Scher v. Cohen Fashion Optical, LLC

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WENDY SCHER, individually and on behalf
of all others similarly situated,
Plaintiff,
MEMORANDUM
-against- 	AND ORDER
25-cv-06071 (JMW)
COHEN FASHION OPTICAL, LLC,
Defendant.
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A P P E A R A N C E S:
Adam M. Harris
Israel David
Israel David LLC
60 Broad Street, Suite 2900
New York, New York 10004
Mark A. Cianci
Israel David LLC
399 Boylston Street, Floor 6, Suite 23
Boston, MA 02116
Gary M. Klinger
Milberg, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Mark K. Svensson
Milberg, PLLC
405 East 50th Street
New York, New York 10022
1/9/2026
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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Courtney Maccarone
Kopelowitz Ostrow P.A.
1 W Las Olas Blvd, Suite 500
Ft. Lauderdale, FL 33301
Kenneth J. Grunfeld (pro hac vice forthcoming)
Kopelowitz Ostrow P.A.
65 Overhill Rd Bala
Cynwyd, PA 19004
Mark S. Reich
Melissa G. Meyer
Levi & Korsinsky, LLP
33 Whitehall Street, 27th Floor
New York, NY 10004
-and-
Leanna A. Loginov
Andrew Shamis
Shamis & Gentile, P.A.
14 NE 1st Ave, Suite 705
Miami, FL 33132
Attorneys for Plaintiffs and the Proposed Class
No appearance by Defendants
WICKS, Magistrate Judge:
A class action has been brought seeking damages and injunctive relief for Defendant’s
alleged failure to safeguard personally identifiable information of its former and current
customers stemming from a cyberattack. (See generally ECF No. 1.) Because of this data breach,
four other cases1 were commenced and for purposes of judicial economy, all five Plaintiffs and
Defendant seek consolidation to deem the instant action as the lead case. (ECF No. 15.) In
1 The four other related cases are: Augenblick v. Cohen Fashion Optical, LLC (“Augenblick”), No. 2:25-
cv-06086 (OEM)(ARL); Hall v. Cohen Fashion Optical, LLC (“Hall”), No. 2:25-cv-06147 (LGD); Aiello
v. Cohen Fashion Optical, LLC (“Aiello”), No. 2:25-cv-06209 (SJB)(SIL); and Sanchez v. Cohen Fashion
Optical, LLC (“Sanchez”), No. 2:25-cv-06261 (SIL).
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addition, an application to appoint interim class counsel is before the Court, which Defendant
takes no position on. (Id.) For the reasons that follow, the unopposed Motion to Consolidate
Cases and Appoint Interim Class Counsel (ECF No. 15) is GRANTED.
LEGAL FRAMEWORK
Pursuant to Fed. R. Civ. P. 42(a), Courts may consolidate multiple actions. See Fed. R.
Civ. P. 42(a) (“If actions before the court involve a common question of law or fact, the court
may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the
actions; or (3) issue any other orders to avoid unnecessary cost or delay.”) “The Second Circuit
has interpreted this rule broadly, stating that Rule 42 gives district courts ‘broad discretion to
determine whether consolidation is appropriate.’” Stewart v. Prac. Res., LLC, No. 22-CV-0905
(LEK)(DJS), 2022 WL 17155996, at *2 (N.D.N.Y. Nov. 22, 2022) (quoting Johnson v. Celotex
Corp., 899 F.2d 1281, 1284 (2d Cir. 1990)). Judicial economy is to be considered while
determining if consolidation is appropriate as well as a fair trial. Id.
In addition, Fed. R. Civ. P. 23 governs class actions and the associated tasks therein such
as appointing interim class counsel. Indeed, a “court may designate interim counsel to act on
behalf of a putative class before determining whether to certify the action as a class action.” Fed.
R. Civ. P. 23(g)(3). “The Advisory Committee Notes to Rule 23(g)(2)(a) explain that the rule
‘authorizes the court to designate interim counsel during the pre-certification period if necessary
to protect the interests of the putative class.’” Mogull v. Pete & Gerry's Organics, LLC, No. 21
CV 3521 (VB), 2022 WL 4661454, at *1 (S.D.N.Y. Sept. 30, 2022). Appointment is a
discretionary matter. See id. Courts are encouraged to appoint interim counsel to safeguard the
potential class members and when there are “a number of overlapping, duplicative, or competing
suits pending in other courts, and some or all of those suits may be consolidated.” Sullivan v.
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Barclays PLC, No. 13-CV-2811 (PKC), 2013 WL 2933480, at *1 (S.D.N.Y. June 11, 2013)
(internal citations omitted).
A court considering the appointment of interim lead class counsel should consider
the same factors that a court appointing lead counsel for a certified class must
consider, including the candidates' qualifications and competence, their ability to
fairly represent diverse interests, and their attorneys' ability to command the respect
of their colleagues and work cooperatively with opposing counsel and the court.
Also appropriate for consideration is anything else that is pertinent to counsel's
ability to fairly and adequately represent the interests of the class, including (1) the
quality of the pleadings; (2) the vigorousness of the prosecution of the lawsuits; and
(3) the capabilities of counsel. Ultimately, the court's task in deciding these motions
is to protect the interests of the plaintiffs, not their lawyers.
In re Parking Heaters Memorandum Antitrust Litig., 310 F.R.D. 54, 57 (E.D.N.Y. 2015)
(internal citations and quotations omitted).
With this legal framework, the Court analyzes the instant application.
DISCUSSION
Plaintiffs Wendy Scher, Denise Augenblick, Malcolm Hall, Laura Aiello and Efren
Sanchez, seek an Order (i) consolidating cases Augenblick, Hall, Aiello, and Sanchez, into this
matter pursuant to Fed. R. Civ. P. 42(a) and (ii) appointing Gary Klinger of Milberg, PLLC and
Adam M. Harris of Israel David LLC as Interim Co-Lead Class Counsel in the consolidated
action pursuant to Fed. R. Civ. P. 23(g)(3). (ECF No. 15.) Both consolidation and appointment of
interim counsel are appropriate in this case and the accompanying four actions. There are
overlapping issues, which when consolidated will avoid different or inconsistent outcomes in
what may be a long and complex data breach class action, as further discussed below. Moreover,
since the applications made before the Court seek non-dispositive relief, the Court proceeds by
Order rather than Report and Recommendation.2
2 “The issue [of consolidation] implicates nondispositive relief.” McChesney v. Hogan, No. 08-CV-1186
(NAM)(DE), 2009 WL 607398, at *2 (N.D.N.Y. Mar. 9, 2009); Wilson v. Gen. Mills, Inc., No. 08-CV-
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I. 	Consolidation
As an initial matter, the four above-captioned cases are “sufficiently related to
justify consolidation, in the interest of justice and to avoid overlap and undue expense.”
McChesney, 2009 WL 607398, at *2. All five cases (the four to be consolidated and the instant
matter) allege that as a result of Defendant’s data breach, the Plaintiffs’ personally identifiable
information and protected health information was implicated. (ECF No. 15-1 at 3.) “The Second
Circuit has interpreted Rule 42 as a ‘valuable and important tool of judicial administration ...
invoked to expedite trial and eliminate unnecessary repetition and confusion.’” Brown v. Whitley,
No. 21-CV-2933 (AMD)(CLP), 2022 WL 21781441, at *8 (E.D.N.Y. Oct. 4, 2022), report and
recommendation adopted, No. 21-CV-2933 (AMD)(CLP), 2022 WL 21781418 (E.D.N.Y. Dec. 1,
2022) (internal citations omitted).
“In determining whether consolidation is appropriate, the court must consider whether
‘judicial economy favor(s) consolidation. This consideration, however, ‘must yield to a
paramount concern for a fair and impartial trial.’” Toussie v. Cnty. of Suffolk, No. CV 01-CV-
6716 (JS)(ARL), 2007 WL 1490463, at *1 (E.D.N.Y. May 21, 2007) (quoting In re Olsten Corp.
Securities Litig., 3 F.Supp.2d 286, 292 (E.D.N.Y.1998)). Notably, all parties consent to this
application, forming the basis that no party would be prejudiced through consolidation. (ECF No.
15-1 at 3, n.1, 6.) Additionally, consolidation would assist in ensuring a coordinated discovery
00597(JJM), 2009 WL 10681447, at *1 (W.D.N.Y. July 6, 2009) (same); In re Synergy Pharms. Inc. Sec.
Litig., No. 18-CV-873 (AMD)(VMS), 2020 WL 5763830, at *2 (E.D.N.Y. Sept. 28, 2020) (same); see
also Steiner v. UiPath, Inc., No. 24-CV-04702 (JPC) (SDA), 2024 WL 4054373, at *1 n.2 (S.D.N.Y. Sept.
5, 2024) (collecting cases) (internal citations omitted) (“An order appointing lead plaintiff and approving
lead counsel qualifies as a nondispositive matter under Rule 72(a) of the Federal Rules of Civil
Procedure, allowing this Court to issue a written order (i.e., a Memorandum and Order) rather than a
recommended disposition (i.e., a Report and Recommendation).”).
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schedule and avoid inconsistent rulings. Nor is there any indication that consolidating the cases
would result in an unfair trial.
Accordingly, the Motion to Consolidate is granted and the instant action is deemed as the
lead case.
II. 	Appointment of Interim Counsel
“When deciding a motion to appoint interim class counsel, a court must first find that
such an appointment is necessary.” Shiloah v. GEICO Indem. Co., No. 24-CV-06447
(EAW)(CDH), 2025 WL 2314761, at *2 (W.D.N.Y. Aug. 12, 2025) (citing Melville v. HOP
Energy, LLC, No. 21-CV-10406, 2024 WL 2240280, at *2 (S.D.N.Y. May 17, 2024)). Courts
generally find it is necessary to do so when there is overlap between cases, multiple attorneys or
consolidation has occurred. See Sullivan, 2013 WL 2933480, at *1. “In such cases, interim class
counsel ‘may be helpful in clarifying responsibility for protecting the interests of the class during
precertification activities, such as making and responding to motions, conducting any necessary
discovery, moving for class certification, and negotiating settlement.’” Est. of Sherlip v. Morgan
Stanley, No. 24-CV-4571 (VEC), 2025 WL 2097872, at *2 (S.D.N.Y. July 25, 2025) (quoting In
re Bank of Am. Corp. Sec., Derivative & ERISA Litig., 258 F.R.D. 260, 271–72 (S.D.N.Y. 2009)).
Courts must look at the factors listed in Rule 23(g) when appointing an interim class
counsel. Those are,
(i) the work counsel has done in identifying or investigating potential claims in
the action;
(ii) counsel's experience in handling class actions, other complex litigation, and
the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
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Fed. R. Civ. P. 23(g)(1)(A); see also In re Bank of Am. Corp. Sec., Derivative & ERISA Litig.,
258 F.R.D. at 272 (outlining the above factors and discussing other factors a court may consider).
“Class counsel must fairly and adequately represent the interests of the class.” See Fed.
R. Civ. P. 23(g)(4). “Appointing lead counsel helps to promote efficiency and avoid unruly
proceedings.” In re Parking Heaters Memorandum Antitrust Litig., 310 F.R.D. at 56. As such, the
Court reviews the application to determine whether the proposed interim co-lead counsel meets
that standard.
Plaintiffs seek to have Gary M. Klinger (“Mr. Klinger”) of Milberg, PLLC and Adam M.
Harris (“Mr. Harris” and together, “Proposed Interim Co-Counsel”) of Israel David LLC be
appointed as interim co-lead class counsel. (ECF No. 15-1 at 2, 4.) Upon review of instant
application, the Court finds that Mr. Klinger and Mr. Harris meet the four required factors and
appointment would allow for “effective case management.” Bitzko v. Weltman, Weinberg, & Reis
Co., LPA, No. 17-CV-458 (BKS)(DJS), 2018 WL 10593815, at *1 (N.D.N.Y. May 18, 2018)
(granting the motion for interim class counsel).
First, Proposed Interim Co-Counsel have individually conducted investigations prior to
commencing the action of the data breach, which led to the allegations at issue. (Id. at 4-5.)
Second and third, Proposed Interim Co-Counsel’s experience is vast. Indeed, Proposed Interim
Co-Counsel have “unparalleled knowledge and expertise in prosecuting consumer privacy and
data breach claims.” (Id. at 6.) “Each appears to have deep knowledge not only of class action
law and procedure, but also of substantive … law.” See In re: Int. Rate Swaps Antitrust Litig.,
No. 16-MC-2704 (PAE), 2016 WL 4131846, at *3 (S.D.N.Y. Aug. 3, 2016).
Mr. Klinger is the Chair of the Cybersecurity and Data Privacy Practice Group at
Milberg, PLLC, has been awarded as well as recognized for the work he has done in this area,
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and has settled over 100 class actions dealing with data breaches in the last three years. (Id. at 7-
8.) Milberg, PLLC “is a leader in the fields of cyber security, data breach litigation, and
biometric data collection, litigating on behalf of clients - both large and small - to change data
security practices so that large corporations respect and safeguard consumers' personal data.”
(See ECF No. 15-2 at 5.) Mr. Harris has almost twenty years of experience representing parties in
complex cases and is known for his experience in class action litigations. (ECF No. 15-1 at 9.)
Mr. Harris has represented class members in the past and recently in similar matters as here. (Id.
at 10.) The firm of Israel David LLC also has attorneys who “have a deep reservoir of litigation
experience prosecuting class action lawsuits arising out of abusive online and data privacy
practices.” (ECF No. 15-3 at 2.) Thus, together Proposed Interim Co-Counsel are highly
experienced senior attorneys who understand the potential complexities of the five cases. See
Delre v. Perry, 288 F.R.D. 241, 247 (E.D.N.Y. 2012) (finding that interim counsel possessed the
requisite knowledge and experience to handle the class action claims); see also Melville, 2024
WL 2240280, at *2 (“judges in this District routinely appoint interim class counsel even if they
represent multiple classes against the same defendant”).
Fourth, Proposed Interim Co-Counsel assert that they have already committed substantial
resources and will continue to do so. (ECF No. 15-1 at 11.) The firms of Israel David LLC and
Milberg, PLLC as demonstrated through their resumes, have the ability and capacity to oversee
such class actions. (See ECF Nos. 15-2, 15-3.) Consideration of the above leads to the
conclusion that the interests of the putative class members will be protected.
Accordingly, Mr. Klinger and Mr. Harris are appointed as Interim Co-Lead Counsel. See
Buonasera v. Honest Co., Inc., 318 F.R.D. 17, 18 (S.D.N.Y. 2016) (upon review of the factors,
granting appointment of interim counsel).
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CONCLUSION
For the foregoing reasons, the unopposed Motion to Consolidate Cases and Appoint
Interim Class Counsel (ECF No. 15) is GRANTED, the lead case is Scher v. Cohen Fashion
Optical, LLC, No. 25-CV-06071(JMW) (E.D.N.Y.), and all future filings shall be made in the
lead case. IT IS FURTHER ORDERED that the Motion is GRANTED as set forth below:
1. 	The following cases are hereby consolidated:
A. Scher v. Cohen Fashion Optical, LLC, No. 2:25-cv-06071-JMW (filed on October
30, 2025)
B. Augenblick v. Cohen Fashion Optical, LLC, No. 2:25-cv-06086-OEM-ARL (filed
on October 30, 2025)
C. Hall v. Cohen Fashion Optical, LLC, No. 2:25-cv-06147-LGD (filed on
November 4, 2025)
D. Aiello v. Cohen Fashion Optical, LLC, No. 2:25-cv-06209-SJB-SIL (filed on
November 6, 2025)
E. 	Sanchez v. Cohen Fashion Optical, LLC, No. 2:25-cv-06261-SIL (filed on
November 10, 2025)
(collectively, the “Related Actions”) under the new title: “In Re: Cohen Fashion Optical Data
Incident Litigation” pursuant to Fed. R. Civ. P. 42(a) (the “Consolidated Action”).
2. 	The Clerk of Court is respectfully directed to administratively close the
Augenblick, Hall, Aiello, and Sanchez actions. The Clerk of Court is further respectfully directed
to transfer all documents already docketed in the Related Actions into the Consolidated Action.
3. 	All papers filed in the Consolidated Action shall be filed under the lead case
number 2:25-cv-06071-JMW, the number assigned to the first-filed case, Scher, and shall bear
the following caption:
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In Re: Cohen Fashion Optical Data Incident
Litigation
Master File No.: 2 :25-cv-06071-JMW
4. 	The case file for the Consolidated Action will be maintained under Master File
No. 2:25-cv-06071-JMW.
5. 	All papers previously filed and served to date in the Related Actions are deemed
pait of the record in the Consolidated Action.
6. 	Pursuant to Fed. R. Civ. P. 23(g), the Comt hereby appoints Gaiy Klinger of
Milberg, PLLC and Adam M. HaITis of Israel David LLC as Interim Co-Lead Class Counsel to
act on behalf of the Plaintiffs and the putative Class Members in the Consolidated Action, with
the responsibilities set forth bel ow:
• 	Establish and maintain a deposito1y for orders, pleadings, heai·ing transcripts,
and all documents served upon plaintiffs' counsel, and make such papers
available to plaintiffs' counsel upon reasonable request;
• 	Coordinate the initiation and conduct of discove1y on behalf of all plaintiffs
consistent with the requirements of the Federal Rules of Civil Proc edure
relating to discove1y or any other subsequent order of this Court;
• 	Designate counsel to schedule depositions, set agendas and othe1wise interact
with defense counsel, various plaintiffs ' counsel, and the settlement master (if
one is appointed);
• 	Detennine and present (in briefs, oral ai·gument, or such other fashion as may
be appropriate, personally or by a designee) to the Comt and opposing paities
the position of the plaintiffs on all matters arising during pretrial proceedings;
• 	Conduct settlement negotiations on beha lf of plaintiffs, but not enter binding
agreements except to the extent expressly authorized;
• 	Delegate specific tasks to other counsel in a matter to ensure that pretrial
prepai·ation 	for 	the 	plaintiffs 	is 	conducted 	effectively, 	efficiently, 	and
economically;
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• 	Enter into stipulations, with opposing counsel, necessary for the conduct of the
litigation;
• 	Prepare and distribute periodic status reports to the parties;
• 	Maintain 	adequate 	time 	and 	disbursement 	records 	covering 	service 	of
designated counsel and enforce guidelines approved by the Court as to the
keeping of time records and expenses;
• 	Monitor the activities of co-counsel to ensure that schedules are met and
unnecessary expenditures of time and funds are avoided;
• 	Perform such other duties as may be incidental to proper coordination of the
plaintiffs’ pretrial activities or authorized by further order of the Court; and
• 	Submit, if appropriate, suggestions for establishing additional committees and
counsel for designation by the Court.
7. 	Any additional plaintiffs’ counsel will do all work in this litigation only at the
direction of Interim Co-Lead Class Counsel. No motion, request for discovery, or other pretrial
proceedings shall be initiated or filed by any Plaintiff except through Interim Co-Lead Class
Counsel and no other Plaintiffs’ counsel or firm shall be authorized to perform any work in the
case without the express authorization of Interim Co-Lead Class Counsel.
8. 	Interim Co-Lead Class Counsel shall have sole authority to communicate with
Defendant’s counsel and the Court on behalf of any Plaintiff unless that authority is expressly
delegated to other counsel. Defendant’s counsel may rely on all agreements made with Interim
Co-Lead Class Counsel, and such agreements shall be binding on all other Plaintiffs’ counsel.
9. 	Interim Co-Lead Class Counsel must serve a copy of this Order and all future
orders promptly by overnight delivery service, facsimile, or other expeditious electronic means
on counsel for Plaintiffs in any related action to the extent that Interim Co-Lead Class Counsel
are aware of any such action(s) and on all attorneys for Plaintiffs whose cases may subsequently
be consolidated with the above actions but who have not yet registered for ECF.
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10. 	Plaintiffs in the Consolidated Action shall file an operative Consolidated Class
Action Complaint within thirty (30) days of this Order. Defendant need not respond to any of the
initial complaints filed in the Related Actions. Defendant shall respond to the Consolidated Class
Action Complaint within thirty (30) days of the filing of the Consolidated Class Action
Complaint.
11. 	This Order shall apply to any action filed in, transferred to, or removed to this
Court which relates to the subject matter at issue in the Consolidated Action.
Dated: Central Islip, New York
January 9, 2026
S O 	O R D E R E D:
/S/_James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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