Legal Document: MARTINIQUE OWENS,AMELIA GARCIA-vs-WENDY'S INTERNATIONAL, LL,NCR CORP N/P/D

On September 11, 2018 a Motion Filed - Plaintiffs??? Motion and Memorandum of Law in Support of Final Approval of Class Action Settlement was filed involving a dispute between Garcia Amelia, Garcia, Amelia, Owens Martinique, and Ncr Corp N P D, Wendy'S International, Ll, for Class Actions in the District Court of Cook County.

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Hearing Date: No hearing scheduled
Location: <>
Judge: Calendar, 15
FILED
3/27/2024 7:54 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
COUNTY DEPARTMENT, CHANCERY DIVISION CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

2018CH11423
MARTINIQUE OWENS and AMELIA Calendar, 15
GARCIA, individually and on behalf of all Case No. 2018-CH-11423 27015815
others similarly situated,
Honorable Anna M. Loftus
Plaintiffs,
Calendar 15
v.

WENDY’S INTERNATIONAL, LLC, an Ohio
limited liability company,

Defendant.

PLAINTIFFS’ MOTION AND MEMORANDUM OF LAW IN SUPPORT OF FINAL
APPROVAL OF CLASS ACTION SETTLEMENT
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................1
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

II. BACKGROUND ................................................................................................................2

A. The Claims ..............................................................................................................2

B. Litigation, Negotiation, and Settlement ...............................................................3

III. TERMS OF THE SETTLEMENT AGREEMENT .......................................................6

A. Settlement Class Definition ...................................................................................6

B. Monetary Relief. .....................................................................................................7

C. Prospective Relief. ..................................................................................................8

D. Payment of Settlement Notice and Administrative Costs. .................................8

E. Payment of Attorneys’ Fees, Costs, and Incentive Awards. ..............................9

F. Release of Liability.................................................................................................9

IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS .....................................9

V. THE SETTLEMENT WARRANTS FINAL APPROVAL .........................................11

A. The Relief Offered in the Settlement Weighs Strongly in Favor of Final
Approval. ..............................................................................................................12

1. The relief provided by the Settlement is excellent. ...................................12

2. Plaintiffs and the Settlement Class faced serious obstacles to relief. .....15

B. Defendants’ Ability to Pay Supports the Settlement. .......................................17

C. The Complexity, Length, and Expense of Further Litigation Weighs in Favor
of Settlement. ........................................................................................................17

D. The Positive Reaction to the Settlement Supports Final Approval. ................19

E. There Was Absolutely No Collusion Between the Parties................................20

F. It Is Class Counsel’s Opinion That the Settlement is in the Best Interest of
All Settlement Class Members. ...........................................................................20

i
G. The Stage of Proceedings Supports Final Approval of the Settlement. ..........22
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

VI. CONCLUSION ................................................................................................................23

ii
TABLE OF AUTHORITIES

Illinois Supreme Court Cases
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Cothron v. White Castle Sys., Inc.,
2023 IL 128004 ..............................................................................................................5, 16

McDonald v. Symphony Bronzeville Park LLC, et al.,
2022 IL 126511 ..................................................................................................................21

Rosenbach v. Six Flags Ent. Corp.,
2019 IL 123186 ....................................................................................................................3

Tims v. Black Horse Carriers, Inc.,
2023 IL 127801 ....................................................................................................................5

Illinois Appellate Court Cases

Carrao v. Health Care Serv. Corp.,
118 Ill. App. 3d 417 (1st Dist. 1983) ...........................................................................10, 11

City of Chi. v. Korshak,
206 Ill. App. 3d 968 (1st Dist. 1990) ...............................................................11, 19, 20, 22

GMAC Mortg. Corp. of Pa. v. Stapleton,
236 Ill. App. 3d 486 (1st Dist. 1992) ...........................................................................19, 22

Lee v. Buth-Na-Bodhaige, Inc.,
2019 IL App (5th) 180033 ...................................................................................................9

Marion v. Ring Container Technologies, LLC,
No. 3-20-0184 ......................................................................................................................4

McCormick v. Adtalem Glob. Educ., Inc.,
2022 IL App (1st) 201197-U .......................................................................................12, 21

McDonald v. Symphony Bronzeville Park LLC,
No. 1-19-2398 ......................................................................................................................4

Rottner v. Palm Beach Tan, Inc.,
2019 IL App (1st) 180691-U .............................................................................................21

Sekura v. Krishna Schaumburg Tan, Inc.,
2018 IL App (1st) 180175..................................................................................................21

iii
Shaun Fauley, Sabon, Inc. v. Metro Life Ins. Co.,
2016 IL App (2d) 150236 ..................................................................................... 18, 19, 20
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Steinberg v. Sys. Software Assocs., Inc.,
306 Ill. App. 3d 157 (1st Dist. 1999) .................................................................................12

Tims v. Black Horse Carriers, Inc.,
No. 1-28-0563 ......................................................................................................................4

Illinois Circuit Court Cases

Carroll v. Crème de la Crème, Inc.,
No. 2017-CH-01624 (Cir. Ct. Cook Cty.) .........................................................................13

Chacon v. Wendy’s International, LLC,
No. 23-CH-08074 (Cir. Ct. Cook Cty.) .............................................................................19

Diaz v. Greencore,
No. 2017-CH-13198 (Cir. Ct. Cook Cty.) .........................................................................14

Diller v. Ryder Integrated Logistics,
No. 2019-CH-3032 (Cir. Ct. Cook Cty.) ...........................................................................22

Johnson v. Resthaven/Providence Life Servs.,
No. 2019-CH-1813 (Cir. Ct. Cook Cty.) ...........................................................................22

Jones v. Rosebud Rests., Inc.,
No. 2019-CH-10620 (Cir. Ct. Cook Cty.) .........................................................................22

Licata v. Facebook, Inc.,
No. 2015-CH-05427 (Cir. Ct. Cook Cty.) .........................................................................21

Marshall v. Life Time Fitness, Inc.,
No. 2017-CH-14262 (Cir. Ct. Cook Cty.) .........................................................................13

O’Sullivan v. WAM Holdings, Inc.,
No. 2019-CH-11575 (Cir. Ct. Cook Cty.) ...................................................................14, 22

Roach v. Walmart Inc.,
No. 2019-CH-01107 (Cir. Ct. Cook Cty.) .........................................................................14

Sekura v. L.A. Tan Enters., Inc.,
No. 2015-CH-16694 (Cir. Ct. Cook Cty.) .........................................................................21

Sykes v. Clearstaff, Inc.,
No. 2019-CH-03390 (Cir. Ct. Cook Cty.) .........................................................................13

iv
Thompson v. Matcor Metal Fabrication (Ill.) Inc.,
No. 2020-CH-00132 (Cir. Ct. Tazewell Cty.) ...................................................................15
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Zhirovetskiy v. Zayo Grp., LLC,
No. 2017-CH-09323 (Cir. Ct. Cook Cty.) .........................................................................13

United States Supreme Court Cases

Eisen v. Carlisle & Jacquelin,
417 U.S. 156 (1974) .............................................................................................................9

United States Circuit Court of Appeals Cases

Golan v. FreeEats.com, Inc.,
930 F.3d 950 (8th Cir. 2019) .............................................................................................16

Patel v. Facebook, Inc.,
932 F.3d 1264 (9th Cir. 2019) ...........................................................................................21

Sosa v. Onfido, Inc.,
8 F.4th 631 (7th Cir. 2021) ................................................................................................21

United States v. Dish Network L.L.C.,
954 F.3d 970 (7th Cir. 2020) .............................................................................................16

Wakefield v. ViSalus, Inc.,
51 F.4th 1109 (9th Cir. 2022) ............................................................................................16

United States District Court Cases

Adkins v. Facebook, Inc.,
No. 18-cv-05982-WHA (N.D. Cal.) ................................................................................. 13

Burlinski v. Top Golf USA, Inc.,
No. 19-cv-06700 (N.D. Ill.) ...............................................................................................22

Davis v. Heartland Emp. Servs., LLC,
No. 19-cv-00680 (N.D. Ill.) .........................................................................................14, 22

Douglas v. W. Union Co.,
328 F.R.D. 204 (N.D. Ill. 2018) .........................................................................................18

Glaberson v. Comcast Corp.,
No. CV-03-6604, 2015 WL 5582251 (E.D. Pa. Sept. 22, 2015) .......................................17

v
Goldsmith v. Tech. Sols. Co.,
No. 92 C 4374, 1995 WL 17009594 (N.D. Ill. Oct. 10, 1995) ......................................... 17
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

In re AT & T Mobility Wireless Data Servs. Sales Tax Litig.,
789 F. Supp. 2d 935 (N.D. Ill. 2011)..................................................................................18

In re Facebook Biometric Info. Priv. Litig.,
No. 3:15-CV-03747-JD, 2018 WL 2197546 (N.D. Cal. May 14, 2018) ...........................15

In re Facebook Biometric Info. Priv. Litig.,
522 F. Supp. 3d 617 (N.D. Cal. 2021) ...............................................................................21

In re Google LLC Street View Elec. Commc’ns Litig.,
611 F. Supp. 3d 872 (N.D. Cal. 2020) .............................................................................. 13

In re Google Plus Profile Litig.,
No. 5:18-cv-06164, 2021 WL 242887 (N.D. Cal. Jan. 25, 2021)..................................... 12

Kleen Prods. LLC v. Int’l Paper Co.,
No. 1:10-CV-05711, 2017 WL 5247928 (N.D. Ill. Oct. 17, 2017) ...................................17

Martinez v. Nando’s Rest. Grp., Inc.,
No. 19-cv-07012 (N.D. Ill.) ...............................................................................................22

Rogers v. BNSF Ry. Co.,
No. 19-cv-03083, 2023 WL 4297654 (N.D. Ill. June 30, 2023) ........................................16

Schulte v. Fifth Third Bank,
805 F. Supp. 2d 560 (N.D. Ill. 2011) .................................................................................18

Williams v. PersonalizationMall.com, LLC,
No. 20-cv-00025 (N.D. Ill. July 20, 2022) ........................................................................14

Miscellaneous Authority

735 ILCS 5/2-807 ........................................................................................................................7, 8

740 ILCS 14 ...............................................................................................................................1, 15

Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist and Plain
Language Guide (2010), www.fjc.gov/sites/default/files/2012/NotCheck.pdf .................10

Ill. Sup. Ct. R. 308 ...........................................................................................................................4

vi
I. INTRODUCTION

Plaintiffs Martinique Owens and Amelia Garcia (“Plaintiffs”) filed this class action
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

lawsuit against their former employer Defendant Wendy’s International, LLC (“Wendy’s”).

Plaintiffs alleged that Wendy’s violated the Biometric Information Privacy Act (“BIPA”), 740

ILCS 14/1, et seq., by requiring workers to scan their fingerprints to enroll in Wendy’s

fingerprint database and to then scan their fingerprints to clock in and out of work each day and

to unlock and use the restaurant’s point of sale (“POS”) system and cash registers. Despite

allegedly collecting and storing workers’ biometric data via the POS system, Plaintiffs allege that

Wendy’s failed to first obtain their and other employees’ consent or establish and abide by a

publicly-available retention and deletion policy for biometric data.

After fully briefing and defeating a motion to dismiss, defeating Wendy’s attempt to

relitigate the motion to dismiss and certify issues for appeal, and a hard-fought thirteen-hour

mediation, the Parties reached a Settlement, which the Court preliminarily approved on

November 29, 2023.1 The Settlement creates a $18,207,090.00 non-reversionary Settlement

Fund for 19,891 members of the Settlement Class. After any awarded fees and costs are paid,

each Class Member with an address or electronic payment method available (which is 98.36% of

the class), will be sent a Settlement Payment of approximately $590, without the need to submit

a claim form. No amount will revert to Wendy’s.

In accordance with the Court’s Preliminary Approval Order, direct notice was sent to the

19,891 members of the Settlement Class with a mailing address via U.S. Mail and successfully

reached 98.36% of the Settlement Class. The Settlement Website,

1
Capitalized terms used in this Motion are those used in the Class Action Settlement
Agreement (“Settlement” or “Agreement”) attached hereto as Exhibit 1.

1
www.WENBIPAsettlement.com, has provided access to the full notice and key documents,

including the pleadings, the Settlement Agreement itself, and Plaintiffs’ motion for preliminary
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

approval of the Settlement. Class Counsel timely filed their motion for attorneys’ fees and

Plaintiffs’ incentive awards, which was promptly posted to the Settlement Website. Given the

strength of the Settlement, it is unsurprising that the Objection/Exclusion Deadline has come and

gone without a single objection to the Settlement and only two requests for exclusion having

been received.

Plaintiffs accordingly request that the Court finally approve the Settlement as fair,

reasonable, and adequate and direct the Settlement Administrator to disburse Settlement

Payments to the Class Members.

II. BACKGROUND

A complete explanation of the history of the case appears in Plaintiffs’ pending Motion

and Memorandum of Law for Attorneys’ Fees, Expenses, and Incentive Awards. For ease of

reference, Plaintiffs again provide a summary below.

A. The Claims

Plaintiffs are former employees of Wendy’s and worked at Wendy’s corporate operated

restaurants in Illinois. Plaintiffs claim that Wendy’s required them—like all other new

employees—to scan their fingerprints to enroll in Wendy’s fingerprint database, and

subsequently use their fingerprints to clock in and out of work each day and to unlock Wendy's

POS system. (Compl. ¶¶ 2, 23-25.) In doing so, Plaintiffs allege that Wendy’s violated section

15(b) of BIPA by failing to obtain employees’ informed, written consent prior to collecting their

biometric data, and section 15(a) by failing to establish and abide by a publicly-available

retention and destruction policy for permanently destroying biometric data. (Id. ¶¶ 46-57.) In

2
their complaint, Plaintiffs sought to recover, for themselves and the class, statutory damages of

$1,000 for each of Wendy’s negligent violations of BIPA, as well as injunctive relief requiring
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Wendy’s to comply with BIPA. (Id. ¶¶ 39, 57.) Wendy’s denies that it has engaged in any

wrongdoing.

B. Litigation, Negotiation, and Settlement

On September 11, 2018, Plaintiffs filed this putative class action against Wendy’s in the

Circuit Court of Cook County, Illinois. The complaint also named NCR Corporation (“NCR”),

the provider of Wendy’s POS and timekeeping hardware and software, as a respondent in

discovery. (Compl. ¶ 10.) Plaintiffs issued written discovery requests to NCR shortly after filing

regarding how Wendy’s timekeeping and POS system stored and transmitted employee data.

(Declaration of Schuyler Ufkes (“Ufkes Decl.”), attached as Exhibit 2 ¶ 3.) While Plaintiffs’

requests were pending, Wendy’s moved to stay the case pending our Supreme Court’s decision

in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, which would determine

whether BIPA requires plaintiffs to plead consequential damages or “actual harm” in order to

seek statutory damages. The Court granted Wendy’s motion and stayed the case pending

Rosenbach.

After the Supreme Court issued a decision in Rosenbach on January 25, 2019, the Court

lifted the stay and required Wendy’s to answer or otherwise plead and NCR to respond to

Plaintiffs’ discovery requests. Wendy’s then filed a section 2-619 motion to dismiss, arguing that

a one- or two-year limitations period applied to Plaintiffs’ claims and that Plaintiffs’ claims

accrued only upon the first time Wendy’s required Plaintiffs to scan their fingerprints. Wendy’s

also argued that the Illinois Workers’ Compensation Act (“WCA”) preempted Plaintiffs’ BIPA

claims. Plaintiffs opposed, arguing that a five-year limitations period applied to BIPA claims,

3
that claims accrued with each fingerprint scan, and that the WCA only covers physical injuries,

not privacy violations. Wendy’s replied.
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

While the Parties were briefing Wendy’s motion to dismiss, NCR responded to Plaintiffs’

discovery requests and, based on Plaintiffs’ review, Plaintiffs opted not to convert NCR to a

defendant. (Ufkes Decl. ¶ 3.) Other courts also began to rule on issues Wendy’s raised in its

motion to dismiss, prompting Plaintiffs to move for leave to file supplemental authority, which

the Court granted. The Court then denied Wendy’s motion to dismiss in its entirety, finding that

a five-year limitations period applied (making Plaintiffs’ claims timely no matter when they

accrued) and that the WCA did not preempt employee BIPA claims.

Plaintiffs then issued their first set of requests for production and interrogatories to

Wendy’s. (Id. ¶ 4.) Wendy’s also moved the Court to reconsider its denial of Wendy’s motion to

dismiss, to supplement its motion to dismiss, or to certify certain issues for interlocutory appeal

pursuant to Rule 308. Wendy’s argued, inter alia, that our Supreme Court would ultimately

apply a one-year limitations period to BIPA claims, that Plaintiffs lacked “standing” on their

section 15(a) claim because Wendy’s allegedly destroyed Plaintiffs’ biometric data when they

stopped working for Wendy’s, and that BIPA is unconstitutional “special legislation.” Plaintiffs

opposed, arguing that Wendy’s motion was an attempt to relitigate the motion to dismiss and was

intended to delay discovery. Shortly after moving the Court for reconsideration and to certify

issues for appeal, Wendy’s asked the Court to stay discovery pending three appeals in McDonald

v. Symphony Bronzeville Park LLC, No. 1-19-2398; Tims v. Black Horse Carriers, Inc., No. 1-

28-0563; and Marion v. Ring Container Technologies, LLC, No. 3-20-0184. The Court

ultimately denied Wendy’s motion for reconsideration, to supplement its motion to dismiss, or to

certify issues for interlocutory appeal in full, ordered Wendy’s to answer the complaint, and

4
granted Wendy’s motion to stay discovery. The Court later extended the discovery stay pending

the Supreme Court’s decision in Cothron v. White Castle System, Inc., 2023 IL 128004.
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Wendy’s then answered the complaint, denying the merits of Plaintiffs’ allegations and

asserting eighteen affirmative defenses, to which Plaintiffs responded. In the wake of our

Supreme Court’s decisions in Tims, 2023 IL 127801 and Cothron, holding, respectively, that a

five-year limitations period applies to BIPA claims and that BIPA claims accrue with each

fingerprint scan, Plaintiffs moved to lift the stay of discovery. The Court, however, extended it

pending a potential petition by the defendant-appellant in Cothron for a rehearing.

With appellate courts resolving many of these issues, the Parties began to discuss the

possibility of a class-wide settlement in February 2023. (Ufkes Decl. ¶ 5.) The Parties ultimately

agreed to mediate with Judge James F. Holderman (ret.) of JAMS Chicago. (Id.) After

negotiating all day over the course of a thirteen-hour mediation, the Parties reached agreement

on the material terms of the Settlement and executed a binding Memorandum of Understanding

setting forth those terms that night on May 12, 2023. (Id.) The Parties then spent the next several

months negotiating the full terms of the Settlement, before finally executing the Settlement

Agreement on October 17, 2023. (Id.) Plaintiffs then moved for preliminary approval of the

settlement, which the Court granted on November 29, 2023.

After Defendant provided the Settlement Administrator the Class List, the Settlement

Administrator timely sent notice via U.S. Mail to all 19,891 addresses on the Class List on

January 10, 2024, in accordance with the Preliminary Approval Order. (Declaration of Amy

Lechner (“Lechner Decl.”), attached as Exhibit 3 ¶ 14.) On January 24th, Defendant’s counsel

informed the Settlement Administrator that 5,108 addresses on the Class List mistakenly listed

the address for a Wendy’s restaurant instead of Class Members’ personal or home addresses. (Id.

5
¶ 6.) The very next day Plaintiffs informed the Court of the issue in a motion to set a status

hearing to propose solutions. The Court entered an order directing the Parties to notify the Court
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

if anyone from this group of class members submitted a late objection or exclusion by April 2,

2024. After Defendant provided the Settlement Administrator the missing addresses, the

Settlement Administrator incorporated the new mailing data with the existing mailing addresses,

performed skip tracing to ensure the best addresses, removed duplicates, and ultimately sent

notice via U.S. Mail to the 5,097 unique Class Members at issue on January 30, 2024. (Id. ¶¶ 6,

14.) To date, none of those class members have submitted a late objection or exclusion.

III. TERMS OF THE SETTLEMENT AGREEMENT

The terms of the Settlement are set forth in the Class Action Settlement Agreement, (Ex.

1), and are briefly summarized here:

A. Settlement Class Definition: In the Preliminary Approval Order, the Court

certified a Settlement Class of “[a]ll individuals who worked or are currently working for

Defendant in the state of Illinois who scanned their finger at a Wendy’s corporate-operated

restaurant in Illinois between September 11, 2013 and November 29, 2023.” (Prelim. App. Order

¶ 3.) Excluded from the Settlement Class are: “(1) persons for whom Defendant’s records reflect

an executed consent form related to biometrics prior to their first use of Defendant’s PointOfSale

(POS) system, (2) any Judge or Magistrate presiding over this action and members of their

families, (3) Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors,

and any entity in which Defendant or its parent have a controlling interest, (4) persons who

properly execute and submit a timely request for exclusion from the Settlement Class, (5) the

legal representatives, successors or assigns of any such excluded persons, and (6) Defendant’s

6
employees who executed a general release of all claims against the Released Parties in prior

settlement agreements.” (Id.)
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

B. Monetary Relief: Wendy’s has agreed to create a non-reversionary Settlement

Fund in the amount of $18,207,090.00 for the benefit of the Settlement Class. (Agreement §

1.25.)2 Each Class Member with an available address or e-payment method will automatically be

sent a pro rata portion of the Settlement Fund, without having to file a claim. That means, after

fees and costs are deducted, these Class Members will be sent a Settlement Payment for

approximately $590 via check or an electronic payment method of their choice (e.g., Venmo or

Zelle). No amount will revert to Wendy’s.

The Parties previously recommended that if any Class Members don’t cash their

Settlement Payments within the 120-day check cashing window, their Settlement Payments

should be deemed abandoned and sent to the Unclaimed Property Division of the Illinois

Treasurer’s Office where those Class Members can claim their funds indefinitely. (Agreement §

2.1(e); Plfs.’ Mot. Prelim. App. at 7.) At the Preliminary Approval Hearing, the Court agreed

with that approach at the Parties’ recommendation. (Prelim. App. Order ¶ 16.) However, Class

Counsel has since re-reviewed 735 ILCS 5/2-807, which governs the distribution of any residual

funds from a common fund in a class action like this one, and believe the statute may be

ambiguous as to whether the uncashed Settlement Payments here can be sent to the Unclaimed

2
When the Parties executed the Settlement Agreement and Plaintiffs moved for
preliminary approval, Wendy’s had represented that there were over 16,555 individuals who fell
within the Settlement Class, but the Parties were still engaged in confirmatory discovery
regarding the size of the Settlement Class. On December 20, 2023, Wendy’s confirmed that there
were 19,891 members of the Settlement Class, which per the Settlement agreement, increased the
Settlement Fund by $990 per additional Class Member in excess of 16,555 individuals.
(Agreement § 7.3(a).) The Settlement Fund has now increased to $18,207,090 for the 19,891
Class Members.

7
Property Division, or whether they must be sent to an eligible cy pres recipient, as defined by

735 ILCS 5/2-807. Both Parties read the statute to allow for these funds to be sent to Unclaimed
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

Property. But in abundance of caution, Plaintiffs are flagging the issue for the Court.

In Plaintiffs’ view, a fair reading of the statute is that all of the funds have already been

automatically “claimed” here because there is no claims process, meaning that there are no

“unclaimed funds” that are the subject of 735 ILCS 5/2-807. But there is also a good argument

that the statute precludes this commonsense solution, because these funds could fairly be

categorized as “residual funds” that are the subject of the law. See id. The Parties will be

prepared to discuss this at the Final Approval Hearing, and—in the event the Court finds this

solution is precluded—the Parties will propose appropriate cy pres recipients consistent with the

Settlement Agreement. (See Agreement § 2.1(e).)

C. Prospective Relief: Due to this Action, Wendy’s ceased using its finger-scanning

technology at restaurants in Illinois. (Id. § 2.2.) Pursuant to the Settlement, Wendy’s has agreed

that if it decides to use finger-scanning technology going forward, it will first obtain informed

written consent, establish and maintain a publicly-available retention schedule and guidelines for

permanently destroying any finger-scan data, and has agreed to destroy biometric data in its

possession pursuant to that policy. (Id.)

D. Payment of Settlement Notice and Administrative Costs: Wendy’s has and

will continue to pay from the Settlement Fund all expenses incurred by the Settlement

Administrator in, or associated with, administering the Settlement, providing Notice, creating

and maintaining the Settlement Website, disbursing Settlement Payments by mail and electronic

means, and any other related expenses. (Id. § 1.26.)

8
E. Payment of Attorneys’ Fees, Costs, and Incentive Awards: Wendy’s has

agreed to pay Plaintiffs’ reasonable attorneys’ fees and unreimbursed expenses in an amount to
FILED DATE: 3/27/2024 7:54 PM 2018CH11423

be determined by the Court, to be paid from the Settlement Fund. (Id. § 8.1.) Class Counsel

voluntarily agreed to limit their request for fees to 35% of the Settlement Fund and are not

seeking reimbursement of costs. (Id.) Wendy’s has also agreed to pay each Plaintiff an incentive

award in the amount of $5,000 from the Settlement Fund, subject to Court approval, in

recognition of their efforts on behalf of the Settlement Class. (Id. § 8.2.) Class Counsel made

these requests by separate motion filed on February 28, 2024, which was (and still is) posted on

the Settlement Website for Class Members to review.

F. Release of Liability: In exchange for the relief described above, Wendy’s and its

affiliates and related entities will be released from any and all claims or causes of action under

BIPA that were or could have been brought in any of the actions filed (or to be filed) by

Plaintiffs and the Settlement Class Members, accrued through the date of the Preliminary

Approval Order, i.e., November 29, 2023. (Agreement §§ 1.19-1.20, 3.) The release explicitly

excludes NCR Corporation, the provider of Wendy’s POS system, and its parents and

subsidiaries, and all of Wendy’s franchisees, meaning Plaintiffs and the Class Members will

retain any claims against those entities. (Id. § 1.20.)

IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS

Prior to granting final approval to this Settlement, the Court must consider whether the

Class Members received the best notice practicable under the circumstances. Lee v. Buth-Na-

Bodhaige, Inc., 2019 IL App (5th)

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