in the circuit court of cook county, illinois county … · inc., a delaware corporation;...

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



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i

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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1

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



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