IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY … · INC., a Delaware corporation;...
Transcript of IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY … · INC., a Delaware corporation;...
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
BARBARA MOCEK and MIRANDA VAROZ, individually and on behalf of all others similarly situated
Plaintiffs,
v. ALLSAINTS USA LIMITED, a foreign business corporation,
Defendant,
and
AMERICAN EXPRESS COMPANY, a New York corporation; DISCOVER BANK, a Delaware corporation; GLOBAL PAYMENTS, INC., a Delaware corporation; MASTERCARD INCORPORATED, a Delaware corporation; TOTAL MERCHANT SERVICES, LLC, a Delaware limited liability company; and VISA INC., a Delaware corporation,
Respondents in Discovery.
No. 2016-CH-10056 Honorable Eve M. Reilly Calendar 7
PLAINTIFFS’ MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT Plaintiffs Barbara Mocek and Miranda Varoz, by and through their undersigned counsel,
hereby respectfully request that the Court enter an Order granting final approval of the Parties’
proposed settlement of this matter. Plaintiffs’ request is based upon this motion, the
contemporaneously-filed memorandum of points and authorities (and the exhibits attached
thereto) in support of this motion, and the record in this matter, along with any oral argument
that may be presented to the Court and evidence submitted in connection therewith at the Final
Approval Hearing scheduled for April 5, 2019.
FILED3/25/2019 8:44 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2016CH10056
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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WHEREFORE, Plaintiffs Barbara Mocek and Miranda Varoz, individually and on
behalf of the Settlement Class, respectfully request that the Court enter an Order (1) granting
final approval of the Parties’ proposed class action settlement, and (2) providing other such relief
as the Court deems reasonable and just.
Respectfully submitted,
BARBARA MOCEK and MIRANDA VAROZ, individually and on behalf of all others similarly situated,
Dated: March 25, 2019 By: /s/ Benjamin H. Richman One of Plaintiffs’ Attorneys
Benjamin H. Richman [email protected] Michael W. Ovca [email protected] EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Firm ID: 62075 Rafey S. Balabanian [email protected] EDELSON PC 123 Townsend Street, Suite 100 San Francisco, California 94107 Tel: 415.212.9300 Fax: 415.373.9435 Firm ID: 62075 Edwin J. Kilpela (admitted pro hac vice) [email protected] CARLSON LYNCH LLP 1133 Penn Avenue, 5th Floor Pittsburgh, Pennsylvania 15222 Tel: 412.322.9243 Fax: 412.231.0246
Todd D. Carpenter (admitted pro hac vice) [email protected]
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CARLSON LYNCH LLP 1350 Columbia Street, Suite 603 San Diego, California 9210 Tel: 619.762.1910
Fax: 619.756.6991
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CERTIFICATE OF SERVICE
I, Benjamin H. Richman, an attorney, hereby certify that on March 25, 2019, I served the above and foregoing Plaintiffs’ Motion for Final Approval of Class Action Settlement, by causing a true and accurate copy of such paper to be filed and transmitted to all counsel of record via the Court’s electronic filing system and further by causing the same to be transmitted via electronic mail to the persons shown below, on this the 25th day of March 2019. Marc E. Rosenthal [email protected] PROSKAUER ROSE LLP 70 West Madison, Suite 3800 Chicago, Illinois 60602-4342 Gregg M. Mashberg [email protected] PROSKAUER ROSE LLP 11 Times Square New York, New York 10036
/s/ Benjamin H. Richman
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
BARBARA MOCEK and MIRANDA VAROZ, individually and on behalf of all others similarly situated
Plaintiffs, v. ALLSAINTS USA LIMITED, a foreign business corporation,
Defendant,
and
AMERICAN EXPRESS COMPANY, a New York corporation; DISCOVER BANK, a Delaware corporation; GLOBAL PAYMENTS, INC., a Delaware corporation; MASTERCARD INCORPORATED, a Delaware corporation; TOTAL MERCHANT SERVICES, LLC, a Delaware limited liability company; and VISA INC., a Delaware corporation,
Respondents in Discovery.
No. 2016-CH-10056 Honorable Eve M. Reilly Calendar 7
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
FILED3/25/2019 8:44 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2016CH10056
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................1 II. BACKGROUND ................................................................................................................3
A. Overview of FACTA ..............................................................................................3 B. Plaintiffs’ Claims ....................................................................................................4 C. Procedural History .................................................................................................5
III. TERMS OF THE SETTLEMENT AGREEMENT ........................................................8
A. Class Definition ......................................................................................................8
B. Monetary Relief ......................................................................................................9
C. Prospective Relief ...................................................................................................9
D. Attorneys’ Fees and Incentive Award ...................................................................9 E. Administration Expenses ....................................................................................10 F. Release ..................................................................................................................10 IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS ....................................10 V. THE SETTLEMENT WARRANTS FINAL APPROVAL ...........................................12
A. The Relief Offered in the Settlement Weighs Strongly in Favor of Final Approval ...............................................................................................................13
1. The Settlement provides excellent relief ................................................13
2. Plaintiffs faced meaningful obstacles to relief .......................................14
B. Defendant’s Ability to Pay Favors Settlement ...................................................16 C. The Complexity, Length, and Expense of Further Litigation Weighs in Favor of Settlement .........................................................................................17 D. The Positive Reaction to the Settlement Supports Final Approval .................18 E. There Was Absolutely No Collusion Here ..........................................................18
F. It Is Class Counsel’s Opinion That the Settlement Is in the Best Interest of All Class Members .............................................................................19
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VI. CONLUSION ...................................................................................................................22
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TABLE OF AUTHORITIES
United States Circuit Court of Appeals Cases Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010) ....................................................................................... 15 n.11 Ticknor v. Rouse’s Enters., L.L.C., 592 F. App’x 276 (5th Cir. 2014) ......................................................................................16 U.S. v. Bank of N.Y., 14 F.3d 756 (2d Cir. 1994) ......................................................................................... 15 n.11 United States District Court Cases Altman v. White House Black Mkt., Inc., No. 15-CV-2451, 2016 WL 3946780 (N.D. Ga. July 13, 2016) ..........................................4 Dittman v. UPMC d/b/a The Univ. of Pittsburgh Med. Ctr., 196 A.3d 1036 (Pa. 2018) ..................................................................................................20 Dover v. Shoe Show, Inc., No. 2:12-cv-00694 (W.D. Pa.) ...........................................................................................20 Brown v. 22nd Dist. Agric. Ass’n, No. 15-CV-02578-DHB, 2017 WL 3131557 (S.D. Cal. July 24, 2017) .......................2, 13 In re Equifax, Inc., Customer Data Sec. Breach Litig., No. 1:17-md-02800 (N.D. Ga.) ..........................................................................................20 In re Facebook Privacy Litig., No. C 10-02389 (N.D. Cal. Dec. 10, 2010) .......................................................................19 In re Home Depot Data Breach Litig., No. 1:14-md-2583 (N.D. Ga.) ............................................................................................20 In re Target Stores Data Breach Litig., No. 0:14-md-02522 (D. Minn.) ..........................................................................................20 In re Toys R Us-Del., Inc.--Fair & Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438 (C.D. Cal. 2014) .......................................................................2, 13, 15, 21 Irvine v. 233 Skydeck, LLC, 597 F. Supp. 2d 799 (N.D. Ill. 2009) .................................................................................15
Goldsmith v. Tech. Sols. Co., No. 92 C 4374, 1995 WL 17009594 (N.D. Ill. Oct. 10, 1995) ..........................................17
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Katz v. ABP Corp., No. 12-CV-04173 ENV RER, 2014 WL 4966052 (E.D.N.Y. Oct. 3, 2014) ......................14 Kleen Prod. LLC v. Int’l Paper Co., No. 1:10-CV-05711, 2017 WL 5247928 (N.D. Ill. Oct. 17, 2017) ....................................16 Kolinek v. Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015) .........................................................................................18 Mocek v. AllSaints USA Ltd., 220 F. Supp. 3d 910 (N.D. Ill. 2016) ...................................................................................5 Mocek v. AllSaints USA Ltd., No. 16-cv-8484 (N.D. Ill.) ...................................................................................................5 Moore v. Aerotek, Inc., No. 2:15-CV-2701, 2017 WL 2838148 (S.D. Ohio June 30, 2017) ....................................3 Muransky v. Godiva Chocolatier, Inc., No. 15-cv-60716 (S.D. Fla. Jan. 1, 2016) ..........................................................................14 Reibstein v. Rite Aid Corp., 761 F. Supp. 2d 241 (E.D. Pa. 2011) .................................................................................14 Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011) ..................................................................................17 Shurland v. Bacci Cafe & Pizzeria on Ogden Inc., 259 F.R.D. 151 (N.D. Ill. 2009) .........................................................................................16 Tchoboian v. Fedex Office & Print Servs., Inc., No. SA CV10-01008, 2014 WL 10102826 (C.D. Cal. Mar. 25, 2014) .............................13 Torres v. Pick-A-Part Auto Wrecking, No. 1:16-cv-01915, 2018 WL 3570238 (E.D. Cal. July 23, 2018) ....................................14 Tsang v. Zara USA, Inc., No. 15-cv-11160 (N.D. Ill. Nov. 2, 2016) .........................................................................14 Varoz v. AllSaints USA Ltd., No. 3:16-cv-02597 (S.D. Cal. Jan. 27, 2017) ......................................................................5 Wood v. J Choo USA, Inc, No. 15-CV-81487, 2017 WL 43048005 (S.D. Fla. May 9, 2017) ......................................14
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State Appellate Court Cases Carrao v. Health Care Serv. Corp., 118 Ill. App. 3d 417 (1st Dist. 1983) ..................................................................... 10, 11, 12 City of Chi. v. Korshak, 206 Ill. App. 3d 968 (1st Dist. 1991) ......................................................................... passim Duncan v. FedEx Office & Print Servs., Inc., 2019 IL App (1st) 180857 ............................................................................................15–16 Garcia v. Nationstar Mortg. LLC, No. 2:15-cv-1808 (W.D. Wash. Oct. 26, 2018) ..................................................................20 GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d 486 (1st Dist. 1992) .....................................................................12, 18, 20 Quick v. Shell Oil Co., 404 Ill. App. 3d 277 (3d Dist. 2010) ....................................................................................2 Ratliff v. J&R Schugel Trucking, Inc., No. 2017 CH 10284 (Cir. Ct. Cook Cty. Mar. 19, 2018) ...................................................21 Rodas v. Spiegel, 87 Cal. App. 4th 513 (2001) ...........................................................................................6 n.5 Sec. Pac. Fin. Servs. v. Jefferson, 259 Ill. App. 3d 914 (1st Dist. 1994) .................................................................................10 Shaun Fauley, Sabon, Inc. v. Met. Life Ins. Co., 2016 IL App (2d) 150236 .............................................................................................17, 18 Steinberg v. Sys. Software Assoc., Inc., 306 Ill. App. 3d 157 (1st Dist. 1999) .................................................................................13 State Circuit Court Cases Miner v. Gillette Co., 87 Ill. 2d 7 (1981) ..............................................................................................................10 Paci v. Costco Wholesale Corp., No. 2017-CH-6413 (Cir. Ct. Cook Cty. Dec. 19, 2017) ....................................................15 Varoz v. AllSaints USA Ltd., No. 37-2016-00032584 (San Diego Cty. Sup. Ct.) ..............................................................5
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Rules and Statutory Authority 15 U.S.C. § 1681 ................................................................................................................1, 3, 4, 17 815 ILCS 505/2 ..........................................................................................................................3 n.4 Cal. Civ. Proc. Code § 430.10 ....................................................................................................6 n.5 Miscellaneous Authority Federal Judicial Center, Judges’ Class Action Notice & Claims Process Checklist & Plain Language Guide,
https://www.fjc.gov/sites/default/files/2012/NotCheck.pdf ............................................... 11 NEWBERG ON CLASS ACTIONS § 13:39 (5th ed. 2011) .....................................................................1 Pub. L. 117 Stat. 1952 (Dec. 4, 2003) ..............................................................................................4 Pub. L 122 Stat. 1565 (June 3, 2008) ...............................................................................................4
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I. INTRODUCTION
In this case arising under the Fair and Accurate Credit Transactions Act (“FACTA”), 15
U.S.C. § 1681c(g), Plaintiffs Barbara Mocek and Miranda Varoz (“Plaintiffs”) have secured
exceptional relief for the Settlement Class and now seek final approval of that settlement.1
Plaintiffs allege that fashion retailer AllSaints USA Limited (“AllSaints” or “Defendant”)
provided consumers printed receipts at its U.S. brick-and-mortar stores that contained twice as
much card data as allowed under FACTA. Specifically, the receipts improperly included ten
digits of card account numbers, as well as the cards’ expiration dates. Plaintiffs allege that
printing this sensitive information exposed them to the risks of identity theft and financial fraud
that FACTA was designed to protect against. After years of litigation and many months of arms’-
length negotiations, the Parties were able to reach a proposed class action settlement that, if
finally approved, will provide substantial monetary to the Settlement Class—in the form of an $8
million Settlement Fund and $3382 to each individual claiming Class Member—as well as the
prospective relief necessary to ensure that such FACTA violations do not occur in the future.
Class action settlements are reviewed for approval in a well-established two-step
process. 4 NEWBERG ON CLASS ACTIONS § 13:39 (5th ed. 2011). First, the Parties present the
Settlement Agreement for preliminary approval to the Court at which point the Court: (i)
1 A copy of the Parties’ Stipulation of Class Action Settlement and Addendum thereto (the “Settlement” or “Settlement Agreement”) are attached as Exhibit 1. Unless otherwise specified, capitalized terms used in this brief retain the meaning ascribed to them in the Settlement. 2 Class Counsel previously estimated that individual claiming Class Members would receive approximately $500 each. In the time since then, a greater number of claims than expected have been submitted. That said, while the amount of the individual payouts has decreased somewhat, as described herein, it is nevertheless exceptional when compared to other FACTA settlements and represents over one third of the maximum potential recovery Class Members could expect to receive if they prevailed in the litigation and proved AllSaints willfully violated the statute. See 15 U.S.C. § 1681n(a). But of course, here claiming Class Members are able to claim that relief immediately, without the risk and delay of further litigation, trial and appeals.
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determines whether the Class should be notified of the settlement, (ii) whether the Class should
be conditionally certified, (iii) and whether the case should be set for a final fairness hearing. If
preliminary approval is granted, Notice is sent to the Settlement Class, and any objections or
exclusions from the Settlement Class are collected. Second and from there, the Court holds a
final fairness hearing to determine whether the settlement is “fair, reasonable, and adequate,” and
should be finally approved. See Quick v. Shell Oil Co., 404 Ill. App. 3d 277, 282 (3d Dist. 2010).
This matter is now at that second stage. The Court (acting through the Hon. Diane J.
Larsen (Ret.)) granted preliminary approval to the Settlement on July 17, 2018. Plaintiffs spent
the next several months working with AllSaints, non-parties and the Settlement Administrator to
obtain additional Class Member contact information to ensure that the best and most direct notice
practicable was distributed. This information in hand, an updated notice plan was presented to
the Court and approved on January 25, 2019. The Settlement Administrator promptly
implemented the Notice plan by February 4, 2019. Class Counsel filed their fee brief on March
4, 2019, and immediately made it publicly available to the Class on the Settlement Website. The
Settlement Administrator sent a second round of email Notice on March 7, 2019, before the
Objection and Exclusion Deadline on March 18, 2019. Notably and consistent with the otherwise
favorable response received from the Class, no objections to the Settlement have been raised and
only one Class Member has asked to be excluded.
This lack of opposition to the Settlement should come as no surprise considering how
favorably it compares to other FACTA class action settlements. Unlike this one, far too many
FACTA cases are resolved without any cash relief distributed to the class whatsoever. See Brown
v. 22nd Dist. Agric. Ass’n, No. 15-CV-02578-DHB, 2017 WL 3131557, at *1 (S.D. Cal. July 24,
2017) (finally approving FACTA settlement providing 50¢ reduction in admission prices to
county fair); In re Toys R Us-Del., Inc.--Fair & Accurate Credit Transactions Act (FACTA)
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Litig., 295 F.R.D. 438, 453 (C.D. Cal. 2014) (finally approving FACTA settlement providing
“transferable vouchers ranging from $5 to $30 in value.”). And even where FACTA settlements
do include a cash component, the payouts are often minimal and do not come close to rivaling
the relief secured in this case. See Moore v. Aerotek, Inc., No. 2:15-CV-2701, 2017 WL
2838148, at *4 (S.D. Ohio June 30, 2017) (finally approving FACTA settlement providing
between $13 and $80 to claimants).
For all of these reasons, and as detailed below, the Settlement is an excellent result for
the Settlement Class. The factors Illinois courts consider when determining whether to grant final
approval to a class settlement weigh strongly in favor of approving this one. Thus, the Court can
appropriately enter an Order granting final approval.
II. BACKGROUND
The background of this case and the Settlement are briefly set forth below.3
A. Overview of FACTA.
Congress passed FACTA in 2003 on the heels of many states4 taking action to protect
consumers from the risks of identity theft and financial crimes that were associated with
including too much sensitive financial account information on shoppers’ printed payment card
receipts. To accomplish this aim, FACTA mandates that “no person that accepts credit cards or
debit cards for the transaction of business shall print more than the last 5 digits of the card
number or the expiration date upon any receipt provided to the cardholder at the point of the sale
or transaction.” 15 U.S.C. § 1681c(g). Its stated goal was “to prevent identity theft” and the risk
3 This background is also discussed in Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, which was granted by Judge Larsen, and Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Award of Attorneys’ Fees, Expenses, and Incentive Award, which was filed on March 4, 2019. 4 Illinois, for example, passed a similar regulatory scheme to FACTA. See 815 ILCS 505/2NN.
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thereof by curbing retailers’ printing consumers’ card numbers and expiration dates on receipts
for anyone to view. Pub. L. 108–159, 117 Stat. 1952 (Dec. 4, 2003); Pub. L. 110–241, 122 Stat
1565 (Jun. 3, 2008) (“[E]xperts in the field agree that proper truncation of the card number, by
itself . . . prevents a potential fraudster from perpetrating identity theft or credit card fraud.”).
To enforce this statutory scheme, Congress provided consumers a private right of action
to protect their right to receive a properly-truncated receipt and to hold retailers printing non-
compliant receipts liable. See Altman v. White House Black Mkt., Inc., No. 1:15-CV-2451-SCJ,
2016 WL 3946780, at *5 (N.D. Ga. July 13, 2016) (noting that Congress “provided Plaintiff []
with a substantive right to receive a truncated credit card receipt”). For shoppers who receive
non-compliant receipts, FACTA provides that they are entitled to collect “actual damages
sustained . . . or damages of not less than $100 and not more than $1,000” from “[a]ny person
who willfully fails to comply with” FACTA’s requirements. 15 U.S.C. § 1681n(a). The scheme
also provides for the award of reasonable attorneys’ fees in the event of a successful action. Id.
B. Plaintiffs’ Claims.
Plaintiffs’ claims stem from transactions at AllSaints brick and mortar locations. (First
Amended Class Action Complaint (“FAC”) ¶¶ 10, 40.) As described in the FAC, Plaintiffs each
received receipts that included ten digits of their card account numbers and the card’s expiration
dates, drastically more than what is allowed under FACTA. (Id. ¶¶ 38–41.) Including such
information on their receipts substantially increased Plaintiffs’ and Class Members’ risk of
identity theft, including through brute-force attacks by hackers cycling through card number
combinations, (id. ¶¶ 29–31), or from social engineering attacks where hackers pose as a bank or
other trusted source and use the exposed card numbers to trick consumers into providing
additional personal information, (id. ¶¶ 32–36). Plaintiffs filed their cases seeking statutory
damages and injunctive relief on behalf of themselves and a putative class of similarly situated
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consumers for AllSaints’s allegedly willful failure to comply with FACTA. (Id. ¶ 5.)
C. Procedural History.
Plaintiff Mocek first filed her lawsuit in the Circuit Court of Cook County on July 29,
2016. (See Plaintiff’s Class Action Complaint and Demand for Jury Trial, July 29, 2016.) Shortly
thereafter, AllSaints removed the case to the Northern District of Illinois, where it tried to
dismiss the case on the basis that Mocek did not have standing to pursue her claims in federal
court. See Mocek v. AllSaints USA Ltd., No. 16-cv-8484 (N.D. Ill.). The Parties fully briefed and
argued Mocek’s motion for remand, after which the federal court found the removal objectively
unreasonable, remanded the suit back to Cook County, and awarded Mocek the attorneys’ fees
incurred in seeking remand. Mocek v. AllSaints USA Ltd., 220 F. Supp. 3d 910, 915 (N.D. Ill.
2016). Following remand, the Parties fully briefed and argued another motion to dismiss in
which AllSaints again argued that Mocek lacked standing to pursue her alleged claims, and that
she had otherwise failed to state a claim. (Declaration of Benjamin H. Richman (“Richman
Decl.”), attached as Exhibit 2, ¶ 5.)
On September 19, 2016, Plaintiff Varoz filed her related case in San Diego County
Superior Court, asserting nearly identical claims. Varoz v. AllSaints USA Ltd., No. 37-2016-
00032584 (San Diego Cty. Sup. Ct.) (the “California Action”). Shortly after filing, Varoz issued
written discovery requests to AllSaints aimed at identifying facts about the putative class.
(Declaration of Todd D. Carpenter (“Carpenter Decl.”), attached as Exhibit 3, ¶ 5.) Similar to
Mocek’s case, AllSaints removed the California Action, but the Parties stipulated to remand after
the Illinois federal court rejected AllSaints’s removal arguments. Varoz v. AllSaints USA Ltd., No.
3:16-cv-02597, dkt. 18 (S.D. Cal. Jan. 27, 2017); (Carpenter Decl. ¶ 4.) Back in California state
court, AllSaints demurred in response to Varoz’s complaint, reasserting its standing argument and
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arguing that Varoz failed to state a claim.5 (Carpenter Decl. ¶ 9.) While briefing was ongoing, the
Parties addressed a discovery dispute over whether AllSaints failed to comply with its deadline to
respond to the initial discovery, a failure that would have had the impact of rendering many of
Plaintiff Varoz’s requests for admission deemed admitted by Defendant, essentially ending any
potential defense. (Id. ¶¶ 5–7.) Varoz ultimately filed a motion to compel and, while the motion
was pending, AllSaints served supplemental, verified responses to the discovery. Those
discovery responses included information regarding the number of transactions during the class
period as well as the total number of Class Members and, importantly, the number of those Class
Members for whom AllSaints had contact information. (Id. ¶ 8.) After briefing and oral argument
related to the demurer was completed, the court denied the demurer, finding that Varoz had
standing and that she had adequately alleged a claim. (Id. ¶ 9.)
Eventually, the Parties in both cases began discussing the possibility of reaching a global
resolution. (Richman Decl. ¶ 7.) These initial conversations led to counsel for Mocek and Varoz
coordinating their efforts and jointly reaching an agreement with AllSaints to stay both cases
pending a private mediation. (Id.) The Parties agreed to schedule a mediation with Mr. Robert A.
Meyer, Esq. at JAMS in Los Angeles, California. (Id.) In preparation for the mediation, the
Parties had several telephone conferences with each other and with Mr. Meyer, compiled and
provided him relevant briefing from both matters, and exchanged additional informal discovery
related to the allegations in the complaint and the Class’s composition, (Id. ¶ 8.) Having obtained
this additional information, and based on what was already learned in the course of litigating the
cases, the Parties exchanged detailed mediation statements setting out their respective views of
the case. (Id.)
5 As in a 2-615 or 2-619 motion to dismiss in Illinois’ courts, “[a] demurrer tests the sufficiency of a complaint by raising questions of law.” Rodas v. Spiegel, 87 Cal. App. 4th 513, 517 (2001); Cal. Civ. Proc. Code § 430.10 (listing the appropriate grounds for a demurer).
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After the mediation statements were exchanged, the Parties met with Mr. Meyer on
November 9, 2017 for a full-day mediation session. (Id. ¶ 9.) Over the course of the day and with
Mr. Meyer’s assistance, the Parties went through several rounds of back-and-forth negotiations.
(Id.) While these efforts were productive, at the end of the day, the Parties were ultimately
unable to reach a resolution; thus, Mr. Meyer made a mediator’s proposal to resolve the case.
(Id.) The Parties did not accept the proposal immediately, but rather, continued to consider it
amongst their respective sides. (Id.) Ultimately, the Parties agreed to Mr. Meyer’s proposal and
from there they spent the next several months negotiating the details of the agreement, and
drafting what would ultimately become the Settlement. (Id.) At the same time, Plaintiffs filed the
FAC, adding Varoz as a named plaintiff in this action and adding several credit and debit card
companies and card processors as Respondents in Discovery from which Plaintiffs intended to
obtain additional Settlement Class Member contact information. (Id. ¶ 10.) Thereafter, Plaintiffs
moved for preliminarily approval of the Settlement, which the Court granted on July 17, 2018.
(See July 17, 2018 Preliminary Approval Order.)
Instead of immediately scheduling the distribution of Notice, however, and pursuant to
the plan Plaintiffs had outlined to the Court, Plaintiffs, with the assistance of the Settlement
Administrator, took steps to identify additional Class Member contact information to bolster
their Notice efforts. (Richman Decl. ¶¶ 11–12.) Plaintiffs served third-party discovery on
financial institutions involved in the at-issue transactions to identify what contact information
they had for Class Members. (Id.) Over the next several months, Class Counsel conferred with
third-parties’ counsel, obtained executed protective orders, and assisted in the transfer of tens of
thousands of Class Members’ contact information to the Settlement Administrator. (Id. ¶ 11.)6
6 The Parties regularly appeared at status conferences and submitted written reports during this time to inform the Court of their progress.
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During that same period, Class Counsel also worked with the Settlement Administrator, KCC, to
find more complete contact information for Class Members for whom only limited contact
information was originally available. (Id. ¶ 12.) KCC was able to use phone number and email
information in the Class List to obtain more complete mailing addresses for thousands of
additional Class Members. (Id.)
These efforts completed in December 2018, the Parties, with the assistance of KCC,
crafted a revised Notice plan and related Addendum to the Settlement to present to the Court. (Id.
¶ 13.) These documents took into account all of the Class Member contact information obtained
from third parties, through KCC’s own efforts, and from AllSaints directly. (See Jnt. Mot. to
Approve Settlement Addendum (Cir. Ct. Cook Cty. Jan. 24, 2019).) The Parties proposed sending
direct Notice to all those Class Members for whom contact information had been obtained, and
supplementing that direct Notice with an internet advertising campaign aimed at garnering
millions of impressions, as well as through a link to the Settlement Website placed on AllSaints’s
own website, AllSaints.com. (See Ex. 1 to Jnt. Mot. to Approve Settlement Addendum (Cir. Ct.
Cook Cty. Jan. 24, 2019).) The Court approved the updated Notice plan and the Addendum on
January 25, 2019 and ordered that Notice be disseminated shortly thereafter. As described in
Section IV, that Notice plan was successfully completed in the following weeks.
III. TERMS OF THE SETTLEMENT AGREEMENT
The terms of the Settlement Agreement are briefly summarized here:
A. Class Definition: In the Preliminary Approval Order, the Court certified a
Settlement Class of “those United States consumers, who during the Settlement Class Period: (1)
used a credit or debit card; (2) to charge a purchase at an AllSaints retail location; and (3) were
provided a point of sale receipt that displayed more than the last five digits of the card’s account
number and/or expiration date.” (July 17, 2018 Preliminary Approval Order at ¶ 4.) The
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Settlement Class contains the usual exclusions of the Court and the Defendant.7 (Id.) Discovery
taken and AllSaints’s records confirm that there are approximately 436,861 Settlement Class
Members who received printed receipts that were not FACTA compliant.8 (Richman Decl. ¶ 14.)
B. Monetary Relief: AllSaints has agreed to establish a non-reversionary cash
Settlement Fund of $8,000,000. (Settlement Agreement § 1.30.) Each Class Member that submits
a valid claim form will receive a pro rata portion of the Settlement Fund (after payment of
settlement administration costs, attorneys’ fees and costs, and incentive awards to Plaintiffs). (Id.
§ 2.1.) Based on the current claims rate each Class Member that has submitted a valid claim
stands to receive approximately $338.9
C. Prospective Relief: AllSaints has agreed to conduct annual audits of its FACTA-
compliance procedures for a three-year period in order to ensure its point-of-sale systems meet
FACTA’s requirements, and to correct any deficiencies. (Settlement Agreement § 2.2.)
D. Attorneys’ Fees and Incentive Award: Defendant has agreed to pay reasonable
attorneys’ fees and unreimbursed expenses in an amount determined by this Court to be paid
from the Settlement Fund. (Id. § 9.1.) While the Settlement contemplates that Class Counsel
would not request more than 40% of the Settlement Fund (id.), Class Counsel voluntarily limited
their request to 35%, (see Pl.’s Mot. for Award of Attorneys’ Fees, Expenses, and Incentive
7 The following are excluded from the Settlement Class: (1) any Judge or Magistrate presiding over this action and members of their families; (2) the Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest and their current or former officers, directors, agents, and attorneys; (3) persons who properly execute and file a timely request for exclusion from the class; and (4) counsel for all Parties and members of their families. (Jul. 17, 2018 Preliminary Approval Order ¶ 4.) 8 While more individuals shopped at AllSaints brick-and-mortar stores within the Settlement Class Period, discovery indicated that approximately 436,861 individuals received non-FACTA compliant receipts before AllSaints stopped printing ten digits of card data and/or card expiration date on its receipts. 9 The claims period is open until April 1, 2019, so this estimate may change depending on the number of additional Class Members submitting claims.
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Award). Defendant has also agreed to pay each Plaintiff an incentive award from the Settlement
Fund in the amount $5,000.00, subject to Court approval, in recognition of their efforts as
Settlement Class representatives. (Settlement Agreement § 9.2; see Pl.’s Mot. for Award of
Attorneys’ Fees, Expenses, and Incentive Award.)
E. Administration Expenses: The Parties have agreed that notice and
administration costs will be paid out of the Settlement Fund. (Settlement Agreement § 1.25.) The
Court previously approved Kurtzman Carson Consultants LLC to act as Settlement
Administrator in this matter. (Jul. 17, 2018 Preliminary Approval Order at ¶ 3.)
F. Release: In exchange for the relief described above, AllSaints will be fully
released from liability for all claims related to its alleged printing of receipts with more than five
digits of the Class’ card numbers or the cards’ expiration dates. (Settlement Agreement §§ 1.22–
1.24, 1.32, 3.)
IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS
After determining that a case may be maintained as a class action, a court may order such
notice that it deems necessary to protect the interests of the class. 735 ILCS 5/2-803. “[W]hether
notice is to be given at all and the kind of notice which may be required are matters for the trial
court’s discretion.” Carrao v. Health Care Serv. Corp., 118 Ill. App. 3d 417, 429 (1st Dist. 1983).
This discretion is subject only to the limits of due process, see id., which requires that “members
of the plaintiff class have an opportunity to be heard and to participate in the litigation, an
opportunity to ‘opt out’ of the litigation, and adequate representation of absent class members’
interests.” Sec. Pac. Fin. Servs. v. Jefferson, 259 Ill. App. 3d 914, 921 (1st Dist. 1994). “The
question of what notice must be given to absent class members to satisfy due process necessarily
depends upon the circumstances of the individual action.” Miner v. Gillette Co., 87 Ill. 2d 7, 15
(1981).
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As described in Section II.C, infra, Class Counsel’s and KCC’s extensive efforts to
identify and obtain additional Class Member contact information permitted the creation of a
Notice Plan designed to reach at least 70% of the Settlement Class, which easily satisfies due
process in this case. See Carrao, 118 Ill. App. 3d at 429–30 (noting that while due process may
require individual notice to class members whose identity and address can be readily obtained
from defendant’s files, it does not require individual notice in all circumstances); Federal Judicial
Center, Judges’ Class Action Notice & Claims Process Checklist & Plain Language Guide, at 3
(2010), available at https://www.fjc.gov/sites/default/files/2012/NotCheck.pdf (concluding that a
class notice plan reaching at least 70% of class is reasonable).
The Court approved the proposed Notice Plan on January 25, 2019. (Jan. 25, 2019 Order
Granting Jt. Mot. to Approve Addendum to Class Action Settlement Agreement and Schedule
Notice ¶¶ 1–2.) Pursuant to the Notice Plan, the Settlement Administrator sent Notice to every
valid email it had associated with a potential Class Member—i.e. more than 236,000 emails.
(Decl. of Orlando Castillejos (“Castillejos Decl.”), attached as Exhibit 4, ¶ 6.) The Notice used
short, plain language, and included an internet link that Class Members could utilize to fill out an
online claim form. (Settlement Agreement, Ex. C.) The Settlement Administrator also established
the Settlement Website (Castillejos Decl. ¶ 4), which AllSaints linked to from its own website.10
Consistent with the Addendum, the Settlement Administrator also began its multimedia
campaign, placing targeted advertisements across Facebook, Instagram, Twitter, and the Google
Display network aimed at publicizing the Settlement and directing potential Class Members to
the Settlement Website. (Ex. 1 to Jt. Mot. to Approve Settlement Addendum; Castillejos Decl. ¶
3.) These advertisements achieved over 36.6 million impressions, or instances in which Notice
10 The Settlement Administrator likewise established an interactive telephone line that Class Members could call to learn more about the Settlement. (Castillejos Decl. ¶ 5.)
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was displayed across these platforms. (Castillejos Decl. ¶¶ 10–13.)
For those potential Class Members to whom email Notice was undeliverable and resulted
in a “bounceback,” or for whom only a postal address was available, KCC sent postcard Notice
via First Class U.S. Mail to the postal addresses associated with those individuals. (Settlement
Agreement, Ex. D.) Altogether, KCC sent 8,554 postcards to potential Class Members.
(Castillejos Decl. ¶¶ 7, 9.) In order to maximize the Notice campaign’s effectiveness, on March
7, 2019, prior to the Objection and Exclusion Deadline, a second round of email Notice was sent
to potential Class Members who were previously sent Notice but who had not yet submitted a
claim form. (Id. ¶ 14.) This included an additional 230,894 emails. (Id.)
In other words, based on this record it is clear that the Notice Plan was successfully
implemented and it readily satisfies due process. See Carrao, 118 Ill. App. 3d at 429–30.
V. THE SETTLEMENT WARRANTS FINAL APPROVAL
The procedural and substantive standards governing final approval of a class action
settlement are well settled in Illinois. GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d
486, 493 (1st Dist. 1992). The proposed settlement “must be fair and reasonable and in the best
interest of all those who will be affected by it.” Id. Because a proposed settlement is the result of
compromise, “the court in approving it should not judge the legal and factual questions by the
same criteria applied in a trial on the merits … [n]or should the court turn the settlement
approval hearing into a trial.” Id.
“Although review of class action settlements necessarily proceeds on a case-by-case
basis, certain factors have been consistently identified as relevant to the determination of whether
a settlement is fair, reasonable and adequate.” Id. These factors—referred to as the Korshak
factors—are:
(1) The strength of the case for plaintiffs on the merits, balanced against the money or other relief offered in settlement; (2) the defendant’s ability to pay; (3) the
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complexity, length and expense of further litigation; (4) the amount of opposition to the settlement; (5) the presence of collusion in reaching a settlement; (6) the reaction of members of the class to the settlement; (7) the opinion of competent counsel; and (8) the stage of proceedings and the amount of discovery completed.
Id. (citing City of Chi. v. Korshak, 206 Ill. App. 3d 968, 971–72 (1st Dist. 1990)).
Here, examination of each of the Korshak factors demonstrates that the Settlement is
exceedingly fair, reasonable, and adequate, and deserving of final approval.
A. The Relief Offered in the Settlement Weighs Strongly in Favor of Final Approval.
The first Korshak factor, which analyzes the strength of Plaintiffs’ case on the merits
balanced against the relief offered in settlement, “is the most important factor in determining
whether a settlement should be approved.” Steinberg v. Sys. Software Assocs., Inc., 306 Ill. App.
3d 157, 170 (1st Dist. 1999). Though Plaintiffs are confident that they ultimately would have
prevailed had this matter continued in litigation, there were significant obstacles to doing so. In
light of those obstacles, the substantial cash relief to the Settlement Class and the prospective
relief regarding AllSaints’s future practices are exceptional. This factor thus weighs strongly in
favor of final approval.
1. The Settlement provides excellent relief.
Based on the current claims rate, Class Members submitting valid claims stand to receive
approximately $338 each. Such relief greatly exceeds the amounts provided in many other
FACTA class action settlements, particularly given the frequency that such settlements include
coupon-only relief. See, e.g., Brown, 2017 WL 3131557, at *1 (finally approving FACTA
settlement providing 50¢ reduction in county fair admission prices); Tchoboian v. Fedex Office
& Print Servs., Inc., No. SA CV10-01008, 2014 WL 10102826, at *1 (C.D. Cal. Mar. 25, 2014)
(finally approving FACTA settlement providing $50.00 “store value cards”); In re Toys R Us,
295 F.R.D. at 453 (finally approving FACTA settlement providing “transferable vouchers
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ranging from $5 to $30 in value”); Reibstein v. Rite Aid Corp., 761 F. Supp. 2d 241, 246 (E.D.
Pa. 2011) (finally approving FACTA settlement providing $20.00 gift cards).
Even for FACTA settlements that provide actual monetary relief, this Settlement is
notable. Whether the metric is the Settlement’s per-person recovery—approximately $338
each—or ratio of Settlement Fund to Class size—$8,000,000 to 436,861 Class Members—this
Settlement is outstanding. See Torres v. Pick-A-Part Auto Wrecking, No. 1:16-cv-01915, 2018
WL 3570238, at *8 (E.D. Cal. July 23, 2018) (finally approving settlement providing maximum
of $250 per class member); Wood v. J Choo USA, Inc, No. 15-CV-81487, 2017 WL 4304800, at
*5 (S.D. Fla. May 9, 2017) (finally approving settlement creating $2.5 million fund for
approximately 135,000 class members); Tsang v. Zara USA, Inc., No. 15-cv-11160, dkt. 42 at 5
(N.D. Ill. Nov. 2, 2016) (finally approving FACTA settlement providing $100 payment per
class member); Muransky v. Godiva Chocolatier, Inc., No. 15-cv-60716, dkt. 40 (S.D. Fla. Jan. 1,
2016) (approving settlement (dkt. 39-1) creating $6.3 million fund for 317,453 class members);
Katz v. ABP Corp., No. 12-CV-04173 ENV RER, 2014 WL 4966052, at *1 (E.D.N.Y. Oct. 3,
2014) (approving FACTA class action settlement providing voucher or $9.60 in cash).
Finally, aside from the monetary relief, the non-monetary benefits created by the
Settlement—here, AllSaints agreement to implement a FACTA-compliance program to ensure
that it only prints receipts with the information permitted under the statute—also supports a
finding that this factor weighs in favor of approval. This prospective relief will ensure that
AllSaints enacts the protections Congress intended in passing FACTA, benefitting not only the
Class, but all consumers shopping at the retailer in the future.
2. Plaintiffs faced meaningful obstacles to relief.
Were this litigation to continue, AllSaints had a number of arguments it was likely to
raise in an attempt to defeat the Class’s claims. First, and as AllSaints briefed in the pending
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motion to dismiss before the Court, AllSaints contended that jurisdiction was lacking, such that
Mocek could not bring her claims. While Plaintiffs are more confident in their position given a
recent First District decision, Duncan v. FedEx Office & Print Servs., Inc., 2019 IL App (1st)
180857, ¶ 25 (rejecting argument that FACTA plaintiff lacked standing to pursue claims in
Illinois state court), when the motion to dismiss was fully briefed and pending, other courts had
decided differently, Paci v. Costco Wholesale Corp., No. 2017-CH-6413 (Cir. Ct. Cook Cty.
Dec. 19, 2017) (finding FACTA plaintiff lacked standing to bring claims).11
Second, if Plaintiffs were able to clear this standing hurdle, they faced an uphill battle to
demonstrate AllSaints acted willfully in its decision to print allegedly non-compliant receipts at
its stores across the country. Plaintiffs planned to show that AllSaints uniformly programmed its
point-of-sale terminals to print receipts that contained more card data than allowed under the
statute. In re Toys R Us, 295 F.R.D. at 451 (suggesting that willfulness could be shown based on
company-wide programmatic printing of non-FACTA-compliant receipts). However, the Court
could have adopted AllSaints argument that the printing was a “bug” in the system that was
inadvertently pushed out to its stores, and that the fact it corrected the issues underscores their
inadvertence. Were this the case, Plaintiffs and the Class would only have been able to recover
their actual damages, which are often “small and hard to quantify” in FACTA cases. Irvine v. 233
Skydeck, LLC, 597 F. Supp. 2d 799, 805 (N.D. Ill. 2009).
The third significant argument AllSaints was likely to make was that individual issues
precluded class certification. Classes have, of course, been certified in FACTA cases. See, e.g.,
11 Duncan foreclosed this particular argument for AllSaints after the fact, but a settlement should be evaluated based on the context in which it was reached. See Ehrheart v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir. 2010) (“It is essential that the parties to class action settlements have complete assurance that a settlement agreement is binding once it is reached.”); see also U.S. v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir. 1994). The Parties properly incorporated the risk—at the time of the Settlement—that the Court could go the other way and thereby deprive the Class of relief.
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Shurland v. Bacci Cafe & Pizzeria On Ogden Inc., 259 F.R.D. 151, 158 (N.D. Ill. 2009). But
AllSaints was likely to argue that any liability would have to be determined on a transaction-by-
transaction basis, such that class-wide treatment would be ineffectual. See, e.g., Ticknor v.
Rouse’s Enters., L.L.C., 592 F. App’x 276, 278 (5th Cir. 2014) (finding individual issues in
FACTA case predominated because liability depended on each individual transaction and
affirming denial of class certification).
While Plaintiffs do not believe that any of AllSaints’s above arguments are ultimately
viable, they nonetheless recognize that the arguments pose risks to continuing the litigation, and
they have factored in those and the delays that would necessarily accompany briefing the
arguments in both the trial and appellate court in reaching the Settlement. In the end, this
Settlement—providing as it does substantial monetary relief, directly to the Class and without
delay—is highly beneficial for the Class. When considered in light of the potential hurdles faced
in obtaining recovery through continued litigation, and the delay that would entail, the relief is
well deserving of this Court’s approval. Consequently, the first and most important Korshak
factor weighs strongly in favor of finally approving the Settlement.
B. Defendant’s Ability to Pay Favors Settlement.
The second Korshak factor considers the defendant’s ability to pay. Here, there is no
dispute whether AllSaints can fulfill its financial obligation under the Settlement. In comparison,
a complete victory for Plaintiffs and the Class at trial would result in a nearly half-billion-dollar
judgment that would likely push the company to bankruptcy. See Kleen Prod. LLC v. Int’l Paper
Co., No. 1:10-CV-05711, 2017 WL 5247928, at *2 (N.D. Ill. Oct. 17, 2017) (“Although
Defendants collectively have substantial ability to pay, the size of the potential recovery weighs
in favor of the Settlement for any judgment entered against them in this case”). Thus, this factor
also favors Settlement.
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C. The Complexity, Length, and Expense of Further Litigation Weighs in Favor of Settlement.
The third Korshak factor—the complexity, length, and expense of further litigation—
supports final approval of the Settlement here. “As courts recognize, a dollar obtained in
settlement today is worth more than a dollar obtained after a trial and appeals years later.”
Goldsmith v. Tech. Sols. Co., No. 92 C 4374, 1995 WL 17009594, at *4 (N.D. Ill. Oct. 10, 1995).
The Settlement allows Class Members to receive immediate relief, while avoiding lengthy, costly
and uncertain additional litigation.
As noted above, should the litigation have proceeded, there would have been the chance
that AllSaints prevailed on the pending motion to dismiss in this case. If Plaintiffs overcame that
attack, class certification would have been another significant hurdle to contend with. Even if
Plaintiffs certified the Class, they would have surely faced a summary judgment motion. Of
course, the losing Party at any of these stages would likely have appealed. Assuming Plaintiffs
certified the Class, defeated a summary judgment motion, and won any appeals, the case would
have proceeded to a trial, where Plaintiffs would have to demonstrate that Defendant willfully
violated FACTA; without a finding of willfulness, Plaintiffs and the Class would be barred from
recovering any statutory damages and would be left to recoup only their actual damages. See 15
U.S.C. § 1681o. No doubt any loss at trial would have been appealed.
By contrast, a “[s]ettlement allows the class to avoid the inherent risk, complexity, time,
and cost associated with continued litigation.” Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560,
586 (N.D. Ill. 2011). Here, continued litigation would have caused great delay and expense,
without any guarantee of a recovery for the Class. Settlement allows the Parties to avoid these
problems, and this Korshak factor thus strongly weighs in favor of approval as well. See Shaun
Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236, ¶ 19 (affirming trial
court’s finding that third Korshak factor was satisfied where further litigation would have
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“require[d] the parties to incur additional expense, substantial time, effort, and resources.”).
D. The Positive Reaction to the Settlement Supports Final Approval.
The fourth and sixth Korshak factors—the amount of opposition to the settlement and
Class Members’ reaction to the Settlement—are closely related and often examined together.
See, e.g., Korshak, 206 Ill. App. 3d at 973. Here, the Settlement Class’s reaction to the
Settlement has been overwhelmingly positive, and weighs in favor final approval.
The Court-approved Settlement Administrator diligently implemented the Notice Plan,
and the objection and exclusion deadlines passed on March 18, 2019. Not a single person has
objected to the Settlement, and only one has requested to opt out of participating in the
Settlement. (Castillejos Decl. ¶¶ 15–16.) That only a single Settlement Class Member has
requested to be excluded from the Settlement and not one has objected in any way is powerful
evidence of the Class’s support for the Settlement. See GMAC Mortg., 236 Ill. App. 3d at 497
(“The fact that only 26 of 590,000 members elected to opt-out is testimony . . . that the class
believes the settlement is fair.”); Shaun Fauley, 2016 IL App (2d) 150236, ¶ 20 (affirming trial
court’s finding that where opposition to class settlement was “de minimus,” this fact weighed in
favor of settlement approval). These two factors thus strongly support granting final approval to
the Settlement.
E. There Was Absolutely No Collusion Here.
The next Korshak factor—the presence or absence of collusion in reaching a settlement—
also weighs in favor of final approval, as there was absolutely no collusion here. Where the
record shows an “arm’s-length negotiation,” there was no collusion. Shaun Fauley, 2016 IL App
(2d) 150236, ¶ 50; see also Korshak, 206 Ill. App. 3d at 973 (affirming trial court’s finding of no
collusion where case “was hard fought by both counsel . . . and . . . settlement reached after
vigorously contested litigation and hard bargaining”). This is particularly true when negotiations
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were facilitated by a third-party neutral. See Kolinek v. Walgreen Co., 311 F.R.D. 483, 496 (N.D.
Ill. 2015) (discussing that involvement of an independent mediator in a formal mediation
supported a finding that there was no collusion). Such is the case here.
It was only after a year of contentious litigation in both the state and federal court across
two states that the Parties even decided to approach the negotiating table. (See Richman Decl.
¶¶ 7, 9.) The Parties spent weeks and months preparing to mediate—exchanging information,
conferring amongst themselves and with their chosen mediator, and briefing the relevant issues
and potential settlement structures. (Id. ¶ 8.) They then spent a full day mediating with Mr.
Meyer, engaging in multiple rounds of back-and-forth negotiations throughout the course of the
session, although they were ultimately unable to reach a resolution. (Id. ¶ 9.) And even when Mr.
Meyer made a mediator’s proposal to try and resolve the matter, it still took additional time and
consideration before they ultimately agreed to his proposed settlement framework. (Id.) From
there, the Parties took another several months to negotiate and finalize the details of the
Settlement before it was presented to the Court. (Id.)
Clearly there was no collusion between the Parties and this factor supports final approval.
F. It Is Class Counsel’s Opinion That the Settlement Is in the Best Interest of All Class Members.
The seventh Korshak factor, which weighs the opinion of competent counsel, also favors
final approval of this Settlement. First, Class Counsel are competent to give their opinion on this
Settlement, as they are well-versed in the facts of this litigation and have extensive experience
litigating class actions, under FACTA specifically and more generally.
Edelson PC attorneys have been recognized as “pioneers in the electronic privacy class
action field, having litigated some of the largest consumer class actions in the country on this
issue.” In re Facebook Privacy Litig., No. C 10-02389, dkt. 69 (N.D. Cal. Dec. 10, 2010).
Specifically, they have significant experience litigating other complex class actions under:
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FACTA, see Duncan, 2019 IL App (1st) 180857 (achieving reversal of dismissal for failure to
state a claim in FACTA case); the Fair Credit Reporting Act, see Ratliff v. J&R Schugel
Trucking, Inc., No. 2017 CH 10284 (Cir. Ct. Cook Cty. Mar. 19, 2018) (finally approving class
action settlement); and the Fair Debt Collection Practices Act, Garcia v. Nationstar Mortg. LLC,
No. 2:15-cv-1808, dkt. 122 (W.D. Wash. Oct. 26, 2018) (finally approving class action
settlement). Thus, they are more than competent to provide their opinion on the strength of the
Settlement. See GMAC Mortg., 236 Ill. App. 3d at 497 (noting class counsel’s competency due to
class action experience and familiarity with the litigation).
Similarly, Carlson Lynch has significant experience in privacy-related matters, including
successfully negotiating settlements in at least 20 FACTA class actions, most recently Dover v.
Shoe Show, Inc., No. 2:12-cv-00694 (W.D. Pa.). Carlson Lynch attorneys currently or recently
served in leadership positions in a number of high-profile data breach actions, including: In re
Equifax, Inc., Customer Data Sec. Breach Litig., No. 1:17-md-02800 (N.D. Ga.) (appointed co-
lead MDL counsel on behalf of financial institution plaintiffs in data breach litigation); In re
Home Depot Data Breach Litig., No. 1:14-md-2583 (N.D. Ga.) (same; obtained final approval of
settlement valued at over $27 million in class relief); In re Target Stores Data Breach Litig., No.
0:14-md-02522 (D. Minn.) (appointed to overall executive committee in a large consolidated
MDL stemming from the retailer’s 2013 data breach, final approval granted to two settlements).
Carlson Lynch also won a landmark appellate victory in Dittman v. UPMC d/b/a The University
of Pittsburgh Medical Center, 196 A.3d 1036 (Pa. 2018). In Dittman, the Supreme Court of
Pennsylvania reversed two lower courts and became one of the first high courts in the nation to
hold that employers have a common law duty to use reasonable care when collecting and storing
data about their employees. (Id.)
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Put simply, Class Counsel believe that the Settlement is certainly in the best interests of
the Settlement Class. First, the monetary relief provided meets or exceeds the relief secured in
similar FACTA settlements. Second, a recovery for the Settlement Class now is preferable to
years of litigation and inevitable appeals with no guarantee of recovery. Third, and finally, the
prospective measures provided for in the Settlement ensure that Defendant’s alleged unlawful
conduct does not continue in the future, a benefit not only to the Settlement Class but also
anyone that shops at AllSaints going forward. (Richman Decl. ¶ 15; Carpenter Decl. ¶ 12.)
For these reasons, the opinion of Class Counsel weighs in favor of final approval.
G. The Stage of Proceedings Supports Final Approval of the Settlement.
The final factor looks to the state of proceedings and the amount of discovery completed
before the parties entered into the settlement. See Korshak, 206 Ill. App. 3d at 972. Over the
course of this case, Class Counsel have conducted substantial investigation into the underlying
claims, conducted formal and informal discovery alike, obtained detailed information about the
Class’s size and composition, briefed and argued potentially dispositive motions, and exchanged
detailed mediation statements. (Richman Decl. ¶¶ 5, 8; Carpenter Decl. ¶ 8.) This allowed
Plaintiffs to gain a comprehensive understanding of the strengths and weaknesses of their claims,
and what were likely to be the most significantly contested issues in the litigation; indeed, they
litigated several of these issues. (Richman Decl. ¶ 4.)
In short, the issues in this litigation have crystalized sufficiently for the Parties to
accurately assess their negotiating positions and evaluate the appropriateness of any proposed
resolution. See In re Toys R Us, 295 F.R.D. at 454 (approving FACTA settlement, recognizing
that “the parties have a ‘clear view of the strengths and weaknesses of their cases’”).
This factor, then, like all the others, strongly supports final approval of the Settlement.
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VI. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order
finally approving the Parties’ Settlement.
Respectfully submitted,
BARBARA MOCEK and MIRANDA VAROZ, individually and on behalf of all others similarly situated,
Dated: March 25, 2019 By: /s/ Benjamin H. Richman One of Plaintiffs’ Attorneys
Benjamin H. Richman [email protected] Michael W. Ovca [email protected] EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Firm ID: 62075 Rafey S. Balabanian [email protected] EDELSON PC 123 Townsend Street, Suite 100 San Francisco, California 94107 Tel: 415.212.9300 Fax: 415.373.9435 Firm ID: 62075 Edwin J. Kilpela (admitted pro hac vice) [email protected] CARLSON LYNCH LLP 1133 Penn Avenue, 5th Floor Pittsburgh, Pennsylvania 15222 Tel: 412.322.9243 Fax: 412.231.0246
Todd D. Carpenter (admitted pro hac vice) [email protected] CARLSON LYNCH LLP 1350 Columbia Street, Suite 603 San Diego, California 9210
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Tel: 619.762.1910 Fax: 619.756.6991
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CERTIFICATE OF SERVICE
I, Benjamin H. Richman, an attorney, hereby certify that I served the above and foregoing Plaintiffs’ Memorandum in Support of Motion for Final Approval of Class Action Settlement, by causing true and accurate copies of such paper to be emailed to the persons shown below on this the 25th day of March, 2019. Marc E. Rosenthal [email protected] PROSKAUER ROSE LLP 70 West Madison, Suite 3800 Chicago, Illinois 60602-4342 Gregg M. Mashberg [email protected] PROSKAUER ROSE LLP 11 Times Square New York, New York 10036
/s/ Benjamin H. Richman
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Exhibit 1
FILED3/25/2019 8:44 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2016CH10056
Return Date: No return date scheduledHearing Date: No hearing scheduledCourtroom Number: No hearing scheduledLocation: No hearing scheduled
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