Preview
FILED
Hearing Date: No hearing scheduled 6/29/2023 4:00 PM
Location: <> IRIS Y. MARTINEZ
Judge: Calendar, 4
CIRCUIT CLERK
COOK COUNTY, IL
2021CH05392
CIRCUIT COURT OF COOK COUNTY, ILLINOIS Calendar, 4
COUNTY DEPARTMENT, CHANCERY DIVISION 23355770
FILED DATE: 6/29/2023 4:00 PM 2021CH05392
)
WILLARD D. RICHARDSON, and JAMIE )
YEOMANS, individually and on behalf )
of others similarly situated, )
)
Plaintiff, ) Case No.: 2021CH05392
v. )
)
IKEA NORTH AMERICA SERVICES., ) Judge: Hon. Alison C. Conlon
LLC and IKEA U.S. RETAIL, LLC, )
) Fairness Hearing: July 28, 2023 10:30 am
Defendant. )
PLAINTIFF’S MOTION FOR FINAL APPROVAL OF
CLASS SETTLEMENT AND RESPONSES TO OBJECTIONS
Plaintiffs, Willard Richardson and Jamie Yeomans (“Plaintiffs”), pursuant to 735 ILCS
5/2-806, move for final approval of the class action settlement with Defendants Ikea North
America Services, LLC and Ikea U.S. Retail, LLC (“IKEA” or “Defendant”), as to their and the
Settlement Class members’ claims under the Fair and Accurate Credit Transactions Act, 15 U.S.C.
§1681c(g) (“FACTA”). The settlement agreement is attached as Appendix 1 (“Settlement”).
I. INTRODUCTION
The Settlement requires IKEA to pay $24,250,000.00 into a common fund to be used
entirely to satisfy the class members’ claims, the cost of notice and administration, as well as the
attorneys’ fees, litigation expenses, and class representative service awards. Unlike many FACTA
settlements granted approval, this Settlement is all cash (no coupons), and no funds will revert to
IKEA. Appendix 1 at §III.B, D. This is one of the largest all-cash settlements in FACTA history,
an outstanding result. Appendix 2 (Owens Decl.) at ¶ 20.
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When this Court granted preliminary approval on March 11, 2022, it found the Settlement
within the range of reasonableness, and thus that the class should be given notice.
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Nothing has changed to alter this Court’s determination. To the contrary, the class
members’ response to the Settlement has been exceptional. More than 450,000 claims were filed
in response to the notice directed by the Court (over 9% of class members who were sent notice,
well exceeding the average claim rate in consumer class actions, which is often 5% or less). As a
result, each valid claimant will receive more than $25, a per capita distribution that is very close
1
to the range estimated in the preliminary approval motion and Notice. Appendix 3 (Claim
Administrator Decl.) at ¶ 20.
By contrast, only 46 members opted out of the case, and only 3 filed objections. Id. at ¶¶
17-18. Plus, none of the objectors actually object to the Settlement itself – instead one is just a
“philosophical” objection that criticizes class actions generally or the wisdom of FACTA, and the
others just object in conclusory fashion to the proposed attorneys’ fee award.
What’s more, the three objections out of almost 5 million class members only amount to
0.000000624% of the class, well below the norm.2 Thus, the Settlement is virtually uncontested,
favoring final approval. In re Southwest Airlines Voucher Litig., 2013 U.S. Dist. LEXIS 120735,
at *21 (N.D. Ill. Dec. 6, 2013) (finding a “low level of opposition” amounting to 0.01% of the
class “supports the reasonableness of the settlement”); Lipuma v. American Express Co., 406
F.Supp.2d 1298, 1324 (S.D. Fla. 2005) (“low percentage of objections points to the
1
The slightly lower per capita distribution than initially estimated $30 at 10% claim rate is due to
the increased administration costs from mailing every class member notice instead of e-mailing
notice as discussed with the Court on March 9, 2022 during the preliminary approval hearing.
2 In a settlement of this size, the norm would be almost 100 objections (extrapolating from the
average of 4.7 objectors per $1 million in consumer recovery). See Theodore Eisenberg & Geoffrey
Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical
Issues, 57 VAND. L. REV. 1529, 1550 (2004).
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reasonableness of a proposed settlement and supports its approval.”); see also Isby v. Bayh, 75
F.3d 1191, 1200 (7th Cir. 1996)(affirming final approval of settlement where 13% of the class
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submitted written objections).
Regardless, general disapproval of the case and similar “philosophical” objections are
inevitable in class actions, and thus “do not impugn the adequacy of the settlement itself.”
Domonoske v. Bank of Am., N.A., 790 F.Supp.2d 466, 474 (W.D. Va. 2011); McLennan v LG Elecs.
USA, Inc., 10-cv-03604 (WJM) (D. N. J. 2012) (Same).
Thus, as further shown below, this motion for final approval should be granted.
II. SUMMARY OF LITIGATION, MEDIATION, SETTLEMENT.
A. The FACTA Claims at Issue.
Plaintiffs allege that IKEA allowed its stores to print transaction receipts that disclosed
more than the last five digits of purchasers’ debit and credit card numbers in violation of FACTA.
Congress has found that criminals can use this information to deduce the cardholders’ full account
details 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); Redman v. Radioshack, 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.” https://www.ftc.gov/business-
guidance/resources/slip-showing-federal-law-requires-all-businesses-truncate-credit-card-
information-receipts (last viewed: June 10, 2023).
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Given the importance of FACTA’s protections, and to encourage FACTA enforcement and
compliance, Congress gave the law teeth. Specifically, it incorporated FACTA into the Fair Credit
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Reporting Act, 15 U.S.C. §1681, et seq. (“FCRA”), which entitles a successful plaintiff to modest
statutory damages of $100-$1,000 for any “willful” violation of the law. See Harris v. Mexican
Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009) (citing 15 U.S.C. §1681n(a)).
Consistent with this intent, Plaintiffs brought the instant action to remedy the alleged violation of
their and the class members’ FACTA rights.
B. The Litigation and Mediation Proceedings that Led to the Settlement.
Before originally filing suit in California state court, Class Counsel conducted a thorough
pre-suit investigation and prepared a complaint alleging that IKEA willfully violated the FACTA
rights of Plaintiffs and a nationwide class of other individuals at its stores. See Appendix 2 (Owens
Decl.) at ¶ 15. The complaint was amended twice to, inter alia, add Jamie Yeomans as named
plaintiff. Id. at ¶ 16. Plaintiffs also conducted full written discovery, serving interrogatories,
requests for admission, and document requests. Id. IKEA initially failed to provide any substantial
responses and Plaintiffs’ counsel engage IKEA in several conferrals to obtain meaningful
responses. Id. at ¶ 17. The parties also agreed to attend mediation, and IKEA provided additional
class information in connection with the same. Id.
On October 5, 2020, the parties participated in a formal mediation session with the
professional mediator Hon. Edward A. Infante (Ret.) in Los Angeles, California. However, they
were unable to reach a settlement at that time. During the weeks following the first mediation
session, the Parties continued settlement discussions and the informal exchange of relevant
information, including class data. Thereafter, on December 14, 2020, the parties took part in a
second mediation session, at which time they reached an agreement in principle. Id.
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But even after agreeing to the basic framework of a settlement, the parties had to spend
several months negotiating the terms of a binding settlement term sheet that memorialized all
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essential terms, while the parties documented the formal Settlement. Id. at ¶¶ 17-18.
On or about February 23, 2021, the parties entered into a binding settlement term sheet,
memorializing all essential terms. The term sheet also anticipated the parties would submit a joint
request to stay the Los Angeles County Action and file a companion action in the Circuit Court
for Cook County, Illinois, to be styled as Richardson et al. v. IKEA North America Services, LLC
et al., for purposes of obtaining approval of the parties’ settlement and subsequent administration.
On or about September 15, 2021, after spending substantial time negotiating the terms of
the formal settlement agreement, including the proposed class notices, claim form, and orders that
would be submitted to the Court for approval, the parties executed the Settlement. Appendix 2
(Owens Decl.) at 17-18. As agreed, on October 21, 2021, Plaintiffs refiled their lawsuit in the
Circuit Court of Cook County, Illinois, for purposes of settlement approval and administration. Id.
at ¶ 21. Subsequently, IKEA filed its answer. Id. at ¶ 22. On September 12, 2022, the California
state case was accordingly stayed pending final approval in this case. Id. at ¶ 21.
Thereafter, Class Counsel prepared a detailed motion to certify the class and grant
preliminary approval. Id. at ¶ 22. On March 11, 2022, the Court granted that motion. Id.
C. The Work Needed to Give Notice of the Settlement.
Because IKEA did not have the names and addresses of many class members, Class
Counsel had to embark on a lengthy campaign that took approximately eleven months to identify
and obtain class member contact information from third parties. Appendix 2 (Owens Decl.) at ¶
23. This involved analyzing and working with the raw transaction data from IKEA (which
contained data for millions of transactions) and then using the data to subpoena IKEA’s processing
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company and nearly fifty banks that issued class members’ credit and debit cards, including Bank
of America, American Express, Capital One, Chase, Citibank, and others. See id. at ¶ 24.
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This labor-intensive process also required attorney and paralegal staff to regularly speak or
correspond with subpoenaed parties and their counsel to discuss the subpoenas or the information
sought, negotiate solutions to their objections, try to help resolve their issues with searching for or
finding the subpoenaed information. Id.
The process of identifying and locating class members also required Class Counsel to keep
track of the responses and status of production by each subpoenaed bank, work with the Claims
Administrator to evaluate and address any issues with the bank data produced and engage in
several conferrals with the banks’ representatives to facilitate the production of the subpoenaed
information or obtain additional time to gather the information to accommodate the subpoenaed
parties’ needs. Id. at ¶ 25.
Further, Class Counsel had to respond to motion practice by one of the banks, which sought
to quash Plaintiffs’ subpoena seeking class member information. Id. at ¶31. Class Counsel
successfully opposed the motion. Id.
This time-consuming process to gather the information needed to send the class notice of
the Settlement required Class Counsel’s attention on a regular basis between the start of the
issuance of the subpoenas and the last major production of class member information. See id. at ¶¶
23-25. During those months, Class Counsel invested hundreds of hours in preparing the subpoenas,
reviewing and processing the data received, and corresponding with the subpoenaed entities in
order to complete this information-gathering process. Id. ⁋ at 24.
Plus, once notice was sent to the Class, Class Counsel received numerous calls and emails
from class members, and answered all such communications, to provide the information requested.
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Id. at ⁋ 28-29.
D. The Work Needed to Defend the Settlement.
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In addition to Class Counsel’s extensive, successful campaign to subpoena class member
name/contact information from the banks, Class Counsel had to prepare substantial additional
briefing to overcome a third party’s attempt to undermine the Settlement. Id. at ¶ 30. On June 22,
2022, Walgreen Co. (“Walgreens”) filed a petition to intervene seeking to raise the issue of
Plaintiffs’ standing in this Court on the sole basis that Walgreens is a defendant in a similar
FACTA case. This forced Class Counsel to spend numerous hours researching and drafting a
response brief and a sur-reply brief in opposition to Walgreens’ petition and preparing for and
presenting argument at the hearing on the same. Id.
Eventually, Plaintiffs prevailed against Walgreens’s petition, but only as a result of the
substantial additional work of Class Counsel. Id. at ⁋⁋ 30-31.
III. THE CLASS NOTICE WAS MORE THAN SUFFICIENT
The class action statute provides for notifying class members about the Settlement to advise
them of its terms and give them the opportunity to comment on it or exclude themselves from the
lawsuit. See 735 ILCS 5/2-803; Fauley v. Metro Life Ins. Co., 2016 IL App (2d) 150236, ¶36 (“due
process requires notice to be the ‘best practicable, ‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’’”) (internal citation omitted).
In accordance with the Court’s order approving the form of notice and its methods of
distribution (See Order Certifying Settlement Class, Granting Preliminary Approval of Settlement,
and Directing Notice to Class at §II), class members were given ample notice. Specifically, the
Claims Administrator, KCC (“KCC”), sent 46,793 notices via e-mail as well as 4,806,902 notices
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via mail to the class members. First, KCC mailed the Double Postcard Summary Notice to
4,806,902 Class Members on March 6, 2023. Appendix 3 (Claim Administrator Decl.) at ¶ 11.
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Subsequently, KCC e-mailed the E-mail Notice to the 46,793 persons on the Class Member List
that lacked a mailing address but contained a valid e-mail address on March 6, 2023. Id. at ¶ 12.
Last, on April 21, 2023, KCC emailed the Reminder Notice to the 44,514 Class Members who
originally only received an E-Mail notice and who at the time of mailing had not filed a claim. Id.
at ¶ 13. This direct notice program reached 98.8% of the class members, an exceptional result. See
Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide
for Judges, FEDERAL JUDICIAL CENTER 2010 (“The norm is in the 70–95% range.”).
As approved by the Court, the notices explained the class members’ rights, how to exercise
them and by when, and directed class members to a website set up by the claim administrator
providing detailed “FAQs” about the Settlement, a means to file a claim online, access to relevant
documents (e.g., settlement agreement, preliminary approval order, attorney fee motion), and toll-
free number to call with any questions. See Appendix 1 (Settlement) at § IV.B;
https://www.ikeausfactaclassaction.com/. The notice given is the best notice practicable with most
class members receiving direct notice either by mail or e-mail, and it was very successful as
illustrated by the great claim rate achieved. See, e.g., Fauley, 2016 IL App (2d) 150236 at ¶37
(notice adequate because it “informed potential class members of the class action’s pendency and
the opportunity to object to the proposed settlement, and it provided a website containing the
3
notice, preliminary approval order, and proposed settlement.”).
3
See also Greco v. Ginn Dev. Co., 635 Fed. App’x 628, 634 (11th Cir. Dec. 2, 2015) (unpublished)
(“all material facts were available to class members because a full copy of the settlement
agreement, and the release, were available on a website referenced in the Notice.”); Curry v.
AvMed, Inc., 2014 U.S. Dist. LEXIS 48485 at *3 (S.D. Fla. Feb. 28, 2014); Collins v. Erin Capital
Management, LLC, No. 12-cv-22839-CMA (S.D. Fla. Dec. 20, 2013) at ECF No. 133, ¶5;
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IV. THE SETTLEMENT SHOULD BE GRANTED FINAL APPROVAL
Illinois law provides that “[a]ny action brought as a class action under Section 2-801 of
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this Act shall not be compromised or dismissed except with the approval of the court ...” 735 ILCS
5/2- 806. The procedure for review of a proposed class action settlement is a well-established two-
step process. See, e.g., Mortimer v. River Oaks Toyota, 278 Ill.App.3d 597, 598-599 (1st Dist.
1996) (describing two-step approval process). The Settlement already passed the first step when
the Court granted preliminary approval. The second step is final approval, which simply requires
confirmation that the Settlement is fair, reasonable, and adequate:
Given that a settlement is a compromise, a trial court is not to judge the legal and
factual questions by the criteria employed in a trial on the merits. Rather, the
standard used to evaluate the settlement of a class action is whether the agreement
is fair, reasonable, and adequate.
Fauley, 2016 IL App (2d) 150236, ¶45 (citations omitted).
This determination must be made with a view toward strong public policy favoring the
voluntary resolution of litigation, particularly class litigation. Security Pac. Fin. Servs. v. Jefferson,
259 Ill.App.3d 914, 919 (1st Dist. 1994) (“there exists a strong policy in favor of settlement and
the resulting avoidance of costly and time-consuming litigation…”); Ehrheart v. Verizon Wireless,
609 F.3d 590, 595 (3d Cir. 2010) (“The strong judicial policy in favor of class action settlement
contemplates a circumscribed role for the district courts in settlement review and approval
proceedings.”). This is because, with a settlement, class members are ensured a benefit as opposed
to “the mere possibility of recovery at some indefinite time in the future.” In re Domestic Air
Guarisma v. Adcahb Medical Coverages, Inc., No. 13-cv-21016-FAM (S.D. Fla. Mar. 2, 2015) at
ECF No. 91, ¶11; Soto v. The Gallup Organization, Inc., No. 13-cv-61747-MGC (S.D. Fla. June
6, 2015) at ECF No. 79, ¶9; De Los Santos v. Millward Brown, Inc., No. 13-cv-80670-DPG (S.D.
Fla. Feb. 10, 2015) at ECF No. 77, ¶11; Cooper v. Nelnet, Inc., 14-cv-00314-RBD (M.D. Fla. Feb.
26, 2015) at ECF No. 72, ¶10.
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Transport Litig., 148 F.R.D. 297, 306 (N.D. Ga. 1993); see also Scott v. Util. Partners of Am.,
LLC, 2017 U.S. Dist. LEXIS 17348 at *8 (D. Kan. Feb. 6, 2017) (“the value of immediate recovery
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would likely outweigh the mere possibility of recovery after protracted litigation.”).
Thus, although approval is a matter for the Court’s discretion, due consideration should be
given to the consensual decision of the parties. See Langendorf v. Irving Trust Co., 244 Ill. App.
3d 70, 78 (1st Dist. 1992) (“Since the settlement is a compromise, the trial court may not …
substitute its own judgment for that of the parties.”); Gautreaux v. Pierce, 690 F.2d 616, 638 (7th
Cir. 1982) (“Because settlement of a class action, like settlement of any litigation, is basically a
bargained exchange between the litigants, the judiciary’s role is properly limited to the minimum
necessary to protect the interest of the class and the public. Judges should not substitute their own
judgments as to optimal settlement terms for the judgment of the litigants and their counsel.”)
(quoting Armstrong v. Bd. of Sch. Directors, 616 F.2d 305, 315 (7th Cir. 1980)).
Evaluating whether a settlement is fair, reasonable, and adequate requires “view[ing] the
settlement as a whole, considering all relevant factors in assessing the compromise.” Langendorf,
244 Ill. App. 3d at 78 (brackets added). Relevant factors include:
(1) the strength of the case for plaintiffs on the merits, balanced against the money
or other relief offered in settlement; (2) the defendant's ability to pay; (3) the
complexity, length and expense of further litigation; (4) the amount of opposition
to the settlement; (5) the presence of collusion in reaching a settlement; (6) the
reaction of members of the class to the settlement; (7) the opinion of competent
counsel; and (8) the stage of proceedings and the amount of discovery completed.
Chicago v. Korshak, 206 Ill. App. 3d 968, 972 (1st Dist. 1990) (citing Armstrong, 616 F.2d at
314). Consideration of these and the other factors discussed in this motion squarely demonstrate
that the Settlement is fair, reasonable, and adequate, and thus merits final approval.
A. The Benefits Achieved Are Excellent Compared to the Chance of Success.
The Settlement is outstanding. This $24,250,000 all-cash, non-reversionary settlement is
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the second-largest FACTA class settlement in the history of FACTA. In contrast, many FACTA
settlements just provided coupons or allowed funds to revert back to the defendant as discussed
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below.
If the parties did not settle, Plaintiffs and the class faced the difficult burden of proving that
IKEA’s violation was “willful,” which is necessary to recover statutory damages. See Lavery v.
Radioshack, 2014 U.S. Dist. LEXIS 85190 at *8-9 (N.D. Ill. June 23, 2014) (FACTA case
discussing “Judge Valdez’s acknowledgement of the ‘difficulty of proving willful violations of
FACTA’ and the high burden on the plaintiffs.”) (internal citation omitted); Flaum v. Doctor's
Assocs., 2019 U.S. Dist. LEXIS 40626, *12-13 (S.D. Fla. Mar. 11, 2019) (noting the risk of
continued litigation in approving settlement because “the failure to prove willfulness has spelled
doom for the plaintiffs in many FACTA cases.”) (collecting cases).
While Plaintiffs are confident in their claim, the chance of success on this issue here was
anything but certain. This is because IKEA claims that a third-party vendor caused its system to
print receipts violating FACTA at its retail locations when IKEA hired the vendor to upgrade the
point-of-sale system software and the vendor caused them to start printing receipts that violated
FACTA. As such, IKEA argued that it had been negligent at best, a scenario in which statutory
damages would have been unavailable. In fact, several courts granted summary judgment to the
merchant on similar facts. See Flaum, 2019 U.S. Dist. LEXIS 40626, *12-13 (citing Keller v.
Macon Ctny. Greyhound Park, Inc., 2011 WL 1559555 at *4-5 (M.D. Ala. Apr. 25, 2011), aff'd,
464 F. App’x 824 (11th Cir. 2012)); Najarian v. Charlotte Russe, Inc., 2007 U.S. Dist. LEXIS
95606 at *5-7 (C.D. Cal. Aug. 16, 2013) (summary judgment for merchant when vendor caused
receipts to violate FACTA). Class Counsel is aware of no FACTA case in which a plaintiff
succeeded at trial or summary judgment on similar facts.
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In addition, Plaintiffs still faced a number of additional major hurdles to secure any relief,
including contested class certification, summary judgment and trial proceedings, and any appeal.
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IKEA is represented by seasoned class action defense counsel. The outcome of each of these stages
is never guaranteed and, even if Plaintiffs cleared every hurdle, they may have recovered statutory
damages lower than the Settlement amount. For example, the court could have found a higher
award unduly punitive. See Aliano v. Joe Caputo & Sons - Algonquin, Inc., 2011 U.S. Dist. LEXIS
48323 at *13 (N.D. Ill. May 5, 2011) (“the Court cannot fathom how the minimum statutory
damages award for willful FACTA violations in this case — between $100 and $1,000 per
violation—would not violate Defendant’s due process rights …. Such an award, although
authorized by statute, would be shocking, grossly excessive, and punitive in nature.”). Moreover,
although the size of IKEA’s business allows it to afford this settlement, IKEA’s ability to pay
4
statutory damages to the full extent was anything but certain.
Against these uncertainties, the Settlement guarantees the class substantial cash relief. See
Gevaerts v. TD Bank, N.A., 2015 U.S. Dist. LEXIS 150354 at *38 (S.D. Fla. Nov. 5, 2015) (“Rather
than facing more years of costly and uncertain litigation, [the] Settlement Class Members will
receive an immediate cash benefit…”) (brackets added); EEOC v. Hiram Walker & Sons, Inc., 768
F.2d 884, 888 (7th Cir. 1985) (“In light of the risks of litigation, the court determined that the relief
provided by the decree was fair and reasonable.”).
The claim rate here surpasses 9%, which is well above the average 5% claim rate expected
5
in consumer class actions. As noted above, each valid claimant will receive about $25, well
4
Considering a class of 4.5 million people, and the maximum statutory damages of $1000 per class
member, a verdict against IKEA would have exposed it to a liability of approximately
$4,500,000,000 in damages.
5
In re TikTok, Inc., Consumer Priv. Litig., 565 F. Supp. 3d 1076, 1090 (N.D. Ill. 2021)
(“According to the plaintiffs’ expert witness in In re Facebook, the average claims rate for classes
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exceeding other FACTA class settlements granted approval, many of which provided only
coupons.6 Accordingly, this substantial benefit of the second largest FACTA settlement in the
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history of FACTA, versus the multiple significant risks that could result in a zero recovery, plainly
favors approval. See Lipuma, 406 F. Supp. 2d at 1323 (it is “proper to take the bird in the hand
instead of a prospective flock in the bush.”).
B. The Stage of the Proceedings, and the Complexity, Length, and Expense of
Further Litigation, Favors Approval.
Without the Settlement, Plaintiffs, the class members, and the courts faced time-
consuming, complex, and expensive litigation. Although Class Counsel conducted discovery
sufficient to determine the size of the class and ensure they fully understood the reasons for the
conduct at issue (including going through the data of millions of transactions), considerable
litigation remained including briefing and arguing class certification, briefing and arguing
summary judgment (a virtual certainty given the cases ruling for the defendant when a third-party
vendor allegedly caused the violations), and conducting any trial and appellate proceedings. Had
the Parties continued litigation in lieu of reaching this settlement, IKEA would have firmly
defended the case, including possibly filing a motion for summary judgment on the issue of
above 2.7 million class members is less than 1.5%. See 2d Expert Decl. Prof. William B.
Rubenstein ¶ 5, In re Facebook, ECF No. 517-2”); see also Sullivan v. DB Invs., Inc., 667 F.3d
273, 329 n.60 (3d Cir. 2011) (en banc) (noting that claims rate in consumer class action settlements
“rarely exceed seven percent”); Pollard v. Remington Arms Co., LLC, 320 F.R.D. 198, 214–15
(W.D. Mo. 2017) (collecting cases that have approved settlements “where the claims rate was less
than one percent”)).
6
See, e.g., Brown v. 22nd Dist. Agric. Ass'n, 2017 U.S. Dist. LEXIS 115321 at *2-3 (S.D. Cal.
July 21, 2017) (FACTA settlement providing 50¢ reduction in admission prices); Hanlon, 2012
U.S. Dist. LEXIS 364 at *14-15 (FACTA settlement that gave class admission tickets to
defendant’s amusement park); Todd v. Retail Concepts Inc., No. 3:07-0788, 2008 U.S. Dist.
LEXIS 117126, at *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 Rests., No. 07- 317,
2008 U.S. Dist. LEXIS 33087, at *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).
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willfulness (see supra at p. 11-12). Without this settlement, the expenses from further litigation
could have exceeded $1,000,000. These circumstances favor approval. See Langendorf, 244 Ill.
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App. 3d at 80 (affirming approval where “the settlement obtained a favorable benefit to the class
without lengthy, costly litigation. Even with no formal discovery conducted, the parties exchanged
informal discovery, evaluated the case’s strengths and weaknesses, and obtained a favorable
settlement without any expense to the class.”).
C. The Settlement Is the Product of Arms-Length Negotiations, Not Collusion.
The Settlement only came about after discovery, months of negotiations, and two
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mediation sessions presided over by Hon. Edward A. Infante (Ret.). At the second mediation, the
parties reached an agreement in principle. But even after agreeing to this framework, the parties
had to spend several months negotiating the terms of a binding settlement term sheet that
memorialized all essential terms. The discovery and negotiations gave Class Counsel, who have
substantial experience litigating FACTA class actions, ample information about the facts and the
chance of success, enabling them to evaluate the terms of any proposed agreement and ensure a
fair result. See Appendix 2 (Owens Decl.) at ¶¶15, 19-20; Appendix 4 (Habashy Decl.) at ¶¶ 9-13;
and Appendix 5 (Keogh Decl.) at ¶¶4, 7.
7
“Hon. Edward A. Infante (Ret.) is known for his ability to mediate complex cases involving a
wide range of issues. […] Judge Infante has more than 35 years of dispute resolution experience.
As a JAMS neutral and as a federal judge, he became known for successfully resolving complex
disputes, with particular expertise in business litigation, employment, intellectual property,
securities and antitrust cases.” Source: https://www.jamsadr.com/infante/ (last viewed: June 9,
2023); see also In re Intuit Data Litig., No. 15-CV-1778-EJD-SVK, 2019 WL 2166236, at *2
(N.D. Cal. May 15, 2019) (“The Court finds that the Agreement was negotiated in good faith and
at arms-length by the parties and their experienced counsel, with the assistance of a highly-capable
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FILED Hearing Date: No hearing scheduled 6/29/2023 4:00 PM Location: <> IRIS Y. MARTINEZ Judge: Calendar, 4 CIRCUIT CLERK COOK COUNTY, IL 2021CH05392 CIRCUIT COURT OF COOK COUNTY, ILLINOIS Calendar, 4 COUNTY DEPARTMENT, CHANCERY DIVISION 23355770 FILED DATE: 6/29/2023 4:00 PM 2021CH05392 ) WILLARD D. RICHARDSON, and JAMIE ) YEOMANS, individually and on behalf ) of others similarly situated, ) ) Plaintiff, ) Case No.: 2021CH05392 v. ) ) IKEA NORTH AMERICA SERVICES., ) Judge: Hon. Alison C. Conlon LLC and IKEA U.S. RETAIL, LLC, ) ) Fairness Hearing: July 28, 2023 10:30 am Defendant. ) PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND RESPONSES TO OBJECTIONS Plaintiffs, Willard Richardson and Jamie Yeomans (“Plaintiffs”), pursuant to 735 ILCS 5/2-806, move for final approval of the class action settlement with Defendants Ikea North America Services, LLC and Ikea U.S. Retail, LLC (“IKEA” or “Defendant”), as to their and the Settlement Class members’ claims under the Fair and Accurate Credit Transactions Act, 15 U.S.C. §1681c(g) (“FACTA”). The settlement agreement is attached as Appendix 1 (“Settlement”). I. INTRODUCTION The Settlement requires IKEA to pay $24,250,000.00 into a common fund to be used entirely to satisfy the class members’ claims, the cost of notice and administration, as well as the attorneys’ fees, litigation expenses, and class representative service awards. Unlike many FACTA settlements granted approval, this Settlement is all cash (no coupons), and no funds will revert to IKEA. Appendix 1 at §III.B, D. This is one of the largest all-cash settlements in FACTA history, an outstanding result. Appendix 2 (Owens Decl.) at ¶ 20. -1- When this Court granted preliminary approval on March 11, 2022, it found the Settlement within the range of reasonableness, and thus that the class should be given notice. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 Nothing has changed to alter this Court’s determination. To the contrary, the class members’ response to the Settlement has been exceptional. More than 450,000 claims were filed in response to the notice directed by the Court (over 9% of class members who were sent notice, well exceeding the average claim rate in consumer class actions, which is often 5% or less). As a result, each valid claimant will receive more than $25, a per capita distribution that is very close 1 to the range estimated in the preliminary approval motion and Notice. Appendix 3 (Claim Administrator Decl.) at ¶ 20. By contrast, only 46 members opted out of the case, and only 3 filed objections. Id. at ¶¶ 17-18. Plus, none of the objectors actually object to the Settlement itself – instead one is just a “philosophical” objection that criticizes class actions generally or the wisdom of FACTA, and the others just object in conclusory fashion to the proposed attorneys’ fee award. What’s more, the three objections out of almost 5 million class members only amount to 0.000000624% of the class, well below the norm.2 Thus, the Settlement is virtually uncontested, favoring final approval. In re Southwest Airlines Voucher Litig., 2013 U.S. Dist. LEXIS 120735, at *21 (N.D. Ill. Dec. 6, 2013) (finding a “low level of opposition” amounting to 0.01% of the class “supports the reasonableness of the settlement”); Lipuma v. American Express Co., 406 F.Supp.2d 1298, 1324 (S.D. Fla. 2005) (“low percentage of objections points to the 1 The slightly lower per capita distribution than initially estimated $30 at 10% claim rate is due to the increased administration costs from mailing every class member notice instead of e-mailing notice as discussed with the Court on March 9, 2022 during the preliminary approval hearing. 2 In a settlement of this size, the norm would be almost 100 objections (extrapolating from the average of 4.7 objectors per $1 million in consumer recovery). See Theodore Eisenberg & Geoffrey Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1550 (2004). -2- reasonableness of a proposed settlement and supports its approval.”); see also Isby v. Bayh, 75 F.3d 1191, 1200 (7th Cir. 1996)(affirming final approval of settlement where 13% of the class FILED DATE: 6/29/2023 4:00 PM 2021CH05392 submitted written objections). Regardless, general disapproval of the case and similar “philosophical” objections are inevitable in class actions, and thus “do not impugn the adequacy of the settlement itself.” Domonoske v. Bank of Am., N.A., 790 F.Supp.2d 466, 474 (W.D. Va. 2011); McLennan v LG Elecs. USA, Inc., 10-cv-03604 (WJM) (D. N. J. 2012) (Same). Thus, as further shown below, this motion for final approval should be granted. II. SUMMARY OF LITIGATION, MEDIATION, SETTLEMENT. A. The FACTA Claims at Issue. Plaintiffs allege that IKEA allowed its stores to print transaction receipts that disclosed more than the last five digits of purchasers’ debit and credit card numbers in violation of FACTA. Congress has found that criminals can use this information to deduce the cardholders’ full account details 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); Redman v. Radioshack, 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.” https://www.ftc.gov/business- guidance/resources/slip-showing-federal-law-requires-all-businesses-truncate-credit-card- information-receipts (last viewed: June 10, 2023). -3- Given the importance of FACTA’s protections, and to encourage FACTA enforcement and compliance, Congress gave the law teeth. Specifically, it incorporated FACTA into the Fair Credit FILED DATE: 6/29/2023 4:00 PM 2021CH05392 Reporting Act, 15 U.S.C. §1681, et seq. (“FCRA”), which entitles a successful plaintiff to modest statutory damages of $100-$1,000 for any “willful” violation of the law. See Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009) (citing 15 U.S.C. §1681n(a)). Consistent with this intent, Plaintiffs brought the instant action to remedy the alleged violation of their and the class members’ FACTA rights. B. The Litigation and Mediation Proceedings that Led to the Settlement. Before originally filing suit in California state court, Class Counsel conducted a thorough pre-suit investigation and prepared a complaint alleging that IKEA willfully violated the FACTA rights of Plaintiffs and a nationwide class of other individuals at its stores. See Appendix 2 (Owens Decl.) at ¶ 15. The complaint was amended twice to, inter alia, add Jamie Yeomans as named plaintiff. Id. at ¶ 16. Plaintiffs also conducted full written discovery, serving interrogatories, requests for admission, and document requests. Id. IKEA initially failed to provide any substantial responses and Plaintiffs’ counsel engage IKEA in several conferrals to obtain meaningful responses. Id. at ¶ 17. The parties also agreed to attend mediation, and IKEA provided additional class information in connection with the same. Id. On October 5, 2020, the parties participated in a formal mediation session with the professional mediator Hon. Edward A. Infante (Ret.) in Los Angeles, California. However, they were unable to reach a settlement at that time. During the weeks following the first mediation session, the Parties continued settlement discussions and the informal exchange of relevant information, including class data. Thereafter, on December 14, 2020, the parties took part in a second mediation session, at which time they reached an agreement in principle. Id. -4- But even after agreeing to the basic framework of a settlement, the parties had to spend several months negotiating the terms of a binding settlement term sheet that memorialized all FILED DATE: 6/29/2023 4:00 PM 2021CH05392 essential terms, while the parties documented the formal Settlement. Id. at ¶¶ 17-18. On or about February 23, 2021, the parties entered into a binding settlement term sheet, memorializing all essential terms. The term sheet also anticipated the parties would submit a joint request to stay the Los Angeles County Action and file a companion action in the Circuit Court for Cook County, Illinois, to be styled as Richardson et al. v. IKEA North America Services, LLC et al., for purposes of obtaining approval of the parties’ settlement and subsequent administration. On or about September 15, 2021, after spending substantial time negotiating the terms of the formal settlement agreement, including the proposed class notices, claim form, and orders that would be submitted to the Court for approval, the parties executed the Settlement. Appendix 2 (Owens Decl.) at 17-18. As agreed, on October 21, 2021, Plaintiffs refiled their lawsuit in the Circuit Court of Cook County, Illinois, for purposes of settlement approval and administration. Id. at ¶ 21. Subsequently, IKEA filed its answer. Id. at ¶ 22. On September 12, 2022, the California state case was accordingly stayed pending final approval in this case. Id. at ¶ 21. Thereafter, Class Counsel prepared a detailed motion to certify the class and grant preliminary approval. Id. at ¶ 22. On March 11, 2022, the Court granted that motion. Id. C. The Work Needed to Give Notice of the Settlement. Because IKEA did not have the names and addresses of many class members, Class Counsel had to embark on a lengthy campaign that took approximately eleven months to identify and obtain class member contact information from third parties. Appendix 2 (Owens Decl.) at ¶ 23. This involved analyzing and working with the raw transaction data from IKEA (which contained data for millions of transactions) and then using the data to subpoena IKEA’s processing -5- company and nearly fifty banks that issued class members’ credit and debit cards, including Bank of America, American Express, Capital One, Chase, Citibank, and others. See id. at ¶ 24. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 This labor-intensive process also required attorney and paralegal staff to regularly speak or correspond with subpoenaed parties and their counsel to discuss the subpoenas or the information sought, negotiate solutions to their objections, try to help resolve their issues with searching for or finding the subpoenaed information. Id. The process of identifying and locating class members also required Class Counsel to keep track of the responses and status of production by each subpoenaed bank, work with the Claims Administrator to evaluate and address any issues with the bank data produced and engage in several conferrals with the banks’ representatives to facilitate the production of the subpoenaed information or obtain additional time to gather the information to accommodate the subpoenaed parties’ needs. Id. at ¶ 25. Further, Class Counsel had to respond to motion practice by one of the banks, which sought to quash Plaintiffs’ subpoena seeking class member information. Id. at ¶31. Class Counsel successfully opposed the motion. Id. This time-consuming process to gather the information needed to send the class notice of the Settlement required Class Counsel’s attention on a regular basis between the start of the issuance of the subpoenas and the last major production of class member information. See id. at ¶¶ 23-25. During those months, Class Counsel invested hundreds of hours in preparing the subpoenas, reviewing and processing the data received, and corresponding with the subpoenaed entities in order to complete this information-gathering process. Id. ⁋ at 24. Plus, once notice was sent to the Class, Class Counsel received numerous calls and emails from class members, and answered all such communications, to provide the information requested. -6- Id. at ⁋ 28-29. D. The Work Needed to Defend the Settlement. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 In addition to Class Counsel’s extensive, successful campaign to subpoena class member name/contact information from the banks, Class Counsel had to prepare substantial additional briefing to overcome a third party’s attempt to undermine the Settlement. Id. at ¶ 30. On June 22, 2022, Walgreen Co. (“Walgreens”) filed a petition to intervene seeking to raise the issue of Plaintiffs’ standing in this Court on the sole basis that Walgreens is a defendant in a similar FACTA case. This forced Class Counsel to spend numerous hours researching and drafting a response brief and a sur-reply brief in opposition to Walgreens’ petition and preparing for and presenting argument at the hearing on the same. Id. Eventually, Plaintiffs prevailed against Walgreens’s petition, but only as a result of the substantial additional work of Class Counsel. Id. at ⁋⁋ 30-31. III. THE CLASS NOTICE WAS MORE THAN SUFFICIENT The class action statute provides for notifying class members about the Settlement to advise them of its terms and give them the opportunity to comment on it or exclude themselves from the lawsuit. See 735 ILCS 5/2-803; Fauley v. Metro Life Ins. Co., 2016 IL App (2d) 150236, ¶36 (“due process requires notice to be the ‘best practicable, ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’’”) (internal citation omitted). In accordance with the Court’s order approving the form of notice and its methods of distribution (See Order Certifying Settlement Class, Granting Preliminary Approval of Settlement, and Directing Notice to Class at §II), class members were given ample notice. Specifically, the Claims Administrator, KCC (“KCC”), sent 46,793 notices via e-mail as well as 4,806,902 notices -7- via mail to the class members. First, KCC mailed the Double Postcard Summary Notice to 4,806,902 Class Members on March 6, 2023. Appendix 3 (Claim Administrator Decl.) at ¶ 11. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 Subsequently, KCC e-mailed the E-mail Notice to the 46,793 persons on the Class Member List that lacked a mailing address but contained a valid e-mail address on March 6, 2023. Id. at ¶ 12. Last, on April 21, 2023, KCC emailed the Reminder Notice to the 44,514 Class Members who originally only received an E-Mail notice and who at the time of mailing had not filed a claim. Id. at ¶ 13. This direct notice program reached 98.8% of the class members, an exceptional result. See Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges, FEDERAL JUDICIAL CENTER 2010 (“The norm is in the 70–95% range.”). As approved by the Court, the notices explained the class members’ rights, how to exercise them and by when, and directed class members to a website set up by the claim administrator providing detailed “FAQs” about the Settlement, a means to file a claim online, access to relevant documents (e.g., settlement agreement, preliminary approval order, attorney fee motion), and toll- free number to call with any questions. See Appendix 1 (Settlement) at § IV.B; https://www.ikeausfactaclassaction.com/. The notice given is the best notice practicable with most class members receiving direct notice either by mail or e-mail, and it was very successful as illustrated by the great claim rate achieved. See, e.g., Fauley, 2016 IL App (2d) 150236 at ¶37 (notice adequate because it “informed potential class members of the class action’s pendency and the opportunity to object to the proposed settlement, and it provided a website containing the 3 notice, preliminary approval order, and proposed settlement.”). 3 See also Greco v. Ginn Dev. Co., 635 Fed. App’x 628, 634 (11th Cir. Dec. 2, 2015) (unpublished) (“all material facts were available to class members because a full copy of the settlement agreement, and the release, were available on a website referenced in the Notice.”); Curry v. AvMed, Inc., 2014 U.S. Dist. LEXIS 48485 at *3 (S.D. Fla. Feb. 28, 2014); Collins v. Erin Capital Management, LLC, No. 12-cv-22839-CMA (S.D. Fla. Dec. 20, 2013) at ECF No. 133, ¶5; -8- IV. THE SETTLEMENT SHOULD BE GRANTED FINAL APPROVAL Illinois law provides that “[a]ny action brought as a class action under Section 2-801 of FILED DATE: 6/29/2023 4:00 PM 2021CH05392 this Act shall not be compromised or dismissed except with the approval of the court ...” 735 ILCS 5/2- 806. The procedure for review of a proposed class action settlement is a well-established two- step process. See, e.g., Mortimer v. River Oaks Toyota, 278 Ill.App.3d 597, 598-599 (1st Dist. 1996) (describing two-step approval process). The Settlement already passed the first step when the Court granted preliminary approval. The second step is final approval, which simply requires confirmation that the Settlement is fair, reasonable, and adequate: Given that a settlement is a compromise, a trial court is not to judge the legal and factual questions by the criteria employed in a trial on the merits. Rather, the standard used to evaluate the settlement of a class action is whether the agreement is fair, reasonable, and adequate. Fauley, 2016 IL App (2d) 150236, ¶45 (citations omitted). This determination must be made with a view toward strong public policy favoring the voluntary resolution of litigation, particularly class litigation. Security Pac. Fin. Servs. v. Jefferson, 259 Ill.App.3d 914, 919 (1st Dist. 1994) (“there exists a strong policy in favor of settlement and the resulting avoidance of costly and time-consuming litigation…”); Ehrheart v. Verizon Wireless, 609 F.3d 590, 595 (3d Cir. 2010) (“The strong judicial policy in favor of class action settlement contemplates a circumscribed role for the district courts in settlement review and approval proceedings.”). This is because, with a settlement, class members are ensured a benefit as opposed to “the mere possibility of recovery at some indefinite time in the future.” In re Domestic Air Guarisma v. Adcahb Medical Coverages, Inc., No. 13-cv-21016-FAM (S.D. Fla. Mar. 2, 2015) at ECF No. 91, ¶11; Soto v. The Gallup Organization, Inc., No. 13-cv-61747-MGC (S.D. Fla. June 6, 2015) at ECF No. 79, ¶9; De Los Santos v. Millward Brown, Inc., No. 13-cv-80670-DPG (S.D. Fla. Feb. 10, 2015) at ECF No. 77, ¶11; Cooper v. Nelnet, Inc., 14-cv-00314-RBD (M.D. Fla. Feb. 26, 2015) at ECF No. 72, ¶10. -9- Transport Litig., 148 F.R.D. 297, 306 (N.D. Ga. 1993); see also Scott v. Util. Partners of Am., LLC, 2017 U.S. Dist. LEXIS 17348 at *8 (D. Kan. Feb. 6, 2017) (“the value of immediate recovery FILED DATE: 6/29/2023 4:00 PM 2021CH05392 would likely outweigh the mere possibility of recovery after protracted litigation.”). Thus, although approval is a matter for the Court’s discretion, due consideration should be given to the consensual decision of the parties. See Langendorf v. Irving Trust Co., 244 Ill. App. 3d 70, 78 (1st Dist. 1992) (“Since the settlement is a compromise, the trial court may not … substitute its own judgment for that of the parties.”); Gautreaux v. Pierce, 690 F.2d 616, 638 (7th Cir. 1982) (“Because settlement of a class action, like settlement of any litigation, is basically a bargained exchange between the litigants, the judiciary’s role is properly limited to the minimum necessary to protect the interest of the class and the public. Judges should not substitute their own judgments as to optimal settlement terms for the judgment of the litigants and their counsel.”) (quoting Armstrong v. Bd. of Sch. Directors, 616 F.2d 305, 315 (7th Cir. 1980)). Evaluating whether a settlement is fair, reasonable, and adequate requires “view[ing] the settlement as a whole, considering all relevant factors in assessing the compromise.” Langendorf, 244 Ill. App. 3d at 78 (brackets added). Relevant factors include: (1) the strength of the case for plaintiffs on the merits, balanced against the money or other relief offered in settlement; (2) the defendant's ability to pay; (3) the complexity, length and expense of further litigation; (4) the amount of opposition to the settlement; (5) the presence of collusion in reaching a settlement; (6) the reaction of members of the class to the settlement; (7) the opinion of competent counsel; and (8) the stage of proceedings and the amount of discovery completed. Chicago v. Korshak, 206 Ill. App. 3d 968, 972 (1st Dist. 1990) (citing Armstrong, 616 F.2d at 314). Consideration of these and the other factors discussed in this motion squarely demonstrate that the Settlement is fair, reasonable, and adequate, and thus merits final approval. A. The Benefits Achieved Are Excellent Compared to the Chance of Success. The Settlement is outstanding. This $24,250,000 all-cash, non-reversionary settlement is - 10 - the second-largest FACTA class settlement in the history of FACTA. In contrast, many FACTA settlements just provided coupons or allowed funds to revert back to the defendant as discussed FILED DATE: 6/29/2023 4:00 PM 2021CH05392 below. If the parties did not settle, Plaintiffs and the class faced the difficult burden of proving that IKEA’s violation was “willful,” which is necessary to recover statutory damages. See Lavery v. Radioshack, 2014 U.S. Dist. LEXIS 85190 at *8-9 (N.D. Ill. June 23, 2014) (FACTA case discussing “Judge Valdez’s acknowledgement of the ‘difficulty of proving willful violations of FACTA’ and the high burden on the plaintiffs.”) (internal citation omitted); Flaum v. Doctor's Assocs., 2019 U.S. Dist. LEXIS 40626, *12-13 (S.D. Fla. Mar. 11, 2019) (noting the risk of continued litigation in approving settlement because “the failure to prove willfulness has spelled doom for the plaintiffs in many FACTA cases.”) (collecting cases). While Plaintiffs are confident in their claim, the chance of success on this issue here was anything but certain. This is because IKEA claims that a third-party vendor caused its system to print receipts violating FACTA at its retail locations when IKEA hired the vendor to upgrade the point-of-sale system software and the vendor caused them to start printing receipts that violated FACTA. As such, IKEA argued that it had been negligent at best, a scenario in which statutory damages would have been unavailable. In fact, several courts granted summary judgment to the merchant on similar facts. See Flaum, 2019 U.S. Dist. LEXIS 40626, *12-13 (citing Keller v. Macon Ctny. Greyhound Park, Inc., 2011 WL 1559555 at *4-5 (M.D. Ala. Apr. 25, 2011), aff'd, 464 F. App’x 824 (11th Cir. 2012)); Najarian v. Charlotte Russe, Inc., 2007 U.S. Dist. LEXIS 95606 at *5-7 (C.D. Cal. Aug. 16, 2013) (summary judgment for merchant when vendor caused receipts to violate FACTA). Class Counsel is aware of no FACTA case in which a plaintiff succeeded at trial or summary judgment on similar facts. - 11 - In addition, Plaintiffs still faced a number of additional major hurdles to secure any relief, including contested class certification, summary judgment and trial proceedings, and any appeal. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 IKEA is represented by seasoned class action defense counsel. The outcome of each of these stages is never guaranteed and, even if Plaintiffs cleared every hurdle, they may have recovered statutory damages lower than the Settlement amount. For example, the court could have found a higher award unduly punitive. See Aliano v. Joe Caputo & Sons - Algonquin, Inc., 2011 U.S. Dist. LEXIS 48323 at *13 (N.D. Ill. May 5, 2011) (“the Court cannot fathom how the minimum statutory damages award for willful FACTA violations in this case — between $100 and $1,000 per violation—would not violate Defendant’s due process rights …. Such an award, although authorized by statute, would be shocking, grossly excessive, and punitive in nature.”). Moreover, although the size of IKEA’s business allows it to afford this settlement, IKEA’s ability to pay 4 statutory damages to the full extent was anything but certain. Against these uncertainties, the Settlement guarantees the class substantial cash relief. See Gevaerts v. TD Bank, N.A., 2015 U.S. Dist. LEXIS 150354 at *38 (S.D. Fla. Nov. 5, 2015) (“Rather than facing more years of costly and uncertain litigation, [the] Settlement Class Members will receive an immediate cash benefit…”) (brackets added); EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888 (7th Cir. 1985) (“In light of the risks of litigation, the court determined that the relief provided by the decree was fair and reasonable.”). The claim rate here surpasses 9%, which is well above the average 5% claim rate expected 5 in consumer class actions. As noted above, each valid claimant will receive about $25, well 4 Considering a class of 4.5 million people, and the maximum statutory damages of $1000 per class member, a verdict against IKEA would have exposed it to a liability of approximately $4,500,000,000 in damages. 5 In re TikTok, Inc., Consumer Priv. Litig., 565 F. Supp. 3d 1076, 1090 (N.D. Ill. 2021) (“According to the plaintiffs’ expert witness in In re Facebook, the average claims rate for classes - 12 - exceeding other FACTA class settlements granted approval, many of which provided only coupons.6 Accordingly, this substantial benefit of the second largest FACTA settlement in the FILED DATE: 6/29/2023 4:00 PM 2021CH05392 history of FACTA, versus the multiple significant risks that could result in a zero recovery, plainly favors approval. See Lipuma, 406 F. Supp. 2d at 1323 (it is “proper to take the bird in the hand instead of a prospective flock in the bush.”). B. The Stage of the Proceedings, and the Complexity, Length, and Expense of Further Litigation, Favors Approval. Without the Settlement, Plaintiffs, the class members, and the courts faced time- consuming, complex, and expensive litigation. Although Class Counsel conducted discovery sufficient to determine the size of the class and ensure they fully understood the reasons for the conduct at issue (including going through the data of millions of transactions), considerable litigation remained including briefing and arguing class certification, briefing and arguing summary judgment (a virtual certainty given the cases ruling for the defendant when a third-party vendor allegedly caused the violations), and conducting any trial and appellate proceedings. Had the Parties continued litigation in lieu of reaching this settlement, IKEA would have firmly defended the case, including possibly filing a motion for summary judgment on the issue of above 2.7 million class members is less than 1.5%. See 2d Expert Decl. Prof. William B. Rubenstein ¶ 5, In re Facebook, ECF No. 517-2”); see also Sullivan v. DB Invs., Inc., 667 F.3d 273, 329 n.60 (3d Cir. 2011) (en banc) (noting that claims rate in consumer class action settlements “rarely exceed seven percent”); Pollard v. Remington Arms Co., LLC, 320 F.R.D. 198, 214–15 (W.D. Mo. 2017) (collecting cases that have approved settlements “where the claims rate was less than one percent”)). 6 See, e.g., Brown v. 22nd Dist. Agric. Ass'n, 2017 U.S. Dist. LEXIS 115321 at *2-3 (S.D. Cal. July 21, 2017) (FACTA settlement providing 50¢ reduction in admission prices); Hanlon, 2012 U.S. Dist. LEXIS 364 at *14-15 (FACTA settlement that gave class admission tickets to defendant’s amusement park); Todd v. Retail Concepts Inc., No. 3:07-0788, 2008 U.S. Dist. LEXIS 117126, at *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 Rests., No. 07- 317, 2008 U.S. Dist. LEXIS 33087, at *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). - 13 - willfulness (see supra at p. 11-12). Without this settlement, the expenses from further litigation could have exceeded $1,000,000. These circumstances favor approval. See Langendorf, 244 Ill. FILED DATE: 6/29/2023 4:00 PM 2021CH05392 App. 3d at 80 (affirming approval where “the settlement obtained a favorable benefit to the class without lengthy, costly litigation. Even with no formal discovery conducted, the parties exchanged informal discovery, evaluated the case’s strengths and weaknesses, and obtained a favorable settlement without any expense to the class.”). C. The Settlement Is the Product of Arms-Length Negotiations, Not Collusion. The Settlement only came about after discovery, months of negotiations, and two 7 mediation sessions presided over by Hon. Edward A. Infante (Ret.). At the second mediation, the parties reached an agreement in principle. But even after agreeing to this framework, the parties had to spend several months negotiating the terms of a binding settlement term sheet that memorialized all essential terms. The discovery and negotiations gave Class Counsel, who have substantial experience litigating FACTA class actions, ample information about the facts and the chance of success, enabling them to evaluate the terms of any proposed agreement and ensure a fair result. See Appendix 2 (Owens Decl.) at ¶¶15, 19-20; Appendix 4 (Habashy Decl.) at ¶¶ 9-13; and Appendix 5 (Keogh Decl.) at ¶¶4, 7. 7 “Hon. Edward A. Infante (Ret.) is known for his ability to mediate complex cases involving a wide range of issues. […] Judge Infante has more than 35 years of dispute resolution experience. As a JAMS neutral and as a federal judge, he became known for successfully resolving complex disputes, with particular expertise in business litigation, employment, intellectual property, securities and antitrust cases.” Source: https://www.jamsadr.com/infante/ (last viewed: June 9, 2023); see also In re Intuit Data Litig., No. 15-CV-1778-EJD-SVK, 2019 WL 2166236, at *2 (N.D. Cal. May 15, 2019) (“The Court finds that the Agreement was negotiated in good faith and at arms-length by the parties and their experienced counsel, with the assistance of a highly-capable