<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

. First, the
plaintiff must have suffered an “injury in fact,” which means the injury is
“concrete and particularized” and “actual or imminent,” as opposed to “conjectural
or hypothetical.”

 (quotation marks omitted). Second, the plaintiff’s injury
must be “fairly traceable” to the challenged conduct of the defendant and not the
result of some action by a third party not before the court.

 (quotation marks
omitted and alterations adopted). Finally, it must be likely that the plaintiff’s
injury will be redressed by a favorable court decision.

Id. at 561

. These requirements apply with full force in a class action, Muransky, 979
F.3d at 924, and even at the settlement approval stage, as a “court is powerless to
approve a proposed class settlement if it lacks jurisdiction over the dispute, and
federal courts lack jurisdiction if no named plaintiff has standing,” Frank v. Gaos,
586 U.S. __,

139 S. Ct. 1041

, 1046 (2019) (per curiam). On the other hand, only
one named plaintiff must have standing as to any particular claim in order for it to
advance. Wilding v. DNC Servs. Corp.,

941 F.3d 1116

, 1124–25 (11th Cir. 2019).
Mr. Huang argues Plaintiffs lacked Article III standing to bring their claims
for two reasons. First, he says those Plaintiffs who have not had their identities
stolen have not suffered an injury in fact. Second, he says those Plaintiffs who
12
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 13 of 64
have not had their identities stolen cannot have their injuries redressed by the
settlement, as the settlement does not stop third parties from committing identity
theft. We address each issue in turn.
i.      Injury in Fact
We now turn to the question of whether Plaintiffs who have not had their
identities stolen suffered an injury in fact. We hold that they have. Again, to
establish standing, a plaintiff’s injury must be (1) concrete, (2) particularized, and
(3) either actual or imminent. Lujan,

504 U.S. at 560

. Only the
first and third elements are at issue here, so we focus on them in more detail.
An injury is concrete if the harm is “real.” Muransky, 979 F.3d at 926
(quotation marks omitted). Economic injuries are “[c]ertainly” concrete.
Debernardis v. IQ Formulations, LLC,

942 F.3d 1076

, 1084 (11th Cir. 2019). So
are identity theft and damages resulting from such theft, see Resnick v. AvMed,
Inc.,

693 F.3d 1317

, 1323 (11th Cir. 2012), as well as wasted time, Salcedo v.
Hanna,

936 F.3d 1162

, 1173 (11th Cir. 2019). A plaintiff can also satisfy the
concreteness element by showing a “material” risk of harm. Muransky, 979 F.3d
at 927 (quotation marks omitted). This Court has said this is a “high standard” that
requires courts to consider the “magnitude of the risk.” Id. This Court has also
addressed injuries incurred while mitigating a risk of harm, such as purchasing a
credit freeze or spending time or effort to minimize a risk of identity theft. “[A]ny
13
USCA11 Case: 20-10249           Date Filed: 06/03/2021        Page: 14 of 64
assertion of wasted time and effort necessarily rises or falls along with this Court’s
determination of whether” a risk of injury is a concrete harm. Id. at 931. For that
reason, when a plaintiff faces a sufficient risk of harm, the time, money, and effort
spent mitigating that risk are also concrete injuries.
We now turn to the actual-or-imminent element. When there is no actual
injury, an imminent injury must be “certainly impending,” as allegations of
“possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA,

568 U.S. 398

, 409,

133 S. Ct. 1138

, 1147 (2013) (emphases and quotation marks
omitted). It need not be “literally certain” that the injury will come about, but there
must be a “substantial” risk.

 at 414 n.5,

133 S. Ct. at

1150 n.5 (quotation marks
omitted).
Applying these principles to the case before us, Plaintiffs have plausibly
alleged an injury in fact.9 Plaintiffs alleged that “hackers obtained at least 146.6
million names, 146.6 million dates of birth, 145.5 million Social Security numbers,
99 million addresses, 17.6 million driver’s license numbers, 209,000 credit card
numbers, and 97,500 tax identification numbers.” With this information, Plaintiffs
alleged that “identity thieves can create fake identities, fraudulently obtain loans
and tax refunds, and destroy a consumer’s credit-worthiness.” Plaintiffs also
9
Mr. Huang says Plaintiffs forfeited any arguments in support of standing by not raising
them in the District Court. But Plaintiffs pled countless allegations of injury in their complaint.
We therefore reject Mr. Huang’s argument.
14
USCA11 Case: 20-10249        Date Filed: 06/03/2021    Page: 15 of 64
alleged they “remain subject to a pervasive, substantial and imminent risk of
identity theft and fraud” due to the “highly-sensitive nature of the information
stolen,” and that they spent time, money, or effort dealing with the breach. Given
the colossal amount of sensitive data stolen, including Social Security numbers,
names, and dates of birth, and the unequivocal damage that can be done with this
type of data, we have no hesitation in holding that Plaintiffs adequately alleged that
they face a “material” and “substantial” risk of identity theft that satisfies the
concreteness and actual-or-imminent elements. See Muransky, 979 F.3d at 927;
Clapper,

568 U.S. at

414 n.5,

133 S. Ct. at

1150 n.5.
The actual identity theft already suffered by some Plaintiffs further
demonstrates the risk of identity theft all Plaintiffs face—though actual identity
theft is by no means required when there is a sufficient risk of identity theft. Here,
dozens of Plaintiffs allege they have already had their identities stolen and thus
suffered injuries in many different ways. Specifically, those who suffered identity
theft had numerous unauthorized charges and accounts made in their name;
incurred specific numerical drops in their credit scores; had their ability to obtain
loans affected; purchased credit monitoring; and spent time, money, and effort
trying to mitigate their injuries, including disputing fraudulent activity, filing
police reports, and otherwise dealing with identity theft. There is no dispute that
these Plaintiffs’ allegations of identity theft and resulting damages “constitute[] an
15
USCA11 Case: 20-10249           Date Filed: 06/03/2021        Page: 16 of 64
injury in fact under the law.” 10 Resnick, 693 F.3d at 1323. As such, the
allegations of some Plaintiffs that they have suffered injuries resulting from actual
identity theft support the sufficiency of all Plaintiffs’ allegations that they face a
risk of identity theft. Indeed, in Tsao v. Captiva MVP Restaurant Partners, LLC,

986 F.3d 1332

 (11th Cir. 2021), our Court recently recognized that “some
allegations of actual misuse or actual access to personal data” support Article III
standing for “a data breach based on an increased risk of theft or misuse.”

Id. at 1340

 (collecting cases); see also, e.g., McMorris v. Carlos Lopez & Assocs., LLC,

995 F.3d 295

, 301–02 (2d Cir. 2021) (“[C]ourts have been more likely to conclude
that plaintiffs have established a substantial risk of future injury where they can
show that at least some part of the compromised dataset has been misused.”)
(collecting cases).
Beyond the sufficient risk of identity theft and resulting injuries, a vast
number of Plaintiffs who have not yet suffered identity theft also allege they have
spent time, money, and effort mitigating the risk of identity theft. Their efforts
include purchasing credit freezes, monitoring their financial accounts, and
purchasing credit monitoring, among other things. As explained above, because
10
These Plaintiffs’ allegations of this sort of “injury in fact” provide them with Article III
standing. And as noted, only one named plaintiff must have standing for any particular claim to
advance. Wilding, 941 F.3d at 1124–25. This means we could also undertake a claim-by-claim
analysis of the many claims in this case to determine if there is at least one named plaintiff with
the sort of injury required to bring each claim. But because we conclude that all Plaintiffs have
adequately alleged a sufficient risk of identity theft, we need not undertake this additional task.
16
USCA11 Case: 20-10249 Date Filed: 06/03/2021 Page: 17 of 64
the risk of harm here is a sufficient injury, the allegations of mitigation injuries
made by these Plaintiffs are also sufficient. See Muransky, 979 F.3d at 931
(“[A]ny assertion of wasted time and effort necessarily rises or falls along with this
Court’s determination of whether the risk posed . . . is itself a concrete harm.”).
Plaintiffs have easily shown an injury in fact.
ii. Redressability
With the issue of injury now resolved, we move on to address whether
Plaintiffs’ injuries are redressed by the settlement. Mr. Huang says those Plaintiffs
who have not had their identities stolen cannot have their injuries redressed by the
settlement because the settlement does not stop third parties from committing
identity theft. We need not linger on this issue, as Mr. Huang’s argument
misunderstands the allegations of the complaint as well as the nature of the
settlement. The Plaintiffs who have not suffered identity theft did not sue Equifax
in order to stop third parties from committing identity theft. Instead, they sued
Equifax because of their injuries associated with the risk of identity theft. As
discussed, these injuries include the time, money, and effort spent mitigating the
risk of identity theft, including purchasing credit freezes, monitoring their financial
accounts, and purchasing credit monitoring, among other things.
The settlement redresses the injuries resulting from these mitigation efforts.
Specifically, for each class member, the settlement includes reimbursement for up
17
USCA11 Case: 20-10249 Date Filed: 06/03/2021 Page: 18 of 64
to $20,000 of documented, out-of-pocket losses fairly traceable to the data breach
(e.g., the cost of purchasing credit freezes and credit monitoring), and
compensation of $25 per hour for up to 20 hours for time spent taking preventative
measures against identity theft. And while the additional settlement benefits of 10
years of credit monitoring and seven years of identity restoration services might
not stop a third party from committing identity theft, these benefits will help limit
Plaintiffs’ injuries. Credit monitoring can quickly alert Plaintiffs to an identity
theft, and identity restoration services will help minimize the time and money spent
by Plaintiffs to combat an identity theft. The settlement thus redresses Plaintiffs’
injuries. See Lujan,

504 U.S. at 561

.
2.      Case-or-Controversy Requirement
With the issue of standing resolved, we now consider Mr. Huang’s other
argument concerning Article III jurisdiction. In his view, the District Court lacked
jurisdiction to approve the settlement because once the parties agreed to settle their
dispute, there was not a case or controversy between the parties. Of course, Article
III permits federal courts to address only “cases and controversies,” which limits
their jurisdiction to “questions presented in an adversarial context.” Graham v.
Butterworth,

5 F.3d 496

, 498–99 (11th Cir. 1993) (citing Flast v. Cohen,

392 U.S. 83

, 94–95,

88 S. Ct. 1942

, 1949–50 (1968)). The controversy must exist at all
18
USCA11 Case: 20-10249         Date Filed: 06/03/2021     Page: 19 of 64
stages of the litigation. Preiser v. Newkirk,

422 U.S. 395

, 401,

95 S. Ct. 2330

,
2334 (1975).
We are aware of no court that has adopted Mr. Huang’s idea that a district
court is somehow divested of jurisdiction (and thus lacks authority to approve the
settlement) once parties agree to settle a class action. As we understand Mr.
Huang’s position, no class action could ever be approved, because as soon as the
parties decide to settle, the case or controversy would vanish, and the court would
therefore lack jurisdiction to approve the settlement.
To the contrary, we hold that Article III’s case-or-controversy requirement is
satisfied throughout the settlement process because the litigation remains in an
adversarial posture during that process. First, the parties themselves remain in
adversarial positions until the district court approves the settlement. Rule 23(e)
states a class action “may be settled . . . only with the court’s approval.” Fed. R.
Civ. P. 23(e). This means the parties’ decision to settle a class action is not
consummated until the district court actually approves it. Cf. Haven Realty Corp.
v. Coleman,

455 U.S. 363

, 371 n.10,

102 S. Ct. 1114

, 1120 n.10 (1982) (holding
that a settlement agreement did not moot certain claims because the agreement was
“still subject to the approval of the District Court”). Indeed, the parties remain
adversaries all throughout the settlement approval process because until approval,
the settlement is not final, and if the district court rejects the settlement, the parties
19
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 20 of 64
would continue their litigation. See In re Asbestos Litig.,

90 F.3d 963

, 988 (5th
Cir. 1996) (holding Article III’s case-or-controversy requirement was satisfied,
notwithstanding a settlement, in light of the “the adversarial positions which the
parties occupied before settlement negotiations and the positions to which they will
return if the settlement is not approved”), vacated on other grounds, Ortiz v.
Fibreboard Corp.,

521 U.S. 1114

117 S. Ct. 2503

 (1997) (mem.).
Second, because the district court acts as a fiduciary for the class, there
remains adversity between the class and the defendant. Rule 23(e) requires the
district court to ensure the settlement is “fair, reasonable, and adequate.” Fed. R.
Civ. P. 23(e)(2). The district court thus takes on a type of fiduciary role for the
class, NPAS Sols., 975 F.3d at 1253, and works to ensure the settlement is
“noncollusive in nature,” 4 Newberg § 13:40; see also Manual for Complex
Litigation § 21.61 (“[T]he judge must adopt the role of a skeptical client and
critically examine . . . the proposed settlement terms[.]”). Our Court directs district
judges to exercise “careful scrutiny” in order to “guard against settlements that
may benefit the class representatives or their attorneys at the expense of absent
class members.” Holmes v. Cont’l Can Co.,

706 F.2d 1144

, 1147 (11th Cir. 1983)
(quotation marks omitted). Third and finally (and as this case demonstrates),
objectors cause the settlement process to be more adversarial. While the settling
parties may agree about the prospect of settlement, class action settlements are
20
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 21 of 64
routinely subjected to objections that “provide the court an adversarial presentation
of the issues under review, bringing the decision-making process closer to a
familiar judicial decision.” 4 Newberg § 13:40.
B.    Requirements Imposed on the Objectors
Having established jurisdiction, we now turn to the Objectors’ various
challenges to the District Court’s decisions in this case. After Plaintiffs and
Equifax presented their final settlement agreement to the District Court, that court
ordered notice of the settlement agreement to be provided to the class, such that
members of the class had the opportunity to opt-out of the class or object to the
settlement. In the order directing notice to the class, the District Court imposed a
number of administrative requirements on those class members who wished to
object. The District Court explained that it imposed these requirements because in
a class action case it previously handled, an objector came in “out of the blue” and
created a “really chaotic process.” It also found that such requirements can help
“expose objections that are lawyer-driven and filed with ulterior motives.”
Among other things, the District Court required that each objection include:
the objector’s name and address; the objector’s personal signature; the grounds for
the objection; previous objections in recent class actions; and dates on which the
objector was available to be deposed. In addition, if the objector had counsel who
intended to speak at the fairness hearing, the objection needed to include the legal
21
USCA11 Case: 20-10249         Date Filed: 06/03/2021       Page: 22 of 64
and factual basis for the objection and the evidence to be offered at the hearing.
Finally, if the objector had counsel who sought compensation from anyone other
than the objector, the objection needed to include counsel’s previous objections in
recent class actions, counsel’s experience in class action litigation, and information
on the fees sought. Mr. Davis says these administrative requirements infringed on
the objectors’ right to be heard and to be represented by counsel in their objections.
More to the point, he says that by imposing these requirements on objectors,
including those with counsel, the District Court limited their right to object and
deterred objections.11
We review a district court’s management of a class action for abuse of
discretion. See Oppenheimer Fund, Inc. v. Sanders,

437 U.S. 340

, 342,

98 S. Ct. 2380

, 2385 (1978) (applying abuse of discretion standard to a district court’s order
“concern[ing] the conduct of class actions” under Rule 23). Rule 23 grants district
courts broad discretion to manage class actions. See Nissan Motor Corp.,

552 F.2d at 1096

 (“In the management of class actions, [Rule] 23 necessarily vests the
district courts with a broad discretion to enable efficacious administration of the
course of proceedings before it.”); Gulf Oil Co. v. Bernard,

452 U.S. 89

, 100,

101 S. Ct. 2193

, 2200 (1981) (“Because of the potential for abuse, a district court has
11
Mr. Davis also says the requirements allowed the District Court to reject objections on
technical grounds. However, the District Court considered and rejected all objections on their
merits “whether or not the objections [were] procedurally valid.”
22
USCA11 Case: 20-10249       Date Filed: 06/03/2021   Page: 23 of 64
both the duty and the broad authority to exercise control over a class action and to
enter appropriate orders governing the conduct of counsel and parties.”). For
instance, Rule 23 authorizes district courts to “prescribe measures to prevent undue
repetition or complication in presenting evidence or argument,” to “impose
conditions on the representative parties or on intervenors,” and to “deal with
similar procedural matters.” Fed. R. Civ. P. 23(d)(1)(A), (C), (E). At the same
time, district courts’ discretion is “not unlimited.” Gulf Oil,

452 U.S. at 100

101 S. Ct. at 2200

.
Mr. Davis has failed to show the District Court abused its discretion here.
The District Court explicitly imposed the requirements outlined here, not to deter
objections or for some arbitrary purpose, but for the express purpose of avoiding a
“chaotic process” in evaluating the objections. The District Court said it found
these requirements help “expose objections that are lawyer-driven and filed with
ulterior motives.” The District Court was well within its broad discretion to
impose the requirements for these stated purposes. See id.; see also, e.g., In re
Deepwater Horizon,

739 F.3d 790

, 809 (5th Cir. 2014) (requirement imposed on
objector a “legitimate exercise” of court’s discretion to minimize abuse); Manual
for Complex Litigation § 21.662 (courts may be “inclined to find [discovery from
objectors] useful to assess the validity of the objections”); 4 Newberg § 13:33
23
USCA11 Case: 20-10249         Date Filed: 06/03/2021       Page: 24 of 64
(“[C]lass counsel may seek discovery from objectors on issues such as the
objectors’ . . . relationships with the professional objector counsel.”). 12
Beyond that, the requirements the District Court imposed were not
particularly burdensome. Most requirements were clerical in nature, such as
simply providing information. The most potentially burdensome requirement was
being deposed, yet in many instances that was no more than a possibility. And of
course, depositions are a normal part of litigation, see Fed. R. Civ. P. 30, including
for objectors to class settlements, see In re Cathode Ray Tube (CRT) Antitrust
Litig.,

281 F.R.D. 531

, 532, 534 (N.D. Cal. 2012) (ordering objector to sit for
deposition regarding the “bases for his objection” and his “relationship with
‘professional’ or ‘serial’ objector counsel”); see also Granillo v. FCA US LLC,

2018 WL 4676057

, at *7 (D.N.J. Sept. 28, 2018) (“[C]ourts across the country
have approved . . . depositions of objectors who have voluntarily inserted
themselves into [an] action[.]” (quotation mark omitted)); In re Netflix Privacy
12
Mr. Davis notes that a recent amendment to Rule 23 requires district courts to approve
any agreement between an objector and class counsel in which payment is “provided in
connection with” a decision to forgo or withdraw an objection. See Fed. R. Civ. P. 23(e)(5)(B).
In his view, this means objectors no longer bring meritless objections with the hope of being paid
off, and thus the District Court’s requirements were unnecessary. But Mr. Davis’s argument
assumes the amendment completely eliminated this type of extortion, which may not be a settled
question. See, e.g., In re Foreign Exch. Benchmark Rates Antitrust Litig.,

334 F.R.D. 62

, 64
(S.D.N.Y. 2019) (“Approving agreements in these circumstances would serve only to encourage
objectors or their attorneys to extract this type of payment[.]”). And even if the question is
settled, this District Court did not abuse its discretion when it imposed the requirements for the
other reasons discussed.
24
USCA11 Case: 20-10249        Date Filed: 06/03/2021       Page: 25 of

64 Litig., 2013

 WL 6173772, at *5 (N.D. Cal. Nov. 25, 2013) (“[W]hile absent class
members are not normally included in discovery, Objectors have voluntarily
inserted themselves into this action, and as such, depositions of the Objectors are
relevant and proper.”). 13
To be sure, discovery requirements may in some cases “dissuade class
members from exercising their right to object.” 4 Newberg § 13:33. But here, the
District Court found that any concerns about requirements deterring objections
were “at odds with the number of objections received” and the fact that “few
objectors had difficulty meeting these criteria.” Mr. Davis has not shown the
District Court erred in making this finding, especially given that the requirements
were not particularly burdensome.
Of course, district courts must remain mindful that burdensome
requirements could deter objectors from exercising their right to object while also
fulfilling their obligation to manage class actions. This can be a difficult task.
Whether a district court abuses its discretion in striking the right balance will
invariably depend on the facts of each case, and the breadth of a court’s discretion
in this regard will tend to ebb and flow with the size and administrative difficulties
13
There seems to be a dispute about whether all objectors were subject to depositions or
just those that were represented by counsel. But Mr. Davis, who was not represented by counsel
in his objection, admits that Plaintiffs sought to depose him. Thus, it appears both represented
and non-represented objectors were subject to depositions.
25
USCA11 Case: 20-10249        Date Filed: 06/03/2021    Page: 26 of 64
of the class action. With this class of approximately 147 million members, the
District Court acted well within its discretion to impose the requirements it did.
C.    Order Certifying Class and Approving Settlement
At the final hearing, after hearing arguments from Plaintiffs, Equifax, and
various objectors, and after giving its oral rulings, the District Court directed
Plaintiffs’ counsel to draft a proposed order “summariz[ing] [the District Court’s]
rulings on the motions and [its] adoption basically of the arguments that have been
made by the Plaintiffs and by Equifax in the hearing today.” The District Court
instructed Plaintiffs’ counsel to obtain Equifax’s approval before submitting the
proposed order to the court, which it would then “consider signing.” The District
Court acted pursuant to its local rule, which states, “[u]nless the Court directs
otherwise, all orders . . . orally announced by the district judge in Court shall be
prepared in writing by the attorney for the prevailing party.” N.D. Ga. R. 7.3.
There is no indication in the record that the proposed order was ever disclosed to
the class or filed on the docket. In fact, Plaintiffs acknowledge they emailed the
proposed order directly to the District Court.
Some Objectors challenge this procedure on various grounds. These
challenges include the assertions that: the District Court erred in adopting a
proposed order “ghostwritten” by Plaintiffs’ counsel; engaged in impermissible ex
parte communications and violated various rules by failing to disclose the proposed
26
USCA11 Case: 20-10249         Date Filed: 06/03/2021        Page: 27 of 64
order to the class; and erred by not including the proposed order in the appellate
record. The Objectors also request that this case be reassigned to a different judge
on remand.14 We consider each of these issues in turn after addressing one
preliminary matter. Specifically, it is unclear how much of the proposed order—
none at all, only some, or even verbatim—the District Court adopted. The
Objectors ask us to assume that the District Court adopted the proposed order in
full, and Plaintiffs and Equifax don’t ask us to do otherwise. For the purposes of
our review, we therefore assume the District Court adopted the proposed order
verbatim.
1.      Ghostwritten Order
Mr. Frank and Mr. West say the District Court erred in adopting a proposed
order “ghostwritten” by Plaintiffs’ counsel. This Court has “repeatedly condemned
the ghostwriting of judicial orders by litigants,” and cases admonishing courts for
14
Independently, Mr. Frank also argues that the District Court improperly relied on a
declaration filed by Professor Robert Klonoff, who writes on class actions. Mr. Frank says the
declaration was inadmissible under Federal Rule of Evidence 702 because Professor Klonoff
provided a legal opinion. This issue is ultimately unrelated to the District Court’s decision to
adopt a proposed order, but Mr. Frank raises this issue in passing when discussing the proposed
order issue, so we address it briefly here. Courts have held that Rule 702 is flexible at the final
approval stage. See, e.g., Int’l Union, United Auto., Aerospace, and Agric. Implement Workers
of Am. v. Gen. Motors Corp.,

497 F.3d 615

, 636–37 (6th Cir. 2007); see also 4 Newberg § 13:42
(“[T]raditional rules of evidence do not necessarily apply to the fairness hearing.”). However,
we need not decide whether Rule 702 applies at the final approval stage because even if Rule
702 applies—and even if Professor Klonoff’s declaration violated Rule 702—Mr. Frank fails to
show the error was anything other than harmless. See Furcron v. Mail Ctrs. Plus, LLC,

843 F.3d 1295

, 1304 (11th Cir. 2016) (“[E]ven a clearly erroneous evidentiary ruling will be affirmed if
harmless.”). Although the District Court said Professor Klonoff’s declaration was “particularly
helpful,” it expressly stated its rulings were “not dependent upon his declaration.”
27
USCA11 Case: 20-10249        Date Filed: 06/03/2021       Page: 28 of 64
the verbatim adoption of such orders are “legion.” In re Colony Square Co.,

819 F.2d 272

, 274–75 (11th Cir. 1987). When such a practice is permitted, the drafting
party has an “overwhelming” “temptation to overreach and exaggerate.”

Id. at 275

. Beyond that, the “quality of judicial decisionmaking suffers when a judge
delegates the drafting of orders to a party,” as “the writing process requires a judge
to wrestle with the difficult issues before him and thereby leads to stronger,
sounder judicial rulings.”

 15
Even so, as the parties acknowledge, our Court has not enforced a per se rule
prohibiting this practice. Even though this Court has sharply critiqued the practice
of having the prevailing party author court orders, we have continued to approve
courts’ adoption of proposed orders, some even verbatim. See, e.g., In re Dixie
Broad., Inc.,

871 F.2d 1023

, 1029–30 (11th Cir. 1989) (refusing to vacate
“ghostwritten” order when judge told all counsel “in open court” that he asked a
party’s counsel to draft the order, the other parties did not request the opportunity
to review the draft order or make objections to it, and the parties had ample
opportunity to argue their case); Colony Square,

819 F.2d at

276–77 (practice “not
fundamentally unfair” because the judge “reached a firm decision” before asking
counsel to draft the proposed order, which the judge said must reach a particular
15
We note that Northern District of Georgia Rule 7.3 does not appear to be in keeping
with the admonitions of our Court about this practice.
28
USCA11 Case: 20-10249       Date Filed: 06/03/2021   Page: 29 of 64
result and discuss specific points, and because the losing party “had ample
opportunity to present its arguments”); Fields v. City of Tarpon Springs,

721 F.2d 318

, 320–21 (11th Cir. 1983) (per curiam) (district judge “did not abdicate his
adjudicative role” in the “wholesale adoption of plaintiff’s proposed order”
because the judge “had command of the legal issues and the evidentiary
proceedings,” “ruled on the scope and manner of the evidence presented,” and was
“an active arbiter of the dispute”); see also Anderson v. City of Bessemer City,

470 U.S. 564

, 572,

105 S. Ct. 1504

, 1510–11 (1985) (noting criticism of “courts for
their verbatim adoption of findings of fact prepared by prevailing parties” yet
stating “that even when the trial judge adopts proposed findings verbatim, the
findings are those of the court”).
Our guiding principle in determining whether to vacate the adoption of a
proposed order is whether “the process by which the judge arrived at [the order]
was fundamentally unfair.” Colony Square,

819 F.2d at 276

. If a process was
fundamentally fair, then the concerns ordinarily associated with a ghostwritten
order are greatly tempered. Without a per se rule, we determine whether a process
was fundamentally unfair by evaluating the facts of each case. Also, we glean
some relevant considerations from our precedent, including: whether the losing
party had “ample opportunity” to present its arguments,

id. at 277

; see also Dixie
Broad., 871 F.2d at 1030; whether the court independently “reached a firm
29
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 30 of 64
decision” before requesting a proposed order, Colony Square,

819 F.2d at 276

; see
also Fields,

721 F.2d at

320–21; whether the court, in directing a party to draft the
proposed order, instructed that the order “reach[] a particular result and discuss[]
specific points,” Colony Square,

819 F.2d at 276

; whether the court directed a
party to draft the proposed order in open court or otherwise publicly, Dixie Broad.,
871 F.2d at 1030; whether other parties requested the opportunity to review the
proposed order or make objections to it, id.; and whether the court “had command”
of the issues and proceedings and was an “active arbiter” throughout the litigation,
Fields,

721 F.2d at

320–21.
Applying these considerations, we conclude the process by which the
District Court adopted the proposed order was not fundamentally unfair. Mr.
Frank and Mr. West both had ample opportunity to present their arguments. Both
lodged detailed written objections to the settlement agreement. Both appeared
through counsel at the final hearing and presented arguments. And contrary to
their assertions, they did have an opportunity to respond to the order. After the
District Court adopted the proposed order, Mr. West moved to amend it. And it’s
not as if these opportunities to present their arguments were hollow procedures; the
District Court heard from Mr. Frank and Mr. West at the fairness hearing,
considered their written objections, and rejected their objections on the merits.
30
USCA11 Case: 20-10249 Date Filed: 06/03/2021 Page: 31 of 64
Ultimately, the District Court granted Mr. West’s motion to amend the order over
Plaintiffs’ objections and issued a revised order based on West’s arguments.
The District Court reached a firm decision before ever directing Plaintiffs’
counsel to draft a proposed order. And the District Court instructed that the order
reach a particular result and discuss specific points: the court told Plaintiffs’
counsel that the order should “summarize[] [its] rulings on the motions and [its]
adoption basically of the arguments that have been made by the Plaintiffs and by
Equifax in the hearing today.”16 It even informed Plaintiffs’ counsel that it would
only “consider signing” the proposed order, meaning its instruction to prepare a
proposed order was not a blank check. The District Court did all this in open court
for everyone to hear, including the Objectors, and not one of them objected to the
process nor requested the opportunity to review the proposed order or make
objections to it. There is also no question the District Court was an active arbiter
of this litigation and had great command of the proceedings. For instance, the
16
We don’t find it significant that the District Court’s written order was more detailed
than its oral ruling. District courts often provide a summary ruling from the bench, which is later
memorialized in a longer written order. And in any event, it is ultimately the District Court’s
written order that controls in civil cases. See, e.g., Billingsley v. Jefferson County,

953 F.2d 1351

, 1354 (11th Cir. 1992) (“[T]he district court’s memorandum opinion constitutes its findings
of facts and conclusions of law,” as the district court was not bound by its “findings of fact,
rulings, or conclusions of law made during the course of [the] trial.”); Mercantel v. Michael &
Sonja Saltman Family Tr.,

993 F.3d 1212

, 1239 & n.23 (10th Cir. 2021) (approving ghostwritten
summary judgment order, even though “the final written decision cover[ed] additional issues not
explicitly addressed at the hearing,” because “at least in civil cases, a court’s written decision
generally controls over . . . an earlier oral ruling”).
31
USCA11 Case: 20-10249   Date Filed: 06/03/2021    Page: 32 of 64
District Court issued a detailed ruling on Equifax’s motion to dismiss and engaged
with the issues at the fairness hearing. Finally, the fact that the District Court
granted the motion to dismiss in part and denied it in part, and that it granted Mr.
West’s motion to amend the approval order over Plaintiffs’ objections, shows us
the court was not beholden to any party. Because the process by which the District
Court adopted its order was not fundamentally unfair, we will not vacate the order.
We caution that courts should not view this decision as condoning the
District Court’s practice. Judicial ghostwriting remains most unwelcome in this
Circuit. For this reason, and pursuant to our supervisory power, we strongly urge
the District Court to reconsider the local rule, see N.D. Ga. R. 7.3, that brought
about this problem in the first place. See Piambino v. Bailey,

757 F.2d 1112

,
1145–46 (11th Cir. 1985) (stating this Court has the “power to supervise the
district courts” in a “wide variety of situations,” including in formulating rules of
civil litigation, in order to “ensure that the judicial process remains a fair one”).
2.      Ex Parte Communications
Mr. Frank and Mr. West next argue there were impermissible ex parte
communications in the District Court because Plaintiffs’ counsel failed to disclose
the proposed order to the class. They say the ex parte communications violated
Canon 3(A)(4) of the Code of Conduct for United States Judges and various local
rules.
32
USCA11 Case: 20-10249    Date Filed: 06/03/2021      Page: 33 of 64
Any ex parte communications were harmless error. 17 See Colony Square,

819 F.2d at

276 (citing Rushen v. Spain,

464 U.S. 114

104 S. Ct. 453

 (1983))
(noting that ex parte communications can be upheld when the error is harmless).
We reach this conclusion for four reasons. First, at the Objectors’ request, we
assume the District Court adopted the proposed order verbatim, so for the purposes
of our review the Objectors are privy to the exact communications they claim were
made ex parte. Second, as discussed above, the District Court’s process was not
fundamentally unfair, and thus we can affirm its decision notwithstanding any ex
parte communications. See

id.

 at 276–77. Indeed, it appears that the District Court
in Colony Square engaged in more obvious ex parte communications than what the
Objectors assert here, and yet this Court held there was no fundamental unfairness
and thus upheld the order at issue there. In Colony Square, the judge called the
prevailing party’s lawyer after the hearing and asked him to draft the order. Id. at
274. The lawyer’s firm delivered the draft order to the judge, and the losing party
was not notified of any ex parte communications. Id. Here, by contrast, the
District Court requested that Plaintiffs’ counsel draft a proposed order in open
court, and no one objected to the process or requested to see a copy of the proposed
order.
17
Because we hold that any ex parte communications were harmless error, we need not
address whether the communications violated Canon 3(A)(4) or any local rules.
33
USCA11 Case: 20-10249         Date Filed: 06/03/2021       Page: 34 of 64
Third, as discussed throughout this opinion, we identify no errors made by
the District Court, so we cannot say any ex parte communications caused the court
to err in a way that prejudiced the Objectors. 18 See United States v. Adams,

785 F.2d 917

, 921 (11th Cir. 1986) (holding ex parte communications were harmless
error when there was no prejudice). Finally, the record demonstrates that the
Objectors had the opportunity to take up with the judge any problems they
identified. After the District Court issued the approval order, about which these
Objectors complain, Mr. West moved to amend it. The District Court granted Mr.
West’s motion and issued a revised order based on his arguments. This too shows
a lack of prejudice and thus, at most, harmless error. See id.
3. Record on Appeal
In the District Court, some of the Objectors moved for the appellate record
to be supplemented with the proposed order under Federal Rule of Appellate
Procedure 10(e). Relevant here, Rule 10(e) says “[i]f any difference arises about
whether the record truly discloses what occurred in the district court, the difference
must be submitted to and settled by that court and the record conformed
accordingly.” Fed. R. App. P. 10(e)(1). In other words, the appellate record need
18
As addressed later, we must remand this case to the District Court for it to vacate the
incentive awards for the class representatives based on this Court’s decision in NPAS Solutions,
which postdated the District Court’s order. This of course is not an error that resulted from any
ex parte communications, and thus it does not amount to prejudice.
34
USCA11 Case: 20-10249 Date Filed: 06/03/2021 Page: 35 of 64
not be supplemented when the record “truly discloses what occurred in the district
court.” Hoover v. Blue Cross & Blue Shield of Ala.,

855 F.2d 1538

, 1543 n.5
(11th Cir. 1988) (quotation marks omitted). The District Court ultimately denied
the Objectors’ motion, finding Rule 10(e) did not apply because “the record truly
discloses what occurred in the district court.”
Mr. Frank and Mr. West challenge this ruling and take issue with the fact
that the proposed order is not in the record on appeal. They wish to supplement the
record in order to show that the final order was a verbatim copy of the proposed
order. Mr. Davis likewise says the public has a right to view the proposed order,
primarily to determine whether the District Court adopted it in full. But in light of
our decision to accede to the Objectors’ request that we assume a verbatim
adoption of the proposed order by the District Court, there is no need to
supplement the record with this material on appeal.

 Because we assume the
proposed order (which is not in the record) is identical to the approval order under
review here (which is in the record), the record on appeal reflects what occurred in
the District Court, at least for purposes of our review.
4.      Reassignment on Remand
In light of the foregoing supposed errors, as well as some other late-breaking
allegations of bias, Mr. Frank and Mr. West ask us to reassign this case to a
different judge on remand. As discussed below, we must remand this case to the
35
USCA11 Case: 20-10249        Date Filed: 06/03/2021    Page: 36 of 64
District Court solely for it to vacate the incentive awards. We therefore must
briefly discuss the issue of reassignment on remand.
To begin, it’s not obvious to us that we have the authority to reassign this
case. This case was assigned to Chief Judge Thrash by the United States Judicial
Panel on Multidistrict Litigation (the “Panel”). Under the Panel’s rules, “[i]f for
any reason the transferee judge is unable to continue [its] responsibilities, the Panel
shall make the reassignment of a new transferee judge.” Rules of Procedure of the
United States Judicial Panel on Multidistrict Litigation, Rule 2.1(e) (emphasis
added); see In re IKO Roofing Shingle Prods. Liab. Litig.,

757 F.3d 599

, 600 (7th
Cir. 2014) (explaining that

28 U.S.C. § 1407

(b) “gives the Panel exclusive power
to select the judge”).
But we need not decide that question because reassignment is not justified
here. Reassignment is a “severe remedy,” which is “only appropriate where the
trial judge has engaged in conduct that gives rise to the appearance of impropriety
or a lack of impartiality in the mind of a reasonable member of the public.”
Comparelli v. Republica Bolivariana de Venezuela,

891 F.3d 1311

, 1328 (11th Cir.
2018) (quotation marks omitted). The Objectors have not shown any actual bias
from Chief Judge Thrash. While they certainly disagree with his decisions,
“judicial rulings alone almost never constitute a valid basis for a bias or partiality
36
USCA11 Case: 20-10249      Date Filed: 06/03/2021    Page: 37 of 64
motion.” Liteky v. United States,

510 U.S. 540

, 555,

114 S. Ct. 1147

, 1157
(1994).
Without any indication of actual bias, this Court considers three factors
when deciding whether to reassign a case: “(1) whether the original judge would
have difficulty putting [his] previous views and findings aside; (2) whether
reassignment is appropriate to preserve the appearance of justice; [and] (3) whether
reassignment would entail waste and duplication out of proportion to gains realized
from reassignment.” Comparelli, 891 F.3d at 1328 (quotation marks omitted)
(quoting United States v. Torkington,

874 F.2d 1441

, 1447 (11th Cir. 1989) (per
curiam)). No factor supports reassignment here. As to the first factor, Chief Judge
Thrash would not have difficulty putting his views aside, as the record indicates he
corrects his mistake and amends his orders when he thinks he reached the wrong
result. For instance, he revised the approval order after Mr. West moved to amend.
For the second factor, Mr. Frank and Mr. West have not shown how reassignment
is appropriate to preserve the appearance of justice. Finally, the third factor clearly
weighs against reassignment. This is a colossal multidistrict litigation case with
over 1200 docket entries in the District Court over the course of just a few years.
Reassignment would create enormous waste and duplication.
In support of reassignment, Mr. Frank and Mr. West rely heavily on
Chudasama v. Mazda Motor Corp.,

123 F.3d 1353

 (11th Cir. 1997), in which this
37
USCA11 Case: 20-10249            Date Filed: 06/03/2021        Page: 38 of 64
Court reassigned a case on remand in part because of “the court’s practice of
uncritically adopting counsel’s proposed orders.”

 at 1373 n.46. Chudasama is
far from on point. For one, as discussed above, the District Court’s decision to
adopt the proposed order at issue here was not fundamentally unfair. Beyond that,
the Objectors have not established a “practice” by the District Court of
“uncritically adopting” proposed orders.

 Finally, this case involves none of the
four other considerations that contributed to this Court’s decision to reassign the
case in Chudasama. See

id.

D.    Settlement Approval
We now turn to the substance of the approval order, beginning with the
District Court’s approval of the settlement agreement. A class action may be
settled only with court approval, which requires the court to find the settlement
“fair, reasonable, and adequate” based on a number of factors. Fed. R. Civ. P.
23(e)(2). 19 This Court has also instructed district courts to consider several
19
The Rule 23(e)(2) factors include whether:
(A) the class representatives and class counsel have adequately
represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing
relief to the class, including the method of processing class-
member claims;
(iii) the terms of any proposed award of attorney’s fees,
including timing of payment; and
38
USCA11 Case: 20-10249           Date Filed: 06/03/2021      Page: 39 of 64
additional factors called the Bennett factors. See Bennett,

. The
factors include (1) “the likelihood of success at trial”; (2) “the range of possible
recovery”; (3) “the point on or below the range of possible recovery at which a
settlement is fair, adequate and reasonable”; (4) “the complexity, expense and
duration of litigation”; (5) “the substance and amount of opposition to the
settlement”; and (6) “the stage of proceedings at which the settlement was
achieved.”

 The District Court here considered the Rule 23(e)(2) factors and
the Bennett factors and found the settlement was “fair, reasonable, and adequate”
and that the settlement’s relief “exceeds the relief provided in other data breach
settlements and . . . is in the high range of possible recoveries if the case had
successfully been prosecuted through trial.”
We review an order approving a class action settlement for abuse of
discretion. Ault v. Walt Disney World Co.,

692 F.3d 1212

, 1216 (11th Cir. 2012).
And because “[d]etermining the fairness of the settlement is left to the sound
discretion of the trial court,” we will not overturn its decision “absent a
(iv) any agreement required to be identified under Rule
23(e)(3); and
(D) the proposal treats class members equitably relative to each
other.
Fed. R. Civ. P. 23(e)(2). The Objectors do not challenge the District Court’s application of the
Rule 23(e)(2) factors, so we do not address them in depth. Although Mr. Frank says in passing
that Rule 23(e)(2)(D) was not satisfied, he does not press it with any argument or authority. We
therefore treat his argument abandoned. See Access Now, Inc. v. Sw. Airlines Co.,

385 F.3d 1324

, 1330 (11th Cir. 2004).
39
USCA11 Case: 20-10249      Date Filed: 06/03/2021    Page: 40 of 64
clear showing of abuse of that discretion.” Bennett,

 (emphasis
added); see also 4 Newberg § 13:47 (“[A]ppellate courts review the approval
decision under a highly deferential abuse of discretion standard.”).
This degree of deference to a decision approving a class action settlement
makes sense. Settlements resolve differences and bring parties together for a
common resolution. See Nissan Motor Corp.,

552 F.2d at 1105

 (“Settlement
agreements are highly favored in the law and will be upheld whenever possible
because they are a means of amicably resolving doubts and uncertainties and
preventing lawsuits.” (quotation marks omitted)). Settlements also save the bench
and bar time, money, and headaches. See 4 Newberg § 13:44 (“The law favors
settlement, particularly in class actions and other complex cases where substantial
resources can be conserved by avoiding lengthy trials and appeals.”). As such,
there is a “strong judicial policy favoring settlement.” Bennett,

.
Mr. Cochran challenges this settlement approval because he says the District
Court’s approval order failed to recognize the “unique risks associated with stolen
Social Security numbers,” which means the settlement includes inadequate relief to
remedy those risks. From this vantage point, he thinks the District Court
misapplied two of the Bennett factors: “the range of possible recovery” and “the
point on or below the range of possible recovery at which a settlement is fair,
adequate and reasonable.”

40
USCA11 Case: 20-10249       Date Filed: 06/03/2021   Page: 41 of 64
Mr. Cochran has failed to show an abuse of discretion, as the record clearly
demonstrates the District Court was aware of the unique risks associated with
stolen Social Security numbers. The complaint alleged, among other things, that
“all of the 147.9 million Americans whose information was stolen in the breach
remain subject to a pervasive, substantial and imminent risk of identity theft and
fraud, a risk that will continue so long as Social Security numbers have such a
critical role in consumers’ financial lives.” In its order on Equifax’s motion to
dismiss, the District Court acknowledged the data breach involved Social Security
numbers and that “[u]sing this information, identity thieves can create fake
identities, fraudulently obtain loans and tax refunds, and destroy a consumer’s
credit-worthiness.” And at the fairness hearing for approval of the settlement, both
Plaintiffs’ counsel and an objector discussed the risks associated with stolen Social
Security numbers. Finally, the District Court’s approval order expressly
highlighted that the settlement includes a “lengthy period” of credit monitoring and
“identity theft insurance and identity restoration services—features designed to
address identity theft.” In this way, the approval order recognized that the
settlement includes measures to redress the very risks Mr. Cochran says the
District Court ignored.
We also reject Mr. Cochran’s view that the District Court misapplied two of
the Bennett factors: “the range of possible recovery” and “the point on or below
41
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 42 of 64
the range of possible recovery at which a settlement is fair, adequate and
reasonable.” Bennett,

. When considering these factors, the Court
found the settlement was “fair, reasonable, and adequate because the settlement
reflects relief the Court finds is in the high range of what could have been obtained
had the parties continued to litigate.” Because the District Court was aware of the
risks associated with stolen Social Security numbers and found that the settlement
includes benefits to redress those risks, there is no “clear showing” that the District
Court abused its discretion in applying these factors. See

id.

 And while Mr.
Cochran might wish for longer credit monitoring and identity theft restoration
services, such quibbling with a settlement’s terms is not a part of an abuse of
discretion review. See Cotton v. Hinton,

559 F.2d 1326

, 1330 (5th Cir. 1977) (trial
judge “should be hesitant to substitute its own judgment for that of counsel”);
Manual for Complex Litigation § 21.61 (“The judge cannot rewrite the
agreement.”); see also Bennett,

 (“[C]ompromise is the essence of
settlement.”).
E.    Class Certification
In addition to approving the settlement, the District Court’s order also
certified the class action for settlement purposes. Rule 23 sets forth a number of
requirements that a class action must meet in order for a district court to certify the
class. First, all four requirements in Rule 23(a) must be satisfied: (1) the class
42
USCA11 Case: 20-10249       Date Filed: 06/03/2021      Page: 43 of 64
must be “so numerous that joinder of all members is impracticable”; (2) there must
be “questions of law or fact common to the class”; (3) the class representatives’
claims or defenses must be “typical” of the class’s claims or defenses; and (4) the
class representatives must “fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a); see Vega v. T-Mobile USA, Inc.,

564 F.3d 1256

, 1265 (11th
Cir. 2009). These four requirements are often referred to as the numerosity,
commonality, typicality, and adequacy requirements, respectively. See Vega,

564 F.3d at 1265

.
In addition to meeting these four requirements, a class action must also
satisfy one of the three parts of Rule 23(b). Fed. R. Civ. P. 23(b); see Vega,

564 F.3d at 1265

. The District Court here found that the class action satisfied Rule
23(b)(3). Rule 23(b)(3) requires that “questions of law or fact common to class
members predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). We review a class
certification ruling for abuse of discretion. See Ault, 692 F.3d at 1216.
Only Mr. Frank challenges the District Court’s class certification ruling, and
he does so only as to the adequacy requirement. 20 We thus focus solely on the
20
When discussing Article III standing, Mr. Huang briefly says Rule 23(b)(3)’s
predominance requirement is not met. He does not press this assertion with any argument, so we
consider it abandoned. See Access Now,

385 F.3d at 1330

.
43
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 44 of 64
adequacy requirement in Rule 23(a)(4). The adequacy requirement is that a class
representative “must adequately protect the interests of those he purports to
represent.” Valley Drug Co. v. Geneva Pharms., LLC,

350 F.3d 1181

, 1189 (11th
Cir. 2003) (quotation marks omitted). To determine whether the adequacy
requirement is met, we ask: “(1) whether any substantial conflicts of interest exist
between the representatives and the class; and (2) whether the representatives will
adequately prosecute the action.”

 (quotation marks omitted). Mr. Frank’s
challenge concerns only the first question, further narrowing our focus. According
to Mr. Frank, there is a fundamental conflict of interest between the class
representatives and the class because some class members had state statutory
damages claims while others did not. He says there should have been subclasses
and separate counsel to address these different types of claims.
Minor differences in the interests of the class representatives and the class
are not enough to defeat class certification under the adequacy requirement.

Instead, only a “fundamental” conflict “going to the specific issues in controversy”
can defeat class certification.

 (quotation marks omitted); see 1 Newberg § 3:58
(“[N]ot every potential distinction . . . will render the representative inadequate.
Only conflicts that are fundamental to the suit and that go to the heart of the
litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy
requirement.” (footnote omitted)). A conflict is fundamental “where some party
44
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 45 of 64
members claim to have been harmed by the same conduct that benefitted other
members of the class.” Valley Drug,

350 F.3d at 1189

. This Court has also
recognized that a class action “cannot be certified when its members have
opposing interests” or “where the economic interests and objectives of the named
representatives differ significantly from the economic interests and objectives of
unnamed class members.”

 at 1189–90 (quotation marks omitted).
Mr. Frank has failed to show the District Court abused its discretion in
certifying the settlement class. There is no dispute that all these Plaintiffs’ claims
arise out of the same unifying event, Equifax’s data privacy breach. Likewise, all
Plaintiffs seek redress for the same injury. They all seek compensation for injuries
associated with the risk of identity theft. There is also no dispute that the data
breach harmed all class members and made none better off. See

id. at 1189

.
Indeed, the class is expressly limited to the “U.S. consumers identified by Equifax
whose personal information was compromised.”
It is true that some class members had state law statutory damages claims
while others did not, but we don’t view that difference as a “fundamental” conflict
“going to the specific issues in controversy.”

 As Mr. Frank acknowledged at
oral argument, only the District of Columbia and Utah statutory damages claims
are before us on appeal. For one thing, Mr. Frank’s singular devotion to the D.C.
and Utah claims ignores the fact that all class members had negligence and
45
USCA11 Case: 20-10249        Date Filed: 06/03/2021    Page: 46 of 64
negligence per se claims under Georgia law that united the class. What’s more,
Mr. Frank fails to show that the two statutory damages claims were valuable, as he
demonstrates nothing about how the claims were a sure bet. In fact, he doesn’t cite
a single case in which a plaintiff recovered statutory damages under either statute
in a data breach case.
Even a brief review of the D.C. and Utah claims reveals significant barriers
to Plaintiffs’ success. While the D.C. Code authorizes certain damages for a data
breach, this provision wasn’t enacted until 2020, well after the data breach here
occurred in 2017. See Security Breach Protection Amendment Act of 2020, D.C.
Laws 23-98 (2020). Perhaps Plaintiffs could have tried to frame the data breach as
a violation of D.C.’s prohibition against certain unfair or deceptive trade practices,
see

D.C. Code § 28-3904

, but that presents its own set of issues about proving that
a breach by a third party was an unfair or deceptive trade practice by Equifax. The
Utah claim, in turn, required Plaintiffs to show Equifax engaged in a “[c]onsumer
transaction” and “knowingly or intentionally” violated an enumerated prohibition.
Utah Code §§ 13-11-3(2), -4(2). Given that Equifax might not have been in privity
with Plaintiffs and that this case arose out of a breach by a third party, these
requirements may well have been difficult to show. Therefore, to the extent some
class members had D.C. or Utah statutory damages claims while others did not,
there were no opposing or economic interests that were at odds.
46
USCA11 Case: 20-10249        Date Filed: 06/03/2021    Page: 47 of 64
The District Court’s decision aligns with the reasoned approach adopted by
courts in other data breach cases. For instance, in In re Anthem, Inc. Data Breach
Litigation,

327 F.R.D. 299

 (N.D. Cal. 2018), the District Court found the adequacy
requirement satisfied because all class members had their personal information
compromised in the same data breach and generally sought the same relief.

Id.

 at
309–11. Beyond that, the District Court found that even though there might have
been variations in state law, the named representatives included “individuals from
each state” and the differences in state remedies were not “sufficiently substantial
so as to warrant the creation of subclasses.” Id. at 310 (quotation marks omitted).
The same reasoning applies here. The class members all had their personal
information compromised in the same data breach; they seek redress for similar
injuries; and, to the extent some members have statutory damages under state law
and others do not, there are class representatives from every single state and, due to
litigation risks, the differences in remedies are not “sufficiently substantial so as to
warrant the creation of subclasses.” Id. (quotation marks omitted); see also In re
Target Corp. Customer Data Sec. Breach Litig.,

2017 WL 2178306

, at *6 (D.
Minn. May 17, 2017) (noting the “availability of potential statutory damages . . .
does not, by itself, mean that the interests of these class members are antagonistic
to the interests of class members from other jurisdictions,” particularly in light of
47
USCA11 Case: 20-10249       Date Filed: 06/03/2021    Page: 48 of 64
the “substantial barriers to any individual class member actually recovering
statutory damages”).
By contrast, the decisions Mr. Frank relies on, in which courts held that class
actions failed to satisfy the adequacy requirement, are inapposite. For instance,
Ortiz v. Fibreboard Corp.,

527 U.S. 815

119 S. Ct. 2295

 (1999) and Amchem
Products, Inc. v. Windsor,

521 U.S. 591

117 S. Ct. 2231

 (1997), addressed two
class actions against asbestos manufacturers, neither of which involved statutory
damages claims. Ortiz,

527 U.S. at

821–22,

119 S. Ct. at

2302–03; Amchem,

521 U.S. at 597

117 S. Ct. at 2237

. The plaintiffs had diametrically different injuries
within each class action. Some plaintiffs in the classes had already suffered
physical injury as a result of exposure to asbestos, while others might have been at
risk of injury in the future. Ortiz,

527 U.S. at 856

119 S. Ct. at 2319

; Amchem,

521 U.S. at

602–03,

117 S. Ct. at 2240

. This meant some plaintiffs wanted
compensation immediately while others wanted it in the future. Ortiz,

527 U.S. at 856

119 S. Ct. at 2320

; Amchem,

521 U.S. at 626

117 S. Ct. at 2251

. Here, by
contrast, Plaintiffs alleged that they face the same risk of identity theft and, among
other things, sought the same compensatory damages for that injury. Plaintiffs
likewise all receive the same benefits to redress that shared injury. And while
Ortiz was also based on the fact that some plaintiffs had more valuable claims than
others, see Ortiz,

527 U.S. at 857

119 S. Ct. at 2320

, that’s not the case here. For
48
USCA11 Case: 20-10249      Date Filed: 06/03/2021    Page: 49 of 64
the reasons set out above, Mr. Frank has failed to show how the D.C. and Utah
statutory damages claims increased the value of certain Plaintiffs’ cases.
Mr. Frank’s reliance on In re Literary Works in Electronic Databases
Copyright Litigation,

654 F.3d 242

 (2d Cir. 2011), even if it was binding on this
Court, is even further off the mark. In Literary Works, there were three groups of
claims (Categories A, B, and C, which had claims that decreased in value
respectively) involving three different provisions of the Copyright Act.

Id. at 246

.
The proposed settlement said that if all claims exceeded a set cap, Category C
claims would be reduced pro rata first, such that those with just Category C claims
might end up with nothing.