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United States District Court for the Western District of Wisconsin
February 15, 2022, Decided; February 15, 2022, Filed
OPINION and ORDER
This is a class action involving a data breach that compromised credit card information of defendant Filters Fast, LLC's customers between July 2019 and July 2020. The parties move for final approval of a class settlement and plaintiffs' counsel move for fees and costs. Dkt. 50 and Dkt. 46. Before the court can grant either motion, plaintiffs and plaintiffs' counsel will have to address the concerns of the court related to the adequacy of the notice, the fairness of the settlement, and the reasonableness of class counsel's request for fees and costs.
The court's first concern relates to the adequacy of the notice to the class. The claims administrator says that [*2] it provided the following notice: (1) an email to all class members on December 8, 2021; (2) a second email on January 6 to any class member who hadn't yet submitted a claim; and (3) a letter sent through the postal service to any class member who couldn't be reached by email. Dkt. 53, ¶¶ 9-11. Using these methods, the administrator estimates that 89 percent of the class received notice. Id., ¶ 14.
The notice appears adequate on its face. But despite the administrator's efforts, the administrator represents that it has received only 69 claims through the mail and 3,476 claims submitted electronically. Id., ¶ 17. Plaintiffs estimate that the class includes more 323,000 members, so the total number of claims represents a little more than one percent of the class members. This is so even though each class member was entitled to submit a claim for $25 without showing any individualized injury. Dkt. 35-1, ¶ 42.
Plaintiffs offer no explanation for what appears to be a low response rate in a context where there was little downside to submitting a claim. Part of the reason for the relatively few claims may be that the deadline for submitting the motion for final approval was January 28, but [*3] the deadline for submitting a claim was February 11, so the administrator's figures were incomplete. But there may be other reasons. The administrator's explanation of its notice procedures is rather vague. It doesn't explain how it determined that 89 percent of the class received notice. And though it provided a copy of the legal notice accompanying the emails it sent the class, it doesn't provide a sample of the actual email it sent, making it impossible for the court to determine whether the email adequately communicated to class members that they were receiving notice of a class settlement.
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2022 U.S. Dist. LEXIS 27967 *; 2022 WL 461996
SANGER POWERS, ROBERT LEGG, JENNIFER McCREARY, BETTY OWEN, and LYDIA POSTOLOWSKI, individually and on behalf of all others similarly situated, Plaintiffs, v. FILTERS FAST, LLC, Defendant.
Subsequent History: Motion denied by, Without prejudice Powers v. Filters Fast, LLC, 2022 U.S. Dist. LEXIS 33452 (W.D. Wis., Feb. 24, 2022)
settlement, class member, plaintiffs', changes, notice, business practice, fee request, email, settlement agreement, fees and costs, injunctive, monitoring, lodestar, percent, costs