in the state court of cobb county state of georgia
TRANSCRIPT
1 113958
IN THE STATE COURT OF COBB COUNTY
STATE OF GEORGIA
JILL ALTMAN, on behalf of :
herself and all others similarly situated, :
: Civil Action File No. 21-A-735
Plaintiff, :
: CLASS ACTION
v. :
:
WHITE HOUSE BLACK MARKET, INC., : Judge Salter
:
Defendant. :
:
PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’ FEES AND
EXPENSES, AND CLASS REPRESENTATIVE INCENTIVE AWARD
Plaintiff, Jill Altman, pursuant to the Settlement Agreement (attached as
Appendix 1), and ¶15 of this Court’s order granting the Settlement preliminary
approval (attached as Appendix 2),1 hereby move for an order granting Class
Counsel’s proposed attorneys’ fee and expense award, and Plaintiff’s proposed
class representative incentive award.
I. Introduction
This motion stems from six years of litigation with Defendant, White House
Black Market, Inc. (“WHBM”) that resulted in a class action Settlement as to
1 This motion is set to be decided at the December 7, 2021 fairness hearing. See
Appendix 2 (Preliminary Approval Order) at ¶17. Plaintiff proposed this motion be
filed contemporaneous with issuance of notice to the Class so class members
would have opportunity to review it in advance of the deadline to submit any
objection.
2
claims asserted on behalf of plaintiff and the class members under the Fair and
Accurate Credit Transaction Act (“FACTA”). FACTA is an anti-identity theft
statute that prohibits merchants from disclosing more than the last five digits of
consumers’ credit and debit card numbers on their point-of-sale transaction
receipts.
The Settlement requires WHBM to pay $1,500,000.00 into a common fund
to be used entirely to satisfy the class members’ claims, the cost of notice and
administration, and the attorneys’ fee, litigation expense, and class representative
incentive awards. No funds will revert to WHBM. Appendix 1 (Settlement
Agreement) at §III.D(iii).
Unlike in many class settlements (including many under FACTA), this
Settlement pays the class members cash (not coupons). The Settlement is estimated
to pay class members $55 to $27.50 which, even at the low end, is still a significant
portion of the likely statutory damage recovery under FACTA if the case had been
successfully litigated to judgment, and far superior to other FACTA settlements
granted approval, many of which provided much smaller payouts and/or coupons
instead of cash.2
2 See, e.g., Lumas v. Sw. Airlines Co., No. 13-cv-01429 at ECF No. 29 (S.D. Cal.
2013) ($1.8 million for up to 2,200,000 class members); Brown v. 22nd Dist.
Agric. Ass’n, 2017 U.S. Dist. LEXIS 115321, *2-3 (S.D. Cal. July 21, 2017)
(FACTA settlement providing 50¢ reduction in admission prices to county fair);
Hanlon v. Palace Entm’t Holdings, 2012 U.S. Dist. LEXIS 364, *14-15 (W.D. Pa.
3
Consistent with Georgia law, which provides for awarding attorneys’ fees
from a common fund on a percentage-of-the-fund basis,3 the Settlement permits
Class Counsel to seek a fee award equal to forty percent of the fund, plus out-of-
pocket expenses reasonably incurred. See Appendix 1 (Settlement Agreement) at
§III.F(¶1), Ex. 2a p.2, and Ex.2b p.1. Also consistent with Georgia law, the
Settlement also allows Plaintiff to request a class representative incentive award of
$10,000. Id. at §III.F(¶2); and see, e.g., Am. Home Servs. v. A Fast Sign Co., 322
Ga. App. 791, 797 (Ga. App. 2017) (class representative awarded $45,000). This
request is well-earned given the results, the substantial work performed, and the
risks taken to bring this case.
Jan. 3, 2012) (FACTA settlement that gave class admission tickets to defendant’s
amusement park instead of cash); Todd v. Retail Concepts Inc., 2008 U.S. Dist.
LEXIS 117126, *16 (M.D. Tenn. Aug. 22, 2008) (FACTA settlement that gave
class a $15 credit on next purchase of $125 or more from defendant); Palamara v.
Kings Family Restaurants, 2008 U.S. Dist. LEXIS 33087, *9-10 (W.D. Pa. Apr.
22, 2008) (FACTA settlement that gave class vouchers worth an average of $4.38
to buy food at defendant’s restaurants); Katz v. ABP Corp., 2014 U.S. Dist. LEXIS
141223, *2 (E.D.N.Y. Oct. 3, 2014) (FACTA settlement that gave class a choice to
claim $9.60 in cash or a coupon for $15 off future purchases from defendant). 3 Friedrich v. Fidelity Nat’l Bank, 247 Ga. App. 704, 708 (2001) (“we direct the
trial court to enter an award complying with the requirements for awarding
attorney fees in a common fund case, as set out in Camden I.”) (citing Camden I
Condo. Ass’n v. Dunkle, 946 F.2d 768 (11th Cir. 1991)); see also Barnes v. City of
Atlanta, 281 Ga. 256, 260 (2006) (“Georgia adheres to the common fund
doctrine.”). In Camden I, the Eleventh Circuit ruled fee awards as high as 50% of
the fund are permitted. Camden I, 976 F.2d at 774-75 (“an upper limit of 50% of
the fund may be stated as a general rule, although even larger percentages have
been awarded.”).
4
Accordingly, Plaintiff and Class Counsel hereby move for an attorneys’ fee
award of forty percent of the fund, or $600,000, plus $55,087.72 in out-of-pocket
expenses, and a class representative incentive award of $10,000 to Plaintiff. As
further demonstrated below, this motion should be granted.
I. Summary of the Litigation, Mediation, Settlement, and the Work
Defending It.
A. The FACTA Claims at Issue.
This suit alleges WHBM allowed its retail clothing stores to print transaction
receipts that disclosed more than the last five digits of purchasers’ debit and credit
card numbers, thereby violating their FACTA rights. Congress found criminals can
use receipts disclosing more than the last five digits of a cardholder’s sixteen-digit
credit or debit card number to deduce the cardholders’ full account information and
commit identity theft, and thus it passed FACTA to eliminate this risk. See Jeffries
v. Volume Servs. Am., 928 F.3d 1059, 1065 (D.C. Cir. 2019) (“FACTA punishes
conduct that increases the risk of third-party disclosure …”) (italics in original);
see also Redman v. Radioshack Corp., 768 F.3d 622, 626 (7th Cir. 2014) (“the less
information the receipt contains the less likely is an identity thief who happens to
come upon the receipt to be able to figure out the cardholder’s full account
information and thus be able to make purchases that the seller will think were
made by the legitimate cardholder.”). As explained by the FTC, “[c]redit card
numbers on sales receipts are a ‘golden ticket’ for fraudsters and identity thieves.”
5
https://www.ftc.gov/tips-advice/business-center/guidance/slip-showing-federal-
law-requires-all-businesses-truncate.
Given the importance of FACTA’s protections, and to encourage FACTA
enforcement and compliance, Congress incorporated FACTA into the Fair Credit
Reporting Act, 15 U.S.C. §1681, et seq. (“FCRA”), a statute that entitles a
successful plaintiff to statutory damages, costs and attorneys’ fees for any “willful”
violation of the law. See Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301,
1306-07 (11th Cir. 2009) (citing 15 U.S.C. §1681n(a)).4
Consistent with Congress’s intent, Plaintiff initiated this action to resolve
WHBM’s systematic violation of FACTA by printing the first six and last four
digits of its customers’ debit and credit card numbers on their transaction receipts.
B. The Litigation and Mediation Proceedings that Led to the
Settlement.
Ms. Altman originally filed suit in the Northern District of Georgia federal
court on July 8, 2015. Appendix 3 (Affidavit of Keith J. Keogh) at ¶8. WHBM
moved to dismiss asserting Altman lacked standing to sue under Article III of the
United States Constitution because WHBM’s alleged actions did not cause her an
Article III injury. Id. at ¶8. After full briefing, the magistrate wrote a report and
recommendation that the court grant the motion but, after considering Ms. 4 Recoverable statutory damages for a willful violation are $100-$1,000. Id. at
1308.
6
Altman’s written objections to the report, the court found she satisfied Article III
and denied the motion. Altman v. White House Black Market, Inc., 2016 U.S. Dist.
LEXIS 92761 (N.D. Ga. Jul. 13, 2016).
Extensive discovery followed. Class counsel obtained and analyzed more
than seventy thousand pages of documents from WHBM and its non-party
software vendor Fujitsu, made several successful motions to compel, and took
more than ten depositions, including depositions of two non-party fact witnesses
and WHBM’s expert. Appendix 3 (Keogh Affidavit) at ¶9. In addition, Ms. Altman
sat for deposition, and her counsel prepared and presented Plaintiff’s expert. Id.
Ms. Altman moved for class certification, which was fully briefed and
argued to the magistrate, who wrote a lengthy report and recommendation that the
motion be granted. Altman, 2017 U.S. Dist. LEXIS 221939 (N.D. Ga. Oct. 25,
2017). WHBM filed written objections to the report, but the court agreed the class
satisfied Federal Rule 23, and granted class certification. Altman, 2018 U.S. Dist.
LEXIS 169828 (N.D. Ga. Feb. 12, 2018). WHBM sought leave to appeal this
decision to the Eleventh Circuit but, on April 11, 2018, the Court ruled the decision
to certify the class did not merit review. Appendix 3 (Keogh Affidavit) at ¶10.
In February 2018, during the class proceedings, the parties met to discuss a
resolution of the case with the assistance of a well-respected third-party neutral,
Hunter Hughes. Id. at ¶11. This included preparing detailed case memoranda and
7
attending a full-day mediation with Mr. Hughes in Atlanta. Id. The parties did not
reach an agreement at mediation, but continued to discuss settlement thereafter. Id.
On March 9, 2018, WHBM filed a renewed motion to dismiss or
alternatively for summary judgment based on the federal Article III standing
argument it had raised earlier in the case. Appendix 3 (Keogh Affidavit) at ¶12.
However, instead of deciding that motion, the court reconsidered its earlier denial
of WHBM’s motion for leave to seek an interlocutory appeal of the federal
standing issue, granted it, and stayed proceedings pending the Eleventh Circuit’s
ruling on the petition. Id.5
On April 23, 2018, WHBM filed its petition for interlocutory appeal with the
Eleventh Circuit, which the parties briefed. Id. at ¶14. On June 29, 2018, the
Eleventh Circuit ordered the petition be held in abeyance pending that court’s
resolution of a different appeal, Muransky v. Godiva Chocolatier, Inc., which
presented the same federal Article III standing question WHBM raised in this case.
Id. at ¶14.
The parties continued their settlement talks during this time and, on July 7,
2018, they reached an agreement in principle to settle the case on a classwide
basis. Id. at ¶15. Thereafter the parties negotiated the terms of the class settlement
5 Prior to the stay, WHBM separately moved for summary judgment arguing
Plaintiff and the Class could not prove WHBM’s alleged FACTA violations were
“willful” which, as noted, is required to establish liability for statutory damages.
Id. at ¶13. That motion was never decided in light of the Settlement.
8
agreement (“Agreement”), which they finalized and filed with the federal court on
October 22, 2018. Id. One of the negotiated terms was that if the federal courts
were deemed not to have jurisdiction, the Settlement would survive and be refiled
in state court. Appendix 1 (Settlement Agreement) at §VII.W. The federal court
deferred consideration of the settlement pending the Eleventh Circuit’s resolution
of the federal Article III standing issue in Muransky, above. Appendix 3 (Keogh
Affidavit) at ¶17.
After several years and multiple rounds of briefing and argument, a divided
Eleventh Circuit, sitting en banc, ruled a FACTA claim based on allegations
materially similar to those pled in Plaintiff’s complaint does not satisfy the
“injury” requirement needed for federal Article III standing, meaning that a federal
court presented with such a case does not have subject matter jurisdiction to
adjudicate it. See id. at ¶17 (citing Muransky v. Godiva Chocolatier, Inc., 979 F.3d
917 (11th Cir. 2020)). Accordingly, Ms. Altman determined the proper course was
to re-file the case and present of the Settlement for approval in this Court.
Specifically, federal Article III standing rules do not affect this Court’s
jurisdiction because “the constraints of Article III do not apply to state courts, and
accordingly the state courts are not bound by the limitations of a case or
controversy or other federal rules of justiciability even when they address issues of
federal law...” ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989); see also
9
Miranda v. Magic Mountain, LLC, 2018 U.S. Dist. LEXIS 12436, *7 (C.D. Cal.
Jan. 25, 2018) (“While it may strike some as nonsensical that a state court has
jurisdiction to adjudicate a federal claim when a federal court does not, this is in
fact a notable quirk of the United States federalist system.”).6
C. The Work Needed to Secure Approval of the Settlement in this
Court.
Because the standing argument raised in federal court is no barrier to
jurisdiction here, and because Ms. Altman bargained for an agreement that the
parties would seek approval of the Settlement in state court if Muransky went
against her on the federal standing issue, Class Counsel re-filed suit in this Court to
seek re-certification of the class and approval of the settlement, preparing a new
complaint, new proposed notice to the class, and a new preliminary approval
motion. On July 14, 2021, this Court granted the motion and directed issuance of
notice to the class. Appendix 2 (Preliminary Approval Order) at ¶6.
6 It has long been the law of this State that a violation of one’s rights, by itself, is
an injury sufficient to bring suit in this State’s courts. See Land v. Boone, 265 Ga.
App. 551, 553-54 (2004) (“The law tolerates no further inquiry than whether there
has been the violation of a right. If so, the party injured is entitled to maintain his
action …”) (quoting Nat’l Exchange Bank of Augusta v. Sibley, 71 Ga. 726, 734
(1883)); see also, e.g., Earthlink, Inc. v. Eaves, 293 Ga. App. 75, 77 (2008)
(plaintiff had standing to sue on account of an allegedly illegal charge to his credit
card even though he never had to pay it because merchant credited it back).
Accordingly, federal “standing” limitations are irrelevant here.
10
In addition to describing the Settlement and how to claim the benefits of it,
the notice expressly states the proposed attorneys’ fee award percentage and its
corresponding dollar amount, as well as the proposed incentive award amount,
invites them to submit any objection to the Settlement, and provides a toll-free
number to call with questions. Appendix 4 (Mail Notice). Plus, the notice directs
class members to the Settlement website, where a copy this motion will be posted
so class members can examine it during the sixty-day period given to submit a
claim, exclude themselves, or object. Id. (citing www.WHBM-FACTA-
Settlement.com).
Class members have the option to respond to the notice by filing a claim to
obtain a share of the Settlement’s all-cash benefits, calling Class Counsel to ask
questions, excluding themselves from the case, or giving notice of an objection.
See id. As a result, in addition to the work performed litigating the case and getting
the class certified, securing the Settlement, and obtaining preliminary approval of
the Settlement in both federal court and here, Class Counsel anticipates having to
work to address class member inquiries about the Settlement, and any putative
class member objection.7 Thereafter, per the preliminary approval order, Class
7 It is not uncommon for persons who learn about a settlement online to file a claim
or submit an objection, even though they are not a class member, and thus have no
right to file a claim or object. Class Counsel must nevertheless spend time
addressing these submissions, to ensure claimants/objectors are genuine class
11
Counsel will need to prepare and file a detailed motion for final approval reporting
on the notice campaign and why the Settlement merits final approval. See
Appendix 2 (Preliminary Approval Order) at ¶16.
members, so the Settlement’s benefits and the Court’s time are not consumed by
strangers.
12
II. The Proposed Attorneys’ Fee and Expense Award Should Be Approved.
A. The Proposed Fee Is Reasonable as a Percentage of the Total
Settlement.
Georgia awards attorneys’ fees as a percentage of the settlement fund.
Barnes, 281 Ga. at 260 (“Georgia adheres to the common fund doctrine.”); and
Friedrich, 247 Ga. App. at 708. As explained by the Supreme Court, awarding fees
as a percentage of the fund is fair and equitable because it ensures the settlement’s
beneficiaries compensate class counsel for the benefits conferred on them, as well as
effort and risk counsel undertook to obtain those benefits:
Their right to share the harvest of the lawsuit … is a benefit in the fund
created by the efforts of the class representatives and their counsel. Unless
absentees contribute to the payment of attorney’s fees incurred on their
behalves, they will pay nothing for the creation of the fund and their
representatives may bear additional costs.
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); accord Barnes, 281 Ga. at 260
(“persons who obtain the benefit of a lawsuit without contributing to its cost are
unjustly enriched at the successful litigant’s expense.”)
To determine the appropriate percentage, Georgia follows the guidelines set
by the federal Eleventh Circuit Court of Appeals. Friedrich, 247 Ga. App. at 708
(“we direct the trial court to enter an award complying with the requirements for
awarding attorney fees in a common fund case, as set out in Camden I.”) (citing
Camden I Condo. Ass’n, 946 F.2d 768).
13
The guidelines set by the Eleventh Circuit in Camden I allow percentage fee
awards to be as high as 50% of the fund. Camden I, 976 F.2d at 774-75 (“an upper
limit of 50% of the fund may be stated as a general rule, although even larger
percentages have been awarded.”). Consistent with this authority, the notice to the
class approved by the Court and the Settlement website expressly tell class
members Class Counsel is seeking a fee award of forty percent of the settlement
fund, as well as the specific dollar amount sought: “Class Counsel will ask the
Court to approve payment of not more than forty percent of the $1,500,000.00
Settlement Fund, which is $600,000.00, to them for attorneys’ fees, plus their
reasonable expenses.” Appendix 5 (Web Notice) at ¶7-¶8; see also Appendix 4
(Mail Notice) at p.2 (“What does the Settlement provide?”).
In addition to being well under the 50% threshold set by Camden I, the
proposed award’s reasonableness is demonstrated by fact it is equal to or less than
the percentage fee awards in other cases, including FACTA cases. See Cajun
Contrs. v. Peachtree Prop., 2021 Ga. App. LEXIS 366, *29 (Ga. App. Jun. 30,
2021) (noting trial court finding that “a 40 percent contingency fee ‘is usual and
customary …’”); Donahue v. Everi Holdings, Inc., 2018 CH 15419 (Ill. Cir. Ct.
Dec. 3, 2020 Order, ¶26) (awarding 40% of fund to class counsel in FACTA
14
case).8
Also, the proposed award’s reasonableness is also supported by the non-
monetary benefits this case conferred upon the class. See Faught v. Am. Home
Shield Corp., 668 F.3d 1233, 1243-1244 (11th Cir. 2011) (fee award reasonable in
part because “the $1.5 million payment is designed to compensate the class counsel
for the non-monetary benefits they achieved for the class—like company-wide
policy changes …”). Specifically, in direct response to this lawsuit, WHBM
reprogrammed its system nationwide to stop printing more than the last five digits
of its customers’ credit and debit card account numbers on its transaction receipts.
Indeed, the Eleventh Circuit affirmed a $5.68 million attorney fee award when
the class only claimed $344,850 of available funds and the settlement provided for
nonmonetary relief. See Poertner v. Gillette Co., 618 Fed. Appx. 624, 626 and 628
(11th Cir. 2015) (unpub.). And the settlement here is superior to the settlement in
Poertner because, unlike in that case, here not a penny of the settlement funds will go
back to WHBM. Appendix 1 (Settlement Agreement) at §III.D(iii). In other words, the
entire net fund will be distributed to class members who make claims, and so regardless
8 See also In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 499 (D.D.C. 1981)
(45 percent); Svagdis v. Alro Steel Corp., No. 17 CH 12566 (Ill. Cir. Ct. Jan. 14,
2019) (40 percent); Zhirovetskiy v. Zayo Group, No. 17 CH 09323 (Ill. Cir. Ct.
Apr. 8, 2019) (40 percent); McGee v. LSC Comms., No. 17 CH 12818 (Ill. Cir. Ct.
Aug. 7, 2019) (40 percent); Zepeda v. Intercontinental Hotels Group, No. 18 CH
2140 (Ill. Cir. Ct.) (40 percent); Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir.
1998) (affirming award of 38% percent of $20 million class fund).
15
of the number of claims, class counsel’s fee is a percentage of the true amount being
paid out. Accordingly, the proposed forty-percent award here is fully consistent
with the law and awards in other cases.
B. The Camden Factors Support the Proposed Award.
In cases in which the fees sought exceed twenty-five percent of the fund, the
Eleventh Circuit endorses using multiple the factors to confirm the award’s
reasonableness. See Camden I Condo. Ass’n, 946 F.2d at 775. The factors are (1)
the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill
requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney; (5) the customary fee; (6) whether the fee is
contingent; (7) the time limitations imposed; (8) the amount involved and results
obtained; (9) the experience, reputation and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. Camden I, 946 F.2d
at 772, fn.3. These factors further confirm the reasonableness of the proposed fee
award here.
1. The Case Involved Difficult Issues; the Risk of Nonpayment
and Not Prevailing on the Claims Was High.
The second, sixth, and tenth Camden factors—the novelty and difficulty of
the issues, whether the fee is contingent, and the “undesirability” of the case,
respectively—are interrelated and support the proposed award.
16
This case is novel and difficult on several levels. First, it is an open issue as
to what it takes to plead and prove WHBM “willfully” violated FACTA. A number
of cases have dismissed claims at the pleading stage for failing to allege facts
sufficient to plausibly infer the asserted violation was willful.9
In fact, cases alleging willful FACTA violations based on facts similar to
this case have ended in summary judgment for the defense. See Keller v. Macon
County Greyhound Park, 2011 U.S. Dist. LEXIS 45608, *13 (M.D. Ala. Apr. 25,
2011), aff'd, 464 F. Appx. 824 (11th Cir. 2012) (summary judgment for merchant
whose system violated FACTA because violation caused by vendor who fixed the
system after crash); Najarian v. Charlotte Russe, Inc., 2007 U.S. Dist. LEXIS
95606, *6 (C.D. Cal. Aug. 16, 2007) (“while the evidence may, at best, show that
Defendant was careless in failing to ensure that the correct POS modification was
implemented, it fails to show that Defendant knew about FACTA’s expiration
provision and consciously chose to ignore it.”). As in Keller and Najarian, here
WHBM claimed its vendor (Fujitsu) caused its point-of-sale system to generate
receipts that violated FACTA, and thus that its violations could not be willful.
9 See, e.g., Reed v. Swatch Grp. (US), Inc., 2014 U.S. Dist. LEXIS 177653, *11
(D.N.J. Dec. 29, 2014); Gardner v. Appleton Baseball Club, Inc., 2010 U.S. Dist.
LEXIS 31653, *18 (E.D. Wis. Mar. 31, 2010); Seo v. CC CJV Am. Holdings, Inc.,
2011 U.S. Dist. LEXIS 120246, *5 (C.D. Cal. Oct. 18, 2011); Vidoni v. Acadia
Corp., 2012 U.S. Dist. LEXIS 59967, *16 (D. Maine Apr. 27, 2012); Huggins v.
SpaClinic, LLC, 2010 U.S. Dist. LEXIS 23418, *6 (N.D. Ill. Mar. 11, 2010).
17
Class Counsel is not aware of any case in which a plaintiff won summary
judgment or at trial on similar facts. By contrast, courts have expressly noted the
difficulty of proving willfulness in FACTA cases. See Lavery v. Radioshack, 2014
U.S. Dist. LEXIS 85190, *8 (N.D. Ill. June 23, 2014) (noting “Judge Valdez’s
acknowledgement of the ‘difficulty of proving willful violations of FACTA’ and
the high burden on the plaintiffs.”) (citation omitted); Flaum v. Doctor's Assocs.,
2019 U.S. Dist. LEXIS 40626, *12-13 (S.D. Fla. Mar. 11, 2019) (“the failure to
prove willfulness has spelled doom for the plaintiffs in many FACTA cases.”)
(citation omitted).
In addition, assuming Plaintiff prevailed and proved a “willful” violation, the
resulting damage award itself presents a novel issue. Some courts view awards of
aggregate, statutory damages with skepticism and consider reducing such
awards—even after a plaintiff has prevailed on the merits—on due process
grounds. See, e.g., Aliano v. Joe Caputo & Sons - Algonquin, Inc., 2011 U.S. Dist.
LEXIS 48323, *13 (N.D. Ill. May 5, 2011) (“Such an award, although authorized
by statute, would be shocking, grossly excessive, and punitive in nature.”)
Beyond the risks imposed by FACTA itself, Plaintiff also faced substantial
uncertainties caused by the Supreme Court’s decision in Spokeo, Inc. v. Robins.
Based on Spokeo, WHBM repeatedly argued the risk of harm Plaintiff alleged
WHBM’s FACTA violations caused her and the class was insufficient to meet
18
federal standards for Article III standing and, although the trial court initially
denied that motion, near the end of the case it certified that question to the
Eleventh Circuit for resolution and the Eleventh Circuit agreed to take the appeal,
which could have resulted in dismissal. See Appendix 3 (Keogh Affidavit) at ¶8,
¶12, ¶14. Accordingly, to protect the class from getting nothing, Class Counsel
made sure the settlement agreement included a provision allowing the Settlement
to be refiled in state court if the federal court dismissed for lack of jurisdiction.
Appendix 1 (Settlement Agreement) at §VII.W. That is exactly what happened
because, as noted, in Muransky the Eleventh Circuit ultimately ruled allegations
materially similar to those pled in Plaintiff’s complaint does not satisfy federal
standing requirements.
In addition to the myriad difficult challenges above, counsel’s ability to
recover fees and expenses has always been contingent on a successful outcome.
Class Counsel had to advance the fees and more than $55,000.00 in out-of-pocket
expenses, and risked receiving nothing in return.10
This is important because “[a] determination of a fair fee for Class Counsel
must include consideration of the contingent nature of the fee, the wholly
contingent outlay of out-of-pocket sums by Class Counsel, and the fact that the
risks of failure and nonpayment in a class action are extremely high.” Pinto v.
10
The out-of-pocket expenses are itemized in the affidavits of Class Counsel filed
in support of this motion, discussed below.
19
Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334, 1339 (S.D. Fla. 2007) (citations
omitted). Indeed, “[a] contingency fee arrangement often justifies an increase in the
award of attorney’s fees.” In re Checking Acc’t Overdraft Litig., 830 F.Supp.2d
1330, 1364 (S.D. Fla. 2011) (citations omitted).
Plus, the risks were “enhanced here by the fact that Class Counsel were up
against a Defendant with sophisticated defense counsel, and the difficulty of
proving willfulness.” Flaum, 2019 U.S. Dist. LEXIS 40626, *14. Accordingly,
courts recognize “attorneys’ risk is perhaps the foremost factor in determining an
appropriate fee award.” Id. (citation omitted); see also, e.g., Cooper v. FCA US
LLC, 2020 U.S. Dist. LEXIS 182458, *3 (W.D. Mo. Oct. 1, 2020) (finding award
of “forty percent of the settlement to Plaintiff’s counsel to be reasonable,”
specifically noting the “riskiness involved”).
“The case’s novelty, difficulty and contingent nature also demonstrate its
undesirability.” Flaum, 2019 U.S. Dist. LEXIS 40626, *14. FACTA cases
commonly require substantial work to reach significant settlements like this one.
See, e.g., Legg v. Lab. Corp. of America, 14-cv-61543, ECF 218, pp. 4-5 (S.D. Fla.
Feb. 1, 2016) (approximately 20 depositions, including 4 experts, two mediations,
and no settlement until after hearing on summary judgment, class certification and
dueling Daubert motions); and Legg v. Spirit Airlines, 14-cv-61978, ECF 146, pp.
4-6 (S.D. Fla. July 11, 2016) (175,000 pages of documents, depositions (including
20
one out of country), two mediations, and class certification granted over the
defendant’s objection).
“Few lawyers will take a case that consumes significant attorney time,
involves uncertain questions, and requires them to potentially advance substantial
amounts of attorney time and out-of-pocket expenses and risk getting nothing,
especially given a track record for losing on summary judgment, the inherent
possibility of failing to certify the class, the risk of losing on summary judgment or
at trial, the risk of losing any victory on appeal” (Flaum, 2019 U.S. Dist. LEXIS
40626, *15), and the fact that prior class settlements under FACTA (at the start of
this case) provided little incentive to take these cases.
Finally, although Class Counsel ultimately secured a seven-figure, all-cash,
non-reversionary settlement in the face of myriad difficulties, it must be kept in
mind that outcome was anything but certain when they took the case. See In re
Checking Account Overdraft Litig., 830 F. Supp. 2d at 1364 (“‘Undesirability’ and
relevant risks must be evaluated from the standpoint of Plaintiff’s counsel as of the
time they commenced the suit, not retroactively, with the benefit of hindsight”)
(citing Lindy Bros. Bldrs. v. Am. Radiator & Standard Sanitary Corp. 540 F.2d
102, 112 (3d Cir. 1976)). For example, Class Counsel have suffered adverse class
certification and merits rulings in FACTA cases. See, e.g., Bouton v. Ocean Props.,
2017 U.S. Dist. LEXIS 174989, *44-45 and *103 (S.D. Fla. Oct. 23, 2017)
21
(FACTA case, class cert. denied, and defense summary judgment motions granted
in part); Guarisma v. Hyatt Equities, 2017 U.S. Dist. LEXIS 179837 (S.D. Fla.
Sept. 28, 2017) (class cert. denied). In short, the second, sixth, and tenth Camden I
factors plainly support the proposed fee award.
2. The Time and Labor Required, Preclusion from Other
Employment and the Time Limits Imposed Further Justify the
Proposed Propsoed Fee Award.
The first, fourth, and seventh Camden factors – the time and labor, preclusion
of other employment, and time limitations imposed, respectively – are also
interrelated inquires that support the reasonableness of the proposed award.
The work needed to achieve the settlement was extensive. It included defeating
WHBM’s motion to dismiss, bringing several successful motions to compel,
analyzing more than seventy-thousand pages of documents from WHBM and its
non-party vendor Fujitsu, taking more than ten depositions, including depositions
of two non-party fact witnesses, preparing and presenting Plaintiff and her expert
for deposition, deposing WHBM’s expert, successfully briefing and arguing class
certification, successfully opposing WHBM’s objections to the class ruling,
successfully opposing WHBM’s petition for leave to appeal the class certification
decision, responding to WHBM’s renewed motion to dismiss or alternative for
summary judgment, and responding to WHBM’s petition for leave to file an
interlocutory appeal of the denial of its original motion to dismiss, preparing for
22
and participating in a full-day mediation, conducting months of settlement
negotiations after that, preparing a detailed motion for preliminary approval in this
court, supervising the issuance of the class notice, and drafting the instant motion.
Appendix 3 (Keogh Affidavit) at ¶8-¶19. These efforts spanned years.
And the work is not done. Class Counsel must address any class member
inquires made in response to the notice, prepare a detailed motion for final
approval, respond to any objections, supervise and address any issues raised by the
class administrator, and prepare for and deliver argument at the fairness hearing.
Given the extensive efforts needed, there can be no doubt the work required
by this case diverted the time and resources from other matters. See Yates v. Mobile
Cnty. Pers. Bd., 719 F.2d 1530, 1535 (11th Cir. 1983) (the expenditure of time
“necessarily had some adverse impact upon the ability of counsel for plaintiff to
accept other work, and this factor should raise the amount of the award.”). In short,
the first, fourth, and seventh Camden factors also support the proposed fee award.
3. Class Counsel Achieved an Excellent Result for the Class.
The eighth Camden factor looks to the “results obtained.” Camden I Condo.
Ass’n, 946 F.2d at 772, n.3. Class Counsel achieved a seven-figure, all-cash, non-
reversionary settlement, a far better result than many FACTA settlements granted
final approval, which commonly provide coupons or reversion of funds back to the
23
defendant.11
Plus, as noted, counsel achieved a significant non-monetary benefit
because this lawsuit prompted WHBM to change its system to stop printing more
than the last five digits of class members’ debit and credit card account numbers on
their receipts nationwide. Accordingly, this factor also weighs in favor of the
proposed fee award.
4. The Requested Fee is Consistent with Other Class Settlements.
The fifth and twelfth factors, which include the customary fee and awards in
similar cases, also support approval. As discussed above, the Eleventh Circuit
holds fee awards as high as 50% are appropriate, and percentage awards of 40%
are common. Accordingly, these factors also favor the proposed fee award.
5. This Case Required a High Level of Skill.
The remaining Camden factors – the skill required to perform the legal
services properly, and the experience, reputation, and ability of the attorneys,
likewise confirms the proposed fee award is reasonable. As shown, Class Counsel
achieved a seven-figure settlement that confers substantial monetary and non-
11
See, e.g., Brown v. 22nd Dist. Agric. Ass’n, 2017 U.S. Dist. LEXIS 115321, at
*2-3 (S.D. Cal. 2017) (FACTA settlement providing 50¢ reduction in admission
prices); Hanlon v. Palace Entm’t Holdings, 2012 U.S. Dist. LEXIS 364, *14-15
(W.D. Pa. Jan. 3, 2012) (FACTA settlement that gave class admission tickets to
defendant’s amusement park); Todd v. Retail Concepts, 2008 U.S. Dist. LEXIS
117126, *16 (M.D. Tenn. Aug. 22, 2008) (FACTA settlement that provided a $15
credit on next purchase of $125 or more from defendant); Palamara v. Kings
Family Rests., 2008 U.S. Dist. LEXIS 33087, *9-10 (W.D. Pa. Apr. 22, 2008)
(FACTA settlement that provided vouchers worth an average of $4.38 to buy food
at defendant’s restaurants).
24
monetary benefits on the class despite litigating against a sophisticated and well-
financed defendant represented by top-tier counsel. See In re Sunbeam Sec. Litig.,
176 F.Supp.2d 1323, 1334 (S.D. Fla. 2001) (“In assessing the quality of
representation, courts have also looked to the quality of the opposition the
plaintiffs’ attorneys faced.”).
This outcome was far from guaranteed, and was only made possible by Class
Counsel’s extensive experience in litigating class actions of similar size, scope and
complexity, particularly FACTA cases. See Appendix 3 (Keogh Affidavit) at ¶3-¶7;
Appendix 6 (Affidavit of Kris Skaar) at ¶27; Appendix 7 (Lamer Affidavit) at ¶2.
Indeed, although WHBM is a large retailer and its FACTA violations were plainly
visible on its receipts, no other law firm brought a competing class action case,
suggesting other lawyers found the case to be too risky or difficult. See Silverman
v. Motorola Solutions, Inc., 739 F.3d 956, 958 (7th Cir. 2013) (“Lack of
competition not only implies a higher fee but also suggests that most members of
the . . . bar saw this litigation as too risky for their practices.”); see also, e.g.,
Zerjav v. Town of Coventry, 2006 U.S. Dist. LEXIS 107071, *17 (D. Conn. Jun.
30, 2006) (“Given the skill and experience of the plaintiffs’ trial lawyer, it is
reasonable to expect he would receive attorney’s fees of forty percent (40%) of the
total …”).
25
Finally, although this motion is being filed with the issuance of the notice to
the Settlement Class, i.e., before the due date for class members to submit
comments, Class Counsel do not anticipate significant objection from class
members, but will address any objections in their motion for final approval. In
short, the Camden factors also demonstrate the proposed fee award should be
approved.
VI. The Expenses Incurred Are Reasonable and Should Be Approved.
As permitted by the Settlement, Class Counsel also seek $55,087.72 in
expenses, principally consisting of the filing and service fees, expert fees,
deposition and related discovery costs, Class Counsel’s share of the mediator’s
fees, and airfare and lodging for depositions and the mediation with Hunter Hughes
in Atlanta. Appendix 3 (Keogh Affidavit) at ¶22 (itemizing expenses); Appendix 6
(Affidavit of Skaar Affidavit) at ¶29 (same); and Appendix 7 (Affidavit of Bryant
Lamer) at ¶5 (same). Overhead costs such as legal research, internal copying,
phone, and meals, have been excluded. Thus, the requested expenses are common
and reasonable. See, e.g., Alvarado v. Nederend, 2011 U.S. Dist. LEXIS 52793,
*27-28 (E.D. Cal. May 17, 2011) (“filing fees, mediator fees [], ground
transportation ... are routinely reimbursed in these types of cases.”); see also Bright
v. Land O'Lakes, Inc., 844 F.2d 436, 444 (7th Cir. 1988) (expert and travel
expenses recoverable). Accordingly, they too should be approved.
26
VII. The Class Representative Service Payment Should Be Approved.
Like the proposed attorneys’ fee and expense award, class members were
given notice Plaintiff would request $10,000 for her service to the class. Such
awards are common as they reflect the benefit conferred on the class (who likely
would recover nothing but for the plaintiff’s enforcement of the law on their
behalf), and here the proposed award is less than or equal to incentive awards
granted in other cases, including FACTA cases. See Am. Home Servs., 322 Ga.
App. at 797 (class representative awarded $45,000); Flaum, 2019 U.S. Dist.
LEXIS 40626, *24 (FACTA case, $30,000 in combined incentive awards for two
plaintiffs); Legg v. Lab. Corp. of Am., 2016 U.S. Dist. LEXIS 122695, *11 (S.D.
Fla. Feb. 2016) (FACTA case, $10,000 incentive award); Spirit, No. 14-cv-61978,
ECF No. 151, ¶16 (S.D. Fla. Aug. 2, 2016) (FACTA case, $10,000 award to each
representative). Accordingly, the proposed class representative award here is
reasonable, and should be approved.
CONCLUSION
For the foregoing reasons, Plaintiff requests the Court enter an Order
approving the proposed attorneys’ fee award in the amount of $600,000, an award
of out-of-pocket expenses in the amount of $55,087.72, and a class representative
service payment to Plaintiff in the amount of $10,000.
Respectfully Submitted,
27
s/ Justin T. Holcombe
Kris Skaar (Georgia Bar No. 649610)
Justin T. Holcombe (Georgia Bar No. 552100)
SKAAR & FEAGLE LLP
133 Mirramont Lake Drive
Woodstock, Georgia 30189
Telephone: (770) 427-5600
Keith J. Keogh (pro hac vice)
Michael S. Hilicki (pro hac vice)
Keogh Law, Ltd.
55 W. Monroe St., Ste. 3390
Chicago, IL 60603
312.374.3403 (Direct)
312.726.1092 (Main)
Bryant Lamer (pro hac vice)
Spencer Fane LLP
1000 Walnut, Suite 1400
Kansas City, MO 64106
816.292.8296
Class Counsel
28
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 4, 2021, I filed PLAINTIFF’S
MOTION FOR AN AWARD OF ATTORNEYS’ FEES, EXPENSES, AND
CLASS REPRESENTATIVE INCENTIVE AWARD, with the Clerk of the
Court using PeachCourt which will serve a copy of the same on counsel for
Defendant pursuant of O.C.G.A. § 9-11-5(f)(4).
By: s/ Justin T. Holcombe
Class Counsel
SERVICE LIST
Barry Goheen
FisherBroyles, LLP
4279 Roswell Road, Suite 208 #351
Atlanta, GA 30342
Counsel for Defendant
APPENDIX 1
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JILL ALTMAN, individually,and on behalf of a class,
Plaintiff,
v.
WHITE HOUSE BLACKMARKET, INC., and DOES 1-10,
Defendant.
)))))))))))
Civil Action No.
1:15-cv-2451-SCJ-JKL
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement”) is entered into
between and among Jill Altman (“Class Representative”), on behalf of herself
and the Settlement Class (as hereinafter defined), and White House Black
Market, Inc. (“WHBM”) (collectively, the “Parties”). As provided herein, this
Agreement fully and finally compromises and settles any and all claims for
alleged violation of the Fair and Accurate Credit Transactions Act, 15 U.S.C. §§
1681 et seq., (“FACTA”), and any and all claims that were or could have been
asserted in the lawsuit styled as Altman v. White House Black Market., Case No.
1:15-cv-2451-SCJ-JKL (N.D. Ga.) (the “Litigation”).
WHEREAS, on July 8, 2015, Plaintiff, Jill Altman, individually and on
behalf of a putative class, filed a Complaint in the United States District Court for
the Northern District of Georgia, Atlanta Division, alleging willful violation of
FACTA against WHBM;
WHEREAS, Altman argues that printed receipts issued by WHBM for
point-of-sale credit and debit card transactions displayed the first six and last
four digits of credit and debit cards in violation of FACTA, which she alleged
harmed her and the class by violating their substantive rights, subjecting them to
an increased risk of identity theft, breaching their privacy interests, and imposing
2
upon them the burden of safeguarding or destroying the receipts, to prevent
further disclosure. WHBM denies all claims, including those in this paragraph;
WHEREAS, Altman alleged that she and other similarly situated
individuals are entitled to statutory and punitive damages, attorneys’ fees and
costs as a result;
WHEREAS, the Court denied WHBM’s motion to dismiss, wherein
WHBM asserted, inter alia, Plaintiff lacks standing to assert the claims set forth in
the Complaint;
WHEREAS, WHBM has filed motions for summary judgment in the
Litigation arguing that Altman’s claims should be dismissed on the alternative
grounds that (1) Plaintiff lacks standing to sue or (2) Plaintiff cannot prove that
WHBM committed a willful violation of FACTA;
WHEREAS the Court initially denied WHBM’s motion for interlocutory
appeal under 28 U.S.C. § 1292(b), but subsequently reversed itself and granted
the motion for interlocutory appeal sua sponte, at which time WHBM filed its
petition for leave to appeal to the Eleventh Circuit Court of Appeals;
WHEREAS, the Parties engaged in extensive discovery, including (i) the
production of over 70,000 pages of documents, (ii) disclosing experts, and (iii)
taking more than a dozen depositions;
3
WHEREAS, the Court granted Altman’s motion to certify a class in this
matter, and whereas the Eleventh Circuit denied WHBM’s motion for leave to
appeal that decision under Fed. R. Civ. P. 23(f);
WHEREAS, the Parties have engaged in extensive arm’s-length
negotiations to resolve the Litigation with a view by Class Counsel toward
achieving substantial benefits for the Settlement Class as a whole and by all
Parties to avoid the cost, delay, and uncertainty of further litigation, trial, and
appellate practice;
WHEREAS, the Parties attended in-person mediation with a highly-
regarded professional mediator in Atlanta in February 2018, and have continued
to work with the mediator to try to resolve this case in the months since the
mediation;
WHEREAS, based on the discovery produced and reviewed, as well as the
experience and judgment of Class Counsel, the Class Representative has
concluded that the terms and conditions of this Agreement are fair, reasonable,
and adequate to the Class and in the best interest of the Class;
WHEREAS, the Class Representative, on behalf of herself and as the
representative of the Class, and WHBM, desire to forever resolve and
compromise the disputes between them;
4
WHEREAS, the Class Representative, on behalf of herself and as the
representative of the Class, and WHBM, will execute this Agreement solely to
compromise and settle protracted, complicated and expensive litigation;
WHEREAS, WHBM vigorously denies any and all liability or wrongdoing
to the Class Representative and to the Class Members on grounds that include,
without limitation, that Altman lacks standing to sue and that WHBM never
willfully, negligently, or knowingly violated FACTA, but has nonetheless
concluded that further conduct of the Litigation would be protracted and
expensive, and has taken into account the uncertainty and risks inherent in this
Litigation, and has determined that it is desirable that the Litigation be fully,
completely, and finally settled in the manner and upon the terms set forth herein;
and
WHEREAS, the outcome of the case of Price, et al. v. Godiva Chocolatier, Inc.,
No. 16-16486 (11th Cir.), which is fully briefed and was argued in January 2018,
could affect the Court’s subject matter jurisdiction over this case;
NOW, THEREFORE, in exchange for the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties and their counsel
agree that the Litigation shall be settled, compromised, and/or dismissed on the
merits and with prejudice on the terms and conditions set forth in this
5
Agreement, and without costs (except as provided herein), subject to Court
approval of this Agreement after a hearing and on finding that it is a fair,
reasonable, and adequate settlement.
I. CLASS DEFINITION
For purposes of this settlement, the Parties acknowledge that the Court has
certified the following class:
All individuals in the U.S. whose debit or credit card, according toWHBM’s records was used in a transaction at a WHBM U.S. storeoperating the CHARM system that was programmed to print thefirst six and last four digits of the debit or credit card accountnumber on the customer transaction receipt printed at the point ofsale for the transaction, between March 23, 2015 and July 17, 2015.
Subject to paragraph T in section II below, WHBM represents that, according to
its records, there are 364,057 transactions that meet this definition.
Notwithstanding the foregoing, in compliance with 28 U.S.C. § 455, the class
specifically excludes the following persons: The district judge and magistrate
judge presiding over this case, the judges of the United States Court of Appeals
for the Eleventh Circuit, and their spouses and minor children.
Persons in the class as defined above are referenced herein collectively as
the “Settlement Class,” and individually as “Settlement Class Members.”
Excluded from the Settlement Class is any individual who properly opts out of
the Settlement pursuant to the procedure described herein.
6
II. OTHER DEFINITIONS
As used in this Agreement, the following terms have the meanings set
forth below. Terms used in the singular shall include the plural and vice versa.
A. “Agreement” means this Agreement and all attachments and
exhibits, which the Parties understand and agree set forth all terms
and conditions of the Settlement between them and which is subject
to Court approval. It is understood and agreed that WHBM’s
obligations for payment under this Agreement are conditioned on,
among other things, Final Approval.
B. “Claims Administrator” and “Claims Office” shall mean Kurtzman
Carson Consultants LLC (“KCC”), which, subject to Court approval,
shall be responsible for administrative tasks, including, without
limitation: (a) arranging for distribution of the Class Notice and
Settlement Claim Forms to Settlement Class Members; (b) making
any mailings to Settlement Class Members required under the terms
of this Agreement; (c) answering all inquiries from Settlement Class
Members and/or forwarding such inquiries to Class Counsel or
their designee; (d) receiving and maintaining on behalf of the Court
and the Parties any Settlement Class Member correspondence
regarding Requests for Exclusion from the Settlement;
7
(e) establishing the Settlement Website that posts notices, Settlement
Claim Forms, and other related documents; (f) receiving and
processing Settlement Claim Forms from and distributing Settlement
payments to Settlement Class Members; (g) paying from the
Settlement Fund any fees and costs incurred or due to banks, credit
card processing companies, or others for responding to subpoenas to
locate or identify the Settlement Class Members; and (h) otherwise
assisting with implementation and administration of the terms of
this Agreement.
C. “Claims Deadline” shall have the same meaning as set forth in the
Preliminary Approval Order issued by the Court, in substantially
the form attached hereto as Exhibit 1, the date of which shall be 60
days after the deadline for notice to be distributed to Class
Members.
D. “Class Counsel” means
Keith J. KeoghMichael HilickiKEOGH LAW, LTD55 W. Monroe St., Suite 3390Chicago, IL 60603
8
Bryant LamerSpencer Fane LLP1000 Walnut, Suite 1400Kansas City, MO 64106
Justin T. HolcombeSkaar & Feagle, LLP133 Mirramont Lake DriveWoodstock, GA 30189
E. “Class Notice” means, collectively, the “Summary Notice” and “Full
Notice,” the terms of which shall be submitted for approval
substantially in the forms attached as Exhibits 2A and 2B.
F. “Complaint” means the document titled “Class Action Complaint
for Violations of the Fair and Accurate Credit Transactions Act
(FACTA)” that was filed on July 8, 2015 in this Litigation as Case
No. 1:15-cv-02451-SCJ-JKL (N.D. Ga.).
G. “Counsel for WHBM” means
Barry GoheenJ. Anthony LoveKing & Spalding LLP1180 Peachtree Street N.E.Atlanta, Georgia 30309-3521
H. “Court” means the United States District Court for the Northern
District of Georgia, Atlanta Division, where the Litigation is
9
pending, and any subsequent state court(s) where Plaintiff seeks
approval of the class settlement.
I. “Effective Date” means the date on which the Order of Final
Approval becomes Final.
J. “Fairness Hearing” means a hearing set by the Court to take place
after entry of the Preliminary Approval Order for the purpose of:
(i) determining the fairness, adequacy, and reasonableness of this
Agreement and associated settlement pursuant to the applicable
rules of civil procedure, applicable law, and other procedural rules
or requirements; and (ii) entering the Order of Final Approval.
K. “Final” or “Finally Approved” or “Final Approval” of this
Agreement means the later of the date that (i) the time has run for
any appeals from the Order of Final Approval or (ii) any such
appeals have been resolved in favor of approving, or affirming the
approval of, this Agreement.
L. “Incentive Payment” means the payment to the Class Representative
further described in Section III.F.2. of this Agreement.
M. “Opt-Out Deadline” shall have the same meaning as set forth in the
Preliminary Approval Order issued by the Court, in substantially
the form set forth in Exhibit 1, the date of which shall be 60 days
10
after the deadline for notice to be distributed to Settlement Class
Members.
N. “Order of Final Approval” means the order and judgment to be
entered by the Court approving this Settlement Agreement as fair,
adequate, and reasonable and in the best interests of the Settlement
Class as a whole in accordance with the Federal Rules of Civil
Procedure and the Local Rules of the Court, and making such other
findings and determinations as the Court deems necessary and
appropriate to effectuate the terms of this Settlement Agreement,
including granting Final Approval of the Settlement and ruling on
Class Counsel’s and any other person’s application for attorneys’
fees and expenses, the Incentive Payment for the Class
Representative, substantially in the form attached hereto as Exhibit
3, and dismissing with prejudice the claims of the Class
Representative and all Settlement Class Members who do not opt
out as provided by this Agreement and the applicable rules of civil
procedure.
O. “Parties” means Jill Altman, Settlement Class Members who do not
opt out, and WHBM.
11
P. “Preliminary Approval Date” means the date on which the Court
enters the Preliminary Approval Order.
Q. “Preliminary Approval Order” means an order to be entered and
filed by the Court certifying the Settlement Class and granting
preliminary approval to the Settlement substantially in the form
attached hereto as Exhibit 1, except that the order may change to
reflect the filing of the Settlement in the proper Court as needed.
R. “Released Claims” means any and all claims, actions, causes of
action, rights, suits, defenses, debts, sums of money, payments,
obligations, promises, damages, penalties, attorney’s fees, costs,
liens, judgments, and demands of any kind whatsoever that each
member of the Settlement Class may have or may have had in the
past, whether in arbitration, administrative, or judicial proceedings,
whether as individual claims or as claims asserted on a class basis,
whether past or present, mature or not yet mature, known or
unknown, suspected or unsuspected, whether based on federal,
state, or local law, statute, ordinance, regulations, contract, common
law, or any other source, that were or could have been asserted in
the Litigation and all claims that relate to or arise from printing too
much information on any receipts from a WHBM store during the
12
settlement class period, including, but not limited to, any claims
under arising under the Fair Credit Reporting Act, 15 U.S.C. § 1681,
et seq., as amended by the Fair and Accurate Credit Transactions Act,
Pub. L. 108–159, and 15 U.S.C. § 1681c(g), for a violation of any
consumer protection statutes, or regarding identity theft or the risk
of identity theft.
S. “Request for Exclusion” means the written request that Settlement
Class Members are required to timely submit in order to opt out of
the Settlement Class and this Settlement Agreement.
T. “Settlement Amount” means the sum of one million five hundred
thousand dollars ($1,500,000), and includes, among other things, all
costs and attorney’s fees of Class Counsel and any other person
petitioning for costs and attorney’s fees, the Incentive Payment (if
any), all costs incurred by the Claims Administrator, all payments to
Settlement Class Members from the Settlement Fund, the expenses,
including attorneys’ fees and costs, incurred in the defense of the
settlement against objections, and any appeals of orders thereon.
However, if it is determined that the number of transactions meeting
the Class Definition above is equal to or greater than three percent
(3%) larger than 364,057, then the Settlement Amount shall increase
13
in direct to proportion to percentage by which the number of
transactions meeting the Class Definition exceeds 364,057 (e.g. if
number of transactions meeting the Class Definition is five percent
(5%) larger than 364,057, then the Settlement Amount will increase
by five percent (5%) to $1,575,000). The Settlement Amount shall be
the entire financial obligation of WHBM and the WHBM Releasees
in connection with the settlement and all related proceedings,
including, but not limited to, preliminary approval, Final Approval,
and the implementation of this Agreement.
U. “Settlement Claim Form” means a form, substantially in the form
attached hereto as Exhibit 4, to be completed by Settlement Class
Members and submitted to the Claims Administrator. The
Settlement Class Members who receive the e-mailed or mailed Class
Notice shall be able to make a claim via telephone IVR provided that
they are required to enter the claim ID printed on the notice. Each
Settlement Claim Form shall require the Settlement Class Member to
provide: (a) his or her name; (b) physical address; (c) phone number,
which shall be optional; and (d) e-mail address to the extent that he
or she has one. The website claim form will prepopulate this
information for persons who first enter their claim ID and shall ask
14
them to update or correct any information. The Settlement Claim
Form shall require each Settlement Class Member to state that the
information he or she is providing is true and correct as of the date
thereof to the best of his or her knowledge and belief.
V. “Settlement Fund” means the fund used to pay all claims relating to
the settlement of the Litigation and all Released Claims pursuant to
this Agreement.
W. “Settlement Website” means the website prepared by the Claims
Administrator in connection with the process of providing notice to
Settlement Class Members as further described in Section IV.B of
this Agreement.
X. “WHBM Releasees” means WHBM, as well as its affiliates, parents,
subsidiaries, predecessors, successors, co-venturers, divisions, joint
venturers, joint ventures and assigns, as well as each of those
entities’ past and present owners, investors, directors, officers,
employees, partners, managers, members, principals, agents,
underwriters, insurers, co-insurers, re-insurers, indemnitors,
shareholders, attorneys, accountants and auditors, banks and
investment banks, consultants, vendors, contractors, licensors,
franchisors, and assigns.
15
III. SETTLEMENT TERMS
A. Conditional Nature of Agreement
For settlement purposes only, WHBM conditionally agrees and consents to
the certification of the Settlement Class. WHBM’s conditional agreement is
contingent upon execution of this Agreement by the Parties, entry of the Order of
Final Approval, and the Order of Final Approval becoming Final. Except as
provided below, if this Agreement, for any reason, does not receive Final
Approval or is otherwise terminated, it shall be null and void and it shall be of
no force or effect whatsoever.
WHBM denies all claims as to liability, damages, losses, penalties, interest,
fees, restitution, and all other forms of relief as well as the class action allegations
asserted in the Litigation. WHBM has agreed to resolve this Litigation through
this Agreement, but to the extent this Agreement is deemed void, WHBM does
not waive, but rather expressly reserves, all rights to challenge all such claims
and allegations in the Litigation.
B. Settlement Amount
In full and final settlement of the Settlement Class’s claims, WHBM shall
pay the Settlement Amount. The Settlement Amount shall include, but is not
necessarily limited to, the full and complete cost of Settlement Class benefits and
compensation, all Class Notices and claims administration and all related
16
administrative costs, the Incentive Payment (if any is authorized by the Court),
and Class Counsel’s or any other person’s attorneys’ fees and expenses (as
authorized by the Court). In no event, however, will the Settlement Amount
exceed $1,500,000.00, except as provided in paragraph T in section II above.
C. All Released Claims Satisfied by Settlement Fund
Each Settlement Class Member shall look solely to the Settlement Fund for
settlement and satisfaction of all Released Claims as provided in this Agreement.
D. Settlement Fund
WHBM will pay the Settlement Amount to the Claims Administrator
seven days after Final Approval is entered, except that WHBM will deposit an
amount necessary to pay for the estimated cost of Class Notice and
administration seven days after Preliminary Approval is entered. The remainder
of the Settlement Amount, net of the costs of Class Notice and claims
administration, any attorneys’ fee awards, Class Counsel’s expenses, and any
Incentive Payment, shall be distributed pro rata to Settlement Class Members
who submit Settlement Claim Forms that are received on or before the Claims
Deadline and are accepted by the Claims Administrator in compliance with the
procedures set forth in the Class Notice, Preliminary Approval Order, and Order
of Final Approval. A person whose claim form does not match a transaction in
17
WHBM’s records showing a receipt at a WHBM store that was not properly
truncating receipts on the date of the transaction is not a class member.
The distribution shall be as follows:
i. First Distribution. Settlement Awards shall be paid by electronic
deposit or by check. Within 45 days after the Effective Date, the
Claims Administrator shall send payment to each claiming
Settlement Class Member eligible to receive payment. The
amount of each payment shall be the amount of the funds
available for distribution divided by the number of Settlement
Class Members to whom payments are being directed. The
payment shall be made, at the option of the Settlement Class
Member, either by electronic deposit or by check sent by first-
class mail. The Claims Administrator will perform skip tracing
and re-mailing as reasonably necessary. Checks will be valid for
120 days from the date on the check. The amounts of any checks
that are returned as undeliverable or that remain uncashed more
than 120 days after the date on the check will be included as part
of the Second Distribution (as defined below).
ii. Second Distribution. If, after the expiration date of the checks
distributed pursuant to subparagraph i. above, there remains
18
money in the Settlement Fund sufficient to pay at least $10 to
each Settlement Class Member who received an electronic
deposit or cashed his or her initial settlement check prior to the
expiration date of such check, such remaining monies will be
distributed on a pro rata basis to those Settlement Class Members
(the “Second Distribution”). The Second Distribution shall be
made within 90 days after the expiration date of the checks
distributed pursuant to subparagraph i. above, and shall be paid
in the same manner as the First Distribution. Checks issued
pursuant to the Second Distribution will be valid for 120 days
from the date on the check.
iii. Remaining Funds. Money in the Settlement Fund that has not
been distributed after the expiration of checks issued pursuant to
the Second Distribution as set forth in subparagraph ii. above,
including but not limited to money not distributed because there
is not enough money in the Settlement Fund to justify a Second
Distribution (the “Remaining Funds”), shall be paid as cy pres to
Habitat for Humanity, unless the Court determines in its
discretion that a different recipient is more appropriate. No
19
money remaining in the Settlement Fund shall revert to or
otherwise be paid to WHBM.
E. If Final Approval Does Not Occur
In the event the Agreement does not receive Final Approval, or is
cancelled or terminated or otherwise becomes null and void for any reason other
than the actions of WHBM, the remainder of the Settlement Fund, net of fees and
costs paid or incurred for the Class Notice, shall revert back to WHBM.
F. Attorneys’ Fees and Class Representative Incentive Payment
To the extent that the Court orders an award of attorneys’ fees and
expenses to Class Counsel or any other person, or an Incentive Payment to the
Class Representative, such awards will be paid from the Settlement Amount
within seven (7) days after the Effective Date.
1. Attorneys’ Fees and Expenses
Any request or claim for an award of attorneys’ fees plus expenses in
connection with this lawsuit by Class Counsel or Plaintiff’s former counsel must
be filed approximately thirty days after the Class Notice is sent, or as otherwise
directed by the Court. Any fees awarded shall be the requester’s total recovery
for attorneys’ fees, costs and/or expenses of any kind (including, but not limited
to, mediation fees, travel, filing fees, court reporter, expert fees and costs, and
document review and production costs). Class Counsel shall be responsible for
20
allocating and shall allocate all attorneys’ fees and expenses that are awarded to
Class Counsel by the Court among Class Counsel, and WHBM shall have no
responsibility, role, or liability in connection with such allocation.
2. Class Representative Incentive Payment
Class Counsel may petition the Court for an Incentive Payment for the
service to the Settlement Class and the time and effort that the Class
Representative personally invested in this Litigation. The amount sought will not
exceed $10,000. Class Counsel shall be responsible for distributing to the Class
Representative any Incentive Payment awarded by the Court, and WHBM shall
have no responsibility, role, or liability in connection with such payment.
G. Motion for Preliminary Approval
Promptly after execution of this Agreement, the Parties shall file a joint
motion providing a copy of this Agreement and asking the Court to continue the
existing stay of proceedings pending the Eleventh Circuit’s decision in Price due
to its potential impact on the Court’s jurisdiction over the case, to avoid the
waste of resources that could result from considering the Settlement and issuing
notice to the Settlement Class before a ruling in Price.
Unless otherwise directed by the Court, then within seven days after the
federal court lifts the stay or dismisses the case for lack of jurisdiction, Class
Counsel shall file a motion for preliminary approval of this Agreement. The
21
motion shall seek entry of a Preliminary Approval Order substantially in the
form attached hereto as Exhibit 1 except that the order may change to reflect the
filing of the Settlement in the proper Court as needed.
IV. CLAIMS ADMINISTRATION
A. Claims Administrator/Claims Office
The Claims Administrator may appoint as many claims officers, experts,
and/or advisors as are necessary to carry out the duties of the Claims Office
expeditiously. The Claims Office procedures shall be subject to Court approval
and under the continuing jurisdiction of the Court. The Claims Office shall be
responsible for disseminating information to Settlement Class Members
concerning settlement procedures. In addition, the Claims Office shall (i) assist
the Court in processing and tabulating Requests for Exclusion, (ii) receive all opt-
out forms and documentation, (iii) receive, process, classify, and pay claims as
provided in this Agreement and any applicable orders of the Court, and (iv)
operate under the continuing supervision of the Court.
B. Notice
1. E-mail and Mail
In discovery, WHBM provided Class Counsel with several lists of
transactions in which WHBM stores printed the first six and last four digits of
credit and debit cards on customer transaction receipts. For many transactions
22
those lists include, among things, the customer name and/or customer email
address. Within twenty-one days after execution of this Settlement Agreement,
WHBM will provide Class Counsel with the most current email and regular mail
address information WHBM has for each customer associated with each
transaction in the previously-produced lists. WHBM will also cooperate with
Class Counsel’s efforts to retrieve Settlement Class Member information from
any third party, including, but not limited to, Visa, MasterCard, American
Express, Discover, the banks that issued the Settlement Class Members’ credit
and debit cards, and any entity involved in processing WHBM debit or credit
card transactions.
For those Settlement Class Members for whom WHBM does not have
email or regular-mail address information, WHBM shall promptly produce other
information about them it has that Class Counsel reasonably requests for the
purpose of obtaining contact information for Settlement Class Members, such as
telephone numbers and account numbers. The Parties agree that all information
about Settlement Class Members and their transactions shall be subject to the
Protective Order entered in this matter, except that it may also be shared with the
Claims Administrator and any party Class Counsel decides to subpoena for the
limited purpose of obtaining Settlement Class Member identifying and contact
information.
23
A copy of the Summary Notice in the form approved by the Court shall be
e-mailed to all Settlement Class Members whose e-mail address is available from
WHBM’s records or provided by the Settlement Class Member’s card issuing
bank or otherwise. Any Settlement Class Member for whom there is no e-mail
address or whose e-mail notice is returned as undeliverable, and for which there
is regular-mail address information, shall be mailed a copy of the Summary
Notice in the form approved by the Court via first class mail, by the deadline
established by the Preliminary Approval Order. Such e-mail and mail shall be
completed by the Claims Administrator. The Claims Administrator shall also
mail the Full Notice in the form approved by the Court to any class member who
requests it.
2. Settlement Website
By the deadline for distributing the Class Notice, the Claims Administrator
shall establish and maintain the Settlement Website, which will, among other
things, (i) enable Settlement Class Members to submit a claim and access and
download the Settlement Claim Form, (ii) provide contact information for Class
Counsel, and (iii) provide access to relevant documents, including this
Agreement, the Full Notice approved by the Court; the Preliminary Approval
Order; the Complaint; and, when filed, the Order of Final Approval. The Class
Notice shall include the address (URL) of www.WHBM-FACTA-Settlement.com
24
for the Settlement Website. The Claims Administrator shall maintain the
Settlement Website until at least 30 days following the void date for checks.
3. IVR
By the deadline for mailing the Class Notice, the Claims Administrator
shall establish and maintain a toll-free number that maintains an interactive
voice response (IVR) system to answer questions and allow Settlement Class
Members who have a claim ID form mailed notice to submit a claim.
4. Reminder Notice
For every unreturned e-mail to a Settlement Class Member for which no
claim has been received by the date that is ten days before the Claims Deadline,
the Claims Administrator shall send two reminder notices, in substantially the
form attached hereto as Exhibit 2 (except that the notice may be captioned with
the phrase “Reminder Notice”) by e-mail at least twenty-one and seven days,
respectively, before the Claims Deadline.
5. Opt-Out/Request for Exclusion
The Class Notice shall provide a procedure whereby Settlement Class
Members may exclude themselves from the Settlement Class by mailing a
Request for Exclusion. Any Settlement Class Member who does not validly and
timely submit a Request for Exclusion before the Opt-Out Deadline shall remain
a Settlement Class Member, and shall be bound by the terms of this Agreement.
25
6. Objections
The Class Notice shall also provide a procedure for Settlement Class
Members to object to the settlement set forth herein and any of its terms.
Objections must be received by the deadline set by the Court.
7. Non-Approval of Agreement
This Agreement is conditioned on Final Approval without material
modification by the Court. In the event that the Agreement is not so approved
unless due to actions by WHBM, the Parties shall return to the status quo ante as
of the date of this Agreement, as if no Agreement had been negotiated or entered
into. Moreover, the Parties shall be deemed to have preserved all of their rights
or defenses as of the date of the Agreement, and shall not be deemed to have
waived any substantive or procedural rights of any kind that they may have as to
each other or any Settlement Class Member.
8. CAFA Notice
To the extent that this matter remains in Federal Court, WHBM will serve
any notices required by the Class Action Fairness Act (“CAFA”) of 2005, 28
U.S.C. § 1715, by no later than ten (10) days after the entry of the Preliminary
Approval Order.
26
C. Claims Process
In order to make a claim, a Settlement Class Member must submit a valid
and completed Settlement Claim Form in compliance with the procedures set
forth in the Class Notice and the Preliminary Approval Order. The claims shall
be cross-referenced against the transaction data for the Settlement Class
Members. Any claim that does not match the transaction data for the Settlement
Class Members shall not be valid as that person would not be a Settlement Class
Member. For example, not all WHBM stores printed receipts containing the first
six and last four digits of credit and debit card account numbers, and the
locations that did only did so within varying, limited windows of time, such that
customers who never engaged in transactions at the relevant locations during the
relevant windows of time would not be Settlement Class Members. All
Settlement Claim Forms must be submitted by the Claims Deadline as set forth in
the Class Notice and Preliminary Approval Order. Any Settlement Claim Form
submitted after the Claims Deadline shall be deemed an untimely and invalid
claim. WHBM will promptly produce any information in its possession, custody,
or control that Class Counsel or the Claims Administrator reasonably needs to
identify Settlement Class Members or evaluate their claims.
27
D. Retention of Records
The Claims Administrator shall retain all records relating to payment of
claims under this Agreement for a period of five (5) years from the Effective
Date. The confidentiality of those records shall be maintained in accordance with
the Preliminary Approval Order.
V. EXCLUSIVE REMEDY/DISMISSAL OF CLAIMS/JURISDICTION
A. Exclusive Remedy
This Agreement shall be the exclusive remedy for any and all Released
Claims, any claim arising out of the subject matter of this Agreement, and any
complaint by the Settlement Class or any Settlement Class Member against the
WHBM Releasees related to the Released Claims. No WHBM Releasee shall be
subject to liability or expense of any kind to the Settlement Class or any
Settlement Class Member related to the Released Claims except as provided in
this Agreement. This Agreement shall be binding upon, and in addition shall
inure to the benefit of the Parties’ successors, assigns, and the WHBM Releasees.
B. Dismissal of Claims
The Parties agree that upon the Effective Date, the Litigation shall be
dismissed with prejudice in accordance with the Order of Final Approval,
substantially in the form attached hereto as Exhibit 3.
28
C. Continuing Jurisdiction of Court
The Court shall retain exclusive and continuing jurisdiction over this
Litigation, the Parties, and this Agreement with respect to the performance of its
terms and conditions (and any disputes arising out of or relating to this
Agreement), the proper provision of all benefits, and the implementation and
enforcement of its terms, conditions, and obligations.
VI. RELEASES
Upon the Effective Date of this Agreement, the WHBM Releasees shall be
released and forever discharged from all Released Claims by the Class
Representative, the Settlement Class, and each Settlement Class Member. The
Class Representative, Settlement Class, and each Settlement Class Member
covenant and agree that they shall not hereafter seek to establish liability against
any WHBM Releasee based, in whole or in part, on any of the Released Claims.
The Class Representative, the Settlement Class, and each Settlement Class
Member expressly waive and relinquish any and all rights which they may have
under Section 1542 of the California Civil Code or any similar statute of the
United States. Section 1542 of the California Civil Code reads as follows:
A general release does not extend to claims which thecreditor does not know or suspect to exist in his or herfavor at the time of executing the release, which ifknown by him or her must have materially affectedhis or her settlement with the debtor.
29
The Class Representative, the Settlement Class, and each Settlement Class
Member may hereafter discover facts in addition to or different from those which
they now know or believe to be true with respect to the subject matter of the
Released Claims, but the Class Representative, the Settlement Class, and each
Settlement Class Member, upon the Effective Date, shall be deemed to have, and
by operation of the Order of Final Approval shall have, nevertheless, fully,
finally, and forever waived, settled and released any and all Released Claims,
regardless of such subsequent discovery of additional or different facts.
VII. MISCELLANEOUS PROVISIONS
A. Cooperation to Facilitate this Settlement
The Parties agree that they shall work together in good faith to facilitate
this Agreement, as well as undertake any required steps to effectuate the
purposes and intent of this Agreement.
B. Representation by Counsel
The Parties represent and warrant that they have been represented by, and
have consulted with, the counsel of their choice regarding the provisions,
obligations, rights, risks, and legal effects of this Agreement, and have been
given the opportunity to review independently this Agreement with such legal
counsel, and agree to the particular language of the provisions herein.
30
C. No Admission of Liability
Nothing in this Agreement, or the Parties’ willingness to enter into this
Agreement, shall be construed as an admission by any person or entity, of any
liability or wrongdoing of any Party, or of the truth of any allegation made by
the Class Representative, on behalf of herself or the Settlement Class, or WHBM,
and WHBM expressly denies and disclaims any liability or wrongdoing. The
existence, contents, and terms of this Agreement, and any negotiations,
statements, or proceedings in connection therewith, shall not be admissible in
evidence for any such purpose in any proceeding, except solely for purposes of
enforcement of the terms of this Agreement; however, this Agreement may be
used by either Party and pleaded as a full and complete defense to any action,
suit, or other proceeding that has been or may be instituted, prosecuted, or
attempted with respect to any of the Released Claims, and may be filed, offered,
and received into evidence, and otherwise used for such defense.
D. Contractual Agreement
The Parties understand and agree that all terms of this Agreement are
contractual and are not a mere recital.
E. Change of Time Periods
The time periods and/or dates described in this Agreement with respect to
the giving of notices and hearings are subject to approval and change by the
31
Court or by written agreement of Class Counsel and Counsel for WHBM,
without notice to Settlement Class Members. The Parties reserve the right, by
agreement and subject to Court approval, to grant any reasonable extension of
time that might be needed to carry out any of the provisions of this Agreement.
F. Integration
This Agreement constitutes a single, integrated written contract expressing
the entire agreement of the Parties relative to the subject matter hereof. This
Agreement supersedes all prior representations, agreements, understandings,
both written and oral, among the Parties, or any of them, with respect to the
subject matter of this Agreement. No covenants, agreements, representations, or
warranties of any kind whatsoever have been made by any Party hereto, except
as provided for herein, and no Party is relying on any prior oral or written
representations, agreements, understandings, or undertakings with respect to the
subject matter of this Agreement.
G. Drafting
This Agreement is a collaborative effort of the Parties and their respective
attorneys, and the Parties agree that no single Party shall be deemed to have
drafted this Agreement, or any portion thereof, for purpose of the invocation of
the doctrine of contra proferentem.
32
H. Costs
Except as otherwise provided herein, each Party shall bear its own legal
and other costs incurred in connection with the Released Claims, including the
preparation and performance of this Agreement.
I. Modification or Amendment
This Agreement may not be modified or amended, nor may any of its
provisions be waived, except by a writing signed by the Parties who executed
this Agreement or their successors-in-interest.
J. No Waiver
The failure of a Party hereto to insist upon strict performance of any
provision of this Agreement shall not be deemed a waiver of such Party’s rights
or remedies or a waiver by such Party of any default by another Party in the
performance or compliance of any of the terms of this Agreement. In addition,
the waiver by one Party of any breach of this Agreement by another Party shall
not be deemed a waiver of any other prior or subsequent breach of this
Agreement.
K. Severability
Should any part, term, or provision of this Agreement be declared or
determined by any court or tribunal to be illegal or invalid, the Parties agree that
the Court may modify such provision to the extent necessary to make it valid,
33
legal, and enforceable. In any event, such provision shall be separable and shall
not limit or affect the validity, legality, or enforceability of any other provision
hereunder.
L. No Consent
To the Parties’ knowledge and belief, except as expressly provided herein,
no consent, authorization, action, or approval of, notice to or filing with, waiver
or exemption by, any person or entity which has not been obtained, including,
without limitation, any governmental, public or self-regulatory body or
authority, is required in connection with the execution, delivery and
performance of this Agreement or consummation of the transactions
contemplated hereby by the Parties hereto.
M. No Violation of Law or Agreement
The execution, delivery, and performance of this Agreement by the Parties
hereto does not and will not, conflict with, violate, result in a breach of, or cause
a default under, (a) any applicable provision of any federal, state, or local law or
regulation, (b) any provision of any order, arbitration award, judgment, or
decree, or (c) any provision of any agreement or instrument applicable to the
Parties.
34
N. Successors
This Agreement shall be binding upon and inure to the benefit of the heirs,
successors, and assigns of the Parties thereto.
O. Choice of Law
All terms and conditions of this Agreement shall be governed by and
interpreted according to the laws of the State of Georgia, without reference to its
conflict of law provisions, except to the extent that federal law governs. The
adequacy of the Settlement, and any determination regarding Class Counsel’s or
any other person’s fees and expenses, and any Incentive Payment, shall be
governed by the law of the Court at the time of Final Approval.
P. Fair and Reasonable
The Parties and their counsel believe that this Agreement is a fair and
reasonable compromise of the disputed claims, in the best interests of the Parties,
and have arrived at this Agreement as a result of extensive arms-length
negotiations.
Q. Headings
Any headings contained herein are for informational purposes only and do
not constitute a substantive part of this Agreement. In the event of a dispute
concerning the terms and conditions of this Agreement, the headings shall be
disregarded.
35
R. Exhibits
The Exhibits to this Agreement are expressly incorporated and made part
of the terms and conditions set forth herein.
S. Counterparts
This Agreement may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the same
instrument provided that counsel for the Parties to this Agreement shall
exchange among themselves original signed counterparts.
T. Facsimile and E-mail
Transmission of a signed Agreement by facsimile or e-mail shall constitute
receipt of an original signed Agreement by mail.
U. Warranty of Signature
Each signer of this Agreement represents and warrants that he or she is
competent and possesses the full and complete authority to execute this
Agreement on behalf of the Party to this Agreement for which he or she is
signing, and that this Agreement is binding on the Party he or she represents.
V. No Assignment
Each Party represents and warrants that such Party has not assigned or
otherwise transferred (via subrogation or otherwise) any right, title, or interest in
or to any claim, causes of action, or demand which was or could have been, or
36
ever could be asserted against any Party and that is released in this Agreement,
or which was, could have been, or ever could be asserted against any Party. Any
Party that breaches the representations and warranties set forth in this paragraph
shall indemnify and hold harmless the other Party, its parents, subsidiaries, and
affiliates, and their respective owners, agents, attorneys, successors, heirs,
assigns, administrators, officers, directors, employees, and all other persons
acting in concert with them from any and every claim or demand of every kind
or character arising out of a breach by any such breaching Party of its
representations and warranties in this paragraph.
W. Settlement to Proceed Regardless of Federal Jurisdiction
This Settlement was reached in part out of consideration of the impact of
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and subsequent Circuit Court
opinions finding no Article III jurisdiction for FACTA claims. Should a federal
court presiding over this Litigation determine that it lacks subject matter
jurisdiction under Spokeo or any judicial opinion construing it, the Parties agree
to proceed with this Settlement, without material change other than any
necessary solely to accommodate a change to a state court jurisdiction and
setting, in Cobb County, Georgia, but if Cobb County, Georgia is determined not
37
to have jurisdiction, the case will be filed in Cook County, Illinois. If this case is
re-filed in any state court pursuant to this section, then:
1. Plaintiff, on behalf of the Settlement Class, is entitled to file the same or
materially the same motion for preliminary approval contemplated by
this Agreement, along with this Agreement;
2. The Parties agree to propose materially the same proposed Preliminary
Approval Order, Order of Final Approval, Notices and Settlement
Claim Forms proposed herein; the only changes that shall be made, and
only if deemed necessary, shall be to reflect the change of court, the
passage of time, any need for a new state court presiding over the
matter to make its own findings regarding the propriety of certifying
the Settlement Class, and any other change in circumstance the Parties
to this Settlement mutually agree is needed to secure the Final
Approval of this Agreement;
3. The Parties agree to certification for Settlement purposes only of the
Settlement Class as set forth above;
4. For purposes of facilitating the approval of the Settlement only, WHBM
hereby waives any statute of limitations defense, personal jurisdiction
defense, venue objection, or other objection it might have against
Plaintiff or any Settlement Class Member to filing the case in state
38
court, provided that the case is refiled in state court within the later of
30 days after dismissal for lack of subject matter jurisdiction by the
federal court or subsequent state court, or 30 days after the termination
of any appeal of that determination;
5. The Parties shall work in good faith to facilitate the Settlement,
promptly secure its final approval from the state court, and promptly
carry out its terms;
6. The costs of notice and administration of any settlement presented for
approval by the state court shall be exclusively borne by the Settlement
Fund;
7. If the case is filed in Cook County, Illinois, but ultimately dismissed by
the Illinois court system for lack of subject matter jurisdiction, and that
dismissal becomes final, the Parties agree that the Lawsuit will not be
refiled in any other jurisdiction.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed by themselves or by their duly authorized representative:
Dated: IO/ i--z.,,/1 qI
Dated: __ 1_ 0_12_21_20_1 _s __ _
By:
By:
Keith J. KeoghMichael HilickiKEOGH LAW, LTD 55 W. Monroe St., Suite 3390Chicago, IL 60603Ph: (312) 726-1092
Bryant Lamer Spencer Fane LLP 1000 Walnut, Suite 1400
· Kansas City, MO 64106Ph: (816) 292-8296
39
Justin T. Holcombe Skaar & Feagle, LLP(Ga. Bar No. 552100)133 Mirramont Lake DriveWoodstock, GA 30189Ph: (770) 427-5600
Counsel for Plaintiff Altman and the Class
Dated: __ l_O+-) 4,_v----'-1 l_tJ_�
Dated: �;_c,....:..../_z._'1..-_/,_i_s __ _
By:
Barry Goheen J. Anthony LoveKING & SPALDING LLP1180 Peachtree Street, NESuite 1600Atlanta, GA 30309Ph: (404) 572-4600
Counselfor Defendant
Vifhite House Black Market, Inc.
By:� . �-p� WHI�USE BLACK MARKET, IBy: 6rs96i;y S".. 7.ra/<<!r Its: svr.,,
6,-r,� Cvr.-AJ.,./ oi'/;I
Co r pd ,z: J<. J'e. (: r( h "7
EXHIBIT 1
1
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JILL ALTMAN, individually,and on behalf of a class,
Plaintiff,
v.
WHITE HOUSE BLACKMARKET, INC., and DOES 1-10,
Defendant.
)))))))))))
Civil Action No.
1:15-cv-2451-SCJ-JKL
[PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS,GRANTING PRELIMINARY APPROVAL OF SETTLEMENT,
AND DIRECTING NOTICE TO THE CLASS
THIS CAUSE came before the Court on Plaintiff, Jill Altman’s Motion for
Preliminary Approval of Class Action Settlement (“Motion”) [ECF No. _]; and the
Settlement Agreement and Release (“Agreement”) [ECF No. ___-1]), both filed
_____________, 2018. Being fully advised, it is
ORDERED AND ADJUDGED as follows:
1. The Motion [ECF No. ____] is GRANTED pursuant to Federal Rule of
Civil Procedure 23, and the terms of the Agreement [ECF No. ___-1], including all
Exhibits thereto, attached to the Motion, are preliminarily APPROVED, subject to
further consideration at the Fairness Hearing provided for below. This Order
2
incorporates the Agreement, including all Exhibits. Unless otherwise provided
herein, the terms defined in the Agreement shall have the same meanings herein.
The Agreement was entered into only after extensive arms-length negotiations by
experienced counsel and following ongoing mediation efforts presided over by
a professional mediator.
2. The Court finds that the settlement embodied in the Agreement is
sufficiently within the range of reasonableness so that notice of the settlement
should be given as provided in this Order. In making this determination, the Court
has considered the current posture of the litigation and the risks and benefits to the
parties involved in both settlement of these claims and continuation of the
litigation.
I. THE CLASS, CLASS REPRESENTATIVE, AND CLASS COUNSEL
3. The Settlement Class matches the definition of the class previously
certified in this matter by the Court, to wit:
All individuals in the U.S. whose debit or credit card, according toWHBM’s records was used in a transaction at a WHBM U.S. storeoperating the CHARM system that was programmed to print the firstsix and last four digits of the debit or credit card account number on thecustomer transaction receipt printed at the point of sale for thetransaction, between March 23, 2015 and July 17, 2015.
Notwithstanding the foregoing, in compliance with 28 U.S.C. § 455, the
Settlement Class specifically excludes the following persons: The district judge and
3
magistrate judge presiding over this case, the judges of the United States Court of
Appeals for the Eleventh Circuit, and their spouses and minor children. In addition,
excluded from the Settlement Class is any individual who properly opts out of the
Settlement Class pursuant to the procedure described herein.
4. The Court, after de novo review, already adopted the report and
recommendation (ECF No. 105) finding that this case meets the requirements for
class certification under Federal Rule 23(b)(3) (ECF No. 137), and the Court finds no
basis to call that decision into question as to the Settlement Class.
5. Pursuant to Fed. R. Civ. P. 23(g), attorneys Keith J. Keogh, Michael S.
Hilicki, Bryant T. Lamer, and Justin Holcombe are hereby appointed Class
Counsel.
II. NOTICE TO CLASS MEMBERS
6. The Court has considered the proposed forms of notice including the
Summary Notice and Full Notice (attached as Exhibits 2A and 2B to the Settlement
Agreement) and the Settlement Claim Form (attached as Exhibit 4 to the
Settlement Agreement), and finds that the forms, content, and manner of notice
proposed by the Parties and approved herein meet the requirements of due
process and FED. R. CIV. P. 23(c) and (e), are the best notice practicable under the
circumstances, constitute sufficient notice to all persons entitled to notice, and
satisfy the Constitutional requirements of notice. The Court approves the notice
4
program in all respects (including the proposed forms of notice, Summary Notice,
Full Notice, and Settlement Claim Forms), and orders that notice be given in
substantial conformity therewith. The notice program shall commence by the
“Notice Deadline” below. The costs of preparing, printing, publishing, mailing,
and otherwise disseminating the notice shall be paid from the Settlement Fund in
accordance with the Agreement.
7. The Court appoints Kurtzman Carson Consultants LLC (“KCC”) as
Claims Administrator. Responsibilities of the Claims Administrator shall
include the following: (a) arranging for distribution of the Class Notice and
Settlement Claim Forms to Settlement Class Members; (b) making any mailings to
Settlement Class Members required under the terms of the Agreement; (c)
answering written and telephonic inquiries from Settlement Class Members
and/or forwarding such inquiries to Class Counsel or their designee; (d) receiving
and maintaining on behalf of the Court and the Parties any Settlement Class
Member correspondence regarding requests for exclusion from the Settlement; (e)
establishing the Settlement Website that posts notices and other pertinent
documents; (f) receiving and processing Settlement Claim Forms from and
distributing Settlement payments to Settlement Class Members; (g) paying from
the Settlement Fund all disbursements required by the terms of the Settlement or
ordered by the Court, as well as any fees and costs incurred or due to banks, credit
5
card processing companies, or others for responding to subpoenas to locate or
identify the Settlement Class Members; and (h) otherwise assisting with
implementation and administration of the terms of the Agreement.
III. REQUESTS FOR EXCLUSION FROM THE CLASS
8. A Settlement Class Member who wishes to be excluded from the
Settlement Class shall mail a written Request For Exclusion to the Claims
Administrator no later than the “Opt-Out and Objection Deadline” below, and
shall clearly: (a) state the case name and number; (b) state the name and address
of the Settlement Class Member; (c) be personally signed by the Settlement Class
Member requesting exclusion; and (d) contain a statement that indicates a desire
to be excluded from the Settlement Class in the Litigation, such as “I hereby
request that I be excluded from the proposed Settlement Class in Altman v. White
House Black Market, Inc.”
9. Any Settlement Class Member who does not properly and timely mail
a Request For Exclusion as set forth above shall remain a member of the
Settlement Class, and shall be bound by all the terms and provisions of the
Agreement, including the Release and the Order of Final Approval, whether or not
such Settlement Class Member received actual notice or objected to the Class
Settlement, and whether or not such Settlement Class Member makes a claim upon
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or participates in the Class Settlement.
IV. OBJECTIONS
10. Objections must be received by the “Opt-Out and Objection Deadline”
below. To be valid, the objection must: (a) state the case name and number; (b)
state the name and address of the objecting Settlement Class Member and, if
represented by counsel, of his or her counsel; (c) state the specific grounds for each
objection raised; (d) state whether the Settlement Class Member intends to appear
at the Final Approval Hearing, either with or without counsel; (e) provide any
documentation in support of each objection raised; (f) state the date of the
transaction for which the Settlement Class Member was provided a receipt
containing the first six and last four digits of his or her debit or credit card, and the
location of the store that generated the receipt; and (g) state the first six and last
four digits of the card used in the transaction (this information may be redacted in
the court-filed copy of the objection). Any objection not made in the manner
described in the Class Notice and this paragraph shall be deemed forfeited.
V. PROOFS OF CLAIM
11. To effectuate the Agreement, Class Settlement, and the provisions of
the Class Notice program, the Claims Administrator shall be responsible for the
receipt of all Requests for Exclusion and Settlement Claim Forms. The Claims
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Administrator shall preserve, on paper or transferred into electronic format, all
Requests for Exclusion, Settlement Claim Forms, and any and all other written
communications from Settlement Class Members in response to the Class Notice
for a period of five (5) years, or pursuant to further order of the Court. All written
communications received by the Claims Administrator from Settlement Class
Members relating to the Agreement shall be available at reasonable times for
inspection and copying by Class Counsel and Counsel for White House Black
Market, including prior to payments being mailed to each Settlement Class
Member.
12. In order to be entitled to participate in the Class Settlement, if
effectuated in accordance with all of the terms and conditions set forth in the
Agreement, each Settlement Class Member shall take the following actions and be
subject to the following requirements:
A. A Settlement Class Member who wishes to receive a distribution
from the Settlement Fund must submit a timely, properly-executed
Settlement Claim Form to the Claims Administrator on or before the “Claims
Deadline” below. If submitted by regular mail to the address indicated in the
Class Notice, the Settlement Claim Form shall be deemed to have been
submitted as of the date postmarked. If transmitted in any manner other than
regular mail, the Settlement Claim Form shall be deemed to have been
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submitted on the date received by the Claims Administrator;
B. Except as provided herein, a valid Settlement Claim Form must
contain the following information: (a) Settlement Class Member’s name; (b)
Settlement Class Member’s physical mailing address; and (c) the signature of
the Settlement Class Member or his or her authorized agent. The Settlement
Claim Form will also solicit the Settlement Class Member’s telephone
number and email address, but this information is not required to submit a
claim. The Settlement Website claim form will prepopulate the Settlement
Class Member’s name and address information as available for persons who
first enter their claim ID, and will ask them to update or correct any
information.
C. Each Settlement Claim Form shall be submitted to and reviewed
by the Claims Administrator, who shall make a recommendation about
which claims should be allowed;
D. Any person to whom a Summary Notice is not mailed and
who claims that between March 23, 2015 and July 17, 2015, a White House
Black Market store provided them a receipt containing the first six and last
four digits of their debit or credit card number, and who submits along with
his or her Settlement Claim Form a sworn statement itemizing the store(s)
that provided each such receipt(s), the date(s) when each such receipt was
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provided, and the first six/last four digits of the credit/debit card used in the
transaction shall, after the Claims Administrator validates that the
transaction(s), according to records of White House Black Market, occurred
at a White House Black Market store on a date that that store was printing
receipts that contained the first six and last four digits of debit and credit
card numbers, be entitled to a pro rata distribution in the same amount as
Settlement Class Members to whom the Claims Administrator distributed
notice by mail. A person whose Settlement Claim Form does not identify a
transaction that occurred at a White House Black Market store during the
time period that the store was printing receipts that contained the first six
and last four digits of debit and credit card numbers (if any) is not a
Settlement Class Member;
E. The Claims Administrator will notify each person who filed a
Settlement Claim Form of any recommendation of disallowance of the claim,
and set forth the reasons for any such disallowance. Settlement Class
Members shall be permitted a reasonable period of time to cure any
deficiency. A copy of such notification shall also be sent by the Claims
Administrator to Class Counsel; and
F. Settlement Class Members who do not submit a timely and valid
Settlement Claim Form shall not be entitled to receive a distribution.
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VI. CONFIDENTIALITY
13. If Plaintiff subpoenas any non-party for information about the
Settlement Class Members, such as identifying or contact information, that
information shall be treated as Confidential under the terms of the Protective
Order, except that Plaintiff may share that information with the Claims
Administrator and any bank or other third party to facilitate the process of
identifying or locating class members. Likewise, Plaintiff may share Settlement
Class Member transaction and identifying information otherwise obtained in this
lawsuit with the Claims Administrator and any bank or other third party to
facilitate identifying and locating Settlement Class Members. Any information
independently received by the Claims Administrator that pertains to a particular
Settlement Class Member shall not be disclosed to any other person or entity other
than Class Counsel, Counsel for White House Black Market, or the Court, and
shall otherwise be treated as provided for in the Agreement.
VII. FAIRNESS HEARING
14. A hearing on final settlement approval (the “Fairness Hearing”) will
be held on __________________________, 2019, in Room 1907 of the United States
District Court for the Northern District of Georgia, 1967 Richard B. Russell Federal
Building and United States Courthouse, 75 Ted Turner Drive, SW Atlanta, GA
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30303-3309, to consider, inter alia: (a) determining the fairness, adequacy, and
reasonableness of this Agreement and the Settlement pursuant to the Federal Rules
of Civil Procedure, applicable law, and other procedural rules or and requirements;
and (b) entering the Order of Final Approval.
15. No less than 30 days after distribution of Class Notice, any petition
for an award of attorneys’ fees and expenses in connection with the Settlement
shall be filed with the Court.
16. No less than 14 days before the Fairness Hearing, Class Counsel shall
file with the Court any memoranda or other materials in support of final approval
of the Agreement and Class Settlement.
17. Any Settlement Class Member who has not filed a Request for
Exclusion in the manner set forth above and who also has timely filed an objection
may appear at the Fairness Hearing in person or by counsel and may be heard to
the extent allowed by the Court. However, no person shall be heard in opposition
to the Agreement and Class Settlement, or any motion for attorneys’ fees and
expenses, and no papers or briefs submitted by or on behalf of any such person
shall be accepted or considered by the Court, unless that person files such papers
and briefs with the Court and serves them upon Class Counsel and Counsel for
White House Black Market, Inc. by the Opt-Out and Objection Deadline. Any
person who files an objection to any matter relating to the Settlement shall be
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subject to the jurisdiction of this Court. Settlement Class Members who fail to
object in the manner and by the dates provided herein shall be deemed to have
waived and shall forever be foreclosed from raising any objection to any matter
relating to the Settlement.
18. Any Settlement Class Member may hire an attorney at his or her or its
own expense to appear in the action. Such attorney shall serve a Notice of
Appearance on the Counsel listed above, and file it with the Court, at least 14 days
before the Fairness Hearing.
19. The date and time of the Fairness Hearing shall be set forth in the
Summary Notice, Full Notice, and on the Settlement Website, but shall be subject
to adjournment by the Court without further notice to the Settlement Class
Members other than that which may be posted at the Court, on the Court’s
Website, and/or the Settlement Website.
20. The following summarize the deadlines stated above for issuing
notice and submitting claims and objections:
, 2018 Deadline for notice of the Settlement to be sent tothe Settlement Class Members
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, 2018[at least 30 days after noticesent to Settlement ClassMembers]
Any petition for an award of attorneys’ fees andexpenses shall be filed
, 2018 Deadline for Settlement Class Members to requestexclusion or file objections (Opt-Out and ObjectionDeadline)
, 2018 Deadline for Settlement Class Members to submit aSettlement Claim Form (Claim Deadline)
, 2018 Deadline for Parties to file the following:(1) List of persons who made timely and properRequests for Exclusion (under seal);(2) Proof of Class Notice; and(3) Motion and memorandum in support of finalapproval, including responses to any objections.
, 2019 at __.m. Fairness Hearing
DONE and ORDERED in Atlanta, Georgia, this day of
, 2018.
STEVEN C. JONESUNITED STATES DISTRICT JUDGE
cc: counsel of record
EXHIBIT 2a
NOTICE OF CLASS ACTION LAWSUIT AND PROPOSED SETTLEMENTTHE COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER.
YOU MAY BE ENTITLED TO RECEIVE MONETARY COMPENSATION.
What is this? This is notice of a proposed Settlement in a class action lawsuit forAltman v. White House Black Market, Inc., Case No. 1:15-cv-2451-SCJ-JKL (N.D. Ga.).
What is this lawsuit about? The Settlement resolves a lawsuit brought on behalf of a class ofindividuals, where the Plaintiff claimed that, between March 23,2015, and July 17, 2015, some White House Black Market storeslocated in the United States provided printed (not email) point-of-sale receipts to customers for credit or debit card transactions thatdisplayed the first six and last four digits of the card number usedin the transaction. These receipts may have violated the Fair andAccurate Credit Transactions Act (“FACTA”). White House BlackMarket denies any wrongdoing. The Court has not ruled on themerits of Plaintiff’s claims or the defenses of White House BlackMarket.
Why am I getting this notice? You were identified as someone to whom a White House BlackMarket store may have provided a printed receipt, according toWhite House Black Market’s records.
What does the Settlementprovide?
White House Black Market has agreed to pay $1,500,000 into aSettlement Fund, which will pay for the cost of notice andadministration of the Settlement, payments to Settlement ClassMembers who file valid claims, attorneys’ fees and expensesincurred by counsel for Plaintiff and the Settlement Class (“ClassCounsel”) and an Incentive Payment for Plaintiff, if approved bythe Court. Each Settlement Class Member who submits a validclaim form may receive a payment, subject to pro rata distributionof the settlement. Class Counsel will petition for an IncentivePayment not to exceed $10,000 to Plaintiff Jill Altman for herservices as Class Representative, and for Class Counsel’s fees, notto exceed $600,000 (which is forty percent of the Settlement Fund),plus Class Counsel’s reasonable expenses.
How can I receive a paymentfrom the Settlement?
To receive payment, you must complete and submit a valid ClaimForm by [_________]. You can obtain and submit a Claim Formonline at www.WHBM-FACTA-Settlement.com, by mail, or bytelephone by calling_____. Claim Forms submitted by mail mustbe sent to the Claims Administrator at the address below and mustbe postmarked no later than [ ].
Do I have to be included inthe Settlement?
If you don’t want monetary compensation from this Settlement andyou want to keep the right to pursue or continue to pursue yourclaims against White House Black Market on your own, then youmust exclude yourself from the Settlement by sending a letterrequesting exclusion to the Claims Administrator, postmarked nolater than [__________] to the address below. The letter requestingexclusion must contain the specific information set forth on the FullNotice on the Settlement Website and in the Settlement Agreement.
If I don’t like somethingabout the Settlement, how doI tell the Court?
If you don’t exclude yourself from the Settlement, you can object toany part of the Settlement. You must file your written objectionwith the Court by [__________]. Your written objection must alsobe mailed to Class Counsel and White House Black Market’sCounsel and received by no later than [________]. Your writtenobjection must contain the specific information set forth inQuestion 16 of the Full Notice (“How do I tell the Court that I donot think the Settlement is fair?”), available at www.WHBM-FACTA-Settlement.com. If you file an objection, in order to remaineligible to receive a payment, you must also file a claim form.
What if I do nothing? If you do nothing, you will not be eligible for a payment. But, youwill still be a Settlement Class Member and be bound by theSettlement, and you will release White House Black Market fromall liability associated with the alleged actions giving rise to thiscase.
The Final Approval Hearing The Court will hold a Final Approval Hearing in this case, Altmanv. White House Black Market, Inc., Case No. 1:15-cv-2451-SCJ-JKL (N.D. Ga.), at [TIME] on _________________ in Room 1907of the United States District Court for the Northern District ofGeorgia, 1967 Richard B. Russell Federal Building and UnitedStates Courthouse, 75 Ted Turner Drive, SW Atlanta, GA 30303-3309. You may hire your own attorney to appear and speak at thehearing at your own expense, but it is not necessary.
How do I get moreinformation about theSettlement?
This notice contains limited information about the Settlement. Formore information, to view additional Settlement documents, and toreview information regarding your exclusion and objection rightsand the final approval hearing, visit www.WHBM-FACTA-Settlement.com. You can also obtain additional information, amore detailed notice describing the Settlement, or a Claim Form, bycalling [INSERT ADMINISTRATOR NUMBER].
WHBM FACTA SETTLEMENTSETTLEMENT ADMINISTRATOR[INSERT CLAIMS ADMIN ADDRESS]
[CLAIM ID IN DIGITS][CLAIM ID IN 2D BARCODE]Postal Service: Please Do Not Mark or Cover Barcode
[FIRST1] [LAST1]
[NAME][ADDR1] [ADDR2][CITY] [ST] [ZIP]
EXHIBIT 2b
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Altman v. White House Black Market, Inc.United States District Court for the Northern District of Georgia,
Case No. 1:15-cv-2451-SCJ-JKLIf you made a purchase at a White House Black Market store using a credit card or
debit card between March 23, 2015 and July 17, 2015 and received a printed sales receiptdisplaying more than the last five digits of your card number, you may be entitled to
benefits under a class action settlement.
A court authorized this Notice. This is not a solicitation from a lawyer.
Plaintiff alleges that printing customer receipts for credit or debit card transactions thatinclude more than the last five digits of the card account number violates the Fair andAccurate Credit Transactions Act, 15 U.S.C. § 1681c(g)(1) et seq. (“FACTA”). Plaintifffurther alleges that White House Black Market, Inc. (“WHBM”) willfully violatedFACTA in the lawsuit identified above by printing point-of-sale credit and debit cardtransaction receipts that displayed the first six and last four digits of the card accountnumber in some of its stores in the United States. WHBM denies Plaintiff’s allegationsand denies any wrongdoing whatsoever. The Court has not ruled on the merits ofPlaintiff’s claims or WHBM’s defenses. By entering into the Settlement, WHBM has notconceded the truth or validity of any of the claims against it.
WHBM has agreed to pay $1,500,000 (the “Settlement Fund”) in full and final settlementand release of the claims of persons for whom WHBM stores printed a receipt showingthe first six and last four digits of the card number. The Settlement Class is defined toinclude individuals, according to WHBM’s records, whose credit or debit card was usedin a transaction at a WHBM store in the United States using a point-of-sale system thatwas programmed to print the first six and last four digits of card account number on thereceipt, between March 23, 2015 and July 17, 2015. The lawsuit does not apply to email-only receipts. It only applies to printed receipts.
Not all WHBM United States stores used the system that printed the first six and last fourdigits of card account numbers on customer receipts, and not all that did so were usingthat system during the entire time period of March 23, 2015 to July 17, 2015.
The Settlement Fund will be used to pay all amounts related to the Settlement, includingpayments to each Settlement Class Member who submits a valid and timely claim form toreceive payment (“Claim Form”), attorneys’ fees and reasonable expenses, and the costsof notice and administering the Settlement. Class Counsel anticipate that they willpetition the Court for attorneys’ fees not to exceed forty percent of the Settlement Fund,and will also petition for an Incentive Payment not to exceed $10,000.00 to Plaintiff JillAltman for her service as Class Representative. Settlement Class Members who timelysubmit a valid Claim Form will receive a pro rata payment distribution, calculated bydividing the available funds for distribution to the Settlement Class by the number ofpersons who submit valid Claim Forms.
Your rights and options, and the deadlines to exercise them, are explained in this Notice.Your legal rights are affected whether you act or don’t act. Read this Notice carefully.
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The Court in charge of this case still has to decide whether to approve the Settlement.Payments will be made if the Court approves the Settlement and after any appeals areresolved. Please be patient.
SUBMIT A CLAIMFORM
If you submit a valid Claim Form by [____], you will receivea payment and will give up your rights to sue WHBM and/orany other released parties (“WHBM Releasees” as defined inthe Settlement Agreement) on any Released Claim, as definedin the Settlement Agreement. If you have a Claim ID number,Claim Forms may be submitted by mail to [ADMIN POBOX] or through the settlement website by clickingwww.WHBM-FACTA-Settlement.com or by calling [Insert].If you do not have a Claim ID number, you must obtain, fillout and submit a Claim Form from the Website above or theClaims Administrator, and also provide the store location anddate of each transaction at a WHBM store in which you claimyou were provided a receipt that disclosed the first six and lastfour digits of your credit or debit card number, as well as thefirst six and last four digits of that card account number usedin each such transaction. The Claims Administrator mayrequest additional information to validate claims.
EXCLUDE YOURSELFOR “OPT OUT” OF THESETTLEMENT
If you ask to be excluded, you will not receive a payment.This is the only option that allows you to pursue or continueto pursue Released Claims against WHBM or any WHBMReleasee in the future. The deadline for excluding yourself is[60 days after Notice Deadline].
OBJECT TO THESETTLEMENT
You may write to the Court about why you believe theSettlement is unfair in any respect. Please see Section 16below (“How do I tell the Court that I do not think theSettlement is fair?”). The deadline for objecting is [______].To obtain a benefit from this Settlement, you must stillcomplete and submit a valid Claim Form. If you only submitan objection, you will not receive any benefit from theSettlement and you will give up your right to pursue orcontinue to pursue any Released Claim against WHBM or anyWHBM Releasee.
DO NOTHING
If you do nothing, you will not receive any monetary award,but you will give up your rights to pursue or continue topursue a Released Claim against WHBM or any WHBMReleasee.
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GO TO THE FINALAPPROVAL HEARING
You may ask to speak in Court about the fairness of theSettlement, if you object to the Settlement. To speak at theFinal Approval Hearing, you must comply with therequirements set forth in Question 21 below no later than[___________].
BASIC INFORMATION
1. What is the purpose of this Notice?
The purpose of this Notice is to inform you that a proposed Settlement has been reached in theclass action lawsuit Altman v. White House Black Market, Case No. 1:15-cv-2451-SCJ-JKL(N.D. Ga.). Because your rights will be affected by this Settlement, it is extremely importantthat you read this Notice carefully. This Notice summarizes the Settlement and your rights underit.
2. What does it mean if I received an email or postcard about this Settlement?
If you received an email or postcard describing this Settlement, it is because WHBM’s recordsindicate that you may be a member of the Settlement Class in this action. You are a member ofthe Settlement Class if a WHBM store located in the United States provided you a printed (notemail-only) point-of-sale receipt for a credit card or debit card transaction that contained thefirst six and last four digits of your card account number at any time between March 23, 2015and July 17, 2015.
If you did not receive an email or postcard describing this Settlement, you may still submit aClaim Form by clicking www.WHBM-FACTA-Settlement.com. The Claims Administratorwill check the written information you provide on the Claim Form against transaction data ofWHBM. If the information does not match, you will not be a Settlement Class Member and arenot entitled to any relief.
3. What is this class action lawsuit about?
In a class action, one or more people called Class Representatives (here, Plaintiff Jill Altman)sue on behalf of people who allegedly have similar claims. This group is called a class and thepersons included are called class members. One court resolves the issues for all of the classmembers, except for those who exclude themselves from the class.
Here, Plaintiff alleges that WHBM willfully violated FACTA by printing point-of-sale receiptsfor credit card and debit card transactions at its U.S. stores that displayed the first six and lastfour digits of the card account number. WHBM denies these allegations and denies anywrongdoing. The Court has certified this case as a class action. The Honorable Steven C. Jonesis the judge in charge of the lawsuit.
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4. Why is there a settlement?
The Court did not decide in favor of Plaintiff or WHBM. Instead, both sides agreed to thisSettlement. That way, they avoid the risk and cost of a trial, and the Settlement Class Memberswill receive compensation. Plaintiff and Class Counsel believe that the Settlement is best for allSettlement Class Members.
WHO IS IN THE SETTLEMENT CLASS?
5. How do I know if I am part of the Settlement Class?
The Court has certified this case as a class action for settlement purposes only. The SettlementClass is defined as:
All individuals in the U.S. whose debit or credit card, according to WHBM’srecords was used in a transaction at a WHBM U.S. store operating the CHARMsystem that was programmed to print the first six and last four digits of the debitor credit card account number on the customer transaction receipt printed at thepoint of sale for the transaction, between March 23, 2015 and July 17, 2015.
Notwithstanding the foregoing, in compliance with 28 U.S.C. § 455, theSettlement Class specifically excludes the following persons: The district judgeand magistrate judge presiding over this case, the judges of the United StatesCourt of Appeals for the Eleventh Circuit, and their spouses and minor children.
“Settlement Class Member” is defined as any person in the Settlement Class whois not validly excluded from the Settlement Class.
It is important to note that only some WHBM locations printed such receipts, and of those thatdid not all of them printed such receipts during the entire period of March 23, 2015 to July 17,2015. Therefore, just because you were provided with a printed receipt for a credit or debit cardtransaction at a WHBM store between March 23, 2015 and July 17, 2015, that does notnecessarily mean that you are a Settlement Class Member. If you are still not sure whether youare included, you can visit other sections of the Settlement Website, www.WHBM-FACTA-Settlement.com, you may write to the Claims Administrator at Altman v. White House BlackMarket, c/o [ADMINISTRATOR AT P.O. BOX], or you may call the Toll-Free SettlementHotline, [INSERT NUMBER], for more information.
THE LAWYERS REPRESENTING YOU
6. Do I have lawyers in this case?
The Court has appointed lawyers from the law firms of Keogh Law, Ltd., Spencer Fane LLP,and Skaar & Feagle, LLP as Class Counsel to represent you and the other persons in theSettlement Class. You will not be personally charged by these lawyers.
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7. How will Class Counsel be paid?
Class Counsel will ask the Court to approve payment of not less than a third and not more thanforty percent of the $1,500,000.00 Settlement Fund, which is $500,000-$600,000, to them forattorneys’ fees, plus their reasonable expenses. Class Counsel also will ask the Court to approvepayment of up to $10,000.00 to Plaintiff Jill Altman for her service as Class Representative.The Court may award less than these amounts.
THE SETTLEMENT BENEFITS – WHAT YOU GET
8. What does the settlement provide?
Settlement Fund. WHBM will pay $1,500,000 into a fund (the “Settlement Fund”), which willcover: (1) payments to Settlement Class Members who submit timely and valid claim forms; (2)an award of attorneys’ fees to Class Counsel, in an amount not to exceed $600,000, which isforty percent of the Settlement Fund; (3) Class Counsel’s reasonable expenses; (4) an IncentivePayment to Plaintiff, as approved by the Court; and (5) the costs of notice and administration ofthe Settlement.
Payments. All Settlement Class Members are eligible to submit a Claim Form and receive apayment. To submit a Claim Form, follow the procedures described under Question 11 below.
No Portion of the Settlement Fund Will Return to WHBM. All money in the SettlementFund beyond the funds the Court authorizes to be paid for the costs of notice and administrationof the settlement, attorneys’ fees and expenses, and any incentive awards to Plaintiff, will bedivided and paid pro rata to the Settlement Class Members who submitted valid and timelySettlement Claim Forms. All unclaimed funds shall be paid via a Second Distribution to thoseclass members who cashed their checks. Only after a Second Distribution or if a SecondDistribution is not feasible, will any unclaimed funds be paid, as a cy pres award on behalf ofthe Class, to Habitat for Humanity. No portion of the Settlement Fund will return to WHBM.
9. How much will my payment be?
Your share of the Settlement Fund will depend on the number of valid Settlement Claim Formsthat Settlement Class Members submit. Each Class Member who submits a valid SettlementClaim Form will be entitled to receive compensation that will be distributed on a pro rata basis.The final payment amount will depend on the total number of valid and timely claimssubmitted by Settlement Class Members, but Plaintiff estimates approximately $58.00.
10. What am I giving up to stay in the Settlement Class?
Unless you exclude yourself from the Settlement, you will be part of the Settlement Class andwill be bound by the Release of claims in the Settlement. This means that if the Settlement isapproved, you cannot pursue or continue to pursue any Released Claim against WHBM or anyWHBM Releasee, whether on your own or as part of any other lawsuit, as explained in theSettlement Agreement. It also means that all of the Court’s orders will apply to you and legallybind you. Unless you exclude yourself from the Settlement, you will agree to release WHBM
6
and any other WHBM Releasee, as defined in the Settlement Agreement, from any and allclaims that were or could be asserted in the litigation and all claims that relate to or arise fromprinting more than last five digits of the credit or debit card account number on any printedreceipts at a WHBM U.S. store during the Settlement Class period.
In summary, the Release includes, without limitation, all claims that arise, could arise, wereasserted or could have been asserted based on printing too much information on any receiptsfrom a WHBM U.S. store, including, but not limited to, claims under FACTA, the Fair CreditReporting Act, any other statute or the common law, or regarding identity theft or the risk ofidentity theft, for any form of relief.
If you have any questions about the Release or what it means, you can speak to Class Counsel,listed under Question 6, for free, or you can, at your own expense, talk to your own lawyer. TheRelease does not apply to persons in the Settlement Class who timely exclude themselves.
HOW TO OBTAIN A PAYMENT
11. How can I get a payment?
To receive a payment, you must submit a Claim Form by the deadline stated below. If you havea Class ID number, Claim Forms may be submitted by mail to [ADMIN PO BOX] or throughthe settlement website by clicking www.WHBM-FACTA-Settlement.com or by calling [Insert].
If you do not have a Class ID number, you must submit the Claim Form by mail to [ADMIN POBOX] and provide the store location(s) and date(s) when each receipt containing the first sixand last four digits of your card account information was provided to you, as well as the first sixand last four digits of the card used in the transaction.
WHEN WILL I RECEIVE MY SETTLEMENT PAYMENT?
12. When would I receive a Settlement payment?
The Court has scheduled a hearing on [DATE] to decide whether to approve the Settlement. Ifthe Court approves the Settlement, after that, there may be appeals. It is always uncertainwhether these appeals can be resolved, and resolving them can take time, perhaps more than ayear. Update information will be posted on the Settlement Website at www.WHBM –FACTA-Settlement.com. Please be patient.
EXCLUDING YOURSELF FROM THE SETTLEMENT
13. How can I get out of the Settlement?
If you want to keep the right to pursue or continue to pursue any Released Claim againstWHBM or any WHBM Releasee, as defined in the Settlement Agreement, then you must takesteps to get out of the Settlement Class. This is called excluding yourself from, or opting out of,the Settlement Class.
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To exclude yourself from the Settlement, you must send an exclusion request to the ClaimsAdministrator. To be valid, a member of the Settlement Class who wishes to be excluded fromthe Settlement Class shall mail a written notice of exclusion to the Claims Administrator, so thatit is postmarked no later than 60 days after the Notice Deadline, or ________________, 2018(the “Opt-Out and Objection Deadline”), and shall clearly provide the following in the writtennotice of exclusion: (a) the case name and number; (b) the name and address of the SettlementClass Member; (c) the signature of the Settlement Class Member requesting exclusion; and (d) astatement that indicates a desire to be excluded from the Settlement Class in this lawsuit, suchas “I hereby request that I be excluded from the proposed Settlement Class in Altman v. WhiteHouse Black Market, Inc..” No request for exclusion will be valid unless all of the informationdescribed above is included. No person in the Settlement Class, or any person acting on behalfof or in concert or participation with that person in the Settlement Class, may exclude any otherperson in the Settlement Class from the Settlement Class.
To be valid, you must mail your exclusion request postmarked no later than [_______] tothe Claims Administrator at Altman v. White House Black Market, Inc., c/o [INSERTADMIN PO BOX].
14. If I do not exclude myself, can I sue WHBM for the same thing?
No. If you do not exclude yourself, you give up any right to pursue (or continue to pursue) anyReleased Claim against WHBM or any WHBM Releasee.
15. If I exclude myself, can I get a benefit from this Settlement?
No. If you ask to be excluded, you will not be able to submit a Claim Form for a Settlementpayment and you cannot object to the Settlement.
OBJECTING TO THE SETTLEMENT
16. How do I tell the Court that I do not think the Settlement is fair?
If you are in the Settlement Class, you can object to the Settlement or any part of the Settlementthat you think the Court should reject, and the Court will consider your views. If you do notprovide a written objection in the manner described below, you shall be deemed to haveforfeited any objection and shall forever be foreclosed from making any objection to thefairness, reasonableness, or adequacy of the Settlement or the award of any attorneys’ fees andexpenses or Incentive Payment.
To be valid, the objection must be received by the Opt-Out and Objection Deadline (by_______ 2018), and include: (a) the case name and number; (b) the name and address of theobjecting Settlement Class Member and, if represented by counsel, of his or her counsel; (c)the specific grounds for each objection raised; (d) a statement of whether he or she intends toappear at the Final Approval Hearing, either with or without counsel; (e) any documentationsupporting each objection raised; (f) the date and location of the transaction for which theSettlement Class Member received a printed receipt displaying the first six and last fourdigits of their card account number, and (g) the first six and last four digits of the card used
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in the transaction (this information may be redacted in the court-filed version of theobjection).
Any Settlement Class Member who fails to object to the Settlement in the manner describedabove shall be deemed to have waived any such objection, shall not be permitted to object toany terms or approval of the Settlement at the Final Approval Hearing, and shall beforeclosed from seeking any review of the Settlement or the terms of the SettlementAgreement by appeal or other means.
To be considered, you must file your objections with the Court. Your objections mustalso be mailed to the addresses below and postmarked or received no later than____________________.
For Plaintiff:
Keith J. KeoghMichael S. HilickiKeogh Law, Ltd.55 West Monroe St., Ste. 3390Chicago, IL 60603
For White House Black Market, Inc.:
Barry GoheenTony LoveKing & Spalding LLP1180 Peachtree Street N.E., Ste. 1600Atlanta, GA 30309-3521
Even if you timely and properly object, to obtain a benefit from this Settlement, youmust submit a Claim Form. If you object but fail to submit a Claim Form, you will notreceive any monetary award.
17. What is the difference between objecting and excluding yourself?
Objecting is telling the Court that you oppose something about the Settlement. You can objectonly if you stay in the Settlement Class. Excluding yourself means that you do not want to bepart of the Settlement Class. If you exclude yourself, you have no basis to object because thecase no longer affects you.
IF YOU DO NOTHING
18. What happens if I do nothing at all?
If you do nothing, you will not receive any monetary award, but you will give up your rights topursue or continue to pursue Released Claims against WHBM or any other WHBM Releasee.For information relating to what rights you are giving up, see Question 10.
THE FINAL APPROVAL HEARING
19. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing at [TIME] on ______________________ inRoom 1907 of the United States District Court for the Northern District of Georgia, 1967Richard B. Russell Federal Building and United States Courthouse, 75 Ted Turner Drive, SW
9
Atlanta, GA 30303-3309. At this hearing, the Court will consider whether the Settlement is fair,reasonable and adequate. If there are valid objections that comply with the requirements inQuestion 16 above, the Court will also consider them and will listen to people who have askedto speak at the hearing. The Court may also decide how much to pay to Class Counsel andPlaintiff.
The Final Approval Hearing may be moved to a different date or time without additional notice,so it is a good idea to check the Settlement Website for updates.
20. Do I have to come to the hearing?
No. Class Counsel will appear on behalf of the Settlement Class. But you are welcome tocome, or have your own lawyer appear, at your own expense.
21. May I speak at the hearing?
You may ask the Court for permission to speak at the Final Approval Hearing, but only inconnection with an objection that you have timely submitted to the Court according to theprocedure set forth in Question 16 above. To speak at the Final Approval Hearing, you mustalso file a document with the Court stating your intention to appear. For this document to beconsidered, it must include your name, address, telephone number and your signature. Thedocument must be filed with the Court no later than [______]. You cannot speak at the hearingif you exclude yourself from the Settlement.
GETTING MORE INFORMATION
22. How do I get more information?
This Notice is only a summary of the proposed Settlement. You can get a complete copy of theSettlement Agreement by visiting the Settlement Website, www.WHBM-FACTA-Settlement.com, or you can write to the address below or call the Toll-Free Settlement Hotline,[INSERT NUMBER]. You can also call Class Counsel with any questions at 866.726.1092.
DO NOT CALL OR WRITE TO THE COURT, THE CLERK OF THE COURT, WHITEHOUSE BLACK MARKET, INC., OR COUNSEL FOR WHITE HOUSE BLACKMARKET, INC. ABOUT THE SETTLEMENT.
TELEPHONE REPRESENTATIVES WHO ANSWER CALLS MADE TO THE TOLL-FREE NUMBER ARE NOT AUTHORIZED TO CHANGE THE TERMS OF THESETTLEMENT OR THIS NOTICE.
EXHIBIT 3
1
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JILL ALTMAN, individually,and on behalf of a class,
Plaintiff,
v.
WHITE HOUSE BLACKMARKET, INC., and DOES 1-10,
Defendant.
))))))))))))
Civil Action No.
1:15-cv-2451-SCJ-JKL
[PROPOSED] FINAL ORDER APPROVING SETTLEMENT, APPROVINGPROPOSED ALLOCATION OF SETTLEMENT FUNDS, APPROVING
CLASS COUNSEL’S APPLICATION FOR ATTORNEYS’ FEES, EXPENSES,AND INCENTIVE AWARD FOR CLASS REPRESENTATIVE, AND FINAL
JUDGMENT
THIS CAUSE came before the Court on the Motion of Plaintiff, Jill
Altman, for Final Approval of Class Action Settlement, the proposed allocation
and distribution of funds among the Settlement Class; and Class Counsel’s
motion for attorneys’ fees, expenses, and an incentive award for the Class
Representative [ECF No. ___]. Being fully advised, it is
ORDERED AND ADJUDGED as follows:
2
1. This Order of Final Approval and Judgment incorporates herein and
makes a part hereof, the Agreement, including all Exhibits thereto. Unless
otherwise provided herein, the terms as defined in the Agreement shall have the
same meanings for purposes of this Final Order and Judgment.
2. The Court has personal jurisdiction over the Class Representative,
Settlement Class Members, and Defendant White House Black Market, Inc.
(“WHBM”), and has subject matter jurisdiction to approve the Agreement.
3. The Settlement Class previously certified by the Court is defined
as:
All individuals in the U.S. whose debit or credit card, according toWHBM’s records was used in a transaction at a WHBM U.S. storeoperating the CHARM system that was programmed to print the first sixand last four digits of the debit or credit card account number on thecustomer transaction receipt printed at the point of sale for the transaction,between March 23, 2015 and July 17, 2015.
Notwithstanding the foregoing, in compliance with 28 U.S.C. § 455, the
Settlement Class specifically excludes the following persons: The district judge
and magistrate judge presiding over this case, the judges of the United States
Court of Appeals for the Eleventh Circuit, and their spouses and minor children.
In addition, excluded from the Settlement Class is any individual who properly
opted out of the Settlement Class pursuant to the procedure described in the
3
Agreement and this Court’s Order granting preliminary approval of the
Settlement (ECF ___, “Preliminary Approval Order”).
4. The record shows that Class Notice has been given to the Settlement
Class in the manner approved by the Court in its Preliminary Approval Order.
The Court finds that such Class Notice: (i) constitutes reasonable and the best
notice that is practicable under the circumstances; (ii) constitutes notice that was
reasonably calculated, under the circumstances, to apprise Settlement Class
Members of the terms of the Agreement and the Settlement set forth in the
Agreement (“Class Settlement”), and the right of Settlement Class Members to
object to or exclude themselves from the Settlement Class and appear at the
Fairness Hearing held on ________________; (iii) constitutes due, adequate, and
sufficient notice to all persons or entities entitled to receive notice; and (iv) meets
the requirements of due process and FED. R. CIV. P. 23.
5. This Order shall have no force or effect on those persons who
properly and timely excluded themselves from the Settlement Class.
6. The Court finds that extensive arms-length negotiations have taken
place in good faith between Class Counsel and Counsel for WHBM resulting in
the Agreement.
4
7. The Court again finds that the designated Class Representative is an
adequate representative of the Settlement Class.
8. The Court has considered all of the factors enumerated in FED. R.
CIV. P. 23(g) and finds that Class Counsel have fairly and adequately
represented the interests of the Settlement Class.
9. Pursuant to FED. R. CIV. P. 23(e), the Court hereby finally approves
in all respects the Agreement and the Class Settlement and finds that the
Agreement, the Class Settlement, and the plan of distribution as set forth in the
Agreement, are, in all respects, fair, reasonable and adequate, and in the best
interest of the Settlement Class.
10. The Parties are hereby directed to implement and consummate the
Class Settlement according to the terms and provisions of the Agreement. The
claims against WHBM on behalf of the Settlement Class in Altman v. White House
Black Market, Inc., Case No. 1:15-cv-2451-SCJ-JKL (N.D. Ga.), are hereby
dismissed with prejudice and without costs to any party, except as otherwise
provided herein.
11. Upon the Effective Date of the Agreement, the Settlement Class and
each Settlement Class Member, shall release and forever discharge WHBM and
5
the WHBM Releasees from any and all Released Claims, as those terms are
defined in the Settlement Agreement.
12. Class Counsel have moved pursuant to FED. R. CIV. P. 23(h) and
52(a) for an award of attorneys’ fees and reimbursement of expenses. Pursuant
to Rules 23(h)(3) and 52(a), this Court makes the following findings of fact and
conclusions of law:
(a) this Settlement confers substantial benefits on the Settlement
Class Members;
(b) the value conferred on the Settlement Class is immediately
and readily quantifiable upon this judgment becoming Final (as defined in the
Agreement), and Settlement Class Members who have submitted valid
Settlement Claim Forms will receive payments that represent a significant
portion of the damages that would be available to them were they to prevail in
an individual action under FACTA);
(c) Class Counsel vigorously and effectively pursued the
Settlement Class Members’ claims before this Court in this complex case;
(d) this Settlement was obtained as a direct result of Class
Counsel’s advocacy;
6
(e) this Settlement was reached following extensive arms-
length negotiation between Class Counsel and Counsel for WHBM, facilitated
by a professional mediator, and was negotiated in good-faith and without
collusion;
(f) during the prosecution of the claims in this lawsuit, Class
Counsel incurred expenses in the aggregate amount of $_______________,
which included mediation and other expenses and which the Court finds to be
reasonable and necessary to the representation of the Settlement Class;
(g) Settlement Class Members were advised in the Class Notice
approved by the Court that Class Counsel intended to apply for an award of
attorneys’ fees in an amount up to forty percent of the Settlement Fund
($600,000.00), plus reasonable expenses, to be paid from the Settlement Fund;
(h) _________ member(s) of the Settlement Class has (have)
submitted written objection(s) to the award of attorneys’ fees and expenses;
(i) Attorneys who recover a common benefit for persons other
than themselves or their clients are entitled to a reasonable attorneys’ fee from
the Settlement Fund as a whole. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472,
478 (1980); Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984); and
7
(j) The requested fee award is consistent with the law of this
Circuit. See Camden I Condo Ass’n v. Dunkle, 946 F.2d 768, 774-775 (11th Cir.
1991).
14. Accordingly, Class Counsel are hereby awarded $__________ from
the Settlement Fund as their attorneys’ fee award, which the Court finds to be
fair and reasonable, and which amount shall be paid to Class Counsel from the
Settlement Fund in accordance with the terms of the Agreement. Further, Class
Counsel are hereby awarded $_______ for their expenses, which the Court finds
to be fair and reasonable, and which amount shall be paid to Class Counsel from
the Settlement Fund in accordance with the terms of the Agreement. Class
Counsel shall be responsible for allocating and shall allocate this award of
attorneys’ fees, costs, and expenses among Class Counsel.
15. Jill Altman is hereby compensated in the amount of $________ for
her efforts in this case.
16. Without further order of the Court, the Parties may agree to
reasonably necessary extensions of time to carry out any of the provisions of the
Settlement Agreement.
17. Without affecting the finality of this Order, the Court retains
continuing and exclusive jurisdiction over all matters relating to the
8
administration, consummation, enforcement, and interpretation of the
Agreement and of this Order, to protect and effectuate this Order, and for any
other necessary purpose.
DONE and ORDERED in Atlanta, Georgia, this _______ day of
____________________, 2018.
___________________________________STEVEN C. JONESUNITED STATES DISTRICT JUDGE
cc: counsel of record
EXHIBIT 4
Altman v. White House Black Market, Inc., Case No. 15-cv-2451-SCJ-JKLU.S.D.C. Northern District of Georgia
Kurtzman Carson Consultants LLC (“KCC”), Settlement Administrator Toll-Free Number: 1-866-726-1092PO Box [____________] Website: www.WHBM-FACTA-Settlement.com[__________________]
<<mail id>><<Name1>><<Name2>><<Address1>><<Address2>><<City>><<State>><<Zip>>
CLAIM FORM
TO RECEIVE BENEFITS FROM THIS SETTLEMENT, YOU MUST PROVIDEALL OF THE INFORMATION BELOW AND YOU MUST SIGN THIS CLAIM FORM. IF THIS CLAIM FORM IS
SUBMITTED ONLINE, YOU MUST SUBMIT AN ELECTRONIC SIGNATURE. If mailed, mail this form to [INSERTADMINISTRATOR PO BOX FOR SETTLEMENT]
YOUR CLAIM FORM MUST BE SUBMITTED ELECTRONICALLY OR VIA TELEPHONE OR POSTMARKED ONOR BEFORE [INSERT DATE - propose 60 days after Notice Deadline].
1. CLAIMANT INFORMATION:
__________________________________________________________________________________________ Claim Member Identification Number
__________________________ ________________ ______________________________________________ FIRST NAME MIDDLE NAME LAST NAME
___________________________________________________________________________________________ADDRESS 1
___________________________________________________________________________________________ADDRESS 2
________________________________________________________ ______ ____________ - __________ CITY STATE ZIP (optional)
________________________________________________________ __________________________________________ TELEPHONE NUMBER (optional) E-MAIL ADDRESS
2. AFFIRMATION:
By signing below, I attest that the information above is true and correct to the best of my knowledge and belief. This Claim Formmay be researched and verified by the Claims Administrator.
Signature: ________________________________________________
Name (please print): ________________________________________
Date: _____________________________________________________
QUESTIONS?VISIT www.WHBM-FACTA-Settlement.com
OR CALL [INSERT ADMIN NUMBER] or Class Counsel at 866.726.1092.
APPENDIX 2
IN THE ST ATE COURT OF COBB COUNTY
STATE OF GEORGI"FILED IN THJ.§__ OFFIC3.I
JILL ALTMAN, on behalf of : THISji DAY OF .uw+• 20-;,--
herself and all others similarly situated, ~f, ~ Clerk, State Court of Cobb County
Plaintiff, Civil Action File No. 2 l-A-735
V. CLASS ACTION
WHITE HOUSE BLACK MARKET, INC.
Defendants.
ORDER CERTIFYING SETTLEMENT CLASS, GRANTING PRELIMINARY APPROVAL OF SETTLEMENT, AND
DIRECTING NOTICE TO THE CLASS
THIS CAUSE came before the Court on Plaintiff, Jill Altman's Motion for
Preliminary Approval of Class Action Settlement ("Motion"); and the Settlement
Agreement and Release ("Agreement"). Being fully advised, it is
ORDERED AND ADJUDGED as follows:
I. The Motion is GRANTED pursuant to O.C.G.A. § 9-11-23(e), and the
terms of the Agreement, including all Exhibits thereto, attached to the Motion, are
preliminarily APPROVED, subject to further consideration at the Fairness Hearing
provided for below. This Order incorporates the Agreement, including all Exhibits.
Unless otherwise provided herein, the te1ms defined in the Agreement shall have the
108499
same meanings herein. The Agreement was entered into only after extensive arms
length negotiations by experienced counsel and following ongoing mediation efforts
presided over by a professional mediator.
2. The Court finds that the settlement embodied in the Agreement is
sufficiently within the range of reasonableness so that notice of the settlement should
be given as provided in this Order. In making this detennination, the Court has
considered the current posture of the litigation and the risks and benefits to the parties
involved in both settlement of these claims and continuation of the litigation.
I. THE CLASS, CLASS REPRESENTATIVE, AND CLASS COUNSEL
3. The Settlement Class matches the definition of the class previously certified
in this matter by the Federal Com1, to wit:
All individuals in the U.S. whose debit or credit card, according to WHBM's records was used in a transaction at a WHBM U.S. store operating the CHARM system that was programmed to print the first six and last four digits of the debit or credit card account number on the customer transaction receipt printed at the point of sale for the transaction, between March 23, 2015 and July 17,2015.
Notwithstanding the foregoing, the Settlement Class specifically excludes the
following persons: The judge presiding over this case, the judges of the Georgia Court
of Appeals and the Georgia Supreme Court, and their spouses and minor children. In
addition, excluded from the Settlement Class is any individual who properly opts out of
the Settlement Class pursuant to the procedure described herein. 2
108499
4. For settlement purposes only, the Court finds this case meets the
requirements for class certification under O.C.G.A. § 9-l l-23(a) and (b )(3).
Specifically, the Court finds: (a) the class is sufficiently numerous that joinder is
impracticable because it contains more than one hundred thousand members; (b) the
case presents common questions oflaw or fact as to whether Defendant violated FACT A
as to Plaintiff and the class, and whether the violation was willful; (c) Plaintiff's claim
is typical because she received a transaction receipt that allegedly violates FACT A in
the same manner as the class members' alleged receipts, and seeks statutory damages;
( d) Plaintiff and her counsel will fairly and adequately represent the class; ( e) the
common questions presented predominate over any alleged individual questions, and (f)
this proposed class action settlement is a superior method for resolving the case ..
5. Attorneys Keith J. Keogh, Michael S. Hilicki, Bryant T. Lamer, Kris
Skaar, and Justin Holcombe are hereby appointed Class Counsel.
II. NOTICE TO CLASS MEMBERS
6. The Court has considered the proposed f01ms of notice including the
Mail Notice and Long Form Notice (attached as Appendix 6 and Appendix 7 to the
Motion for Preliminary Approval) and the Settlement Claim Form (attached as
Appendix 8 to the Motion for Preliminary Approval), and finds that the forms, content,
and manner of notice proposed by the Parties and approved herein meet the
3 108499
requirements of due process and O.C.G.A. § 9-l l-23(c)(2), are the best notice
practicable under the circumstances, constitute sufficient notice to all persons entitled
to notice, and satisfy the Constitutional requirements of notice. The Court approves
the notice program in all respects (including the proposed forms of notice and claim
form), and orders that notice be given in substantial conformity therewith. The notice
program shall commence by the "Notice Deadline" below. The costs of preparing,
printing, publishing, mailing, and otherwise disseminating the notice shall be paid
from the Settlement Fund in accordance with the Agreement.
7. The Court appoints Kurtzman Carson Consultants LLC ("KCC") as
Claims Administrator. Responsibilities of the Claims Administrator shall include
the following: (a) arranging for distribution of the Class Notice and Settlement Claim
Forms to Settlement Class Members; (b) making any mailings to Settlement Class
Members required under the terms of the Agreement; (c) answering written and
telephonic inquiries from Settlement Class Members and/or forwarding such inquiries
to Class Counsel or their designee; (d) receiving and maintaining on behalf of the
Court and the Parties any Settlement Class Member correspondence regarding
requests for exclusion from the Settlement; (e) establishing the Settlement Website
that posts notices and other pertinent documents; (f) receiving and processing
Settlement Claim Forms from and distributing Settlement payments to Settlement
4 108499
Class Members; (g) paying from the Settlement Fund all disbursements required by
the terms of the Settlement or ordered by the Court, as well as any fees and costs
incurred or due to banks, credit card processing companies, or others for responding
to subpoenas to locate or identify the Settlement Class Members; and (h) otherwise
assisting with implementation and administration of the terms of the Agreement.
III. REQUESTS FOR EXCLUSION FROM THE CLASS
8. A Settlement Class Member who wishes to be excluded from the
Settlement Class shall mail a written Request For Exclusion to the Claims
Administrator no later than the "Opt-Out and Objection Deadline" below, and shall
clearly: (a) state the case name and number; (b) state the name and address of the
Settlement Class Member; (c) be personally signed by the Settlement Class Member
requesting exclusion; and ( d) contain a statement that indicates a desire to be excluded
from the Settlement Class in the Litigation, such as "I hereby request that I be
excluded from the proposed Settlement Class in Altman v. White House Black Market,
Inc."
9. Any Settlement Class Member who does not properly and timely mail a
Request For Exclusion as set forth above shall remain a member of the Settlement
Class and shall be bound by all the terms and provisions of the Agreement, including
the Release and the Order of Final Approval, whether or not such Settlement Class
s 108499
Member received actual notice of or objected to the Class Settlement, and whether or
not such Settlement Class Member makes a claim upon or participates in the Class
Settlement.
IV. OBJECTIONS
10. Objections must be received by the "Opt-Out and Objection Deadline"
below. To be valid, the objection must: (a) state the case name and number; (b)
state the name and address of the objecting Settlement Class Member and, if
represented by counsel, of his or her counsel; ( c) state the specific grounds for each
objection raised; (d) state whether the Settlement Class Member intends to appear at
the Final Approval Hearing, either with or without counsel; (e) provide any
documentation in support of each objection raised; (f) state the date of the transaction
for which the Settlement Class Member was provided a receipt containing the first six
and last four digits of his or her debit or credit card, and the location of the store that
generated the receipt; and (g) state the first six and last four digits of the card used in
the transaction (this information may be redacted in the court-filed copy of the
objection). Any objection not made in the manner described in the Class Notice and
this paragraph shall be deemed forfeited.
V. PROOFS OF CLAIM
11. To effectuate the Agreement, Class Settlement, and the provisions of the
6 108499
Class Notice program, the Claims Administrator shall be responsible for the receipt of
all Requests for Exclusion and Settlement Claim Forms. The Claims Administrator
shall preserve, on paper or transfe1Ted into electronic format, all Requests for
Exclusion, Settlement Claim Forms, and any and all other written communications
from Settlement Class Members •in response to the Class Notice for a period of five
(5) years, or pursuant to further order of the Comt. All written communications
received by the Claims Administrator from Settlement Class Members relating to the
Agreement shall be available at reasonable times for inspection and copying by Class
Counsel and Counsel for White House Black Market, including prior to payments
being mailed to each Settlement Class Member.
12 In order to be entitled to participate m the Class Settlement, if
effectuated m accordance with all of the terms and conditions set forth in the
Agreement, each Settlement Class Member shall take the following actions and be
subject to the following requirements:
108499
A. A Settlement Class Member who wishes to receive a distribution
from the Settlement Fund must submit a timely, properly-executed Settlement
Claim Form to the Claims Administrator on or before the "Claims Deadline"
below. If submitted by regular mail to the address indicated in the Class Notice,
the Settlement Claim Form shall be deemed to have been submitted as of the
7
108499
date postmarked. If transmitted in any manner other than regular mail, the
Settlement Claim F01m shall be deemed to have been submitted on the date
received by the Claims Administrator;
B. Except as provided herein, a valid Settlement Claim Form must
contain the following information: (a) Settlement Class Member's name; (b)
Settlement Class Member's physical mailing address; and (c) the signature of
the Settlement Class Member or his or her authorized agent. The Settlement
Claim Form will also solicit the Settlement Class Member's telephone number
and email address, but this information is not required to submit a claim. The
Settlement Website claim form will prepopulate the Settlement Class Member's
name and address information as available for persons who first enter their claim
ID, and will ask them to update or correct any informat.ion.
C. Each Settlement Claim Form shall be submitted to and reviewed by
the Claims Administrator, who shall make a recommendation about which
claims should be allowed;
D. Any person to whom a Mail Notice is not sent and who claims
that between March 23, 2015 and July 17, 2015, a White House Black Market
store provided them a receipt containing the first six and last four digits of their
debit or credit card number, and who submits along with his or her Settlement
8
108499
Claim Form a sworn statement itemizing the store(s) that provided each such
receipt(s), the date(s) when each such receipt was provided, and the first six/last
four digits of the credit/debit card used in the transaction shall, after the Claims
Administrator validates that the transaction(s), according to records of White
House Black Market, occmTed at a White House Black Market store on a date
that that store was printing receipts that contained the first six and last four digits
of debit and credit card numbers, be entitled to a pro rata distribution in the same
amount as Settlement Class Members to whom the Claims Administrator
distributed notice by mail. A person whose Settlement Claim Form does not
identify a transaction that occurred at a White House Black Market store during
the time period that the store was printing receipts that contained the first six and
last four digits of debit and credit card numbers (if any) is not a Settlement Class
Member;
E. The Claims Administrator will notify each person who filed a
Settlement Claim Form of any recommendation of disallowance of the claim,
and set forth the reasons for any such disallowance. Settlement Class Members
shall be permitted a reasonable period of time to cure any deficiency. A copy of
such notification shall also be sent by the Claims Administrator to Class
Counsel; and
9
F. Settlement Class Members who do not submit a timely and valid
Settlement Claim Form shall not be entitled to receive a distribution.
VI. CONFIDENTIALITY
13. If Plaintiff subpoenas any non-party for information about the Settlement
Class Members, such as identifying or contact information, that information shall be
treated as Confidential under the terms of the Protective Order, except that Plaintiff
may share that information with the Claims Administrator and any bank or other third
party to facilitate the process of identifying or locating class members. Likewise,
Plaintiff may share Settlement Class Member transaction and identifying information
otherwise obtained in this lawsuit with the Claims Administrator and any bank or other
third party to facilitate identifying and locating Settlement Class Members. Any
information independently received by the Claims Administrator that pertains to a
paiiicular Settlement Class Member shall not be disclosed to any other person or entity
other than Class Counsel, Counsel for White House Black Market, or the Court, and
shall otherwise be treated as provided for in the Agreement.
IO !08499
VII. FAIRNESSHEARING
14. A hearing on final settlement approval (the "Fairness Hearing") will be
held on November 8, 2021 at 9:00 AM, in Room 3A of the State Court of Cobb County,
Georgia, 12 E Park Square, Marietta, GA 30090, to consider, inter alia: (a) determining
the fairness, adequacy, and reasonableness of the Agreement and the Settlement
pursuant to O.C.G.A. § 9-l l-23(e), applicable law, and other procedural rules or and
requirements; and (b) entering the Order of Final Approval.
15. No later than the deadline for distribution of Class Notice below, any
petition for an award of attorneys' fees and expenses in connection with the Settlement
shall be filed with the Court.
16. No later than the deadline stated below, Class Counsel shall file with the
Court any memoranda or other materials in support of final approval of the Agreement
and Class Settlement.
17. Any Settlement Class Member who has not filed a Request for Exclusion
in the manner set forth above and who also has timely filed an objection may appear
at the Fairness Hearing in person or by counsel and may be heard to the extent allowed
by the Court. However, no person shall be heard in opposition to the Agreement and
Class Settlement, or any motion for attorneys' fees and expenses, and no papers or
briefs submitted by or on behalf of any such person shall be accepted or considered
11 108499
by the Court, unless that person files such papers and briefs with the Court and serves
them upon Class Counsel and Counsel for White House Black Market, Inc. by the
Opt-Out and Objection Deadline. Any person who files an objection to any matter
relating to the Settlement shall be subject to the jurisdiction of this Court. Settlement
Class Members who fail to object in the manner and by the dates provided herein shall
be deemed to have waived and shall forever be foreclosed from raising any objection
to any matter relating to the Settlement.
18. Any Settlement Class Member may hire an attorney at his or her or its
own expense to appear in the action. Such attorney shall serve a Notice of Appearance
on the Counsel listed above, and file it with the Court, at least 14 days before the
Fairness Hearing.
19. The date and time of the Fairness Hearing shall be set forth in the Mail
Notice, Long Form Notice, and on the Settlement Website, but shall be subject to
adjournment (or to being held by Zoom instead) by the Court without further notice
to the Settlement Class Members other than that which may be posted at the Court, on
the Court's Website, and/or the Settlement Website.
20. The following summarize the deadlines stated above for issuing notice
and submitting claims and objections:
12 108499
August 4, 2021 Deadline for notice of the Settlement to be sent to the (21 days after grant of Settlement Class Members preliminary approval)
August 4, 2021 Any petition for an award of attorneys' fees and (21 days after grant of expenses shall be filed
preliminary approval)
October 4, 2021 Deadline for Settlement Class Members to request (60 days after deadline to exclusion or file objections (Opt-Out and Objection mail notice) Deadline)
October 4, 2021 Deadline for Settlement Class Members to submit a ( 60 days after deadline to Settlement Claim Form (Claim Deadline) mail notice)
October 25, 2021 Deadline for Parties to file the following: (21 days after the (I) List of persons who made timely and proper objection/claim deadline) Requests for Exclusion (under seal);
(2) Proof of Class Notice; and (3) Motion and memorandum in support of final approval, including responses to any objections.
December 7, 2021 at 9:00 Fairness Hearing
.!!..:.!!!.,_
(35 days after obiection/claim deadline)
DONE and ORDERED this 14th day of July, 2021.
JUDGE ALLISON B. SALTER
cc: counsel of record
13 108499
CERTIFICATE OF SERVICE
I hereby certify that I have this day served true and exact copies of the foregoing
ORDER
(through the Cobb County Email system), to the following:
Justin Holcombe, Esq. [email protected]
Michael Hilicki, Esq. [email protected]
Keith Keogh, Esq. [email protected]
Lamar Bryant, Esq. [email protected]
Barry Goheen, Esq. [email protected]
Kris K. Skaar, Esq. [email protected]
This I~ ,tlday of July, 2021.
/s/ Ericka Kemp Ericka Kemp, Judicial Administrative Specialist State Court of Cobb County, Cobb Judicial Circuit
APPENDIX 3
113063
IN THE STATE COURT OF COBB COUNTY STATE OF GEORGIA
JILL ALTMAN, on behalf of :herself and all others similarly situated, :
: Civil Action File No. 21-A-735Plaintiff, :
: CLASS ACTIONv. :
:WHITE HOUSE BLACK MARKET, INC., : Judge Salter
:Defendant. :
:
AFFIDAVIT OF KEITH J. KEOGH
I, Keith J. Keogh, state:
1. I am over the age of eighteen and am fully competent to make this
declaration. This declaration is based upon my personal knowledge and if called
upon to testify to the matters stated herein, I could and would do so competently.
2. As shown below, my firm has regularly engaged in major complex
litigation involving the Fair and Accurate Credit Transactions Act, 15 U.S.C.
§1681c(g) (“FACTA”), and other consumer issues. My firm has the resources
necessary to conduct complex class litigation, and experience prosecuting class
actions of similar size, scope, and complexity to the instant case.
3. Keogh Law, Ltd. consists of six attorneys and focuses on consumer
protection class actions. I am a shareholder of the firm and member of the bars of
the United States Court of Appeals for the First, Second, Third, Fifth, Seventh, Ninth
2
and Eleventh Circuits, Eastern District of Wisconsin, Northern District of Illinois,
Central District of Illinois, Southern District of Indiana, District of Colorado, Middle
District of Florida, Southern District of Florida, the Illinois State Bar, and the Florida
State Bar, as well as several bar associations and the National Association of
Consumer Advocates.
4. Keogh Law has been class counsel in some of the largest all-cash class
action settlements involving FACTA, an anti-identity theft law that aims to protect
the privacy of sensitive personal financial information. Flaum v Doctors Associates,
16-CV-61198-CMA (S.D. Fla. Mar. 11, 2019) ($30.9 million); Legg v. Laboratory
Corporation of America Holdings, No. 14-cv-61543-RLR (S.D. Fla. Feb. 18, 2016)
($11 million); Legg v. Spirit Airlines, Inc., No. 14-cv-61978-JIC (S.D. Fla. Aug. 2,
2016) ($7.5 million dollars).
5. The firm also was class counsel in two of the largest Telephone
Consumer Protection Act (“TCPA”) settlements in the country. See Hageman v.
AT&T Mobility LLC, et al., Case 1:13-cv-00050-DLC-RWA (D. MT.) (Co-Lead)
(Final Approval Granted February 11, 2015 providing for a $45 million settlement
for a class of 16,000 persons) and Capital One Telephone Consumer Protection Act
Litigation, et al., 12-cv-10064 (N.D. Ill. Judge Holderman) (Liaison Counsel and
additional Class Counsel)(Final Approval Granted February 12, 2015 for a $75
million settlement).
3
6. In addition to the above, the firm was lead or class counsel in the
following class settlements: Braver v. Northstar Alarm Services, LLC, No. 5:17-cv-
00383-F (W.D. Okla. Nov. 3, 2020) (TCPA); Goel v. Stonebridge of Arlington
Heights, et al., 2018 CH 11015 (Cir. Ct. Cook Cty. Jun. 8, 2020); Cook v. Wal-Mart
Stores, Inc., et al., No. 3:16-cv-673-BRD-JRK (M.D. Fla. Jun. 4, 2020) (TCPA);
Cranor v. The Zack Group, Inc., No. 4:18-cv-00628-FJG (W.D. Mo. May 18, 2020)
(TCPA); Keim v. ADF MidAtlantic, LLC, 2018 U.S. Dist. LEXIS 204548 (S.D. Fla.
Mar. 20, 2020) (TCPA); Guarisma v. Alpargatas USA, Inc. d/b/a Havaianas, Case
No. 1:18-cv-24351-JEM (S.D. Fla. Feb. 27, 2020) (FACTA) (preliminary approval);
Hennessy, et al. v. Mid-America Apartment Communities, Inc., et al., 4:17-cv-
00872-BCW (W.D. Mo. Aug. 8, 2019); Detter v. KeyBank, N.A., No. 1616-cvl0036
(Jackson Cty., Mo. July 12, 2019) (FCRA); Leung v XPO Logistics, Inc., 15 CV
03877 (N.D. Ill. 2018) (TCPA); Martinez v. Medicredit, 4:16CV01138 ERW (E.D.
Mo. 2018) (TCPA); Martin v. Wells Fargo Bank, N.A., 16-cv-09483 (N.D. Ill. 2018)
(FCRA); Town & Country Jewelers, LLC v. Meadowbrook Insurance Group, Inc.,
et al, 15-CV-02419-PGS-LHG (D. N.J. 2018)(TCPA); Legg v. Am. Eagle Outfitters,
2017 U.S. Dist. LEXIS 147645 (S.D.N.Y. Sept. 8, 2017), aff’d 923 F.3d 85 (2d Cir.
2019) (TCPA); Stahl v. RMK Mgmt. Corp., 2015 CH 13459 (Cir. Ct. Cook Cty. Sept.
14, 2017); Tripp v. Berman & Rabin, P.A., 2017 U.S. Dist. LEXIS 3971 (D. Kan.
Jan. 9, 2017); Markos v Wells Fargo, 15-cv-01156-LMM (N.D. Ga.) (TCPA);
4
Ossola v Amex 1:13-cv-04836 (N.D. Ill. 2016) (TCPA); Luster v. Wells Fargo, 15-
1058-TWT (N.D. Ga.) (TCPA); Prather v Wells Fargo, 15-CV-04231-SCJ (ND.
Ga) (TCPA); Joseph et al. v. TrueBlue, Inc. et al., Case No. 3:14-cv-05963 (D. Wa.)
(TCPA); Willett, et al. v. Redflex Traffic Systems, Inc., et al., Case No. 13-cv-01241-
JCH-RHS; In re Convergent Outsourcing, Inc. Telephone Consumer Protection Act
Litigation, Master Docket No. 3:13-cv-1866-AWT (D. Conn) (Interim Co-Lead); De
Los Santos v Millword Brown, Inc., 9:13-cv-80670-DPG (S.D. Fla.) (TCPA); Allen
v. JPMorgan Chase Bank, N.A. 13-cv-08285 (N.D. Ill. Judge Pallmeyer) (TCPA);
Cooper v NelNet, 6:14-cv-314-Orl-37DAB (M.D. Fl.) (TCPA); Thomas v
Bacgroundchecks.com, 3:13-CV-029-REP (E.D. Va.) (additional class counsel);
Lopera v RMS, 12-c-9649 (N.D. Ill. Judge Wood); Kubacki v Peapod, 13-cv-729
(N.D. Ill. Judge Mason); Wojcik v. Buffalo Bills, Inc., 8:12 CV 2414-SDM-TBM
(M.D. Fla. Judge Merryday) (TCPA); Curnal v. LVNV Funding, LLC., 10 CV
1667 (Wyandotte County, KS 2014) (Unlicensed debt collector under KS law);
Cummings v Sallie Mae, 12 C-9984 (N.D. Ill. Judge Gottschall) (TCPA) (co-lead);
Brian J. Wanca, J.D., P.C. v. L.A. Fitness International, LLC, Case No. 11-CV-4131
(Lake County, Ill. Judge Berrones) (TCPA); Osada v. Experian Info. Solutions, Inc.,
2012 U.S. Dist. LEXIS 42330 (N.D. Ill. Mar. 28, 2012) (FCRA class); Saf-T-Gard
International, Inc. v. Vanguard Energy Services, L.L.C., et al, 12-cv-3671 (N.D.
Ill. 2013 Judge Gottschall) (TCPA); Saf-T-Gard v TSI, 10-c-7671, (N.D. Ill. Judge
5
Rowland) (TCPA); Cain v Consumer Portfolio Services, Inc. 10-cv-02697 (N.D. Ill.
Judge Keys) (TCPA); Iverson v Rick Levin & Associates, 08 CH 42955 Circuit Court
Cook County (Judge Cohen) (TCPA); Saf-T-Gard v Seiko, 09 C 776 (N.D. Ill. Judge
Bucklo) (TCPA); Jones v. Furniture Bargains, LLC, 09 C 1070 (N.D. Ill) (FLSA
collective action); Saf-T-Gard v Metrolift, 07 CH 1266 Circuit Court Cook County
(Judge Rochford) (Co-Lead) (TCPA); Bilek v Countrywide, 08 C 498 (N.D. Ill.
Judge Gottschell); Pacer v. Rochenback, 07 C 5173 (N.D. Ill. Judge Cole); Overlord
Enterprises v. Wheaton Winfield Dental Associates, 04 CH 01613, Circuit Court
Cook County (Judge McGann) (TCPA); Whiting v. SunGard, 03 CH 21135, Circuit
Court Cook County (Judge McGann) (TCPA); Whiting v. Golndustry, 03 CH 21136,
Circuit Court Cook County (Judge McGann) (TCPA).
7. In addition, I was the attorney primarily responsible for the following
class settlements: Wollert v. Client Services, 2000 U.S. Dist. LEXIS 6485 (N.D. Ill.
2000); Rentas v. Vacation Break USA, 98 CH 2782, Circuit Court of Cook County
(Judge Billik); McDonald v. Washington Mutual Bank, supra; Wright v. Bank One
Credit Corp., 99 C 7124 (N.D. Ill. Judge Guzman); Arriaga v. Columbia Mortgage,
01 C 2509 (N.D. Ill. Judge Lindberg); Frazier v. Provident Mortgage, 00 C 5464
(N.D. Ill. Judge Coar); Largosa v. Universal Lenders, 99 C 5049 (N.D. Ill. Judge
Leinenweber); Arriaga v. GNMortgage, (N.D. Ill. Judge Holderman); Williams v.
Mercantile Mortgage, 00 C 6441 (N.D. Ill. Judge Pallmeyer); Reid v. First American
6
Title, 00 C 4000 (N.D. Ill. Magistrate Judge Ashman); Fabricant v. Old Kent, 99 C
6846 (N.D. Ill. Magistrate Judge Bobrick); Mendelovits v. Sears, 99 C 4730 (N.D.
Ill. Magistrate Judge Brown); Leon v. Washington Mutual, 01 C 1645 (N.D. Ill.
Judge Alesia).
Case History
8. Ms. Altman originally filed suit in the Northern District of Georgia
federal court on July 8, 2015. Defendant White House Black Market (“WHBM”)
moved to dismiss asserting Ms. Altman lacked standing to sue under Article III of
the United States Constitution because WHBM’s alleged actions did not cause her
an Article III injury. Id. After full briefing, the magistrate wrote a report and
recommendation that the court grant the motion but, after considering Ms. Altman’s
written objections to the report, the court found she satisfied Article III and denied
the motion. Altman v. White House Black Market, Inc., 2016 U.S. Dist. LEXIS
92761 (N.D. Ga. Jul. 13, 2016).
9. Extensive discovery followed. Plaintiff’s counsel obtained and
analyzed more than seventy thousand pages of documents from WHBM and its non-
party software vendor Fujitsu, made several successful requests to compel discovery,
and took more than ten depositions, including depositions of two non-party fact
witnesses and WHBM’s expert. In addition, Ms. Altman appeared for deposition,
and her counsel prepared and presented Plaintiff’s expert.
7
10. Ms. Altman moved for class certification, which was fully briefed and
argued to the magistrate, who wrote a lengthy report and recommendation that the
motion be granted. Altman, 2017 U.S. Dist. LEXIS 221939 (N.D. Ga. Oct. 25, 2017).
WHBM filed written objections to the report, but the court agreed the class satisfied
Federal Rule 23, and granted class certification. Altman, 2018 U.S. Dist. LEXIS
169828 (N.D. Ga. Feb. 12, 2018). WHBM sought leave to appeal this decision to the
Eleventh Circuit but, on April 11, 2018, the Court ruled the decision to certify the
class did not merit review.
11. In February 2018, during the class proceedings above, the parties met
to discuss a resolution of the case with the assistance of a well-respected third-party
neutral, Hunter Hughes. This included preparing detailed case memoranda and
attending a full-day mediation with Mr. Hughes in Atlanta. The parties did not reach
an agreement at mediation, but continued to discuss settlement thereafter.
12. On March 9, 2018, WHBM filed a renewed motion to dismiss or
alternatively for summary judgment based on the federal Article III standing
argument it had raised earlier in the case. However, instead of deciding that motion,
the court reconsidered its earlier denial of WHBM’s motion for leave to seek an
interlocutory appeal of the federal standing issue, granted it, and stayed proceedings
pending the Eleventh Circuit’s ruling on the petition.
8
13. Prior to the stay, WHBM separately moved for summary judgment
arguing Plaintiff and the Class could not prove WHBM’s alleged FACTA violations
were “willful” which, as noted, is required to establish liability for statutory
damages. That motion was never decided in light of the parties’ Settlement.
14. On April 23, 2018, WHBM filed its petition for interlocutory appeal
with the Eleventh Circuit, which the parties briefed. On June 29, 2018, the Eleventh
Circuit ordered the petition be held in abeyance pending that court’s resolution of a
different appeal, Muransky v. Godiva Chocolatier, Inc., which presented the same
federal Article III standing question WHBM raised in this case.
15. The parties continued their settlement talks during this time and, on July
7, 2018, they reached an agreement in principle to settle the case on a classwide
basis. Thereafter the parties negotiated the terms of the class settlement agreement,
which they finalized and filed with the federal court on October 22, 2018.
16. Under the Agreement, WHBM will pay One and a Half Million Dollars
($1,500,000.00) into a Settlement Fund for customers who made a debit or credit
card purchase at a WHBM store during the time WHBM’s stores were generating
receipts that displayed more than the last five digits of the customer’s card number.
17. The federal court deferred consideration of the settlement pending the
Eleventh Circuit’s resolution of the federal Article III standing issue in Muransky,
above. After several years and multiple rounds of briefing and argument, a divided
9
Eleventh Circuit sitting en banc ruled a FACTA claim based on allegations
materially similar to those pled in Plaintiff’s complaint does not satisfy the “injury”
requirement needed for Article III standing, meaning a federal court presented with
such a case does not have subject matter jurisdiction to adjudicate it. See Muransky
v. Godiva Chocolatier, Inc., 979 F.3d 917 (11th Cir. 2020).
18. Accordingly, Plaintiff determined the proper course was to re-file the
case and present of the Settlement for approval in this Court. Specifically, Plaintiff
determined federal Article III standing rules do not affect this Court’s jurisdiction
because “the constraints of Article III do not apply to state courts, and accordingly
the state courts are not bound by the limitations of a case or controversy or other
federal rules of justiciability even when they address issues of federal law.”
ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989); see also Miranda v. Magic
Mountain, LLC, 2018 U.S. Dist. LEXIS 12436, *7 (C.D. Cal. Jan. 25, 2018) (“While
it may strike some as nonsensical that a state court has jurisdiction to adjudicate a
federal claim when a federal court does not, this is in fact a notable quirk of the
United States federalist system.”). Furthermore, Plaintiff determined it is the law of
this State that a violation of one’s rights, by itself, is an injury sufficient to bring suit
in this State’s courts. Land v. Boone, 265 Ga. App. 551, 553-54 (Ga. App. 2004)
(“The law tolerates no further inquiry than whether there has been the violation of a
right. If so, the party injured is entitled to maintain his action …”); and see, e.g.,
10
Earthlink, Inc. v. Eaves, 293 Ga. App. 75, 78 (2008) (plaintiff had standing to sue
on account of an allegedly illegal charge to his credit card even though he never had
to pay it because merchant credited it back).
19. Therefore, Plaintiff re-filed suit in this Court to seek re-certification of
the Settlement Class and approval of the Settlement.
20. On a per-class member basis, a $1.5 million all-cash settlement for
approximately 230,000 class members exceeds many FACTA class settlements that
have been granted approval, which commonly provided coupons or the equivalent.
Moreover, each class member who submits a valid claim is expected to receive
approximately $55.00 at a five percent claim rate, and $27.50 at a ten percent claim
rate, whereas FACTA provides $100 to $1,000 if willfulness is proven, and it is
plausible the fact finder would award damages at the low end of that range ($100)
for a claim based on receiving a transaction receipt. Thus, the anticipated recovery
per class member is still a significant portion of the likely potential statutory
damages recoverable were the case to be successfully litigated to judgment
21. Based on the above, plus the hurdles that remained to be cleared if the
case were to continue to be litigated (including summary judgment, trial, and any
appeal), and the defenses raised (particularly WHBM’s claim that the alleged
FACTA violations stem from the acts of a third party vendor, which can have a
11
significant adverse impact on the ability to prove willfulness), I am convinced the
Settlement is fair and in the class members’ best interests.
22. To prosecute this matter, my firm has incurred $35,443.47 in expenses,
detailed below, which I believe are reasonable and necessary for the prosecution of
this case:
Date Description Amount5/18/2017 Don Coker (expert) Retainer 8,000.006/30/2017 Invoice for services from Coker 3,712.507/28/2017 Invoice for services from Coker 1,123.15
10/17/2017 FedEx Dep Exhibits to NC 35.0010/18/2017 MSH Flight for Fujitsu dep 910.3510/18/2017 MSH Taxi for Fujitsu dep 150.5710/18/2017 MSH Hotel for Fujitsu dep 245.8910/19/2017 KJK Taxi from airport for class hearing 40.0010/19/2017 KJK Flight for class hearing 573.4010/20/2017 KJK Uber home from class hearing trip 53.8810/20/2017 KJK Hotel for class hearing 326.4810/26/2017 Invoice for Fujitsu dep 1,122.8111/6/2017 Invoice for Complete Legal Services, Hosting Service for Data Production 375.00
11/24/2017 Martinez-Ferris dep invoice 680.0011/29/2017 Holland dep invoice 2,592.8911/30/2017 Complete Legal Services Invoice, Hosting Service for Data Production 239.3912/4/2017 MSH Airfaire for Ft. Myers depositions 511.4012/4/2017 MSH Taxi for Ft. Myers depositions 114.5212/4/2017 MSH Hotel for Ft. Myers depositions 348.7412/4/2017 Jubert dep. invoice 1,477.33
12/18/2017 Mediation fees 3,125.001/18/2018 MSH Flight for DC expert dep 618.601/18/2018 MSH Taxi for DC expert dep 107.681/18/2018 MSH Hotel for DC expert dep 263.061/22/2018 Invoice for reporter appearance and copies for Lisker expert dep 473.761/30/2018 Complete Legal Services Invoice, Hosting Service for Data Production 82.201/30/2018 Complete Legal Services Invoice, Hosting Service for Data Production 75.002/6/2018 Invoice for service of subpoena on third-party deponent Faw 171.00
2/11/2018 Cab in Atlanta for Mediation 45.002/11/2018 Transportation in Atlanta 15.94
12
2/11/2018 KJK Flight for mediation 278.602/11/2018 MSH Flight for mediation 312.592/11/2018 MSH Hotel for mediation 253.002/12/2018 Uber to Airport after mediation 39.512/12/2018 KJK Hotel for mediation 215.422/12/2018 KJK airport parking for mediation 60.002/26/2018 MSH Flight for Faw dep 514.112/26/2018 MSH Taxi for Faw dep 91.422/28/2018 MSH Hotel for Faw dep 192.223/7/2018 Invoice for Reporter appearance and copies for Faw dep 363.04
3/25/2018 Joel Lisker invoice for dep 3,000.004/19/2018 Don Coker Invoice for expert services 1,361.254/30/2018 Complete Legal Services Invoice, Hosting Service for Data Production 75.006/17/2018 Complete Legal Services Invoice, Hosting Service for Data Production 132.508/15/2018 Complete Legal Services Invoice, Hosting Service for Data Production 384.273/3/2021 KJK Pro Hac Fee for Georgia State Court 275.003/3/2021 MSH Pro Hac Fee for Georgia State Court 275.00
TotalExpenses:35,433.47
23. Some reported cases of the firm involving consumer protection include: Cranor v.
5 Star Nutrition, L.L.C., 998 F.3d 686 (5th Cir. 2021); Breda v. Cellco P’ship, 934 F.3d 1 (1st Cir.
2019); Evans v. Portfolio Recovery Assocs., 889 F.3d 337 (7th Cir. 2018); Susinno v. Work Out
World Inc., 862 F.3d 346, 351 (3rd Cir. 2017) (finding a “nuisance and invasion of privacy
resulting from a single prerecorded telephone call”); Franklin v. Parking Revenue Recovery Servs.,
832 F.3d 741 (7th Cir. 2016); Leeb v. Nationwide Credit Co., 806 F.3d 895 (7th Cir. 2015); Galvan
v. NCO Portfolio Mgmt. Inc., 794 F.3d 716, 721 (7th Cir. 2015); Smith v. Greystone, 772 F.3d 448
(7th Cir. 2014); Clark v Absolute Collection Agency, 741 F.3d 487 (4th 2014); Lox v. CDA, Ltd.,
689 F.3d 818 (7th Cir. 2012); Townsel v. DISH Network L.L.C., 668 F.3d 967 (7th Cir. Ill. 2012);
Catalan v. GMAC Mortgage Corp., No. 09-2182 (7th Cir. 2011); Gburek v. Litton Loan, 614 F.3d
380 (7th Cir. 2010); Sawyer v. Ensurance Insurance Services consolidated with Killingsworth v.
13
HSBC Bank Nev., NA., 507 F3d 614, 617 (7th Cir. 2007), Echevarria et al. v. Chicago Title and
Trust Co., 256 F3d 623 (7th Cir. 2001); Demitro v. GMAC, 388 Ill. App. 3d 15, 16 (1st Dist. 2009);
Hill v. St. Paul Bank, 329 Ill. App. 3d 7051, 1768 N.E.2d 322 (1st Dist. 2002); In re Mercedes-
Benz Tele Aid Contract Litig., 2009 U.S. Dist. LEXIS 35595 (D.N.J. 2009); Catalan v. RBC Mortg.
Co., 2009 U.S. Dist. LEXIS 26963 (N.D. Ill. 2009); Elkins v. Equifax, Inc., 2009 U.S. Dist. LEXIS
18522 (N.D. Ill. 2009); Harris v. DirecTV Group, Inc., 2008 U.S. Dist. LEXIS 8240 (N.D. Ill.
2008); In re TJX Cos., Inc., Fair & Accurate Credit Transactions Act (FACTA) Litig., 2008 U.S.
Dist. LEXIS 38258 (D. Kan. 2008); Martin v. Wal- Mart Stores, Inc., 2007 U.S. Dist. LEXIS
89715 (N.D. Ill. 2007); Elkins v. Ocwen Fed. Sav. Bank Experian Info. Solutions, Inc., 2007 U.S.
Dist. LEXIS 84556 (N.D. Ill. 2007); Harris v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 76012
(N.D. Ill. 2007); Stegvilas v. Evergreen Motors, Inc., 2007 U.S. Dist. LEXIS 35303 (N.D. Ill.
2007); Cook v. River Oaks Hyundai, Inc., 2006 U.S. Dist. LEXIS 21646 (N.D. Ill. 2006); Gonzalez
v. W. Suburban Imps., Inc., 411 F. Supp. 2d 970 (N.D. Ill. 2006); Eromon v. GrandAuto Sales,
Inc., 333 F. Supp. 2d 702 (N.D. Ill. 2004); Williams v. Precision Recovery, Inc., 2004 U.S. Dist.
LEXIS 6190 (N.D. Ill. 2004); Doe v. Templeton, 2003 U.S. Dist. LEXIS 24471 (N.D. Ill. 2003);
Ayala v. Sonnenschein Fin. Servs., 2003 U.S. Dist. LEXIS 20148 (N.D. Ill. 2003); Gallegos v.
Rizza Chevrolet, Inc., 2003 U.S. Dist. LEXIS 18060 (N.D. Ill. 2003); Szwebel v. Pap’s Auto Sales,
Inc., 2003 U.S. Dist. LEXIS 13044 (N.D. Ill. 2003); Johnstone v. Bank of America, 173 F. Supp.2d
809 (N.D. Ill. 2001); Leon v. Washington Mutual Bank, 164 F. Supp.2d 1034 (N.D. Ill. 2001);
Ploog v. HomeSide Lending, 2001 WL 987889 (N.D. Ill. 2001); Christakos v. Intercounty Title,
196 F.R.D. 496 (N.D. Ill. 2000); Batten v. Bank One, 2000 WL 1364408 (N.D. Ill. 2000);
McDonald v. Washington Mutual Bank, 2000 WL 875416 (N.D. Ill. 2000); and Williamson v.
Advanta Mtge Corp., 1999 U.S. Dist. LEXIS 16374 (N.D. Ill. 1999). The Christakos case
14
significantly broadened title and mortgage companies’ liability under Real Estate Settlement
Procedures Act (“RESPA”) and McDonald is the first reported decision to certify a class regarding
mortgage servicing issues under the Cranston-Gonzales Amendment of RESPA.
24. My published works include co-authoring and co-editing the 1997
supplement to Lane’s Goldstein Trial Practice Guide and Lane’s Medical Litigation
Guide.
25. I have lectured extensively on consumer litigation. For example:
a. Presented at the 2018 Fair Debt Collection Training Conference for two
sessions on the TCPA.
b. Presented at the National Consumer Law Center 2017 annual conference on
the TCPA.
c. Presented at the National Consumer Law Center 2016 annual conference on
the TCPA.
d. Presented at the 2016 Fair Debt Collection Training Conference for a session
on TCPA
Developments.
e. Presented for the National Association of Consumer Advocates November
2015 webinar titled Developments and Anticipated Impact of Recent FCC
TCPA Rules.
f. Presented at the National Consumer Law Center 2015 annual conference in
San Antonio, Tx. on the TCPA.
15
g. Presented at the 2015 Fair Debt Collection Training Conference for three
sessions on the TCPA.
h. Presented at the National Consumer Law Center 2014 annual conference in
Tampa Fl. for two sessions on the TCPA.
i. Panelist for the December 2013 Strafford CLE Webinar titled TCPA Class
Actions: Pursuing or Defending Claims Over Phone, Text and Fax
Solicitations.
j. Panelist for the December 2014 Chicago Bar Association Class Action
Seminar titled “Class Action Settlements in the Seventh Circuit: Navigating
Turbulent Waters.”
k. Presented at the 2014 Fair Debt Collection Training Conference for three
sessions on the TCPA.
l. Panelist for the December 2013 Strafford CLE Webinar titled Class Actions
for Telephone and Fax Solicitation and Advertising Post Mims. Leveraging
TCPI lectured at the 2014 Fair Debt Collection Training Conference for three
sessions on the TCPA.
m. Panelist for the December 2013 Strafford CLE Webinar titled Class Actions
for Telephone and Fax Solicitation and Advertising Post Mims. Leveraging
TCPA Developments in Federal Jurisdiction, Class Suitability, and New
Technology.
16
n. Presented for the National Association of Consumer Advocates November
2013 webinar titled Current Telephone Consumer Protection Act Issues
Regarding Cell Phones.
o. Presenter for the November 2013 Chicago Bar Association Class Action
Committee presentation titled Future of TCPA Class Actions.
p. Speaker at the Social Security Administration’s Chicago office in August
2013 on a presentation on identity theft, which included consumers’ rights
under the Fair Credit Reporting Act.
q. Panelist for the May 14, 2013 Chicago Bar Association Class Action Seminar
titled “The Shifting Landscape of Class Litigation” as well as for the March
20, 2013 Strafford CLE webinar titled “Class Actions for Telephone and Fax
Solicitation and Advertising Post Mims. Leveraging TCPA Developments in
Federal Jurisdiction, Class Suitability, and New Technology.”
r. Lectured at the June 6, 2013 Consumer Law Committee of the Chicago Bar
Association on the topic “Employment Background Reports under the Fair
Credit Reporting Act: Improper consent forms to failure to provide
background report prior to adverse action.”
s. Lectured at the 2013 Fair Debt Collection Training Conference for three
sessions on the TCPA.
17
t. Presented at the 2012 National Consumer Law Center annual conference for
a session on the TCPA.
u. Presented at the 2012 Fair Debt Collection Training Conference for a session
on the TCPA.
v. Panelist for Solutions for Employee Classification & Wage/Hour Issues at the
2011 Annual Employment Law Conference hosted by Law Bulletin Seminars.
w. Lectured at the 2011 National Consumer Law Center conference for a session
titled Telephone Consumer Protection Act: Claims, Scope, Remedies as well
as lectured at the same 2011 National Consumer Law Center conference for a
double session titled ABC’s of Class Actions.
x. Taught Defenses to Foreclosures for Lorman Education Services, which was
approved for CLE credit, in 2008 and 2010.
y. Guest lecturer on privacy issues at University of Illinois at Urbana-
Champaign School of Law. In March 2010.
z. Guest speaker for the Legal Services Office of The Graduate School and
Kellogg MBA Program at Northwestern University for its seminar titled:
“Financial Survival Guide: Legal Strategies for Graduate Students During A
Period of Economic Uncertainty.”
26. I was selected as an Illinois Super Lawyer in 2014-2021 and an Illinois
Super Lawyer Rising Star each year from 2008 through 2013 and my cases have
18
been featured in local newspapers such as the Chicago Tribune, Chicago Sun-Times,
The Naperville Sun, Daily Herald and RedEye.
Timothy J. Sostrin
27. Timothy J. Sostrin is a partner with the firm joining in 2011. He is a
member in good standing of the Illinois bar, the U.S. District Court District of
Colorado, U.S. District Court Northern District of Illinois, U.S. District Court
Northern and Southern Districts of Indiana, U.S. District Court Eastern and Western
Districts of Michigan, U.S. District Court Eastern District of Missouri, U.S. District
Court Southern District of Texas and U.S. District Court Eastern and Western
Districts of Wisconsin.
28. Timothy J. Sostrin has zealously represented consumers in Illinois and
in federal litigation nationwide against creditors, debt collectors, retailers, and other
businesses engaging in unlawful practices. Tim has extensive experience with
consumer claims brought under the Fair Debt Collection Practices Act, The
Telephone Consumer Protection Act, the Fair Credit Reporting Act, the Electronic
Fund Transfer Act, and Illinois law. Some of Tim’s representative cases include:
Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3rd Cir. 2017) (argued); Leeb
v. Nationwide Credit Co., 806 F.3d 895 (7th Cir. 2015) (argued); Osada v. Experian
Info. Solutions, Inc., 2012 U.S. Dist. LEXIS 42330 (N.D. Ill. Mar. 28, 2012)
(granting class certification); Galvan v. NCO Financial Systems, Inc., 2012 U.S.
19
Dist. LEXIS 128592 (N.D. Ill. 2012) (granting class certification); Saf-T-Gard
International, Inc. v. Vanguard Energy Services, LLC, 2012 U.S. Dist. LEXIS
174222 (N.D. Ill. Dec. 6, 2012) (granting class certification); Jelinek v. The Kroger
Co., 2013 U.S. Dist. LEXIS 53389 (N.D. Ill. 2013) (denying defendant’s motion to
dismiss); Hanson v. Experian Information Solutions, Inc., 2012 U.S. Dist. LEXIS
11450 (N.D. Ill. January 27, 2012) (denying defendant’s motion for summary
judgment); Warnick v. DISH Network, LLC, 2013 U.S. Dist. LEXIS 38549 (D. Colo.
2013) (denying defendant’s motion to dismiss); Torres v. Nat’l Enter. Sys., 2013
U.S. Dist. LEXIS 31238 (N.D. Ill. 2013) (denying defendant’s motion to dismiss);
Griffith v. Consumer Portfolio Serv., 838 F. Supp. 2d 723 (N.D. Ill. 2011) (denying
defendant’s motion for summary judgment); Frydman et al v. Portfolio Recovery
Associate, 2011 U.S. Dist. LEXIS 69502 (N.D. Ill 2011) (denying defendant’s
motion to dismiss); Rosen Family Chiropractic S.C. v. Chi-Town Pizza, 2013 U.S.
Dist. LEXIS 6385 (N.D. Ill. 2013) (denying defendant’s motion to dismiss);
Sengenberger v. Credit Control Services, Inc., 2010 U.S. Dist. LEXIS 43874 (N.D.
Ill. May 5, 2010) (granting summary judgment on TCPA claim);
29. Tim is a member of the National Association of Consumer Advocates
and ISBA. He received his Juris Doctorate, cum laude, from Tulane University Law
School in 2006.
20
Michael S. Hilicki
30. In 2014, Michael Hilicki joined the firm. He has spent nearly all of his
approximately 25-year legal career helping consumers and workers subjected to
unfair and deceptive business practices, and unpaid wage practices. He is
experienced in a variety of consumer and wage-related areas including, but not
limited to, the Fair Debt Collection Practices Act, Truth-in-Lending Act, Fair Credit
Reporting Act, Real Estate Settlement Procedures Act, Illinois Consumer Fraud &
Deceptive Business Practices Act, Telephone Consumer Protection Act, Fair Labor
Standards Act and the Illinois Wage & Hour Law. He is experienced in all aspects
of consumer and wage litigation, including arbitrations, trials and appeals.
31. Examples of the numerous certified class actions in which Michael has
represented consumers or workers include: Goel v. Stonebridge of Arlington
Heights, et al., 2018 CH 11015 (Cir. Ct. Cook Cty.); Muransky v. Godiva
Chocolatier, Inc., No. 15-cv-60716-WPD (S.D. Fla.); Guarisma v. Microsoft Corp.,
No. 15-cv-24326-CMA (S.D. Fla.); Stahl v. RMK Mgmt. Corp., 2015 CH 13459
(Cir. Ct. Cook Cty.); Altman v. White House Black Market, Inc., 15-cv-2451-SCJ
(N.D. Ga.); Legg v. Spirit Airlines, Inc., No. 14-cv-61978-CIV-JIC (S.D. Fla.); Legg
v. Laboratory Corporation of America, Holdings, Inc., No. 14-cv-61543-RLR (S.D.
Fla.); Joseph v. TrueBlue, Inc., 14-cv-5963-BHS (W.D. Wash.); In Re Convergent
Outsourcing, Inc. Telephone Consumer Protection Act Litigation, Master Docket
21
No. 3:13-cv-1866-AWT (D. Conn); Tripp v. Berman & Rabin, P.A., 310 F.R.D. 499
(D. Kan. 2015); Lanteri v. Credit Protection Ass’n, L.P., 2018 U.S. Dist. LEXIS
166345 (S.D. Ind. Sept. 26, 2018); Eibert v. Jaburg & Wilk, P.C., 13-cv-301 (D.
Minn.); Kraskey v. Shapiro & Zielke, LLP, 11-cv-3307 (D. Minn.); Short v. Anastasi
& Associates, P.A., 11-cv-1612 SRN/JSM (D. Minn.); Kimball v. Frederick J.
Hanna & Associates, P.C., 10-cv-130 MJD/JJG (D. Minn.); Murphy v. Capital One
Bank, 08 C 801 (N.D. Ill.); Nettles v. Allstate Ins. Co., 02 CH 14426 (Cir. Ct. Cook
Cty.); Sanders v. OSI Educ. Servs., Inc., 01 C 2081 (N.D. Ill.); Kort v. Diversified
Collection Servs., Inc., 01 C 0689 (N.D. Ill.); Hamid v. Blatt Hasenmiller, et al., 00
C 4511 (N.D. Ill.); Durkin v. Equifax Check Servs., Inc., 00 C 4832 (N.D. Ill.);
Torres v. Diversified Collection Services, et al., 99-cv-00535 (RL-APR) (N.D. Ind.);
Morris v. Trauner Cohen & Thomas, 98 C 3428 (N.D. Ill.), Mitchell v. Schumann,
97 C 240 (N.D. Ill.); Pandolfi, et al. v. Viking Office Prods., Inc., 97 CH 8875 (Cir.
Ct. Cook Cty.); Trull v. Microsoft Corp., 97 CH 3140 (Cir. Ct. Cook Cty.);
Deatherage v. Steven T. Rosso, P.A., 97 C 0024 (N.D. Ill.); Young v. Meyer & Njus,
P.A., 96 C 4809 (N.D. Ill.); Newman v. Boehm, Pearlstein & Bright, Ltd., 96 C 3233
(N.D. Ill.); Holman v. Red River Collections, Inc., 96 C 2302 (N.D. Ill.); Farrell v.
Frederick J. Hanna, 96 C 2268 (N.D. Ill.); Blum v. Fisher and Fisher, 96 C 2194
(N.D. Ill.); Riter v. Moss & Bloomberg, Ltd., 96 C 2001 (N.D. Ill.); Clayton v. Cr
Sciences Inc., 96 C 1401 (N.D. Ill.); Thomas v. MAC/TCS Inc., Ltd., 96 C 1519 (N.D.
22
Ill.); Young v. Bowman, et al., 96 C 1767 (N.D. Ill.); Depcik v. Mid-Continent
Agencies, Inc., 96 C 8627 (N.D. Ill.); and Dumetz v. Alkade, Inc., 96 C 4002 (N.D.
Ill.).
32. Michael also has successfully argued a number of appeals, including
Evans v. Portfolio Recovery Assocs., LLC, 889 F.3d 337 (7th Cir. 2018); Muransky
v. Godiva Chocolatier, Inc., 922 F.3d 1175 (11th Cir. 2019) (vacated for rehearing
en banc); Franklin v. Parking Rev. Recovery Servs., 832 F.3d 741 (7th Cir. 2016);
Smith v. Greystone Alliance, LLC, 772 F.3d 448 (7th Cir. 2014); Shula v. Lawent,
359 F.3d 489 (7th Cir. 2004); and Weizeorick v. ABN AMRO Mortg. Group, Inc.,
337 F.3d 827 (7th Cir. 2003).
33. Michael has lectured on consumer law issues at Upper Iowa University,
the Chicago Bar Association, and the National Consumer Law Center. He is a
member of the Trial Bar of the United States District Court for the Northern District
of Illinois, and he has represented consumers in state and federal courts around the
country on a pro hac vice basis.
34. Michael’s published work includes "AND THE SURVEY SAYS…"
When Is Evidence of Actual Consumer Confusion Required to Win a Case Under
Section 1692g of the Fair Debt Collection Practices Act in the Seventh Circuit?, 13
Loy. Consumer L. Rev. 224 (2001).
23
Theodore H. Kuyper
35. In March 2018, Theodore H. Kuyper joined the firm. Ted is currently
a member in good standing of the Illinois State Bar, the United States District Court
for the Northern District of Illinois, and the Seventh Circuit Court of Appeals, and
has been admitted to practice pro hac vice in several additional United States District
Courts.
36. Ted has diverse experience prosecuting and defending class action and
other large-scale litigation in trial and appellate courts under a variety of substantive
laws, including without limitation the Telephone Consumer Protection Act, the
Racketeer Influenced & Corrupt Organizations Act (RICO), the Fair Credit
Reporting Act, the Illinois Consumer Fraud & Deceptive Business Practices Act,
and the Real Estate Settlement Procedures Act, as well as Illinois and other state
statutory and common law.
37. Since joining the firm, Ted has represented consumers as counsel of
record or otherwise in the following putative class actions: Cranor v. Skyline
Metrics, LLC, No. 4:18-cv-00621-DGK (W.D. Mo.); Cranor v. The Zack Group,
Inc., No. 4:18-cv-00628-FJG (W.D. Mo.); Cranor v. Classified Advertising
Ventures, LLC, et al., No. 4:18-cv-00651-HFS (W.D. Mo.); Morgan v. Orlando
Health, Inc., et al., No. 6:17-cv-01972-CEM-GJK (M.D. Fla.); Morgan v. Adventist
Health System/Sunbelt, Inc., No. 6:18-cv-01342-PGB-DCI (M.D. Fla.); Burke v.
24
Credit One Bank, N.A., et al., No. 8:18-cv-00728-EAK-TGW (M.D. Fla.); Motiwala
v. Mark D. Guidubaldi & Associates, LLC, No. 1:17-cv-02445 (N.D. Ill.); Buja v.
Novation Capital, LLC, No. 9:15-cv-81002-KAM (S.D. Fla.); and Detter v.
Keybank, N.A., No. 1616-CV10036 (Circuit Ct. of Jackson County, Missouri).
38. Immediately prior to joining Keogh Law, Ted worked at a boutique
Chicago law firm where he represented clients in a range of complex commercial
and other litigation, including contract, tort, professional liability, premises and
products liability, bad faith and class action. Previously, he was an associate at a
nationally-renowned class action law firm, where he focused on complex
commercial, consumer, class action and other large-scale, high-stakes litigation.
39. Ted earned his Juris Doctorate from Washington University School of
Law in St. Louis in 2007. During law school, he worked as a Summer Extern for
Magistrate Judge Morton Denlow (Ret.) of the United States District Court for the
Northern District of Illinois, served as primary editor and executive board member
of the Global Studies Law Review, and authored a student note that was published
in 2007. Ted also earned a number of scholarships and other academic accolades,
including the Honors Scholar Award (top 10% for academic year) and repeated
appearances on the Dean’s List.
25
Gregg Barbakoff
40. Gregg Barbakoff joined the firm in 2019. He is a civil litigator who
focuses his practice on consumer law. Gregg has extensive experience litigating
individual and class claims arising under the Telephone Consumer Protection Act,
Fair Debt Collection Practices Act, Truth-in-Lending Act, Fair Credit Reporting Act,
Real Estate Settlement Procedures Act, Illinois Consumer Fraud and Deceptive
Practices Act, Magnuson-Moss Warranty Act, and various consumer protection
statutes.
41. Gregg graduated magna cum laude from the Chicago-Kent College of
law, where he was elected to the Order of the Coif. While in law school, Gregg
received the Class of 1976 Honors Scholarship, competed as a senior member of the
Chicago-Kent Moot Court Team, and served as an editor for The Seventh Circuit
Review, in which he was also published. Gregg earned his undergraduate degree
from the University of Colorado at Boulder.
42. Gregg has been named an Illinois Rising Star by Superlawyers
Magazine each year since 2015, and was named an Associate Fellow by the
Litigation Counsel of America. He is licensed to practice in the State of Illinois, the
United States District Court for the Northern District of Illinois, and the United
States Court of Appeals for the Seventh Circuit
26
43. Prior to joining Keogh Law, Gregg worked at a mid-size litigation firm
that specialized in consumer litigation, and leading plaintiff’s firm that focused on
commercial disputes and consumer class actions.
44. The following are representative class actions in which Gregg has
served as counsel of record or otherwise: Roberts v. TIAA, FSB (Case No. 2019 CH
04089, Cook County, Ill.); Corrigan v. Seterus (Case No. 17-cv-02348); Gentleman
v. Mass. Higher Ed. Corp., et al (Case No. 16-cv-3096, N.D. Ill.); Cibula v. Seterus
(Case No. 2015CA010910, Palm Beach County, Fla.); Ciolini v. Seterus (Case No.
15-cv-09427, N.D. Ill.); Mednick v. Precor Inc. (Case No. 14-cv-03624, N.D. Ill.);
Illinois Nut & Candy Home of Fantasia Confections, LLC v. Grubhub, Inc., et al.
(Case No. 14-cv-00949, N.D. Ill.); Dr. William P. Gress et al. v. Premier Healthcare
Exchange West, Inc. (Case No. 14-cv-501, N.D. Ill.); Stephan Zouras LLP v.
American Registry LLC (Case No. 14-cv-943, N.D. Ill.); Mullins v. Direct Digital
(Case No. 13-cv-01829, N.D. Ill.); In Re Prescription Pads TCPA Litig. (Case No.
13-cv-06897, N.D. Ill); Townsend v. Sterling (Case No. 13-cv-3903, N.D. Ill);
Windows Plus, Incorporated v. Door Control Services, Inc. (Case No. 13-cv-07072,
N.D. Ill); In re Energizer Sunscreen Litig., (Case No. 13-cv-00131, N.D. Ill.);
Padilla v. DISH Network LLC (Case No. 12-cv-07350, N.D. Ill.); Lloyd v.
Employment Crossing (Case No. BC491068 (Los Angeles County, Cal.); In re
Southwest Airlines Voucher Litig. (Case No. 11-cv-8176, N.D. Ill.).
27
William Sweetnam
45. William Sweetnam joined the firm in 2020 as of counsel. Mr.
Sweetnam concentrates his practice class action and complex litigation and appeals,
having prosecuted hundreds of consumer, shareholder and antitrust class action in
federal and state courts across the country. In addition to representing both plaintiffs
and defendants in a wide variety of cases involving both economic and non-
economic injuries, Mr. Sweetnam has acted as lead counsel, co-lead counsel and has
been a member of the executive and steering committees in consumer, antitrust and
other class action, complex and multidistrict litigation matters.
46. Notably, Mr. Sweetnam was appointed sole lead counsel in Kelly v. Old
National Bank, 82C01-1012-CT-627 (Cir. Ct Vanderburgh Cty., Ind.), in which he
obtained a settlement valued at more than 90% of the class’ damages incurred as a
result of the unlawful overdraft fee scheme alleged therein, far exceeding the results
obtained by much larger firms against some the countries’ largest banks, resulting
in individual consumers receiving several thousand dollars in refunded overdraft
fees.
47. Additionally, Mr. Sweetnam has numerous published, class action
decisions including Jett v. Warrantech Corp., ---F.Supp.3d---, 2020 WL 525045
(S.D. Ill. 2020); Old Nat. Bank v. Kelly, 31 N.E.3d 522 (Ind. App. 2014); Nava v.
Sears, Roebuck & Co., 995 N.E.2d 303 (1st Dist. 2013); Cappuccitti v. DirecTV,
28
Inc., 623 F.3d 1118 (11th Cir. 2010); Pella Corp. v. Saltzman, 606 F.3d 391 (7th
Cir. 2010); In re Digitek Prod. Liab. Litig., 264 F.R.D. 249 (S.D. W. Va. 2010);
Aleman v. Park West Galleries, Inc., 655 F. Supp. 2d 1378 (J.P.M.L. 2009); In re
Park West Galleries, Inc. Mktg. & Sales Practices Litig., 645 F. Supp. 2d 1358
(J.P.M.L. 2009); In re Digitek Prod. Liab. Litig., 648 F. Supp. 2d 795 (S.D. W. Va.
2009); Vernon v. Qwest Communs. Int'l, Inc., 643 F. Supp. 2d 1256 (W.D. Wash.
2009); Stachurski v. DirecTV, Inc., 642 F. Supp. 2d 758 (N.D. Ohio 2009); In re
Comcast Corp. Set-Top Cable TV Box Antitrust Litig., 626 F. Supp. 2d 1353
(J.P.M.L. 2009); In re Refrigerant Compressors Antitrust Litig., 626 F. Supp. 2d
1320 (J.P.M.L. 2009); Saltzman v. Pella Corp., 257 F.R.D. 471 (N.D. Ill. 2009);
Coneff v. AT&T Corp., 620 F. Supp. 2d 1248 (W.D. Wash. 2009); Hoving v. Lawyers
Title Ins. Co., 256 F.R.D. 555 (E.D. Mich. 2009); In re Nissan N. Am., Inc. Odometer
Litig., 664 F. Supp. 2d 873 (M.D. Tenn. 2009); Hoving v. Lawyers Title Ins. Co.,
256 F.R.D. 555 (E.D. Mich. 2009); In re Digitek Prods. Liab. Litig., 571 F. Supp.
2d 1376 (J.P.M.L. 2008); In re BP Prods. N. Am., Inc., 560 F. Supp. 2d 1377
(J.P.M.L. 2008); Hoving v. Transnation Title Ins. Co., 545 F. Supp. 2d 662 (E.D.
Mich. 2008); In re Nissan N. Am., Inc. Odometer Litig., 542 F. Supp. 2d 1367
(J.P.M.L. 2008); Berry v. Budget Rent a Car Sys., 497 F. Supp. 2d 1361 (S.D. Fla.
2007); Cook v. Home Depot U.S.A., Inc., 62 U.C.C. Rep. Serv. 2d (Callaghan) 197
(S.D. Ohio 2007); Womack v. Nissan N. Am., Inc., 550 F. Supp. 2d 630 (E.D. Tex.
29
2007); Knudsen v. Liberty Mut. Ins. Co., 435 F.3d 755 (7th Cir. 2006); Knudsen v.
Liberty Mut. Ins. Co., 411 F.3d 805 (7th Cir. 2005); Knudsen v. Liberty Mut. Ins.
Co., 405 F. Supp. 2d 916 (N.D. Ill. 2005); Enzenbacher v. Browning-Ferris Indus.
of Ill., 774 N.E.2d 858 (Ill. App. 2002); In re Nat'l Life Ins. Co., 247 F. Supp. 2d 486
(D. Vt. 2002); Kaskel v. N. Trust Co., 45 U.C.C. Rep. Serv. 2d (Callaghan) 827 (N.D.
Ill. 2001); Wardrop v. Amway Asia Pac. Ltd., Fed. Sec. L. Rep. (CCH) P91,346
(S.D.N.Y. Mar. 20, 2001); and Grove v. Principal Mut. Life Ins. Co., 14 F. Supp. 2d
1101 (S.D. Iowa 1998).
48. Before joining Keogh Law, Ltd., Mr. Sweetnam began his career as a
lawyer representing plaintiffs in catastrophic injury cases in 1994. In 1995, he began
defending corporate, insurance industry and insurance policyholder clients and ran
a successful class action litigation boutique, Sweetnam LLC, established in 2008.
49. Prior to that, Mr. Sweetnam was a partner at a Chicago class action
litigation boutique, where he perfected his skills representing victims of consumer
fraud and deceptive and anti-competitive practices. Mr. Sweetnam has extensive
litigation experience in a variety of nationwide class actions in state and federal
courts alleging violations of consumer fraud and deceptive trade practices statutes,
breach of warranty and violations of federal securities laws, shareholder derivative
suits and appeals.
30
50. Mr. Sweetnam began his career as a class action and complex litigation
practitioner with what is now known as Kessler Topaz Meltzer & Check, LLP, one
of the largest class action law firms in the United States, where he was part of a team
of lawyers involved in prosecuting class actions challenging abusive marketing
practices in several areas involving life insurance and annuities. These cases led to
class settlements valued at hundreds of millions of dollars, and sometimes even
billions of dollars, with such major life insurance companies as Prudential, Met Life,
John Hancock, New York Life, State Farm, American Express/IDS, Transamerica,
and many others, as well as to numerous changes in industry sales practices.
51. Mr. Sweetnam continued his career at one of Chicago's oldest and most
respected class action litigation firms, Krislov & Associates, Ltd., where he
represented consumers and investors engaged in an array of nationwide class actions
in state and federal courts involving everything from consumer fraud to breach of
warranty and securities and shareholder derivative lawsuits and appeals.
52. Additionally, Ms. Sweetnam is also a member of a number of
associations, including The Federal Bar Associations, Chicago Chapter, The
Chicago Bar Association, and The Catholic Lawyers Guild of Chicago.
53. Mr. Sweetnam received his bachelor’s degree at The University of
Michigan, Ann Arbor, Michigan in 1990. And later received his juris doctorate
degree at the University of Michigan and the De Paul University College of Law
where he received the American Jurisprudence Award in Constitutional Law and
was a member of the Journal of Art and Entertainment Law. He has written and
lectured on class actions and class action litigation reform.
54. Mr. Sweetnam has lectured on and lectured on such topics as the
following: (a) Law of Remedies: Damages, Equity and Restitution, at Chicago-Kent
College of Law (2019); (b) Law of Remedies: Class Actions and Complex Litigation,
at Chicago-Kent College of Law (2018); ( c) The Class Action Fairness Act of 2005:
Selecting a Forum and Keeping It, at the Illinois Institute for Continuing Legal
Education in Chicago, Illinois (2008); (d) Federalization of Consumer Class Action
Litigation: The Class Action Fairness Act of 2005, at the John Marshall Law School
in Chicago, Illinois (2006).
5 5. Further affiant sayeth naught.
K~ith J./Keogh
Subscribed and sworn to before me this 3rd day of August, 2021.
31
cioz: 'll! 'Nnr S3YldX3 NOISSIWWOO AW SIONl111:103.LV.1S ·:mend A~.LON
ll3NOWIS 1 3NNVZOS -W3S -Wl::>1:1:IO
APPENDIX 4
Claim FormTO RECEIVE BENEFITS FROM THIS SETTLEMENT, YOU MUST PROVIDE ALL OF THE INFORMATION BELOW AND YOU MUST SIGN THIS CLAIM FORM. IF THIS CLAIM FORM IS SUBMITTED ONLINE, YOU MUST SUBMIT AN ELECTRONIC SIGNATURE. If mailed, mail this form to Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185.
YOUR CLAIM FORM MUST BE SUBMITTED ELECTRONICALLY OR VIA TELEPHONE OR POSTMARKED ON OR BEFORE October 4, 2021.
1. CLAIMANT INFORMATION:
Claim #: <ClaimID>
First Name: Last Name:
Street Address:
City: State: ZIP Code:
Email Address (optional):
Telephone Number (optional): (_________) _________ - ____________
2. AFFIRMATION:
By signing below, I attest that the information above is true and correct to the best of my knowledge and belief. This Claim Form may be researched and verified by the Claims Administrator.
Signature Date (mm/dd/yyyy)
QUESTIONS? VISIT www.WHBM-FACTA-Settlement.com OR CALL 1-855-786-0983 or Class Counsel at 1-866-726-1092.
*WHN«ClaimID»* «ClaimID» WHN
Altman v. White House Black Market Claims AdministratorP.O. Box 43185Providence, RI 02940-3185
WHN
<<Barcode>>Postal Service: Please Do Not Mark Barcode
Claim#: WHN-<<ClaimID>> - <<MailRec>>
«First1» «Last1»«CO»«Addr1» «Addr2»«City», «St» «Zip»«Country»
NOTICE OF CLASS ACTION LAWSUIT AND PROPOSED SETTLEMENT
What is this? This is notice of a proposed Settlement in a class action lawsuit for Altman v. White House Black Market, Inc., Case No. 21-A-735 (Cobb Cnty. State Court, Ga.).What is this lawsuit about? The Settlement resolves a lawsuit brought on behalf of a class of individuals, where the Plaintiff claimed that, between March 23, 2015 and July 17, 2015, some White House Black Market stores located in the United States provided printed (not email) point-of-sale receipts to customers for credit or debit card transactions that displayed the first six and last four digits of the card number used in the transaction. These receipts may have violated the Fair and Accurate Credit Transactions Act (“FACTA”). White House Black Market denies any wrongdoing. The Court has not ruled on the merits of Plaintiff’s claims or the defenses of White House Black Market. Why am I getting this Notice? You were identified as someone to whom a White House Black Market store may have provided a printed receipt, according to White House Black Market’s records.What does the Settlement provide? White House Black Market has agreed to pay $1,500,000 into a Settlement Fund, which will pay for the cost of notice and administration of the Settlement, payments to Settlement Class Members who file valid claims, attorneys’ fees and expenses incurred by counsel for Plaintiff and the Settlement Class (“Class Counsel”) and an Incentive Payment for Plaintiff, if approved by the Court. Each Settlement Class Member who submits a valid Claim Form may receive a payment, subject to pro rata distribution of the Settlement. Class Counsel will petition for an Incentive Payment not to exceed $10,000 to Plaintiff Jill Altman for her services as Class Representative, and for Class Counsel’s fees, not to exceed $600,000 (which is forty percent of the Settlement Fund), plus Class Counsel’s reasonable expenses.How can I receive a payment from the Settlement? To receive payment, you must complete and submit a valid Claim Form by October 4, 2021. You can obtain and submit a Claim Form online at www.WHBM-FACTA-Settlement.com, by mail, or by telephone by calling 1-855-786-0983. Claim Forms submitted by mail must be sent to the Claims Administrator at the address on the Claim Form and must be postmarked no later than October 4, 2021.Do I have to be included in the Settlement? If you don’t want monetary compensation from this Settlement and you want to keep the right to pursue or continue to pursue your claims against White House Black Market on your own, then you must exclude yourself from the Settlement by sending a letter requesting exclusion to the Claims Administrator, postmarked no later than October 4, 2021 to the address on the Claim Form. The letter requesting exclusion must contain the specific information set forth on the Full Notice on the Settlement Website and in the Settlement Agreement.If I don’t like something about the Settlement, how do I tell the Court? If you don’t exclude yourself from the Settlement, you can object to any part of the Settlement. You must file your written objection with the Court by October 4, 2021. Your written objection must also be mailed to Class Counsel and White House Black Market’s Counsel and received by no later than October 4 2021. Your written objection must contain the specific information set forth in Question 16 of the Full Notice (“How do I tell the Court that I do not think the Settlement is fair?”), available at www.WHBM-FACTA-Settlement.com. If you file an objection, in order to remain eligible to receive a payment, you must also file a Claim Form.What if I do nothing? If you do nothing, you will not be eligible for a payment. But, you will still be a Settlement Class Member and be bound by the Settlement, and you will release White House Black Market from all liability associated with the alleged actions giving rise to this case.The Final Approval Hearing. The Court will hold a Final Approval Hearing in this case, Altman v. White House Black Market, Inc., Case No. 21-A-735, at 9:00 a.m. on December 7, 2021 in Room 3A of the State Court of Cobb County, 12 E. Park Square, Marietta, GA 30090. You may hire your own attorney to appear and speak at the hearing at your own expense, but it is not necessary.How do I get more information about the Settlement? This Notice contains limited information about the Settlement. For more information, to view additional Settlement documents, and to review information regarding your exclusion and objection rights and the Final Approval Hearing, visit www.WHBM-FACTA-Settlement.com. You can also obtain additional information, a more detailed Notice describing the Settlement, or a Claim Form, by calling 1-855-786-0983.
ALTMAN V WHITE HOUSE BLACK MARKET CLAIMS ADMINISTRATORPO BOX 43185PROVIDENCE RI 02940-3185
WHN
APPENDIX 5
WHNNOT032
Altman v. White House Black Market, Inc.
State Court of Cobb County, Georgia Case No. 21-A-735
If you made a purchase at a White House Black Market store using a credit card or debit card between March 23, 2015 and July 17, 2015 and received a printed sales receipt displaying more than the
last five digits of your card number, you may be entitled to benefits under a class action settlement. A court authorized this Notice. This is not a solicitation from a lawyer.
• Plaintiff alleges that printing customer receipts for credit or debit card transactions that include more than the last five digits of the card account number violates the Fair and Accurate Credit Transactions Act, 15 U.S.C. § 1681c(g)(1) et seq. (“FACTA”). Plaintiff further alleges that White House Black Market, Inc. (“WHBM”) willfully violated FACTA in the lawsuit identified above by printing point-of-sale credit and debit card transaction receipts that displayed the first six and last four digits of the card account number in some of its stores in the United States. WHBM denies Plaintiff’s allegations and denies any wrongdoing whatsoever. The Court has not ruled on the merits of Plaintiff’s claims or WHBM’s defenses. By entering into the Settlement, WHBM has not conceded the truth or validity of any of the claims against it. WHBM has agreed to pay $1,500,000 (the “Settlement Fund”) in full and final settlement and release of the claims of persons for whom WHBM stores printed a receipt showing the first six and last four digits of the card number. The Settlement Class is defined to include individuals, according to WHBM’s records, whose credit or debit card was used in a transaction at a WHBM store in the United States using a point-of-sale system that was programmed to print the first six and last four digits of card account number on the receipt, between March 23, 2015 and July 17, 2015. The lawsuit does not apply to email-only receipts. It applies only to printed receipts.
• Not all WHBM United States stores used the system that printed the first six and last four digits of card account numbers on customer receipts, and not all that did so were using that system during the entire time period between March 23, 2015 and July 17, 2015.
• The Settlement Fund will be used to pay all amounts related to the Settlement, including payments to each Settlement Class Member who submits a valid and timely claim form to receive payment (“Claim Form”), attorneys’ fees and reasonable expenses, and the costs of notice and administering the Settlement. Class Counsel anticipate that they will petition the Court for attorneys’ fees not to exceed forty percent of the Settlement Fund, and will also petition for an Incentive Payment not to exceed $10,000 to Plaintiff Jill Altman for her service as Class Representative. Settlement Class Members who timely submit a valid Claim Form will receive a pro rata payment distribution, calculated by dividing the available funds for distribution to the Settlement Class by the number of persons who submit valid Claim Forms.
• Your rights and options, and the deadlines to exercise them, are explained in this Notice. Your legal rights are affected whether you act or don’t act. Read this Notice carefully.
• The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient.
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YOUR RIGHTS AND OPTIONS IN THIS SETTLEMENT
SUBMIT A CLAIM FORM
If you submit a valid Claim Form by October 4, 2021, you will receive a payment and will give up your rights to sue WHBM and/or any other released parties (“WHBM Releasees” as defined in the Settlement Agreement) on any Released Claim, as defined in the Settlement Agreement. If you have a Claim ID number, Claim Forms may be submitted by mail to Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185 or through the Settlement Website by visiting www.WHBM-FACTA-Settlement.com or by calling 1-855-786-0983. If you do not have a Claim ID number, you must obtain, fill out and submit a Claim Form from the Website above or the Claims Administrator, and also provide the store location and date of each transaction at a WHBM store in which you claim you were provided a receipt that disclosed the first six and last four digits of your credit or debit card number, as well as the first six and last four digits of that card account number used in each such transaction. The Claims Administrator may request additional information to validate claims.
EXCLUDE YOURSELF OR “OPT OUT” OF THE SETTLEMENT
If you ask to be excluded, you will not receive a payment. This is the only option that allows you to pursue or continue to pursue Released Claims against WHBM or any WHBM Releasee in the future. The deadline for excluding yourself is October 4, 2021.
OBJECT TO THE SETTLEMENT
You may write to the Court about why you believe the Settlement is unfair in any respect. Please see Section 16 below (“How do I tell the Court that I do not think the Settlement is fair?”). The deadline for objecting is October 4, 2021. To obtain a benefit from this Settlement, you must still complete and submit a valid Claim Form. If you submit only an objection, you will not receive any benefit from the Settlement and you will give up your right to pursue or continue to pursue any Released Claim against WHBM or any WHBM Releasee.
DO NOTHING If you do nothing, you will not receive any monetary award, but you will give up your rights to pursue or continue to pursue a Released Claim against WHBM or any WHBM Releasee.
GO TO THE FINAL APPROVAL HEARING
You may ask to speak in Court about the fairness of the Settlement, if you object to the Settlement. To speak at the Final Approval Hearing, you must comply with the requirements set forth in Question 21 below no later than October 4, 2021.
BASIC INFORMATION
1. What is the purpose of this Notice?
The purpose of this Notice is to inform you that a proposed Settlement has been reached in the class action lawsuit Altman v. White House Black Market, Inc., Case No. 21-A-735 (Cobb Cnty. State Court, Ga.). Because your rights will be affected by this Settlement, it is extremely important that you read this Notice carefully. This Notice summarizes the Settlement and your rights under it.
2. What does it mean if I received an email or postcard about this Settlement?
If you received an email or postcard describing this Settlement, it is because WHBM’s records indicate that you may be a member of the Settlement Class in this action. You are a member of the Settlement Class if a WHBM store located in the United States provided you a printed (not email-only) point-of-sale receipt for a credit card or debit card transaction that contained the first six and last four digits of your card account number at any time between March 23, 2015 and July 17, 2015.
If you did not receive an email or postcard describing this Settlement, you may still submit a Claim Form by visiting www.WHBM-FACTA-Settlement.com. The Claims Administrator will check the written information you provide on the Claim Form against transaction data of WHBM. If the information does not match, you will not be a Settlement Class Member and are not entitled to any relief.
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3. What is this class action lawsuit about?
In a class action, one or more people called Class Representatives (here, Plaintiff Jill Altman) sue on behalf of people who allegedly have similar claims. This group is called a Class and the persons included are called Class Members. One court resolves the issues for all of the Class Members, except for those who exclude themselves from the Class.
Here, Plaintiff alleges that WHBM willfully violated FACTA by printing point-of-sale receipts for credit card and debit card transactions at its U.S. stores that displayed the first six and last four digits of the card account number. WHBM denies these allegations and denies any wrongdoing. The Court has certified this case as a class action. The Honorable Allison B. Salter is the judge in charge of the lawsuit.
4. Why is there a settlement?
The Court did not decide in favor of Plaintiff or WHBM. Instead, both sides agreed to this Settlement. That way, they avoid the risk and cost of a trial, and the Settlement Class Members will receive compensation. Plaintiff and Class Counsel believe that the Settlement is best for all Settlement Class Members.
WHO IS IN THE SETTLEMENT CLASS?
5. How do I know if I am part of the Settlement Class?
The Court has certified this case as a class action for settlement purposes only. The Settlement Class is defined as:
All individuals in the U.S. whose debit or credit card, according to WHBM’s records was used in a transaction at a WHBM U.S. store operating the CHARM system that was programmed to print the first six and last four digits of the debit or credit card account number on the customer transaction receipt printed at the point of sale for the transaction, between March 23, 2015 and July 17, 2015.
“Settlement Class Member” is defined as any person in the Settlement Class who is not validly excluded from the Settlement Class.
It is important to note that only some WHBM locations printed such receipts, and of those that did, not all of them printed such receipts during the entire period between March 23, 2015 and July 17, 2015. Therefore, just because you were provided with a printed receipt for a credit or debit card transaction at a WHBM store between March 23, 2015 and July 17, 2015, that does not necessarily mean that you are a Settlement Class Member. If you are still not sure whether you are included, you can visit other sections of the Settlement Website, www.WHBM-FACTA-Settlement.com, you may write to the Claims Administrator at Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185, or you may call the Toll-Free Settlement Hotline, 1-855-786-0983, for more information.
THE LAWYERS REPRESENTING YOU
6. Do I have lawyers in this case?
The Court has appointed lawyers from the law firms of Keogh Law, Ltd., Spencer Fane LLP, and Skaar & Feagle, LLP as Class Counsel to represent you and the other persons in the Settlement Class. You will not be personally charged by these lawyers.
7. How will Class Counsel be paid?
Class Counsel will ask the Court to approve payment of not more than forty percent of the $1,500,000 Settlement Fund, which is $600,000, to them for attorneys’ fees, plus their reasonable expenses. Class Counsel also will ask the Court to approve payment of up to $10,000 to Plaintiff Jill Altman for her service as Class Representative. The Court may award less than these amounts.
THE SETTLEMENT BENEFITS – WHAT YOU GET
8. What does the settlement provide?
Settlement Fund. WHBM will pay $1,500,000 into a fund (the “Settlement Fund”), which will cover: (1) payments to Settlement Class Members who submit timely and valid Claim Forms; (2) an award of attorneys’ fees to Class Counsel, in an amount not to exceed $600,000, which is forty percent of the Settlement Fund; (3) Class Counsel’s reasonable expenses; (4) an Incentive Payment to Plaintiff, as approved by the Court; and (5) the costs of notice and administration of the Settlement.
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Payments. All Settlement Class Members are eligible to submit a Claim Form and receive a payment. To submit a Claim Form, follow the procedures described under Question 11 below.
No Portion of the Settlement Fund Will Return to WHBM. All money in the Settlement Fund beyond the funds the Court authorizes to be paid for the costs of notice and administration of the Settlement, attorneys’ fees and expenses, and any Incentive Payments to Plaintiff, will be divided and paid pro rata to the Settlement Class Members who submitted valid and timely Settlement Claim Forms. All unclaimed funds shall be paid via a Second Distribution to those Class Members who cashed their checks. Only after a Second Distribution or if a Second Distribution is not feasible, will any unclaimed funds be paid, as a cy pres award on behalf of the Class, to Habitat for Humanity. No portion of the Settlement Fund will return to WHBM.
9. How much will my payment be?
Your share of the Settlement Fund will depend on the number of valid Settlement Claim Forms that Settlement Class Members submit. Each Class Member who submits a valid Settlement Claim Form will be entitled to receive compensation that will be distributed on a pro rata basis. The final payment amount will depend on the total number of valid and timely claims submitted by Settlement Class Members, but Plaintiff estimates approximately $58.
10. What am I giving up to stay in the Settlement Class?
Unless you exclude yourself from the Settlement, you will be part of the Settlement Class and will be bound by the Release of claims in the Settlement. This means that if the Settlement is approved, you cannot pursue or continue to pursue any Released Claim against WHBM or any WHBM Releasee, whether on your own or as part of any other lawsuit, as explained in the Settlement Agreement. It also means that all of the Court’s orders will apply to you and legally bind you. Unless you exclude yourself from the Settlement, you will agree to release WHBM and any other WHBM Releasee, as defined in the Settlement Agreement, from any and all claims that were or could be asserted in the litigation and all claims that relate to or arise from printing more than the last five digits of the credit or debit card account number on any printed receipts at a WHBM U.S. store during the Settlement Class period.
In summary, the Release includes, without limitation, all claims that arise, could arise, were asserted or could have been asserted based on printing too much information on any receipts from a WHBM U.S. store, including, but not limited to, claims under FACTA, the Fair Credit Reporting Act, any other statute or the common law, or regarding identity theft or the risk of identity theft, for any form of relief.
If you have any questions about the Release or what it means, you can speak to Class Counsel, listed under Question 6, for free, or you can, at your own expense, talk to your own lawyer. The Release does not apply to persons in the Settlement Class who timely exclude themselves.
HOW TO OBTAIN A PAYMENT
11. How can I get a payment?
To receive a payment, you must submit a Claim Form by the deadline stated below. If you have a Claim ID number, Claim Forms may be submitted by mail to Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185 or through the Settlement Website by visiting www.WHBM-FACTA-Settlement.com or by calling 1-855-786-0983.
If you do not have a Claim ID number, you must submit the Claim Form by mail to Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185 and provide the store location(s) and date(s) when each receipt containing the first six and last four digits of your card account information was provided to you, as well as the first six and last four digits of the card used in the transaction.
WHEN WILL I RECEIVE MY SETTLEMENT PAYMENT?
12. When would I receive a Settlement payment?
The Court has scheduled a hearing on December 7, 2021 to decide whether to approve the Settlement. If the Court approves the Settlement, after that, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps more than a year. Updated information will be posted on the Settlement Website at www.WHBM-FACTA-Settlement.com. Please be patient.
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EXCLUDING YOURSELF FROM THE SETTLEMENT
13. How can I get out of the Settlement?
If you want to keep the right to pursue or continue to pursue any Released Claim against WHBM or any WHBM Releasee, as defined in the Settlement Agreement, then you must take steps to get out of the Settlement Class. This is called excluding yourself from, or opting out of, the Settlement Class.
To exclude yourself from the Settlement, you must send an exclusion request to the Claims Administrator. To be valid, a member of the Settlement Class who wishes to be excluded from the Settlement Class shall mail a written notice of exclusion to the Claims Administrator, so that it is postmarked no later than 60 days after the Notice Deadline, or October 4, 2021 (the “Opt-Out and Objection Deadline”), and shall clearly provide the following in the written notice of exclusion: (a) the case name and number; (b) the name and address of the Settlement Class Member; (c) the signature of the Settlement Class Member requesting exclusion; and (d) a statement that indicates a desire to be excluded from the Settlement Class in this lawsuit, such as “I hereby request that I be excluded from the proposed Settlement Class in Altman v. White House Black Market, Inc.” No request for exclusion will be valid unless all of the information described above is included. No person in the Settlement Class, or any person acting on behalf of or in concert or participation with that person in the Settlement Class, may exclude any other person in the Settlement Class from the Settlement Class.
To be valid, you must mail your exclusion request postmarked no later than October 4, 2021 to the Claims Administrator at Altman v. White House Black Market Claims Administrator, P.O. Box 43185, Providence, RI 02940-3185.
14. If I do not exclude myself, can I sue WHBM for the same thing?
No. If you do not exclude yourself, you give up any right to pursue (or continue to pursue) any Released Claim against WHBM or any WHBM Releasee.
15. If I exclude myself, can I get a benefit from this Settlement?
No. If you ask to be excluded, you will not be able to submit a Claim Form for a Settlement payment, and you cannot object to the Settlement.
OBJECTING TO THE SETTLEMENT
16. How do I tell the Court that I do not think the Settlement is fair?
If you are in the Settlement Class, you can object to the Settlement or any part of the Settlement that you think the Court should reject, and the Court will consider your views. If you do not provide a written objection in the manner described below, you shall be deemed to have forfeited any objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the Settlement or the award of any attorneys’ fees and expenses or Incentive Payment.
To be valid, the objection must be received by the Opt-Out and Objection Deadline (by October 4, 2021), and include: (a) the case name and number; (b) the name and address of the objecting Settlement Class Member and, if represented by counsel, of his or her counsel; (c) the specific grounds for each objection raised; (d) a statement of whether he or she intends to appear at the Final Approval Hearing, either with or without counsel; (e) any documentation supporting each objection raised; (f) the date and location of the transaction for which the Settlement Class Member received a printed receipt displaying the first six and last four digits of their card account number, and (g) the first six and last four digits of the card used in the transaction (this information may be redacted in the court-filed version of the objection).
Any Settlement Class Member who fails to object to the Settlement in the manner described above shall be deemed to have waived any such objection, shall not be permitted to object to any terms or approval of the Settlement at the Final Approval Hearing, and shall be foreclosed from seeking any review of the Settlement or the terms of the Settlement Agreement by appeal or other means.
To be considered, you must file your objections with the Court. Your objections must also be mailed to the addresses below and postmarked or received no later than October 4, 2021.
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For Plaintiff:
Keith J. Keogh Michael S. Hilicki Keogh Law, Ltd. 55 West Monroe St., Ste. 3390 Chicago, IL 60603
For White House Black Market, Inc.:
Barry Goheen FisherBroyles Resurgens Plaza 945 East Paces Ferry Rd. NE, Ste. 2000 Atlanta, GA 30326
Even if you timely and properly object, to obtain a benefit from this Settlement, you must submit a Claim Form. If you object but fail to submit a Claim Form, you will not receive any monetary award.
17. What is the difference between objecting and excluding yourself?
Objecting is telling the Court that you oppose something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself means that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
IF YOU DO NOTHING
18. What happens if I do nothing at all?
If you do nothing, you will not receive any monetary award, but you will give up your rights to pursue or continue to pursue Released Claims against WHBM or any other WHBM Releasee. For information relating to what rights you are giving up, see Question 10.
THE FINAL APPROVAL HEARING
19. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing at 9:00 a.m. on December 7, 2021 in Room 3A of the State Court of Cobb County, Georgia, 12 E. Park Square, Marietta, GA 30090. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. If there are valid objections that comply with the requirements in Question 16 above, the Court will also consider them and will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay to Class Counsel and Plaintiff. The Final Approval Hearing may be moved to a different date or time without additional notice, so it is a good idea to check the Settlement Website for updates.
20. Do I have to come to the hearing?
No. Class Counsel will appear on behalf of the Settlement Class. But you are welcome to come, or have your own lawyer appear, at your own expense.
21. May I speak at the hearing?
You may ask the Court for permission to speak at the Final Approval Hearing, but only in connection with an objection that you have timely submitted to the Court according to the procedure set forth in Question 16 above. To speak at the Final Approval Hearing, you must also file a document with the Court stating your intention to appear. For this document to be considered, it must include the case name and number (Altman v. White House Black Market, Inc., Case No. 21-A-735), your name, address, telephone number and your signature. The document must be filed with the Court no later than October 4, 2021. You cannot speak at the hearing if you exclude yourself from the Settlement.
GETTING MORE INFORMATION
22. How do I get more information?
This Notice is only a summary of the proposed Settlement. You can get a complete copy of the Settlement Agreement by visiting the Settlement Website, www.WHBM-FACTA-Settlement.com, or you can write to the address above or call the Toll-Free Settlement Hotline, 1-855-786-0983. You can also call Class Counsel with any questions at 1-866-726-1092. DO NOT CALL OR WRITE TO THE COURT, THE CLERK OF THE COURT, WHITE HOUSE BLACK MARKET, INC., OR COUNSEL FOR WHITE HOUSE BLACK MARKET, INC. ABOUT THE SETTLEMENT. TELEPHONE REPRESENTATIVES WHO ANSWER CALLS MADE TO THE TOLL-FREE NUMBER ARE NOT AUTHORIZED TO CHANGE THE TERMS OF THE SETTLEMENT OR THIS NOTICE.
APPENDIX 7
