Equifax headquarters, Atlanta (Photo: John Disney/ALM)
Lawyers representing three Native American tribes have filed a motion to create a separate discovery track in the Equifax data breach litigation for Indian tribal governments.
The motion, filed on Friday, mimics a landmark amicus brief by 448 tribes opposing dismissal of lawsuits brought by Native American tribes over the opioid crisis. In fact, two of the lawyers who filed the Equifax motion signed the brief in the opioid case, in which a federal judge in Ohio has allowed cases brought by tribal governments to proceed separately from the cities and counties suing opioid companies.
“There can be no question that Indian Tribes make up a unique category of litigants in the instant litigation,” they wrote in the Equifax motion. “For tribes, the Equifax data breach is another challenge in a series of external threats challenging the tribes’ sovereignty and their unique culture of governance and ways of life.”
Neither J. Nixon Daniel of Beggs & Lane in Pensacola, Florida, nor T. Roe Frazer, of Frazer Law in Nashville, who filed the Equifax motion, responded to requests for comment. They represent Fond du Lac Band of Lake Superior Chippewa, which is a tribe in Minnesota, and two Wisconsin tribes, Red Cliff Band of Lake Superior Chippewa and the St. Croix Chippewa Indians of Wisconsin.
The next status conference is April 3.
The 2017 breach against Equifax affected more than 146 million customers, compromising their Social Security numbers, driver’s license numbers and credit card numbers.
The motion for the separate track comes after Chief Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia refused to dismiss the bulk of the Equifax case, calling the breach “unprecedented.” Thrash has separated the multidistrict litigation into two discovery tracks: one for consumers and one for financial institutions.
The tribal government motion also follows a request by the city of Chicago last year to establish a separate discovery track for government enforcement actions. In 2017, the city of Chicago sued Equifax, which removed the case to federal court. (Massachusetts and the city of San Francisco also sued Equifax, but their cases remain in state courts outside the MDL.) On Feb. 15, the Commonwealth of Puerto Rico joined the city of Chicago’s motion.
Among the reasons the motion cited for establishing an Indian tribal government track is the fact that Native Americans, many of whom rely on the internet because they live far from goods and services, are vulnerable to security breaches and could suffer “greater financial hardship,” given that many are poor and unemployed. The motion also cited “unique legal issues” that affect tribal governments, such as the U.S. Constitution’s Indian tribes interstate commerce clause, which offer “unique liability and damages issues.”
“Further, as sovereign governments, Indian tribes have the sovereign right to their own counsel, their own litigation autonomy, and their independent right to contract, including any resolution of the tribes’ claims in this litigation,” the motion says.
In a footnote, the motion notes that Judge Dan Polster of the U.S. Court for the Northern District of Ohio established a similar Indian tribe track “for many of the same reasons.”
“In fact, much of the content in this brief was taken directly from the amicus brief filing by over 400 tribes,” the lawyers acknowledged in the footnote.