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In re Target Corporation Customer Data Security Breach Litigation

United States Court of Appeals, Eighth Circuit

May 2, 2017

In re: Target Corporation Customer Data Security Breach Litigation
v.
Consumer Plaintiffs Plaintiff- Appellee Jim Sciaroni Objector - Appellant Target Corporation Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson Objector - Appellant
v.
Consumer Plaintiffs Plaintiff- Appellee Target Corporation Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson Objector - Appellant
v.
Consumer Plaintiffs Plaintiff- Appellee Target Corporation Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Jim Sciaroni Objector - Appellant
v.
Consumer Plaintiffs Plaintiff- Appellee Target Corporation Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson Objector - Appellant
v.
Consumer Plaintiffs Plaintiff- Appellee Target Corporation Defendant-Appellee

          Submitted: February 15, 2017

         Appeals from United States District Court for the District of Minnesota - Minneapolis

          Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge. [1]

          BENTON, Circuit Judge.

         On February 1, 2017, this court remanded this case for further consideration of class certification, and reversed the imposition of a $49, 156 appeal bond. In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608 (8th Cir. 2017). Appellant Leif A. Olson moved to amend the second sentence in footnote 3 of the opinion:

3In the district court, Olson also argued that the settlement did not satisfy Rule 23's superiority or predominance requirements, the settlement terms were unfair on account of self-dealing by class counsel, and the attorneys' fee provision was unreasonable. Though the court rejected all of these arguments, Olson appeals only the district court's ruling on certification.

         Olson contends that he appealed the fairness of the settlement and the reasonableness of the attorneys' fees. The motion to amend is granted.

         I.

         This case follows Target's announcement that third parties compromised the payment-card data and personal information of up to 110 million Target customers. Before the district court, appellants Olson and Jim Sciaroni separately objected to the settlement proposed by Target and a class of consumer-plaintiffs. After the district court overruled Olson's and Sciaroni's objections and approved the settlement, they filed separate notices of appeal. This court consolidated those appeals, making Olson's and Sciaroni's appellant briefs due the same day, April 7.

         Olson filed his brief on time. Olson's brief did not address attorneys' fees or settlement fairness. Sciaroni submitted his brief two hours later, but it was deficient and not accepted for filing. Sciaroni submitted a revised brief six days later. The next day, Olson filed a letter. While labeled on the docket as a "28(j) citation, " the letter explicitly invokes Federal Rule of Appellate Procedure 28(i). Olson wrote that he "joins Sections II and IV of the Opening Brief of James Sciaroni, with the exception of the sentence on page 35 accusing the settling parties of collusion." Sections II and IV of Sciaroni's brief address attorneys' fees and settlement fairness.

         II.

         Rule 28(i) provides: "In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another's brief." The Rule does not state how a party "may adopt" part of another's brief. This court does not have a local rule on point. The courts of appeals, however, routinely permit Rule 28(i) adoption by letter. See United States v. Harris, 740 F.3d 956, 969 n.7 (5th Cir. 2014); United States v. Pryor, 474 F.Appx. 831, 832 n.2 (2d Cir. 2012); United States v. Cocchiola, 358 F.Appx. 376, 378 n.3 (3d Cir. 2009). Olson's letter adopted by reference part of Sciaroni's brief pursuant to Rule 28(i).

         The consumer-plaintiffs and dissenting opinion propose several reasons why Olson's Rule 28(i) letter did not effectively adopt part of Sciaroni's ...


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