Court filing
OBJECTIONS filed by Steven Helfand. (far, COURT STAFF) (Filed on 3/3/2022) — Plaid Privacy (Dkt. 162)
No. 4:20-cv-03056-DMR · Doc. 162 · Docket on CourtListener
Full text
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 1 of 6
Steven Helfand, in pro se
410 SE 16th Court, Apartment 730
Fort Lauderdale, FL 33316
Steven.helfand1400@outlook.com
786.676.1018
Objector and absent class member
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
IN RE PLAID INC. PRIVACY LITIGATION: Master Docket No.: 4:20-cv-03056 DMR
THIS DOCUMENT RELATES TO: ALL ACTIONS. OBJECTION AND NOTICE OF
INTENTION TO APPEAR
Date: May 12, 2022
Time: 1:00 p.m.
Ctrm: Videoconference
Judge: The Hon. Donna M. Ryu
CLASS MEMBERSHIP
I am a class member in the above referenced case. My notice ID is PLD1036874260. My
confirmation code is 72089AF62D. I submitted a claim on January 30, 2022, at 6:01:46 AM. My
contact information is listed in the caption. This is sufficient evidence of class membership. I
intend to appear at the fairness hearing.
OBJECTIONS
STRUCTURAL PROBLEM WITH NOTICE AND JURISDICTION
The Notice is misleading and violates due process. This implicates jurisdictional
concerns. See, Molski v. Gleich, 318 F.3d 937 (9th Cir. 2002). Here, the notice implies,
erroneously, that the judge overseeing this case is an Article III judge, when she is not. See,
Notice, § 26 [“Please check www.PlaidSettlement.com, or Judge Donna M. Ryu’s Calendar
1
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 2 of 6
[website link for federal court omitted here] for any updates about the Settlement and Final
Approval Hearing”]. In fact, the Notice should have indicated “Magistrate Judge,” and not
“Judge.” There is a case out of the Seventh Circuit directly on point: Williams v. GE Capital 159
F.3d 266, 269-270 (7th Cir. 1997).
“Alternatively, the unnamed class member could try to show in a collateral attack that
the decision to proceed before a magistrate judge was a matter on which there was a potential
(or, in the light of the fully developed record, an actual) significant intra-class conflict and that
the notice the absentee received was inadequate to inform her of this conflict. [citations
omitted here]. “In this case, the ‘Notice of Pendency of Class Action, and Notice of Proposed
Settlement and Hearing Thereon’ that went to the unnamed Williams class members clearly
indicated that the lawsuit was before ‘Magistrate Judge Joan H. Lefkow.’ Due process requires
no more.”
Here, class members were not put on sufficient notice of the Court’s status within the
constitutional system; and suggested, wrongly, that it was an Article III court.
The issue is important. In 1968, Congress enacted the Federal Magistrates Act to
enhance judicial efficiency in the federal courts. Since then, some judicial functions delegated
to magistrate judges have been challenged on constitutional grounds: while federal district
judges, appointed pursuant to Article III of the United States Constitution, are protected with
life tenure and undiminishable salary, thereby enhancing judicial independence, federal
magistrate judges, appointed pursuant to Article I, have no such protection.
While a Magistrate Judge plainly has the authority to determine the fairness of a
proposed settlement with the consent of the named parties, one reason the district court
2
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 3 of 6
should consider voiding a reference to a magistrate sua sponte is where the rights of numerous
parties not present before the court might be affected by the decision. See, Pacemaker
Diagnostic Clinic of America v. Instromedix, Inc., 725 F.2d 537, 545 (9th Cir. 1984) (en
banc)(Kennedy, J.)(one reason district court should consider voiding a reference to a magistrate
sua sponte is where "rights of numerous parties not present before the court might be affected
by the decision"). Here, the reference should be voided due to the problem with the Notice
and because of the magnitude of the class. It is claimed that the Settlement Class includes
approximately 98 million consumers.
Parties consenting to allow a magistrate judge to hear a civil action deprive Article III
judges of the essential attributes of judicial power. In light of inaccurate notice, the case should
be referred to an Article III judge, precisely as the notice contemplates. Williams notes, “It may
also be open to the unnamed class members to present such an argument directly to an Article
III judge of the district court; because the record does not indicate that the plaintiffs made any
effort to do so here, we offer no definitive view on the matter.” Williams, at 270. As such, I
specifically request that this matter be referred back to an Article III judge for evaluation of
fairness under Rule 23.
THE PLAID PORTAL PROVIDES VALUABLE CONSIDERATION AND THE PROPOSED SETTLEMENT
SHOULD BE APPROVED
Given that individual recoveries are likely not going to be significant, the portal is one
aspect of the overall compensation to be provided the class that is most exciting. It is an
important aspect of the settlement but receives very little description in the Settlement
Agreement and minimal discussion in the briefs. The portal to some extent appears to be a
work in progress and is evolving. This is reasonable because the portal must be dynamic to
3
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 4 of 6
keep class members’ interest. If the Court overrules my initial objection, I support approval of
the proposed settlement.
In fact, the concept of the portal provides valuable consideration to the class. However,
the parties should continue to enhance the user experience and stipulate that the portal and
the primary features offered through it are always available free of charge to class members.
Plaid should also not be allowed to use the portal to, for example, bombard class members with
marketing materials from third parties or to sell services. Its primary purpose must be
informational. Apart from the availability of the portal free of charge, the Court and the
settling parties should resist the urge to place requirements on the portal as this might disrupt
what should be continual enhancements to the user experience. This would damage what
appears to be a genuine effort to provide meaningful information to class members.
HERRERA KENNEDY LLP HAS INFLATED RATES AND DUPLICATED THE WORK
The parties seek a benchmark award. But the lodestar cross check reveals a substantial
multiplier, well excess of 3. This excessive multiplier is based on already, very high hourly rates
and utilization of timekeepers in place of lower cost associates to handle much of the work.
Herrera Kennedy LLP’s fees are simply in outer space. Moreover, Herrera Kennedy LLP
duplicated the work of LCHB and Burns Charest. There was simply no underlying reason for
Herrera Kennedy LLP’s extensive involvement in this case when the class was already more than
adequately represented by LCHB and Burns Charest. This is underscored because Herrera
Kennedy LLP evidently retains no modest timekeepers who were capable of performing routine
litigation tasks not requiring billings at $825 per hour and greater.
4
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 5 of 6
The lowest cost timekeeper at Herrera Kennedy LLP is $825 per hour. Meanwhile, at
LCHB, the firm appropriately used a mix of timekeepers, presumably based on the type of work
required. For example, there is a timekeeper listed at $370 per hour. Burns Charest is similar
to LCHB. While Burns Charest lists a $1,000+ hourly rate for Warren Burns, his billings, along
with other timekeepers, is, appropriately, modest. Burns Charest also had mixed timekeepers
with rates as low as $325 per hour. The captain(s) of the ship should have high rates; but not if
they are rowing.
Quite frankly, the class would have been better served by simply appointing LCHB and
Burns Charest as the class attorneys and firing everyone else from Herrera Kennedy LLP. There
is little question that LCHB could have handled this case on its own. LCHB is already more than
adequate and had Burns Charest further augmenting them. It is unclear what distinct services
were required to be performed by Herrera Kennedy LLP or why class members should be
compelled to pay its artificially high rates when they already had outstanding attorneys
representing them and charging reasonable fees.
I take no issue with the fees requested by LCHB and Burns Charest. However, I dispute
the rates used by Herrera Kennedy LLP and their failure to use lower cost timekeepers. What is
particularly untoward is that Herrera Kennedy LLP is using inflated rates that may result in class
attorneys at LCHB and Burnest Charest receiving less compensation. Had more modestly priced
timekeepers been properly utilized by Herrera Kennedy LLP, it is plain the true multiplier here is
upwards of 4 plus. This is too much.
March 3, 2022
5
Case 4:20-cv-03056-DMR Document 162 Filed 03/03/22 Page 6 of 6
___________________________
Steven Helfand
Objector and absent class member
PROOF OF SERVICE
A copy of this objection was furnished to the Court by One Legal on March 3, 2022. The
address for the Court is: Clerk of Court, United States District Court for the Northern District of
California, 1301 Clay Street, Oakland, CA 94612. This objection was sent electronically to the
aforementioned:
COOLEY LLP
Michael Rhodes
rhodesmg@cooley.com
HERRERA KENNEDY LLP
Shawn M. Kennedy
skennedy@herrerakennedy.com
LCHB
Rachel Geman
rgeman@lchb.com
BURNS CHAREST LLP
Christopher J. Cormier
ccormier@burnscharest.com
I declare that this declaration is executed under penalty of perjury under the laws of the
United States of America on March 3, 2022.
___________________________
Steven Helfand
Objector and absent class member
6
File and source
- File
- gov.uscourts.cand.359040.162.0.pdf
- Size
- 185,650 bytes
- SHA-256
- c8d825a6e523854bfe105bc9c9a38c751360aa1db1221559b40bdfad17ef9b96
- Original
- PACER (login required)