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State Bar Renews Bid to Toss Antitrust Claims After Data Breach

Nov. 22, 2022, 10:02 PM

The State Bar of California wants a federal judge to permanently dismiss antitrust claims in a proposed class action over the data breach that allowed confidential client complaint and attorney disciplinary information to be captured by a free court records website.

Plaintiffs, who currently include a former judge and two licensed attorneys, and are proceeding anonymously, sued the State Bar of California and others in California state court, saying up to 260,000 records were put in jeopardy. The case was removet to federal court in May.

This is the State Bar’s latest attempt to do away with antitrust claims in a lawsuit also seeking to hold defendants liable for allegedly failing to protect plaintiffs’ privacy and their personal information.

Magistrate Judge Douglas F. McCormick of the US District Court for the Central District of California dismissed two antitrust claims from the suit in September, but allowed the plaintiffs to replead two other Sherman Act claims. The antitrust claims say in part that the State Bar has created a monopoly of the federal bar through its discipline system.

McCormick said in part that federal courts “have routinely rejected attempts to bring a Sherman Act cause of action against the disciplinary rules of a state bar or a state Supreme Court.”

The plaintiffs filed their second amended complaint in the case in October.

That amended filing doesn’t satisfy pleading requirements, nor does it cure the deficiencies for which the antitrust claims were dismissed by McCormick, the State Bar argued in its Monday filing seeking final dismissal of the antitrust claims. The Bar said the actual incident is “hardly mentioned” in the amended complaint’s “sprawling antitrust fantasy.”

Lenore Albert, counsel to the plaintiffs, took exception to that language. In an email to Bloomberg Law Tuesday, Albert said “inflammatory language” such as “sprawling antitrust fantasy” should be “left to Alex Jones and InfoWars.”

“Tyler Technologies and the State Bar just don’t have the same audience to pull it off,” Albert wrote.

David Opderbeck, a professor of law and co-director of the Institute for Privacy Protection at Seton Hall Law, told Bloomberg Law on Tuesday that the Sherman Act allegations appear to be “designed to force larger changes in the structure of the state bar rather than primarily to address any specific harm from this alleged data breach.”

“I’m not surprised these claims were previously dismissed and I’d be surprised if they aren’t dismissed with prejudice this time,” Opderbeck said in an email.

Plaintiffs are represented by Law Offices of Lenore Albert. The State Bar of California is represented by Cooley LLP.

The case is Roe v. The State Bar of California, C.D. Cal., No. 8:22-cv-00983, 11/21/22.

To contact the reporter on this story: David McAfee in Los Angeles at dmcAfee@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com