Hoskinson-Short v. Capital One Financial Corporation

UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICHAEL HOSKINSON-SHORT, KASSANDRA MCKOWN, PATRICK Case No. C19-1218 RSM SOTO, MICHAEL J. HAUSER, DOROTHY E. HAUSER, JULIO VERA, STIPULATED MOTION AND ORDER TO BRENDY WOLFRAM, ERNESTO DE STAY LA FE, TIMOTHY M. HAYDEN, NECROTIZING FASCIITIS FOUNDATION, LINDSAY WELCH, and JUAN HERNANDEZ, individually and on behalf of those similarly situated, 15 Plaintiffs, 16 vs. CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, N.A., CAPITAL ONE BANK (USA), N.A., AMAZON.COM, INC., and AMAZON WEB SERVICES, INC., 20 Defendants.

STIPULATION Pursuant to LCR 7(d)(1) and LCR 10(g), the parties hereby request that the Court stay all proceedings and deadlines in this action pending resolution of the motions for transfer and consolidation under 28 U.S.C. § 1407 that are currently pending before the Judicial Panel on Multidistrict Litigation (“JPML”). The JPML will hear oral argument on the Section 1407 motions on September 26, 2019, and Defendants Capital One Financial Corporation, Capital One, N.A., and Capital One Bank (USA), N.A. (collectively, “Capital One”) and Defendants Amazon.com, Inc. and Amazon Web Services, Inc. (collectively, “Amazon”) anticipate an order regarding transfer and consolidation of this case and other related cases to be issued shortly thereafter.

5 Plaintiffs agree to the requested stay.

6 This case is one of over 50 putative class actions filed in connection with the cyber incident that Capital One announced on July 29, 2019. On July 31, 2019, plaintiffs in a related case pending in this District, Fadullon v. Capital One Financial Corporation, et al., Case No. 2:19-cv-01189 (W.D. Wash., filed July 30, 2019), filed a motion for consolidation and transfer under 28 U.S.C. § 1407 with the JPML in In re Capital One Consumer Data Breach Litigation, MDL No. 2915 (J.P.M.L. July 31, 2019) (“In re Capital One”). See In re Capital One, Dkt. No. 1. That motion seeks to have related actions arising out of the Capital One cyber incident consolidated with the Fadullon case and transferred to this District for pretrial proceedings. Subsequently, numerous plaintiffs in other related cases have filed briefs in the In re Capital One matter supporting transfer and consolidation, but seeking other transferee courts, including the Eastern District of Virginia, the District for the District of Columbia, and the Northern District of California. Numerous notices of related actions have also been filed in In re Capital One, and additional related cases continue to be filed and are in the process of being noticed to the JPML as potential tag-along actions.

19 Given that over 50 putative class actions have been filed, all related to the same underlying event and asserting the same or substantially similar factual allegations, the JPML is highly likely to grant the motions for transfer and consolidation. If it does, to conserve the parties’ resources and promote judicial economy, this case will be consolidated with the other putative class actions for centralized pretrial proceedings in a single transferee court. Under these circumstances, “[c]ourts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer a case.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); see Short v. Hyundai Motor Am. Inc., No. C19-0318JLR, 2019 WL 3067251 (W.D. Wash. July 12, 2019) (granting stay pending JPML’s resolution of Section 1407 motion); Gonzalez v. Merck & Co., No. CV-07-3034-LRS, 2007 WL 2220286, at *2 (E.D. Wash. Aug. 2, 2007) (granting defendant’s motion to stay pending transfer decision and noting that “well settled case law . . . dictates a stay should be granted to promote judicial economy”); Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (granting stay pending JPML’s ruling because “a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel”); Bonefant v. R.J. Reynolds Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at * 1 (S.D. Fla. July 31, 2007) (“[I]t is common practice for courts to stay an action pending a transfer decision by the JPML.”). In fact, Capital One has already successfully moved to stay over 30 cases related to the cyber incident. See, e.g., Ouellette v. Capital One Fin. Corp., 2:19-cv-01203-MAT, Dkt. No. 32 (W.D. Wash. Aug. 29, 2019) (order staying related case pending decision from the JPML); Desoer v. Capital One Fin. Corp., 2:19- cv-01223-MLP, Dkt. No. 19 (W.D. Wash. Aug. 29, 2019) (same); Hilker v. Capital One Fin.

14 Corp., No. 1:19-cv-995-RDA-JFA, Dkt. No. 15 (E.D. Va. Aug. 16, 2019) (same); Francis v. Capital One Fin. Corp., No. 8:19-cv-1898 (M.D. Fla. Aug. 21, 2019), Dkt. No. 11 (same); Berger v. Capital One Fin. Corp., No. 1:19-cv-2298 (D.D.C. Aug. 22, 2019) (same); Heath v. Capital One Fin. Corp., 3:19-cv-555-JAG, Dkt. No. 14 (E.D. Va. Aug. 16, 2019) (order staying nine related cases pending decision from the JPML). Motions to stay are currently pending in other cases, and Capital One—along with AWS in the cases where it is named as a defendant—will continue to seek stays in additional related cases.

21 Here, too, a short stay of proceedings until the JPML resolves the pending Section 1407 motions will promote judicial economy and sound judicial administration, avoid duplicative pretrial proceedings and potentially inconsistent pretrial rulings, and prevent prejudice to all parties.

25 IT IS SO STIPULATED.

26 DATED this 5th day of September, 2019.

1 Respectfully submitted, 2 s/Steven A. Miller Steven A. Miller, WSBA No. 30388 3 s/Daniel J. Oates Daniel J. Oates, WSBA No. 39334 4 s/Kellen A. Hade Kellen A. Hade, WSBA No. 44535 5 MILLER NASH GRAHAM & DUNN LLP Pier 70, 2801 Alaskan Way, Suite 300 6 Seattle, WA 98121-1128 Tel: (206) 624-8300 7 Fax: (206) 340-9599 Email: [email protected] 8 [email protected] [email protected] Attorneys for Capital One Financial 10 Corporation, Capital One, N.A., and Capital One Bank (USA), N.A.

Stipulation agreed to by: s/ Jeffrey A. Ware Jeffrey A. Ware, WSBA No. 43779 FENWICK & WEST LLP 1191 Second Avenue, 10th Floor Seattle, WA 98101 Tel: (206) 389-4510 Fax: (206) 389-4511 Email: [email protected] Attorneys for Amazon.com, Inc. and Amazon Web Services, Inc. /s Roger M. Townsend 20 Roger M. Townsend, WSBA #25525 Breskin Johnson & Townsend PLLC 21 1000 Second Avenue, Suite 3670 Seattle, WA 98104 Tel: (206) 652-8660 23 Fax: (206) 652-8290 [email protected] Joshua H. Grabar 25 Grabar Law Office 1735 Market Street, Suite 3750 Philadelphia, PA 19103 1 Tel.: 267-507-6085 Fax.: 267-507-6048 Email: [email protected] Marc H. Edelson 4 Edelson & Associates, LLC Terry Drive, Suite 205 5 Newtown, PA 18940 Tel: (215) 867-2399 Fax: (267) 685-0676 7 Email: [email protected] 8 Attorneys for Plaintiffs 1 ORDER 2 IT IS ORDERED this 6th day of September 2019.

3 A RICARDO S. MARTINEZ 5 CHIEF UNITED STATES DISTRICT JUDGE