Case: 1:19-cv-07012 Document #: 60 Filed: 10/26/20 Page 1 of 23 PageID #:401 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS KATHERINE MARTINEZ, individually and behalf of all others similarly situated, Plaintiff, Case No. 1:19-cv-07012 v. Honorable Sara L. Ellis NANDO’S RESTAURANT GROUP, INC., Defendant. MEMORANDUM IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT David Fish ([email protected]) Mara A. Baltabols ([email protected]) THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, Illinois 60563 Tel: 630.355.7590 [email protected] Case: 1:19-cv-07012 Document #: 60 Filed: 10/26/20 Page 2 of 23 PageID #:402 I. INTRODUCTION Plaintiff Katherine Martinez (“Plaintiff” or “Class Representative”) is a former employee of Defendant Nando’s Restaurant Group, Inc. (“Nando’s” or “Defendant”). In this Action, the Class Representative alleges that Defendant violated the Biometric Information Privacy Act (“BIPA”) by collecting, possessing, and disclosing its Illinois employees’ biometric data through a fingertip scanning feature of a point of sale device without following BIPA’s written disclosure and consent requirements. Through a settlement conference with the Honorable Jeffrey Cole, the Parties reached a gross settlement sum of $1,000 per class member which amounts to $1,787,000 for the entire Class. (Settlement Agreement, Exhibit 1.) Not a single class member has objected to the settlement and only one timely opt out was received. On June 22, 2020, the Court granted preliminarily approval of the Parties’ Settlement and directed the Parties to send out notice to see if any class members objected to the Settlement and scheduled a final approval hearing for October 28, 2020. (ECF 43.) The Parties promptly sent out notice to the 1,427 class members in the original Class List. (Declaration of Caroline Barazish, Analytics, LLC (“Decl.”), Exhibit 3 ¶ 7). After preliminary approval, Defendant discovered that due to an archiving issue in its payroll system, Defendant had inadvertently omitted 372 individuals from the Class List. Defendant supplemented with information for 372 individuals who were inadvertently omitted. On September 4, 2020, the Parties filed a Joint Motion and Stipulation to extend the notice period for the inadvertently omitted class members. (ECF 46.) On September 9, 2020, the Court entered the Parties’ Stipulation and Agreed Order. (ECF 49.) Pursuant to the Settlement Agreement and Stipulation, the Class List was amended to include the inadvertently omitted class members. After comparing the list, the Settlement Administrator located 11 duplicate addresses and 2 insufficient addresses, so the resulting supplemental list was 360 additional class 1 Case: 1:19-cv-07012 Document #: 60 Filed: 10/26/20 Page 3 of 23 PageID #:403 members. (Decl., Exhibit 3 ¶¶ 11-12). Notice was promptly sent to these additional class members and they were provided the full 42-day notice and objection period. Pursuant to the Stipulation and Agreed Order, the Maximum Gross Settlement Amount was amended to reflect 1,787 individuals in the Settlement Class. The Maximum Gross Settlement Amount in the Parties’ Settlement Agreement increased by $360,000 from $1,427,000 to $1,787,000.1 ECF 46 & 49. The Settlement here comes at a particularly difficult time—as a result of the COVID-19 Pandemic, many in the restaurant business are out of work and the payments will hopefully provide class members with needed assistance. As this Settlement represents exceptional relief for the Class, the Court should enter the Parties’ proposed final approval order attached as Exhibit 2. II. TERMS OF THE SETTLEMENT AGREEMENT The terms of the Settlement are set forth in Exhibit 1 and discussed in Plaintiff’s Motion for and Memorandum in Support of Preliminary Approval of Class Action Settlement (ECF 40, 41), and Joint Motion for Order Upon Stipulation Regarding Inadvertently Omitted class members (ECF 46) and are briefly summarized here: A. Class Definition: In the Preliminary Approval Order, the Court certified a Settlement Class of “All individuals who worked at a Nando’s restaurant in Illinois and who enrolled in the fingertip scanning feature of the Point of Sale device at any Nando’s location in the state of Illinois from May 20, 2015 to October 1, 2019.” (ECF 43, Preliminary Approval Order ¶ 4.) See also, Exhibit 1, Settlement, § 1.32. 1 The Settlement Agreement provides for a gross settlement sum of $1,000 per Class Member. Therefore, the $360,000 increase to the Maximum Gross Settlement Amount represents an increase of $1,000 per additional inadvertently omitted class member. The additional amount of $360,000 representing 360 additional class members was specifically added to the Second Distribution (second set of checks mailed to the Settlement Class 18 months after the First Distribution). Due to Defendant’s financial condition it made sense to add these additional amounts to the Second Distribution. 2 Case: 1:19-cv-07012 Document #: 60 Filed: 10/26/20 Page 4 of 23 PageID #:404 B. Monetary Relief: Each member of the Settlement Class will receive monetary relief. Defendant has established a Maximum Gross Settlement Fund Amount consisting of $1,000 per class member, which amounts to $1,787,000 based on the 1,787 members of the Settlement Class. Those funds will be distributed pro rata after payment of notice, administrative expenses, and any attorneys’ fees and incentive award approved by the Court. (Settlement §§ 1.17, 2.1, 2.4.) Should the Court grant final approval, each class member can expect to receive two checks sent 18 months apart that total approximately $652.2 Significantly, no class member must submit a claim form to receive payment--checks are automatically being mailed to them. Pursuant to the Settlement Agreement, the Maximum Gross Settlement Fund of $1,787,000 will be paid in two distributions 18 months apart. In consideration of Defendant’s financial situation in general and with COVID-19 in particular (the Defendant’s financials were exchanged and Class Counsel interviewed the Defendant’s Chief Financial Officers to verify the financial condition), achieving this monetary award required that Defendant’s payment be spread out over more than one accounting period. The First Distribution is the gross amount of $1,350,000 and the Second Distribution is $437,000 distributed to class members 18 months later on a pro rata basis. (Settlement §2.1.d & §2.4.d).3 2 Now that notice has been completed and the objection/exclusion deadline has closed, administration costs have been finalized at $16,385.30. If the Court approves all of the pending motions, payments to Class Members will be $652.79: the fund amount of $1,787,000, less Plaintiff’s requested fees of $595,666.67, less Plaintiff’s requested costs of $902.47, less administration costs of $16,385.30, and less a service award of $7,500.00, is $652.79. That amount will be divided equally among the 1,787 Settlement Class Members. 3 Pursuant to the September 9th order and stipulation, Section 2.1(d) of the Settlement Agreement was amended to reflect that within eighteen months of the Effective Date, Defendant shall pay into the Qualified Settlement Fund the amount of Four Hundred Forty Nine Thousand Dollars and No Cents ($449,000.00). After the Settlement Administrator compared duplicate addresses, the number of inadvertently omitted class members was reduced to 360. As a result, the second distribution was increased from $77,000 to $437,000 account for the 360 inadvertently omitted class members and result in a Maximum Gross Settlement Fund of $1,787,000, constituting $1,000.00 per class member. 3 Case: 1:19-cv-07012 Document #: 60 Filed: 10/26/20 Page 5 of 23 PageID #:405 C. Attorneys’ Fees and Service Award: Defendant has agreed to pay reasonable attorneys’ fees in an amount determined by this Court, to be paid from the Settlement Fund. (Id. §§ 2.1(a), 8.1). Plaintiff’s counsel voluntarily agreed to limit this request to one-third of the Settlement Fund which is less than its 40% fee agreement with the Named Plaintiff. (Id.) Defendant has also agreed to pay Plaintiff an incentive award from the Fund in the amount of $7,500, subject to Court approval, in recognition of her efforts in serving as Class Representative. (Settlement § 8.3.) III. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS Prior to granting final approval to this Settlement, the Court must consider whether the class members received “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 595 (N.D. Ill. 2011) (“Schulte I”). The “best notice practicable” does not necessarily require receipt of actual notice by all class members in order to comport with both Rule 23 and the requirements of due process.4 The Court-approved Notice Plan here directly reached nearly 90% percentage of the class members. The Notice Plan called for direct notice to all members of the Settlement Class via U.S. Mail, and email and/or text where contact information was available. (Settlement § 4.1.) Pursuant to the Notice Plan, Nando’s provided Class Counsel and Settlement Administrator Analytics, LLC with a list of the members of the Settlement Class, the mailing address, and their email addresses and phone numbers (to the extent available). (Decl. ¶ 5, 9.) The Settlement Administrator then sent 4 In general, a notice plan that reaches at least 70% of class members is considered reasonable.