In the Accellion data breach case, the United States District Court for the Northern District of California has denied the plaintiffs’ motion to modify the court’s order on class certification. In its first class certification order, the Court declined Plaintiffs’ request to certify a broad negligence class and instead certified several narrow subclasses. The Court also rejected Plaintiffs’ proposed classwide damages model that attempted to measure the alleged injury to the class resulting from the disclosure of their personally identifiable information by the cost to purchase commercial identity theft protection products, finding that Plaintiffs’ proffered expert was not qualified to opine on that subject. The Court therefore limited the putative class’s ability to recover to nominal damages.
Plaintiffs then sought modification of the class certification order to allow them to use a different expert to once again advance a cost-of-credit-monitoring damages model. Plaintiffs argued that the class certification order should be modified under Rule 23(c)(1)(C), which permits alteration or amendment of a class certification order before final judgment. Accellion countered that Plaintiffs were really making a motion for reconsideration that should governed by Civil Local Rule 7-9. The Court agreed with Accellion. The Court explained that Rule 23(c)(1)(C) is meant to address modifications necessitated by “new or newly-discovered facts” brought to light “after some change, unforeseen at the time of class certification, that makes alteration of the initial certification decision necessary,” which was not the case here, as Plaintiffs were seeking modification to cure a deficiency in the qualifications of their previously-offered expert.
The Court then assessed whether Plaintiffs had satisfied the standard for reconsideration under Civil Local Rule 7-9. The Court agreed with Accellion that they had not, as “[a] motion for reconsideration may not be used to raise arguments or present evidence for the first time when they reasonably could have been raised earlier in the litigation.” Thus, because neither Rule 23(c)(1)(C) nor Civil Local Rule 7-9 warranted reconsideration of the Court’s prior decision, the putative subclasses were limited to pursuing nominal damages on their negligence claims.
The Accellion case highlights that plaintiffs nationwide continue to struggle to advance viable classwide damages models. Indeed, the Court has rejected numerous classwide damages theories Plaintiffs offered, including theories based on:
- The amount of time class members spent mitigating identity theft risks
- Emotional distress theory of injury, and
- The cost of credit monitoring required to allegedly ameliorate the risk of future harm.
Accellion also highlights that plaintiffs are not entitled to a “do over” of class certification if their initial theories do not pan out, including if they are supported by experts who are not qualified to offer them.
