In re Accellion, Inc. Data Breach Litigation

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN RE ACCELLION, INC. DATA
BREACH LITIGATION
Case No. 5:21-cv-01155-EJD
ORDER DENYING MOTION TO
MODIFY ORDER ON CLASS
CERTIFICATION
Re: ECF No. 401
After hackers accessed a secure file transfer application offered by Accellion, Inc., and
exposed Plaintiffs’ data, Plaintiffs sued Accellion for negligence and violation of the Washington
Consumer Protection Act (“WCPA”). In September 2025, the Court granted in part Plaintiffs’
motion for class certification, certifying customer-specific subclasses for nominal damages.
Order, ECF No. 391. Plaintiffs have now filed a motion to modify that order based on the report
of a newly proffered expert. Mot. ECF No. 401. Accellion opposed, and Plaintiffs replied. Opp.,
ECF No. 410; Reply, ECF No. 414. For the following reasons, the Court DENIES Plaintiffs’
motion to modify the order on class certification.
I. BACKGROUND
Accellion develops and markets software for large organizations to transfer sensitive files
and data. Am. Compl., ECF No. 248, ¶¶ 25–26. The product at issue in this case is known as the
File Transfer Appliance (FTA). Id. ¶ 1. By 2020, the FTA was nearing the end of its life and was
increasingly vulnerable to hackers, yet Accellion continued to sell the product to customers.
Yaron Dep., ECF No. 317-7 at 52:21–25, 58:6–9, 58:10–16. Hackers exploited those
vulnerabilities, breaking into the systems of several of Accellion’s customers and stealing millions
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 1 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
of people’s personal information. Balonis Dep., ECF No. 317-19 at 20:21–21:3; Mangum Rpt.,
fig. 14, ECF No. 317-40. Plaintiffs filed suit. Following pleading practice, two claims remain:
negligence and violation of the WCPA. Am. Compl. ¶¶ 122–56.
Next, Plaintiffs moved for class certification. ECF No. 317. Accellion opposed
certification and moved to strike portions of the report submitted by Daniel Korczyk. ECF No.
319. Plaintiffs had offered Mr. Korczyk’s report to establish (1) that the disclosure of personal
information creates a risk of identity theft and (2) the value of the time that a class member might
spend responding to a data breach. The Court—finding that Mr. Korczyk was not qualified to
offer opinions on these two topics—granted the motion to strike. 2025 Order, ECF No. 391 at 4.
The Court then certified subclasses for the Regents of the University of California (“UC
Regents”); Centene Corporation, including several related entities; Flagstar Bank; the Washington
State Auditor’s Office (“WASAO”); and the WCPA, but only on the theory that Plaintiffs were
injured by the disclosure of their private information. Id. at 18–19. And because Plaintiffs could
not rely on Mr. Korczyk’s report, the Court found that Plaintiffs did not adequately model
damages based on the cost of credit monitoring. (The Court rejected damages for value of time
spent and the lost value of personal identifying information (“PII”) for other reasons.) Id. at 21–
22. Consequently, the Court only certified the subclasses as to nominal damages. Id. at 22.
II. APPLICABLE LEGAL STANDARD
As a preliminary matter, the Court must determine what legal standard applies to
Plaintiffs’ motion.
Plaintiffs argue that the Court should apply the standard to alter class certification under
Rule 23(c)(1)(C). Under Rule 23(c)(1)(C), “[a]n order that grants or denies class certification may
be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). They contend that this
standard grants the Court discretion to revisit and amend its class certification order. Mot. at 3.
Plaintiffs’ core argument is that the Court did not deny certification altogether—it simply found
that without Mr. Korczyk’s testimony, Plaintiffs did not have enough evidence to model damages.
Plaintiffs are now attempting to remedy that deficiency by offering the report of Paige Hanson.
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 2 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Thus, according to Plaintiffs, the Court should not apply the standard for a motion for
reconsideration because (1) they are not asking the Court to reconsider Mr. Korczyk’s
qualifications, and (2) the Court’s 2025 Order did not reach the merits of the damages model.
Reply at 3.
Accellion, meanwhile, contends that courts in this circuit apply Civil Local Rule 7-9 to
motions to amend or modify a class certification order. Local Rule 7-9 sets out the standard for a
motion for reconsideration. It requires that the moving party show one of the following: (1) that
despite reasonable diligence, the moving party now offers a material difference in fact or law from
that which was presented to the Court; (2) the emergence of new material facts or law; or (3) a
manifest failure by the Court to consider material facts or dispositive legal arguments. Civ. L. R.
7-9(b).
The Ninth Circuit has not spoken on whether courts should apply Rule 23 or the
reconsideration standard to serial motions for class certification. As a result, courts in this district
have taken different approaches. Plaintiffs analogize to two cases where courts in this district
applied Rule 23. In In re Apple iPhone Antitrust Litig., No. 4:11-CV-6714-YGR, 2024 WL
5701895 (N.D. Cal. Feb. 2, 2024), the court initially struck the expert testimony on damages and
then denied class certification for failure to satisfy predominance. 2024 WL 5701895, at *16–18.
And in In re Optical Disk Drive Antitrust Litig., No. 3:10-MD-2143 RS, 2016 WL 467444 (N.D.
Cal. Feb. 8, 2016), the court initially denied class certification because the plaintiffs’ expert did
not establish class-wide injury and damages. 2016 WL 467444, at *1. In both of those cases, the
plaintiffs submitted a revised expert report, which the court analyzed under Rule 23. Plaintiffs
argue that the facts here are similar: the Court found there was inadequate evidence to establish
class wide damages, and now Plaintiffs have submitted a revised expert report.
Opposing this argument, Accellion, analogizes to three cases where courts in this district
have applied the standard for a motion for reconsideration under Civil Local Rule 7-9. In In re
Finisar Corp. Sec. Litig., this Court denied an initial motion for class certification for failure to
satisfy commonality. No. 5:11-CV-01252-EJD, 2019 WL 2247750, at *2 (N.D. Cal. May 24,
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 3 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
2019). When the plaintiff filed a renewed motion for class certification based on a new expert
report, the Court applied the reconsideration standard and denied the motion. Id. at *4. English v.
Apple is similar: the court denied the initial motion for class certification, and when the plaintiff
provided new evidence and moved for reconsideration, the court applied the reconsideration
standard. No. 14-cv-01619-WHO, 2016 WL 1108929, at *5 (N.D. Cal. Mar. 22, 2016). Finally,
in Stemmelin v. Matterport, Inc., the court denied a motion for class certification for failure to
satisfy predominance. No. C 20-04168 WHA, 2022 WL 4843089, at *1 (N.D. Cal. Oct. 3, 2022).
When the plaintiff filed a renewed motion seeking injunctive relief, the court applied the
reconsideration standard. In so doing, the court noted that many courts in the Northern District
have applied the reconsideration standard to serial class certification motions. Id. (citing In re
Lithium Ion Batteries Antitrust Litig., No. 13-MD-02420 YGR (DMR), 2018 WL 4215573, at *3–
4 (N.D. Cal. Sept. 4, 2018); English, 2016 WL 1108929, at *5; Daniel F. v. Blue Shield of
California, No. C 09–2037 PJH, 2015 WL 3866212, at *3 (N.D. Cal. June 22, 2015)). The court
also reasoned that permitting serial certification motions would “encourage[] gamesmanship and
overbroad initial motions.” Id.
The Court finds Accellion’s argument more persuasive. While Plaintiffs are correct that
two courts in this district have applied Rule 23 to similar motions, courts have more commonly
applied the motion for reconsideration standard. See Finisar, 2019 WL 2247750; English, 2016
WL 1108929; Stemmelin, 2022 WL 4843089. Plaintiffs argue that in those cases, the courts had
previously denied certification, whereas in this case, the Court granted certification and merely
found that Plaintiffs had not established class wide damages. That is true. But the cases Plaintiffs
rely on—In re Apple iPhone and In re Optical Disk Drive—are no different: the court had also
previously denied certification. Thus, whether a court previously denied certification does not
determine whether Rule 23 or Civil Local Rule 7-9 applies to a successive motion.
There are also policy considerations. If Plaintiffs’ position were the rule, a plaintiff could
ask the court to modify a class certification order for no other reason than that the plaintiff did not
prevail in some part of their earlier motion. This is not how Rule 23 is supposed to work. As the
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 4 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Advisory Committee envisioned it, Rule 23 allows “[a] determination once made [to] be altered or
amended before the decision on he merits if, upon fuller development of the facts, the original
determination appears unsound.” Fed. R. Civ. P. 23 advisory committee’s note to 1966
amendment (emphasis added).
Furthermore, Plaintiffs’ position does not align with the history of Rule 23. Rule 23
previously allowed courts to certify a class conditionally soon after an action is commenced. The
2003 amendment deleted that provision, allowing courts more time to make the initial certification
decision but requiring them to ensure that the party seeking certification has met all the elements
of Rule 23. “Thus, post-2003, decertification and modification should theoretically only take
place after some change, unforeseen at the time of the class certification, that makes alteration of
the initial certification decision necessary.” Newberg and Rubenstein on Class Actions § 7:34 (6th
ed. 2022) (emphasis added).
Plaintiffs contend that “[D]istrict courts retain ‘the flexibility to address problems as they
arise.’” Reply at 3 (quoting Franco-Gonzalez v. Napolitano, No. CV 10-02211 DMG DTBX,
2012 WL 10688876, at *1 (C.D. Cal. Aug. 27, 2012)). The Court agrees. But the weight of the
case law in this district and the purpose and history of Rule 23 indicate that it should be used to
address problems “as they arise”—that is, to new or newly-discovered law or facts. That is not the
case here. Consequently, the Court is persuaded that Civil Local Rule 7-9 should govern the
analysis of Plaintiffs’ motion.
III. DISCUSSION
Civil Local Rule 7-9 requires that the moving party show one of the following: (1) that
despite reasonable diligence, the moving party now offers a material difference in fact or law from
that which was presented to the Court; (2) the emergence of new material facts or law; or (3) a
manifest failure by the Court to consider material facts or dispositive legal arguments. Civ. L. R.
7-9(b).
Accellion contends that Plaintiffs’ motion has not met that standard because it does not
offer new or newly-discovered facts or law. Opp. at 5–7. The Court agrees. In their first motion
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 5 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
to certify the class, Plaintiffs sought certification of a “cost of credit monitoring” damages model.
ECF No. 297 at 29–30. Plaintiffs offered Mr. Korczyk’s expert report to support this model. ECF
No. 297-18. But the Court found that Mr. Korczyk was not qualified to opine on the risk of
identity theft created by the disclosure of personal information or the value of the time spent
responding to a data breach. 2025 Order at 4. Plaintiffs now offer Ms. Hanson’s report to “cure[]
the deficiency in qualifications that previously precluded classwide credit and identity-theft
monitoring damages.” Mot. at 5. These are not new facts. Ms. Hanson “may have been newly
procured, but that does not mean there is an ‘emergence of new material facts’ under Civil Local
Rule 7-9(b)(2).” In re Finisar, 2019 WL 2247750, at *5.
Nor is reconsideration warranted under Civil Local Rule 7-9(b)(1). Plaintiffs have not
shown “that in the exercise of reasonable diligence” Plaintiffs “did not know such fact . . . at the
time of the interlocutory order.” Civil L.R. 7-9(b)(1). “A motion for reconsideration may not be
used to raise arguments or present evidence for the first time when they could reasonably have
been raised earlier in the litigation.” First Financial Security, Inc. v. Jones, No. 17-cv-00773-
BLF, 2017 WL 6316811, *2 (N.D. Cal. Dec. 11, 2017).
In sum, Plaintiffs do not establish that the Motion offers new or newly-discovered facts or
law. Indeed, none of Plaintiffs’ briefing addresses whether the Motion meets the standard set out
by Civil Local Rule 7-9 at all.1 Consequently, the Court finds that reconsideration is not
warranted.
IV. CONCLUSION
For the reasons set forth above, the Court construes Plaintiff’s motion to modify the order
on class certification as a motion for reconsideration. Because there is no basis for
reconsideration, the Court STRIKES Plaintiff’s improperly renewed motion for class
certification.
1 In a footnote, Plaintiffs state that if “the Court deems this motion as one for reconsideration,
Plaintiffs will file a motion for leave as required by Civil L.R. 7-9.” Mot. at 4 n.1. But Plaintiffs
already had the opportunity to address whether their motion met the standard set out by Local
Rule 7-9 in the operative Motion and Reply, and they did not do so.
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 6 of 7

Case No.: 5:21-cv-01155-EJD
ORDER DENYING MOTION TO MODIFY CLASS CERTIFICATION
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
IT IS SO ORDERED.
Dated: July 8, 2026
EDWARD J. DAVILA
United States District Judge
Case 5:21-cv-01155-EJD Document 425 Filed 07/08/26 Page 7 of 7