................5

Nat’l Conf. of State Legis., Security Breach

Notification Laws (Apr. 15, 2021),

bit.ly/2XekHQz ......................................................7

Pete Schroeder, Equifax’s $700 million data breach

settlement spurs criticism, calls for new rules,

Reuters (July 22, 2019), reut.rs/3BfieTP .............9

Rachel Siegel, ‘Did someone forget to do the math?’

Consumers, advocates rail against lowered

Equifax cash payouts, Wash. Post (Aug. 1, 2019),

wapo.st/3b8t9nH ...................................................9

xi

Kiah Treece & Jordan Tarver, What Is A Credit

Report?, Forbes (May 25, 2021),

bit.ly/2YPBZUh .....................................................6

OPINIONS BELOW

The Eleventh Circuit’s opinion is reported at 999

F.3d 1247 and reproduced at App.1a-63a. The order

entered by the district court certifying one national

settlement class, approving a final class settlement,

and awarding attorney’s fees over Petitioners’ objections is not reported but is available at 2020 WL

256132 and reproduced at App.64a-185a.

JURISDICTION

The Eleventh Circuit entered judgment on June 3,

2021, and denied Petitioners’ petition for panel or en

banc rehearing on July 29, 2021. App.196a-198a. This

Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in relevant part, “No person shall

… be deprived of life, liberty, or property, without due

process of law.”

Federal Rule of Civil Procedure 23(a)(4) provides

that “One or more members of a class may sue or be

sued as representative parties on behalf of all class

members only if … the representative parties will

fairly and adequately protect the interests of the

class.” Federal Rule of Civil Procedure 23 is reproduced in full at App.323a-333a.

INTRODUCTION

When judges task litigants with writing all or

parts of a judicial opinion, they threaten the treasured

2

promise that “our system of law” strives “to prevent

even the probability of unfairness.” In re Murchison,

349 U.S. 133, 136 (1955). District courts “probably

shouldn’t” adopt “proposed orders” written by a party

because “[p]arties naturally draft proposed orders

from an adversarial stance,” which “all but guarantees that the resulting orders won’t take the balanced,

thoughtful approach that nuanced legal issues require.” Marcantel v. Michael & Sonja Saltman Fam.

Tr., 993 F.3d 1212, 1239 (10th Cir. 2021). In fact, this

Court itself has confirmed “the potential for overreaching and exaggeration on the part of attorneys

preparing” draft findings “when they have already

been informed that the judge has decided in their favor.” Anderson v. City of Bessemer City, 470 U.S. 564,

572 (1985). But despite widespread condemnation,

that practice persists based on precedent suggesting

that ghostwritten orders or opinions do not violate due

process if they “represent the judge’s own considered

conclusions.” Id. at 573.

This case tests that principle’s boundaries. At a

fairness hearing on a proposed class settlement, the

district judge orally rejected Petitioners’ objections

and asked class counsel to summarize his oral ruling

in a draft opinion. The court’s local rules required that

draft opinion to be entered on the docket and shared

with all parties. But class counsel sent the 122-page

draft opinion to the district court ex parte, and the

court then entered it as a final opinion without giving

Petitioners (or anyone else) notice of the draft opinion

or a chance to comment on it. That opinion, however,

is in critical ways inconsistent with the court’s oral

3

ruling and contains legal errors and factual inaccuracies that Petitioners never had a chance to object to.

Even so, the Eleventh Circuit rejected Petitioners’ due

process challenges to the ghostwritten opinion, and

separately rejected Petitioners’ challenge to the class

representatives under Rule 23(a)(4) of the Federal

Rules of Civil Procedure.

The resulting decision below departs from this

Court’s cases and creates circuit splits on two due process questions related to ghostwritten opinions and

one Rule 23(a)(4) adequacy-of-representation question. These questions implicate core judicial functions

and the promise of fair procedures in a case implicating the substantive rights of nearly 150 million Americans whose sensitive personal data were stolen in one

of the largest data breaches in history. Merely stating

the questions confirms their self-evident importance,

further justifying plenary review. The Court should

grant the petition.

STATEMENT OF THE CASE

A. Due process, class actions, and data

breaches.

Because the questions presented here implicate

due process in a class action about one of the largest

data breaches in history, Petitioners briefly sketch

background principles on those subjects before discussing this case’s procedural history.

1. Whatever else the “cryptic and abstract words

of the Due Process Clause” might mean, “at a minimum they require that the deprivation of life, liberty

or property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of

4

the case.” Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306, 313 (1950) (emphasis added). Post-judgment notice “has little reality or worth” because by

then affected parties cannot intelligently decide

“whether to appear or default, acquiesce or contest.”

Id. 314. Thus “notice reasonably calculated to reach

all interested parties and a prior opportunity to be

heard,” Texaco, Inc. v. Short, 454 U.S. 516, 534 (1982)

(emphasis added), are an “elementary and fundamental requirement of due process in any proceeding

which is to be accorded finality,” Mullane, 339 U.S. at

314.

“[O]f course,” due process requirements apply

equally to “the class action procedure.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974) (internal

quotation marks omitted). But additional “procedural

safeguards”—found in Federal Rule of Civil Procedure

23, and “grounded in due process”—also govern class

actions. Taylor v. Sturgell, 553 U.S. 880, 901 (2008).

Among those, Rule 23(a)(4) requires “representative

parties” to “fairly and adequately protect the interests

of the class”—a requirement that itself flows directly

from “the Due Process Clause.” Phillips Petroleum Co.

v. Shutts, 472 U.S. 797, 812 (1985) (citing Hansberry

v. Lee, 311 U.S. 32, 42-43 (1940)). Class representatives must insist on “structural protections,” Ortiz v.

Fibreboard Corp., 527 U.S. 815, 857 (1999), to ensure

that “the terms of the settlement” and “the structure

of the negotiations” produce “fair and adequate representation for the diverse groups and individuals affected,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

627 (1997). Evidence that class representatives have

5

done so often appears in how their “essential allocation decisions” split the settlement fund between

groups of class members with materially different interests. Id.

2. Class-action cases arising from data breaches

are becoming a mainstay of federal dockets because

private consumer information is ubiquitous online. Indeed, “[s]hort of living in a remote hut while forsaking

cellphones, the internet and credit cards, there is no

longer any way that you, as an individual, can prevent

marketers, governments or malicious actors from

gathering and using comprehensive, personally identifying information about you.” Christopher

Mims, Privacy Is Dead. Here’s What Comes Next, Wall

St. J. (May 6, 2018), on.wsj.com/3aBayQY. Every

piece of data, however seemingly innocuous, has

value. Data aggregators “collect anything and everything they can about you: addresses, browsing habits,

even estimated net worth.” Geoffrey A. Fowler, Your

Data Is Way More Exposed Than You Realize, Wall St.

J. (May 24, 2017), on.wsj.com/3AHIC8G. They then

“glue it all together” and sell it to companies to market

their products to you. Id.

But marketers aren’t the only ones after our data.

Hackers and criminals also want it. If they can get the

right kinds of personal data—names, birthdates, addresses, Social Security numbers, credit card numbers, etc.—hackers can steal a consumer’s identity,

open credit cards in a consumer’s name, and ruin a

consumer’s credit. Those potential bounties incentivize hackers to aggressively try to breach electronic

systems containing those sensitive data. Unfortunately, their frequent successes only fuel demand. See

6

e.g., IBM Report: Cost of a Data Breach Hits Record

High

During

Pandemic (July

28,

2021),

ibm.co/3veDp6U. In 2020 alone, one cyber-security

company recovered “more that 4.6 billion pieces of personally identifiable information.” David Endler, How

Much Data Was Leaked To Cybercriminals In 2020 —

And What They’re Doing With It, Forbes (Apr. 20,

2021), bit.ly/3AEOC1J.

Given those facts, companies that gather and

store sensitive personal or financial data should know

that hackers are just aching to breach their systems.

Credit bureaus fall under that heading. American

credit

bureaus—Experian,

TransUnion,

and

Equifax—monitor consumers’ financial transactions

and compile consumer data such as names and addresses associated with a consumer’s credit, bank account information, payment and balance history, and

even current and past employers. See Kiah Treece &

Jordan Tarver, What Is A Credit Report?, Forbes (May

25, 2021), bit.ly/2YPBZUh. When consumers apply for

credit or for a loan, lenders use consumer-specific reports from the credit bureaus to “evaluate the creditworthiness of loan applicants” when deciding whether

to lend them money. Id.

But regardless of the type of company whose system is breached, States exercising their consumerprotection powers have moved to the frontlines of regulating responses to data breaches. Indeed, “states

have become—and foreseeably will remain—the primary venue for regulating cybersecurity and consumer privacy in the United States.” Jonathan

Mayer, Data Protection Federalism, Century Found.

(Aug. 15, 2018), bit.ly/3FPd18Q. To that end, all 50

7

States have passed laws requiring companies to notify

individuals of data breaches. See Nat’l Conf. of State

Legis., Security Breach Notification Laws (Apr. 15,

2021), bit.ly/2XekHQz. Those state laws typically establish when and how a company must disclose that

its systems have been breached, and often provide

statutory damages to the State’s citizens whose data

the breach has compromised.

B. Equifax fails to properly secure nearly

150 million Americans’ sensitive financial information, prompting one of the

largest data-breach class-action cases

ever.

Those concerns intersect here. In 2017, Equifax

failed to properly secure its computer systems, allowing hackers to steal from them troves of highly sensitive personal data—names, addresses, birthdates, Social Security numbers—corresponding to nearly 150

million Americans. App.4a. The data breach started in

May and continued until Equifax learned of it in July,

but Equifax hid the breach from the public until September. See In re Equifax, Inc., Customer Data Security Breach Litig., Dkt. 540 at 1, No. 1:17-md-2800TWT (N.D. Ga. Jan. 28, 2019).

In the disclosure’s wake, plaintiffs throughout the

country sued Equifax in more than 300 class-action

cases. App.4a. Eventually the Judicial Panel on Multidistrict Litigation consolidated those cases in the

Northern District of Georgia. Id. Reflecting the sweeping geographic impact of Equifax’s failure, the consolidated class complaint alleged 99 total counts on behalf of a national class, two national subclasses, and

53 state subclasses. Most of those claims survived

8

Equifax’s motion to dismiss, including negligence

claims under Georgia law for a nationwide class and

dozens of state-specific statutory data-breach and consumer-protection claims. App.5a, 66a.

The subclasses’ surviving state statutory claims

sought different kinds of damages for distinct groups

of plaintiffs than the nationwide class sought for its

Georgia-law negligence claim. Some subclass plaintiffs sought actual damages under 30 different statutes. Others sought statutory damages under 17 statutes—and treble damages under 9 other statutes—for

Equifax’s alleged failure to implement and maintain

reasonable security and privacy measures. Still others

sought statutory damages under 2 statutes, and treble

damages under 5 statutes, for Equifax’s alleged failure to timely and accurately disclose the data breach.

See In re Equifax, Inc., Customer Data Security

Breach Litig., Dkt. 374, ¶¶428-1403, No. 1:17-md2800-TWT (N.D. Ga. May 14, 2018).

But after nearly 18 months of negotiations, holders of every one of those surviving state-specific statutory claims received from the class representatives

and Equifax the same offer that Michael Corleone

made to Senator Pat Geary. See The Godfather: Part

II (Paramount Pictures 1974), bit.ly/3avYGzw (“My offer is this: Nothing.”). Nothing in the proposed settlement provided additional relief or damages specifically corresponding to any one of the dozens of subclasses in the consolidated complaint.

In lieu of state-specific damages for any plaintiff,

the proposed settlement provided uniform monetary

relief to all class members from a $380.5 million settlement fund, App.6a—less than $3 per class member.

9

In addition, class members could make requests for

credit monitoring, and Equifax would also provide

identity-restoration services for class members who

thought they’d been victims of identity theft. App.6a8a. The settlement also proposed injunctive relief requiring Equifax to spend $1 billion on data security

over the next five years. App.8a. The settlement drew

support from some federal and state regulators,

App.5a, but also pushback from some lawmakers and

public-interest groups, see, e.g., Pete Schroeder,

Equifax’s $700 million data breach settlement spurs

criticism, calls for new rules, Reuters (July 22, 2019),

reut.rs/3BfieTP; Emily Birnbaum & Maggie Miller,

Equifax breach settlement sparks criticism, The Hill

(July 22, 2019); bit.ly/2XFZuPw; Rachel Siegel, ‘Did

someone forget to do the math?’ Consumers, advocates

rail against lowered Equifax cash payouts, Wash. Post

(Aug. 1, 2019), wapo.st/3b8t9nH.

C. In a brief oral ruling, the district court

overruled Petitioners’ objections to the

proposed settlement’s lack of subclasses.

Petitioners David Watkins and Theodore Frank

hold state-specific statutory-damages claims from

Utah and D.C. providing $2,000 and $1,500, respectively, to data-breach victims. Because the proposed

settlement extirpated those claims—and all other

statutory-damages claims—Watkins and Frank objected to the proposed settlement. Among other

things, they contended that the lack of subclasses, and

lack of separate lawyers for those (nonexistent) subclasses, meant that the proposed unitary class failed

Rule 23(a)(4)’s adequacy requirement. See In re

Equifax, Inc., Customer Data Security Breach Litig.,

10

Dkt. 876, No. 1:17-md-2800-TWT (N.D. Ga. Nov. 19,

2019); App.274a-276a. They also objected to a 72-page

expert report by Professor Robert Klonoff that consisted of legal opinions and argument in support of the

proposed settlement. See In re Equifax, Inc., Customer

Data Security Breach Litig., Dkt. 890, No. 1:17-md2800-TWT (N.D. Ga. Dec. 2, 2019); App.277a.

Petitioners’ attorney argued their objections at

the fairness hearing. App.274a-277a. She also verbally asked the district court for a chance to respond

in writing to hundreds of pages of declarations and exhibits that class counsel had filed the night before the

fairness hearing, which accused Petitioners and other

objectors of improprieties. See In re Equifax, Inc., Customer Data Security Breach Litig., Dkt. 939, No. 1:17md-2800-TWT (N.D. Ga. Dec. 18, 2019); App.276a277a. That filing did not ask for any legal consequences from the allegations.

After Petitioners’ attorney spoke, class counsel

told the district court that they filed the prior evening’s declarations and exhibits to support a new ruling

they sought for the first time that day: a request that

the court find some objectors, including Petitioner

Frank, to be “serial objectors” participating here with

“improper motives.” App.283a-292a. Class counsel

then made a variety of false accusations against Petitioner Frank. App.287a-291a; see also App.305a (class

counsel “put[ting] Mr. Frank in” the category of “ideological” objectors “that, you know, just don’t like Class

actions,” and calling “most” of the other objectors

“mercenaries”). The district court rejected an objec-

11

tor’s request to respond to those new allegations, effectively also preventing Petitioners’ counsel from

seeking rebuttal. App.310a.

The district court then overruled Petitioners’ objections, finding them to be “without merit.” App.318a.

But the district court made no specific factual findings

during the fairness hearing about Frank or his counsel. More specifically, it said nothing about whether

any objector acted with an “improper purpose” or was

a “serial objector.” Truth be told, the district court said

very little about its stated reasons for rejecting the objections: that portion of the fairness hearing spanned

only six pages of the hearing’s transcript. App.311a314a, 318a. Those reasons consist mostly of conclusory

statements, but the court also invoked Professor Klonoff’s report. App.313a. As noted, Petitioners had objected to the prejudicial misuse of expert testimony to

make legal argument, but the district judge called the

report “meritorious and appropriate” and said he

“agree[d] with” the reasons “Professor Klonoff states.”

Id. The district court then asked class counsel to “summarize[]” its ruling in a written order. App.319a.

D. Weeks later, the district court entered a

122-page final opinion written entirely

by class counsel and sent to the court ex

parte.

Petitioners waited for class counsel to file the proposed order on the docket—and to “provide[]”

“[c]opies” to “each party”—as the district court’s local

rules require. N.D. Ga. Civ. L.R. 7.3; see also id.

5.1(A)(1). To their astonishment, the order that appeared on the docket less than a month after the fairness hearing was not a proposed order filed by counsel,

12

but the final order from the district court itself. That

final order certified a nationwide settlement class

(with no state-specific subclasses), approved the proposed settlement agreement, and awarded class counsel $77.5 million in attorney’s fees. App.64a-185a. Two

aspects of the final order bear emphasis here.

First, the final order far exceeds the scope of the

district court’s oral ruling rejecting Petitioners’ objections. For one thing, the oral ruling comprises only six

transcript pages and about 2,000 words, but the final

opinion runs 122 pages—tens of thousands of words

longer than the oral ruling it was supposed to “summarize[].” App.319a. What’s more, the final opinion

discusses in detail topics about which the district

court said nothing during the hearing. Among others,

it repeats and ultimately adopts class counsel’s claims

first raised at the fairness hearing (and to which Petitioner Frank had no chance to respond) that Frank

was a “serial objector[]” who took “improper” actions

and made objections “not motivated to serve the interests of the class,” thus reducing the “‘weight’” and

“‘credibility’” of his objections. App.172a-174a, 177a178a. It also softens the district court’s view of Professor Klonoff’s legal opinion—what before the court

“agree[d]” with as “meritorious an appropriate,”

App.313a, was relegated to something the court

“found helpful” but “not” something on which the

court’s opinions were “dependent,” App.102a.

Second, the final order stems from an obvious—

and obviously substantive—ex parte communication.

Class counsel alone had the district court’s ear when

shaping the final ruling on every issue the order mentions. Those issues were no mere procedural niceties.

13

They concern the rights of tens of millions of Americans to statutory damages that their state legislatures

deemed appropriate for failures like Equifax’s. And

they award $77.5 million in attorney’s fees to the very

lawyers who wrote the order. Class counsel’s ex parte

communication deprived every other party of the

chance to review, comment on, or object to how class

counsel shaped those critical substantive answers.

To facilitate meaningful appellate review, Petitioners filed an unopposed motion asking the district

court to include in the appellate record the proposed

opinion that class counsel submitted ex parte. The district court initially granted that motion, In re Equifax,

Inc., Customer Data Security Breach Litig., Dkt. 1084,

No. 1:17-md-2800-TWT (N.D. Ga. May 7, 2020), but

later granted class counsel’s motion to reconsider and

held that the ex parte communication was not part of

the record, In re Equifax, Inc., Customer Data Security

Breach Litig., Dkt. 1106, No. 1:17-md-2800-TWT

(N.D. Ga. May 15, 2020). The district court later held

it was “obvious” that Petitioners sought to supplement

the record with the draft order “to obstruct and delay

resolution of the appeal while they challenge the findings in the final approval order that were personal to

them.” In re Equifax, Inc., Customer Data Security

Breach Litig., Dkt. 1153, No. 1:17-md-2800-TWT

(N.D. Ga. Aug. 7, 2020).

E. The Eleventh Circuit affirmed.

Petitioners nevertheless appealed from the final

opinion and judgment. Yet even now, no one but class

counsel and the district court has seen the draft opinion that class counsel prepared. For when Petitioners

14

again sought a copy of it before they filed their Eleventh Circuit brief, class counsel argued that the

draft’s precise contents were “simply irrelevant” because “[w]hether the district court adopted the findings verbatim from the proposed order does not matter.” Aples.’ Opp. Br. at 12, Huang v. Spector, No. 2010249 (11th Cir. Aug. 24, 2020). Accordingly, the Eleventh Circuit resolved Petitioners’ appeal “assum[ing]”

that the district court’s final opinion adopted “verbatim” every word in class counsel’s 122-page proposed

opinion. App.35a.

1. Even on that assumption, the court of appeals

rejected Petitioners’ contentions that entering the

ghostwritten opinion with no notice or chance to respond to it violated due process. The court of appeals

first reasoned that Petitioners had “ample opportunity” to present their positions before the court entered the ghostwritten opinion—they had “lodged detailed written objections to the settlement agreement”

and “appeared through counsel at the final hearing

and presented arguments.” App.30a. And according to

the court of appeals, Petitioners did “have an opportunity to respond to the order”: they could have moved

for reconsideration. Id. The court of appeals also

thought that the district court’s reasoning—confined

to six pages of the hearing’s transcript—evinced the

court’s “firm decision” precipitating the 122-page

ghostwritten opinion. App.31a. And it faulted Petitioners for not “object[ing] to the process” at the fairness hearing or—despite local court rules requiring

proposed orders to be filed on the docket and sent to

all parties—“request[ing] the opportunity to review

the proposed order or make objections to it.” Id. So

15

“[j]udicial ghostwriting remains most unwelcome in”

the Eleventh Circuit generally, but this specific instance of ghostwriting that resolved one of the largest

data-breach class actions in history “was not fundamentally unfair.” App.32a.

Next, the court of appeals rejected Petitioners’

contention that that the ghostwritten opinion was an

impermissible ex parte communication that violated

Canon 3(A)(4) of the Code of Conduct for United

States Judges. The court of appeals viewed the 122page ex parte communication as at most harmless error for four reasons: (1) Petitioners were “privy to the

exact communications”—the opinion itself, after it

was entered on the docket—that “they claim were

made ex parte”; (2) the district court “process was not

fundamentally unfair,” and Petitioners did not “object[]” to it; (3) the district court made “no errors,” so

the court of appeals could “not say any ex parte communications caused the court to err in a way that prejudiced” Petitioners; and (4) Petitioners could have

moved for reconsideration. App.32a-34a.

2. The court of appeals also refused to review the

ghostwritten opinion’s findings about Petitioners’ alleged improper purposes for objecting because, in its

view, those findings “are largely unrelated to the merits of the appeal and may be dicta in any event.”

App.9a n.5.

In like manner, the court of appeals rejected Petitioners’ challenge to the district court’s reliance on

Professor Klonoff’s improper expert testimony. It did

so based on the final opinion’s statement—again, written by class counsel—that the decision was “‘not dependent’” on the expert report. App.27a n.14.

16

3. The court of appeals then disagreed with Petitioners that the lack of subclasses for holders of statespecific statutory-damages claims evinced a fundamental conflict between the class representatives and

the class that should have doomed certification under

Rule 23(a)(4). The court agreed that only fundamental

conflicts going to the specific issues in controversy can

make class representatives inadequate and defeat

class certification. But it held that Petitioners failed

to show that the class members “have opposing interests” or that “the economic interests and objectives of

named representatives differ significantly from the

economic interests and objectives of unnamed class

members.” App.44a (cleaned up).

In the court of appeals’ narrow view of those categories, the facts here didn’t fit in them. It said all

plaintiffs’ “claims arise out of same unifying event”—

the same data breach—and “all Plaintiffs seek redress

for the same injury.” Id. So even though “some class

members had state law statutory damages claims

while others did not,” that wasn’t a “fundamental conflict” because “all class members had negligence and

negligence per se claims under Georgia law.” App.45a

(cleaned up). In any case, the court of appeals thought

that Petitioners failed “to show that” that their Utah

and D.C. statutory-damages claims “were valuable, as

[they] demonstrate[d] nothing about how the claims

were a sure bet.” Id. Homing in on that purported

flaw, the court of appeals thought Petitioners faced

“significant barriers” to recovery because the D.C. law

was enacted after the underlying breach here (though

Petitioners based their argument on the statute in effect in 2017) and the Utah law required a showing of

17

privity that Petitioners “might not” make. Id. Given

those purported hurdles, refusing to undo the settlement in these circumstances was, it thought, consistent “with the reasoned approach adopted by [district] courts in other data breach cases.” App.46a.

The court of appeals viewed its decision as consistent with the subclassing and Rule 23(a)(4) adequacy holdings in Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999). First, “neither of” those cases “involved statutory damages claims.” App.47a. Second,

the class members in those asbestos cases had “diametrically different injuries within each class action”—some had current injuries; others faced only future harm—but all plaintiffs here “alleged that they

face the same risk of identity theft and, among other

things, sought the same compensatory damages for

that injury.” Id. That’s why plaintiffs “all receive the

same benefits to redress that shared injury.” Id. And

this case wasn’t like Ortiz, where some class members

had “more valuable claims than others,” because Petitioners had allegedly “failed to show” how their statutory-damages claims “increased the value of certain

Plaintiffs’ cases.” App.47a-48a. The court also thought

its holding comported with In re Literary Works in

Electronic Databases Copyright Litigation, 654 F.3d

242 (2d Cir. 2011), a case it read to require subclasses

only to address a “risk” that “members of the class will

have their ability to get settlement benefits reduced to

zero because some other members got more relief from

the settlement.” App.48a.

18

4. The Eleventh Circuit denied Petitioners’ request for panel or en banc rehearing on their due process and Rule 23(a)(4) issues. App.196a-198a.

REASONS FOR GRANTING THE PETITION

I.

The decision below conflicts with this

Court’s cases and other circuits’ precedent

on crucial due process questions.

The decision below held that not one due process

problem arises when one party writes every word of a

122-page opinion that’s sent to the court ex parte, entered as a final order before any other party sees it,

and brimming with new findings that other parties

never had a chance to respond to. That holding

squarely conflicts with cases from this Court and

other circuits on two critical due process issues that

cry out for plenary review.

A. Does it violate due process if a district

court adopts a ghostwritten opinion as a

final opinion without giving the opposing party notice or a chance to be heard?

The Eleventh Circuit “assume[d]” that class counsel—not the district court—wrote every word in the

final opinion. App.35a. Yet it still found no due process

problem in the district court’s adopting the ghostwritten order verbatim without giving Petitioners notice

of the order, and a chance to object to it, before entering it on the docket. See App.28a-34a. That conclusion

creates two conflicts with decisions from this Court

and from other circuits.

1. “[N]otice reasonably calculated to reach all interested parties and a prior opportunity to be heard,”

19

Texaco, 454 U.S. at 534 (emphasis added), are an “elementary and fundamental requirement of due process in any proceeding which is to be accorded finality,” Mullane, 339 U.S. at 314. The Eleventh Circuit’s

principal response to Petitioners’ due process objection based on their lack of prior notice about (or

chance to comment on) the ghostwritten order was to

fight the premise—the court thought that Petitioners

“had ample opportunity to present their arguments”

because they “lodged detailed written objections to the

settlement agreement” and “appeared through counsel at the final hearing and presented arguments.”

App.30a.

But Anderson v. City of Bessemer City, 470 U.S.

564 (1985), confirms that due process requires pre-decisional notice of the ghostwritten opinion itself, and

an opportunity to comment on it, before a court enters

it. Anderson explained what “circumstances” courts

should examine to confirm that party-drafted findings

of fact “represent the judge’s own considered conclusions.” Id. at 573. Chief among those is whether the

opposing party “was provided and availed itself of the

opportunity to respond at length to the proposed findings.” Id. at 572 (emphasis added). Due process cannot

reasonably require less when the ghostwritten document is not just findings of fact but the opinion itself—

the legal reasoning evidencing the court’s exercise of

discretion. Cf. DiLeo v. Ernst & Young, 901 F.2d 624,

626 (7th Cir. 1990) (“Judges should evaluate briefs

and produce a neutral conclusion, not repeat an advocate’s oratory.”). The Eleventh Circuit’s failure to con-

20

sider the effect of Petitioners’ lack of notice and opportunity to object cannot be reconciled with Anderson,

Texaco, and Mullane and warrants plenary review.

That break from this Court’s precedent also results in a square split with two other circuits and generates tension with two others. More than 50 years

ago, the Fourth Circuit found “no authority in the federal courts that countenances the preparation of the

[final] opinion by the attorney for either side,” and

called ghostwritten opinions a “failure of the trial

judge to perform his judicial function” that “amounts

to a denial of due process” when “it occurs without notice to the opposing side.” Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719, 724-25 (4th Cir. 1961). To be

sure, the Fourth Circuit has since suggested that Anderson “limit[s]” Chicopee, but even after Anderson “a

district court’s near-verbatim adoption of an ex parte

proposed order” passes muster in the Fourth Circuit

only if “the opposing party had the opportunity to air

its views fully and the court appeared to have to have

exercised independent judgment.” Alig v. Quicken

Loans, Inc., 990 F.3d 782, 790 n.8 (4th Cir. 2021) (citing Aiken Cnty. v. BSP Div. of Envirotech Corp., 866

F.2d 661, 676-77 (4th Cir. 1989)). That flaw afflicts the

decision below—class counsel sent the ghostwritten

opinion to the district court ex parte, and the court

adopted it before Petitioners had any chance to “air

[their] views fully” by commenting or objecting.

The Third Circuit, in turn, refused to “condone”

letting parties ghostwrite opinions because “[j]udicial

opinions are the core work-product of judges.” Bright

v. Westmoreland Cnty., 380 F.3d 729, 732 (3d Cir.

2004) (emphasis added). Particularly when a party

21

lacks “the opportunity to object or even respond to the

submitted opinion and order before the District Court

adopt[s] them as its own,” adopting ghostwritten opinions evinces a “degree of impropriety, or even the appearance thereof,” that “undermines [courts’] legitimacy and effectiveness.” Id.; accord In re Cmty. Bank

of N. Va., 418 F.3d 277, 319 (3d Cir. 2005).

Had the underlying district-court proceedings

here occurred in either the Third or Fourth Circuits,

Bright and Chicopee would have mandated reversing

the final ghostwritten opinion. The Eleventh Circuit’s

diametrically opposed conclusion warrants plenary

review.

Decisions from the Sixth and Seventh Circuits

create further tension on this point. The Sixth Circuit

has disagreed that “it was improper for the District

Court after it had advised counsel that it had decided

all issues” to ask prevailing party’s counsel “to assist

in the preparation of the final memorandum.” Hill &

Range Songs, Inc. v. Fred Rose Music, Inc., 570 F.2d

554, 558 (6th Cir. 1978). That could be read as consistent with the decision below, but Hill & Range also

differs in critical ways—that district court “had previously prepared a draft of its Memorandum, which it

furnished to” prevailing party’s “counsel, together

with various research notes.” Id. That district court

also “made extensive changes in the final draft prepared by” prevailing party’s counsel. Id. Because none

of that happened here, it’s unclear whether the Sixth

Circuit still would have found that the ghostwritten

opinion worked “no prejudice” to Petitioners in this

case. Id. Either way, this potential third approach to

22

handling objections to ghostwritten opinions compounds the problem and confirms that this question

warrants plenary review.

The Seventh Circuit, in turn, has explained that

for appellate courts to properly review a district

court’s discretionary decisions, district judges must

write their own opinions giving judicial reasoning;

they cannot rely on the briefs of the prevailing party.

DiLeo, 901 F.2d at 626 (Easterbrook, J.). If it is improper for a court to “photocopy a lawyer’s brief and

issue it as an opinion,” id., it’s doubtful that the Seventh Circuit would affirm on abuse-of-discretion review an opinion ghostwritten by a prevailing party

and entered as final without notice to the opposing

party.

2. The Eleventh Circuit also offered a second reason why it thought Petitioners did “have an opportunity to respond” to the ghostwritten order: They

could have moved the district court for reconsideration. App.30a. That is no answer. A motion to reconsider can be filed after all decisions, so the supposedly

limited exception swallows the rule. And an “opportunity to respond” to a decision after it occurs does not

satisfy the due-process requirement of “notice and opportunity for hearing appropriate to the nature of the

case” that “precede[s]” the decision. Mullane, 339 U.S.

at 313 (emphasis added). The court of appeals’ second

proposed fix falls short of what Mullane demands.

Beyond that, the Eleventh Circuit’s motion-for-reconsideration solution conflicts with holdings from the

Fifth and Ninth Circuits. The Fifth Circuit concluded

that a chance “to file a motion for reconsideration” of

a bankruptcy court order stripping a creditor of its lien

23

on a secured asset “cannot substitute for the beforethe-fact protections of creditors’ interests embodied in

the adversary rules.” In re Kinion, 207 F.3d 751, 757

(5th Cir. 2000). And the Ninth Circuit held that a motion for reconsideration was an “inadequate” substitute for pre-decisional notice that a district court

planned to sua sponte dismiss a prisoner’s habeas petition. Herbst v. Cook, 260 F.3d 1039, 1043-44 (9th Cir.

2001). That was so, the Ninth Circuit reasoned, for at

least three reasons: the legal standard “to succeed

upon reconsideration is higher than pre-dismissal,”

the “denial of a motion for reconsideration is reviewed

only for an abuse of discretion,” and “an appeal from

the denial of” a reconsideration “motion does not raise

the merits of the underlying judgment.” Id. at 1044.

Both the Fifth and the Ninth Circuits have thus

rejected the Eleventh Circuit’s just-move-for-reconsideration fix to deprivations of pre-decisional due process. This Court should grant the petition and resolve

this conflict.

B. Can substantive ex parte communications ever be harmless error?

Class counsel sent a draft 122-page opinion to the

district court ex parte. That draft resolved every substantive and procedural issue remaining in the case.

Among others, those included issues that the district

court never addressed at the fairness hearing, such as

class counsel’s attacks on Petitioners’ character and

motivations, App.177a-178a; and on which the district

court putatively changed its mind after the hearing,

such as the utility of Professor Klonoff’s report, compare App.313a with App.102a. Even so, the Eleventh

Circuit held that this ex parte communication was

24

harmless error, relying on precedent relating to nonsubstantive ex parte communications. App.32a-34a.

The conclusion that this substantive ex parte communication is not at least presumptively reversible error

conflicts with decisions from the Seventh, Ninth, and

Federal Circuits.

Start with Edgar v. K.L., 93 F.3d 256 (7th Cir.

1996) (per curiam). The district judge in that case met

ex parte with a panel of experts investigating whether

Illinois’s mental health care system violated the Constitution. Id. at 257. As in this case, the judge blocked

the parties’ efforts to learn what happened during the

ex parte meetings, but defendants still found out that

during one of them the panel previewed its findings

and tried to “persuad[e] the judge that the panel’s

methodology was sound.” Id. The court of appeals

granted defendants’ mandamus petition and held that

these facts required “[m]andatory disqualification under [28 U.S.C.] §455(b)(1).” Id. at 259. The ex parte

meetings gave the judge disqualifying “personal

knowledge of disputed evidentiary facts concerning

the proceeding,” §455(b)(1)—that is, information

about Illinois’s system that did not “enter[] the record”

and thus could “be neither accurately stated nor fully

tested,” 93 F.3d at 259. Here, the ghostwritten final

opinion did the same thing: it gave the district court

class counsel’s off-the-record views on Petitioners’

character and motivation, and about how it should

view Professor Klonoff’s report—issues whose accuracy Petitioners never had a chance to test. In other

words, off-the-record substantive communications

that warranted mandatory disqualification in Edgar

became mere harmless error below.

25

The decision below also squarely conflicts with

Guenther v. CIR, 939 F.2d 758 (9th Cir. 1991). The tax

judge in that case asked the Commissioner and the

taxpayers in a redetermination proceeding to file with

the tax court, and share with each other, trial memoranda outlining issues, witnesses, and the like. Id. at

759. The taxpayers complied, but the Commissioner’s

counsel sent his memorandum only to the judge. Id.

The tax court denied the taxpayers’ pre-trial motion

to disclose the Commissioner’s now-ex parte memorandum, meaning they did not get a copy of it until

“long after trial.” Id. The Ninth Circuit reversed the

tax court’s judgment against the taxpayers, holding

they “were indeed prejudiced by the communication.”

Id. at 761. The ex parte memorandum contained “serious” allegations about the taxpayers “going both to the

merits of the case and to the” taxpayers’ “character

generally,” and the taxpayers did not have “an adequate opportunity to rebut the contentions effectively.” Id. “The violation of” the taxpayers’ “due process right entitles them to a new trial.” Id. at 762. The

same problems infected the proceedings below—the ex

parte ghostwritten order presented serious allegations

going to the merits and to Petitioners’ character, and

Petitioners never had an adequate opportunity to rebut those contentions. Had this case occurred in the

Ninth Circuit, Guenther would have required reversing the judgment based on the ex parte communication.

Finally, consider Federal Circuit precedent governing “whether ex parte communications with a deciding official in the course of a public employee’s removal proceeding violate the employee’s due process

26

rights.” Ward v. U.S. Postal Serv., 634 F.3d 1274, 1279

(Fed. Cir. 2011). Under that precedent, “ex parte communications that introduce new and material information to the deciding official violate due process.” Id.

(internal quotation marks omitted). And “[g]iven the

seriousness of a due process violation,” any such ex

parte communications are “not subject to the harmless

error test.” Id. (internal quotation marks omitted).

The Eleventh Circuit’s contrary view—that the ghostwritten ex parte communication was harmless error

even though it introduced “new and material information” about Petitioners to the district court—cannot be reconciled with this Federal Circuit rule and

warrants plenary review.

II. The decision below conflicts with this

Court’s decisions in Amchem and Ortiz, and

creates a circuit split on subclassing under

Rule 23(a)(4).

A. Rule 23(a)(4)’s constitutionally required adequacy requirement susses out “conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625; see Phillips Petroleum, 472 U.S. at 812. Conflicts of interest exist when

named parties do not “suffer the same injury as the

class members” or if “the interests of those within the

single class are not aligned.” Amchem, 521 U.S. at 626

(cleaned up). Evidence of conflicts often arises from

the parties’ “allocation decision” in settlement discussions, but those conflicts can be cured through “structural protections” such as subclasses represented by

separate counsel. Ortiz, 527 U.S. at 857; see Amchem,

521 U.S. at 627.

27

The decision below concluded that the class representatives satisfied Rule 23(a)(4) though the settlement provided no relief specifically for class members

with state-specific statutory-damages claims. Its main

reason for that holding? The statutory-damages

claims were not a “sure bet.” App.45a.

On its face, the court of appeals’ newfangled “sure

bet” requirement conflicts with Amchem and Ortiz.

The classes in both cases had members whose claims

were less a “sure bet” than others—by definition, the

claims for future damages for the exposure-only plaintiffs in both Amchem and Ortiz were less “sure” than

the claims of the currently injured plaintiffs, as were

the claims in Ortiz of class members exposed to asbestos after the defendant’s indemnity policy expired. 521

U.S. at 626; 527 U.S. at 857. The conflicts crystalized

because the settlements valued “the more speculative

claims of those projected to have future injuries” the

same as “the claims of the immediately injured”—“an

allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have

chosen.” Ortiz, 527 U.S. at 857 (emphasis added).

Thus, the disparities in claim strengths upon which

the Eleventh Circuit excused subclassing were the

precise “disparate interests” and “conflict[s]” that this

Court held required those very “structural protection[s].” Id. The Eleventh Circuit’s “sure bet” misfire

so plainly “conflicts with relevant decisions of this

Court” that it demands reversal. Sup. Ct. Rule 10(c).

The Eleventh Circuit’s “sure bet” rule also

squarely conflicts with In re Literary Works in Electronic Databases Copyright Litigation, 654 F.3d 242

28

(2d Cir. 2011). There, a class of authors sought damages from publishers who included their copyrighted

works in online databases without permission. Their

works fell into three categories—works registered in

time to qualify for statutory damages (Category A),

registered works that did not qualify for statutory

damages (Category B), and unregistered works (Category C)—increasing in number but decreasing in

value in the order listed. See 654 F.3d at 246. The proposed settlement’s damages formula accordingly valued Category A claims higher than Category B claims,

and those higher than Category C; but also provided

that if the total settlement value exceeded $18 million,

payments for Category C claims would be reduced pro

rata to zero before any reductions to Category A and

B claims would occur. See id.

The Second Circuit held that those “essential allocation decisions” between Category A, B, and C claims

“produc[ed] disparate interests within the class” and

created a fundamental conflict between authors who

held only Category C claims and authors who held

claims in all three categories. Id. at 251 (cleaned up).

The problem was not that the settlement assigned

lower values to Category C claims—they were, after

all, “indisputably worth less” and “would face a substantial litigation risk if the case went forward”—but

that the court had “no basis for assessing whether the

discount applied to Category C’s recovery appropriately reflects that weakness.” Id. at 253. Nor could the

court “know this, in the absence of independent representation.” Id. Or, to put it in the Eleventh Circuit’s

terms, the very fact that a fair settlement value for

Category C claims was not a sure bet was exactly why

29

a Category C subclass needed “independent counsel

pressing its most compelling case.” Id. In short, Petitioners’ state statutory-damages claims here would

have required a separately represented subclass had

this case been litigated in the Second Circuit.

B. Additionally, the opinion below conflicts with

Amchem, Ortiz, and In re Literary Works by concluding that the class representatives were adequate in

part because the settlement was fair. According to the

Eleventh Circuit, all members of the class “face the

same risk of identity theft,” “receive the same benefits

to redress that shared injury,” and “are entitled to the

same class benefits”—an outcome purportedly fair

and equal across the board. App.47a-48a.

That reasoning inverts the Rule 23 analysis. “The

possible fairness of a settlement cannot eclipse the

Rule 23(a) and (b) precertification requirements.” In

re Literary Works, 654 F.3d at 254. “Thus, the adequacy of representation cannot be determined solely

by finding that the settlement meets the aggregate interests of the class or ‘fairly’ compensates the different

types of claims at issue.” Id.; see also Ortiz, 527 U.S.

at 858 (“Here, just as in [Amchem], the proponents of

the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under

subdivisions (a) and (b) against inequity and potential

inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any

settlement is fair in an overriding sense.”).

30

III.

This case is an excellent vehicle to resolve

these critical due-process and class-action

splits.

It’s hard to imagine a better vehicle for this Court

to reemphasize a judge’s indispensable adjudicatory

role and Rule 23(a)(4)’s critical rights-preserving purpose. First, no jurisdictional concerns impede reaching the merits. Second, all the issues are cleanly preserved and squarely presented. On the due process

questions, no one disputes that class counsel ghostwrote every word of the final order. In fact, the court

of appeals expressly based its due process holdings on

that assumption. App.35a. Nor does anyone dispute

that the district court entered the ghostwritten order

on the docket without notifying Petitioners—or anyone else—that class counsel had submitted it ex parte,

and without giving Petitioners or anyone else a prior

chance to review, comment on, or object to the ghostwritten order. The adequate-representation question

is likewise front and center: Petitioners objected because the settlement abandoned all relief for all statespecific statutory-damages claims, and the court of appeals shrugged its shoulders since it thought those

claims weren’t a “sure bet.” App.45a. Reviewing and

reversing those issues will change the outcome below.

Third, these issues are surpassingly important. If

“our system of law” really “has always endeavored to

prevent even the probability of unfairness,” Murchison, 349 U.S. at 136, the limits on judges’ ability to

farm out the entirety of the final opinion-writing process to a prevailing party demands the closest scrutiny. Nor does the size or scope of the settlement below

preclude merits review. Even accepting the Eleventh

31

Circuit’s mathematically false view of this settlement

as “‘the largest and most comprehensive recovery in a

data breach case in U.S. history by several orders of

magnitude,’” App.2a, that no more makes it immune

from this Court’s plenary review than was the most

“sprawling” “settlement class” ever previously reviewed, Amchem, 521 U.S. at 624, or its follow-on cotraveler among the “elephantine mass of asbestos

cases,” Ortiz, 527 U.S. at 821. In fact, the nationwide

breadth and scope of the claims that created the class

conflicts justifying review in Amchem and Ortiz exist

here and justify the Court’s intervention for the same

reasons.

Fourth, the decision below is wrong on every issue

raised here. The United States Reports are filled with

assurances that “justice must satisfy the appearance

of justice.” Aetna Life Ins. v. Lavoie, 475 U.S. 813, 825

(1986) (internal quotation marks omitted). Enlisting

party counsel to write the final opinion itself, and

adopting that opinion word for word without first giving the opposing party a chance to respond and object,

constitutes “the failure of the trial judge to perform

his judicial function,” Chicopee Mfg. Corp., 288 F.2d at

724-25, “vitiates the vital purposes served by judicial

opinions,” Bright, 380 F.3d at 732, and deprives the

opposing party of the pre-decisional notice and an opportunity to comment that has been due process’s

baseline for centuries, Mullane, 339 U.S. at 313-14.

When that happens, it actualizes “the potential for

overreaching and exaggeration on the part of attorneys” when “they have already been informed that the

judge has decided in their favor.” Anderson, 470 U.S.

at 572.

32

The Eleventh Circuit’s “sure-bet” rationale recommits the same Rule 23(a)(4) error corrected in Amchem and Ortiz. Those cases reject the Eleventh Circuit’s insistence that subclasses are unnecessary for

novel causes of action or because their settlement

value is uncertain. On the contrary, as a matter of law,

the uncertainty about an appropriate settlement

value for novel or uncertain claims is the very reason

that Rule 23(a)(4) requires the “structural protections” of separately represented subclasses for class

members with those claims. Ortiz, 527 U.S. at 857.

“Novel” claims have settled for hundreds of millions of

dollars. E.g., In re Syngenta AG MIR 162 Corn Litig.,

357 F. Supp. 3d 1094, 1102 (D. Kan. 2018) ($1.5B);

Ark. Tchr. Ret. Sys. v. State St. Bank & Tr. Co., 2018

U.S. Dist. LEXIS 111409, *203 (D. Mass May 14,

2018) ($300M). Indeed, the parties settled the national class’s Georgia-law claims for millions despite

dispositive precedent holding that defendants had no

duty here—as the district court opinion itself recognized elsewhere. App.81a (citing Ga. Dep’t of Labor v.

McConnell, 828 S.E.2d 352 (Ga. 2019)). The Eleventh

Circuit’s view that novel claims, or claims not a “sure

bet,” have zero settlement value as a matter of law—

even when they survive a motion to dismiss—nullifies

the protections of Rule 23(a)(4).

And implementing those structural protections in

this case would not have required different subclasses

with separate lawyers for residents of every State

with a remaining statutory-damages claim. Contra

App.122a. State-specific claims with “materially identical legal standards” can “be sorted into a small num-

33

ber of groups,” reducing the required number of subclasses. Klay v. Humana, Inc., 382 F.3d 1241, 1262

(11th Cir. 2004), abrogated in part on other grounds

by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639

(2008). Here, the remaining claims (besides the Georgia negligence claim) provide at least three materially

different legal remedies—damages for failing to adequately safeguard consumers’ data, for failing to disclose the data breach in a timely manner, and for

breaching contracts with Equifax—suggesting that

the class could have been appropriately certified with

as few as three subclasses. What Amchem and Ortiz

forbid, however, is a settlement with no subclasses

when class members have materially different

claims—exactly what happened here.

Those kinds of material differences will continue

to arise in this context. In the laboratories of democracy, “the diverse policy judgments of lawmakers in 50

States” have provided statutory remedies to their citizens for data breaches that differ materially from

common-law remedies. BMW v. Gore, 517 U.S. 559,

570 (1996). “Differences across states may be costly for

courts and litigants alike, but they are a fundamental

aspect of our federal republic and must not be overridden in a quest to clear the queue in court”; the singlenational-class settlement here does “violence not only

to Rule 23 but also to principles of federalism.” In re

Bridgestone/Firestone Tires Prods. Liab. Litig., 288

F.3d 1012, 1020 (7th Cir. 2002) (Easterbrook, J.) (Rule

23(a) commonality).

*****

Attorneys acting as scriveners and drafting a ministerial order for a court repeating what a judge has

34

said in an oral ruling is one thing. But when a ghostwritten opinion approves a settlement awarding hundreds of millions of dollars to the opinion author’s clients, and gives nearly $80 million in attorney’s fees to

the authors themselves—and does so ex parte, in an

order entered as final with no notice or prior chance

for any other party to comment—due process alarm

bells should ring so furiously their clappers melt.

When that same ghostwritten opinion destroys statespecific statutory damages claims for tens of millions

of absent Americans—specifically at the class representatives’ insistence—it also eliminates any defensible claim that Rule 23(a)(4) is satisfied. The Court

should grant plenary review and bring the Eleventh

Circuit’s contrary conclusions on both questions back

into line with this Court’s precedent and the circuits’

majority positions.

CONCLUSION

This Court should grant the petition and reverse

the decision below.

35

Respectfully submitted,

TYLER R. GREEN

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

PATRICK STRAWBRIDGE

CONSOVOY MCCARTHY PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

October 27, 2021

Attorneys for Petitioners