SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement” or “Settlement Agreement”) is
made and entered into on March 7, 2016, by and among (1) Settlement Class Representatives (as
defined in Paragraph 27), for themselves and on behalf of the Settlement Class (as defined in
Paragraphs 25-26), and (2) Home Depot U.S.A., Inc. and The Home Depot, Inc. (collectively
“Home Depot”), and subject to preliminary and final Court approval as required by Rule 23 of
the Federal Rules of Civil Procedure. Settlement Class Representatives and Home Depot enter
into this agreement by and through their respective counsel. As provided herein, Home Depot
and Settlement Class Representatives hereby stipulate and agree that, in consideration of the
promises and covenants set forth in this Agreement and upon entry by the Court of a final order
and judgment, all claims of the Settlement Class Representatives and the Settlement Class (as
defined in Paragraph 21) against Home Depot in the action titled
In re: The Home Depot, Inc.,
Customer Data Security Breach Litigation
, Case No. 1:14-md-02583-TWT (N.D. Ga.)
(Consumer Cases) (the “Consumer Action”), shall be settled and compromised upon the terms
and conditions contained herein. Settlement Class Representatives and Home Depot are
collectively referred to herein as the “Parties.”
I.
RECITALS
A.
In September of 2014, Home Depot announced that its payment data systems had
been breached, which could potentially impact customers who used their debit and credit cards to
make purchases at Home Depot stores located in the United States (the “Data Breach”).
B.
After announcement of the Data Breach, multiple putative class action lawsuits
were filed against Home Depot in jurisdictions across the country for Home Depot’s alleged
inadequate data security practices and delay in notifying customers of the Data Breach (“Data
Breach Cases”).
C.
On December 11, 2014, the Judicial Panel on Multidistrict Litigation (“MDL
Panel”) consolidated the Data Breach Cases and all tag-along cases for coordinated pretrial
proceedings in the United States District Court for the Northern District of Georgia.
D.
In order to manage the litigation most efficiently, the Court created separate
litigation tracks for Consumer Cases and Financial Institution Cases (Dkt. No. 36), and appointed
separate leadership for each track. (Dkt. Nos. 60 & 62.) The Court appointed Co-Lead and
Liaison Counsel for the Consumer Cases to, among other duties, direct and manage pretrial
proceedings and coordinate settlement discussions or other dispute resolution efforts on behalf of
Consumer Plaintiffs (as defined in Paragraph 4). (
Id
.)
E.
On May 1, 2015, the Consumer Plaintiffs filed a Consumer Plaintiffs
Consolidated Class Action Complaint (the “Complaint”) (Dkt. No. 93) against Home Depot
asserting claims for alleged violations of state consumer protection statutes, state data breach
notification statutes, and other state-specific statutes, negligence, breach of implied contract, and
unjust enrichment, and seeking a declaratory judgment. On June 1, 2015, Home Depot moved to
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dismiss the Consolidated Class Action Complaint (the “Motion to Dismiss”). The Court heard
oral arguments on the Motion to Dismiss on October 22, 2015.
F.
Between September 1, 2015 and January 25, 2016, the Parties participated in two
formal mediation sessions with mediator Jonathan B. Marks of MarksADR, LLC, engaged in
numerous telephone conferences with Mr. Marks, and negotiated directly among counsel.
G.
On January 26, 2016, the Parties reached an agreement in principle on a proposed
settlement for the Consumer Action and executed a settlement term sheet requiring submission
of a final settlement agreement to the Court for preliminary approval within 45 days. That same
day, the Parties notified the Court’s clerk of their agreement in principle. The Parties did not
discuss attorneys’ fees, costs, and expenses prior to executing the settlement term sheet which
memorialized the essential terms of the Parties’ settlement.
H.
The Parties now agree to settle the Consumer Action in its entirety, without any
admission of liability, with respect to all Released Claims (as defined in Paragraph 56) of the
Settlement Class. The Parties intend this Agreement to bind Settlement Class Representatives,
Home Depot, and all Settlement Class Members who do not timely and properly exclude
themselves from the Settlement.
NOW, THEREFORE, in light of the foregoing, for good and valuable consideration, the
receipt of which is hereby mutually acknowledged, it is hereby stipulated and agreed by the
Parties that the Consumer Action be settled, compromised, and dismissed on the merits and with
prejudice as to Home Depot, subject to Court approval as required by Federal Rule of Civil
Procedure 23, on the following terms and conditions:
II.
DEFINITIONS
In addition to the terms defined at various points within this Agreement, the following
defined terms apply throughout this Agreement:
1.
“Claims Deadline” means 180 days after the Notice Deadline.
2.
“Claim Form” or “Claim” means the form Settlement Class Members must
submit to be eligible for relief under the terms of the Settlement, the proposed form of which is
attached hereto as Exhibit C.
3.
“Class Counsel” means the Court-appointed co-lead and liaison counsel in the
Consumer Action:
Norman E. Siegel
Barrett J. Vahle
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
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Roy E. Barnes
John R. Bevis
THE BARNES LAW GROUP, LLC
31 Atlanta Street
Marietta, GA 30060
David J. Worley
James M. Evangelista
HARRIS PENN LOWRY, LLP
400 Colony Square
1201 Peachtree Street, NE, Suite 900
Atlanta, GA 30361
John A. Yanchunis, Sr.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N Franklin Street
Tampa, FL 33602
4.
“Consumer Plaintiffs” means the plaintiffs named in the Complaint.
5.
“Court” means the United States District Court for the Northern District of
Georgia.
6.
“Data Breach” means the data breach first disclosed by Home Depot in September
2014.
7.
“Effective Date” means the first business day after which all of the following
events have occurred: (a) Class Counsel and Home Depot’s counsel have executed this
Agreement; (b) the Court has entered the Final Approval Order (as defined in Paragraph 9)
without material change to the Parties’ agreed-upon proposed Final Approval Order as described
in Section X; and (c) the time for seeking rehearing, appellate or other review of the Final
Approval Order has expired, or the Settlement is affirmed on appeal or review without material
change, no other appeal or petition for rehearing or review is pending, and the time period during
which further petition for hearing, review, appeal, or certiorari could be taken has finally expired.
The Effective Date shall not be altered in the event the Court declines to approve, in whole or in
part, the payment of attorneys’ fees, costs, and expenses in the amounts that Class Counsel
requests (“Fee Request”). Further, the Effective Date shall not be altered in the event that an
appeal is filed with the sole issue on appeal being the Fee Request awarded to Class Counsel.
8.
“Final Approval” means the date that the Court enters an order and judgment
granting final approval of the Settlement and determines the amount of fees, costs, and expenses
awarded to Class Counsel and the amount of the Service Awards (as defined in Paragraph 60). In
the event that the Court issues separate orders addressing the foregoing matters, then Final
Approval means the date of the last of such orders.
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9.
“Final Approval Order” means the order and judgment that the Court enters upon
Final Approval. In the event that the Court issues separate orders addressing the matters
constituting Final Approval, then Final Approval Order includes all such orders.
10.
“Net Settlement Fund” means the balance of the Settlement Fund after (1)
deducting taxes on Settlement Fund, if any, and (2) the payment of any Service Awards.
11.
“Notice” means the notices of proposed class action settlement that the Parties
will ask the Court to approve in connection with the motion for preliminary approval of the
Settlement.
12.
“Notice Deadline” means May 2, 2016.
13.
“Notice Program” means the notice plan and methods provided for in this
Agreement and consists of (1) an e-mailed notice to those Settlement Class Members for whom
Home Depot can ascertain an e-mail address from its records with reasonable effort (“E-Mail
Notice”); (2) a direct-mail notice to those Settlement Class Members for whom Home Depot can
ascertain a mailing address from its records with reasonable effort and for whom Home Depot
did not provide an e-mail address (“Mail Notice”); (3) Publication Notice (as described in
Paragraph 50); and (4) notice posted on the Settlement Website. The forms of notice shall be
substantially in the forms attached as Exhibits D and E to this Agreement and approved by the
Court. The Notice Program shall be effected in substantially the manner provided in Section IX.
14.
“Objection Deadline” means 75 days after the Notice Deadline.
15.
“Opt-Out Deadline” means 75 days after the Notice Deadline.
16.
“Personal Information” means payment card data including payment card account
numbers, expiration dates, card verification values, and cardholder names from payment cards
used at self-checkout lanes at U.S. Home Depot stores between April 10, 2014 and September
13, 2014, and/or e-mail addresses compromised as a result of the Data Breach.
17.
“Reasonable Documentation” means documentation supporting a claim for
Substantiated Losses fairly traceable to the Data Breach. Non-exhaustive examples of
Reasonable Documentation include credit card statements, bank statements, invoices, telephone
records and receipts. Except as expressly provided in Paragraph 34, Substantiated Losses cannot
be documented solely by a personal certification, declaration or affidavit from the claimant.
18.
“Releasing Parties” means the Settlement Class Representatives and all
Settlement Class Members who do not timely and properly exclude themselves from the
Settlement, and each of their respective heirs, assigns, beneficiaries, and successors.
19.
“Settlement” means the settlement into which the Parties have entered to resolve
the Consumer Action. The terms of the Settlement are as set forth in this Agreement including
the exhibits hereto.
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20.
“Settlement Administrator” means KCC Class Action Services, LLC. Class
Counsel and Home Depot may, by agreement, substitute a different Settlement Administrator,
subject to approval by the Court. In the absence of agreement, either Class Counsel or Home
Depot may move the Court to substitute a different Settlement Administrator, upon a showing
that the responsibilities of Settlement Administrator have not been adequately executed by the
incumbent.
21.
“Settlement Class Members” or “Settlement Class” means all persons who fall
within the settlement class definition set forth in Paragraph 25.
22.
“Settlement Fund” means thirteen million dollars ($13,000,000.00).
23.
“Settlement Website” means the website that the Settlement Administrator will
establish as soon as practicable following Preliminary Approval, but prior to the commencement
of the Notice Program, as a means for Settlement Class Members to obtain notice of and
information about the Settlement, through and including hyperlinked access to this Agreement,
the Notice, the order preliminarily approving this Settlement, the Claim Form, the Complaint and
such other documents as Class Counsel and Home Depot agree to post or that the Court orders
posted on the website. These documents shall remain on the Settlement Website at least until
Final Approval. The URL of the Settlement Website shall be agreed upon by Class Counsel and
Home Depot. Settlement Class Members shall also be able to submit Claim Forms electronically
via the Settlement Website. The Settlement Website shall not include any advertising and shall
remain operational until at least 30 days after the Claims Deadline.
24.
“Substantiated Losses” means out-of-pocket losses, unreimbursed charges, and
time spent remedying issues fairly traceable to the Data Breach for which the Settlement Class
Member submits Reasonable Documentation. Non-exhaustive examples of Substantiated Losses
include unreimbursed expenses related to fraud and identity theft, as well as any consequential
expenses related to the fraud or identity theft including late fees, declined payment fees,
overdraft fees, returned check fees, customer service fees, card cancellation or replacement fees,
credit-related costs related to purchasing credit reports, credit monitoring or identity theft
protection, costs to place a freeze or alert on credit reports, costs to replace driver’s license, state
identification card, or social security number and time spent remedying the foregoing.
III.
SETTLEMENT CLASS
25.
For settlement purposes only, the Parties agree that the Court should certify the
following class pursuant to Fed. R. Civ. P. 23(b)(3), defined as:
All residents of the United States whose Personal Information was
compromised as a result of the Data Breach first disclosed by
Home Depot in September 2014.
26.
Excluded from the Settlement Class is the judge presiding over this matter and
any members of his judicial staff, the officers and directors of Home Depot, and persons who
timely and validly request exclusion from the Settlement Class.
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27.
For settlement purposes only, Class Counsel shall seek, and Home Depot shall not
oppose the appointment of Class Counsel as settlement class counsel and appointment of the
persons listed in Exhibit A as settlement class representatives (“Settlement Class
Representatives”). The Settlement Class Representatives listed in Exhibit A include 87 of the
plaintiffs named in the Complaint and Stephen Fenerjian, a Home Depot customer who had only
his e-mail address compromised as a result of the Data Breach. Settlement Class Representatives
will move for certification of the Settlement Class contemporaneously with their motion for
preliminary approval of the Settlement. Home Depot agrees not to contest certification of the
Settlement Class.
IV.
SETTLEMENT CONSIDERATION
28.
Home Depot agrees to pay thirteen million dollars ($13,000,000.00), exclusive of
Class Notice and Administrative Costs, Attorneys’ Fees and Expenses to compensate Settlement
Class Members who suffered out-of-pocket losses or unreimbursed charges fairly traceable to the
Home Depot data breach and/or spent time remedying the foregoing, as set forth in Section V.
Additionally, subject to the limitations set forth in Section VI, Home Depot will pay six and a
half million dollars ($6,500,000.00) to fund 18 months of Identity Guard “Essentials” account
monitoring services to Settlement Class Members who used a debit or credit card at a self-
checkout lane at a U.S. Home Depot store between April 10 and September 13, 2014 that was
compromised as a result of the Data Breach, who elect to enroll in this service.
29.
Establishment of Settlement Fund. Within fifteen (15) calendar days of the
Effective Date, Home Depot shall deposit the sum of thirteen million dollars ($13,000,000.00)
into an Escrow Account to create the Settlement Fund. Class Counsel and/or the Settlement
Administrator shall timely furnish to Home Depot any required account information, wiring
instructions or necessary forms before the payment is made. The Settlement Fund shall be a
Court-approved Qualified Settlement Fund for federal tax purposes pursuant to Treas. Reg. §
1.468B-1. The Settlement Administrator shall be responsible for all administrative, accounting
and tax compliance activities in connection with the Settlement Fund and the monies deposited
into the Settlement Fund, including any filing necessary to obtain Qualified Settlement Fund
status pursuant to Treas. Reg. § l .468B-l. Home Depot shall provide to the Settlement
Administrator any documentation necessary to facilitate obtaining Qualified Settlement Fund
status for the Settlement Fund pursuant to Treas. Reg. § 1.468B- l. All taxes on income or
interest generated by the Settlement Fund, if any, shall be paid out of the Settlement Fund.
30.
Distribution of the Settlement Fund. Disbursements from the Settlement Fund will
be made to (a) pay any taxes due on the account as set forth in Paragraph 29; (b) pay Service
Awards as the Court may approve as set forth in Paragraph 60; and (c) pay Settlement Class
Members as set forth in Section V and in accordance with the Distribution and Allocation Plan
attached as Exhibit B. If the amounts paid under Paragraphs 32-34 collectively do not exhaust
the Settlement Fund, Home Depot shall receive a credit as set forth in Paragraph 36.
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31.
Injunctive Relief. Home Depot agrees to adopt and implement at least the
following data security measures with regard to its U.S. stores for a period of two years
following the execution of this Settlement Agreement:
a.
Chief Information Security Officer. Home Depot will maintain an executive
position with responsibility to coordinate and be responsible for the company’s
program(s) to protect the security of customers’ Personal Information.
b.
Product and Data Risk Assessments. Home Depot will perform on a routine basis
a risk assessment that identifies material internal and external risks to the security
of customers’ Personal Information stored on Home Depot’s systems. These risk
assessments, at a minimum, will consider risks associated with: (i) employee
training and management; (ii) software design and testing, and (iii) vendor data
management and security practices.
c.
Safeguard Design Resulting From Risk Assessments. Home Depot will design
and implement reasonable safeguards to manage the risks, if any, identified
through its risk assessments.
d.
Vendor Program. Home Depot will develop and use reasonable steps to select and
retain service providers capable of maintaining security practices consistent with
the requirements set forth herein.
e.
Dynamic Security Program. Home Depot will evaluate and adjust as reasonably
necessary its systems on which and by which customers’ Personal Information is
stored in light of: (i) the results of the testing and monitoring required by this
Agreement; (ii) any material changes to its operations or business arrangements;
or (iii) any other circumstances that it knows or has reason to know may have a
material impact on the effectiveness of its security program.
f.
Notice. Home Depot will maintain and make available to its customers clear
written disclosures explaining that it stores certain customer information and
describing how the company uses that information.
g.
Employee Education. Home Depot will maintain a program to educate and train
its workforce on the importance of the privacy and security of its customers’
Personal Information.
h.
Enhanced Security Measures. With respect to all consumer credit and debit
transactions in Home Depot’s U.S. stores, Home Depot will: (i) encrypt all
payment card data at the time that such data is input at the point of sale; (ii) not
retain the card security code data, the PIN verification code number, or the full
contents of any track of magnetic stripe data, after the authorization of the
transaction or in the case of a PIN debit transaction, for more than 48 hours after
authorization of the transaction; and (iii) implement and utilize EMV chip card
technology.
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V.
DISTRIBUTION PLAN
The Net Settlement Fund shall be distributed as follows:
32.
Documented Claims. Settlement Class Members who submit a valid Claim Form
and Reasonable Documentation of Substantiated Losses are eligible for reimbursement of
Substantiated Losses and lost time (as set forth in Paragraphs 33-34) up to a maximum of
$10,000. Settlement Class Members may only make a single claim under the fund.
33.
Documented Time. Settlement Class Members with Reasonable Documentation
of Substantiated Losses for time spent remedying issues fairly traceable to the Data Breach may
submit a claim for up to five hours of such time to be compensated at $15 per hour.
34.
Self-Certified Time. Settlement Class Members with Reasonable Documentation
of Substantiated Losses for out-of-pocket losses or unreimbursed charges who cannot separately
document their time remedying issues fairly traceable to the Data Breach may self-certify the
amount of time they spent remedying the foregoing and file a claim for up to two hours at $15
per hour.
35.
Pro-Rata Contingency: To the extent verified claims exceed the Net Settlement
Fund, the cash benefit to each Settlement Class Member shall be reduced and distributed by the
Settlement Administrator on a
pro rata
basis.
36.
Distribution of Remaining Funds:
a.
If the amounts paid under Paragraphs 32-34 do not exhaust the Net Settlement
Fund, then Home Depot shall receive a credit in the form of reimbursement from
the Net Settlement Fund for the lesser of (a) an amount that exhausts the Net
Settlement Fund or (b) the amount paid for Identity Guard Monitoring Services as
set forth in Section VI.
b.
If the amounts paid under Paragraph 36a do not exhaust the Net Settlement Fund,
then Home Depot shall receive a credit in the form of reimbursement from the Net
Settlement Fund for the lesser of (a) an amount that exhausts the Net Settlement
Fund or (b) the amount paid for Class Notice and Administrative Costs as set
forth in Section IX.
c.
If the amounts paid under Paragraphs 36b do not exhaust the Net Settlement
Fund, then any remaining funds shall be distributed
pro rata
to Settlement Class
Members submitting Documented Claims as set forth in Paragraphs 32-34, or as
otherwise directed by the Court.
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VI.
IDENTITY GUARD MONITORING SERVICES
37.
For Settlement Class Members who used a debit or credit card at a self-checkout
lane at a U.S. Home Depot store between April 10 and September 13, 2014 that was
compromised as a result of the Data Breach, Home Depot will fund 18 months of Identity Guard
“Essentials” account monitoring services (“Identity Guard Monitoring Services”) to those
Settlement Class Members who elect to enroll as part of the settlement claims process. The
Settlement Administrator shall establish a reasonably practical procedure to verify the claimant is
a member of the Settlement Class who used a debit or credit card at a self-checkout lane at a U.S.
Home Depot store between April 10 and September 13, 2014 that was compromised as a result
of the Data Breach.
38.
If the number of Settlement Class Members eligible to enroll in Identity Guard
Monitoring Services is 40 million persons or fewer, Home Depot shall pay six and a half million
dollars ($6,500,000.00) to Intersections Inc., the provider of the Identity Guard Monitoring
Services, to cover all eligible Settlement Class Members who elect to claim this benefit. If the
number of Settlement Class Members eligible to enroll in Identity Guard Monitoring Services
exceeds 40 million persons, the cost of the Identity Guard Monitoring Services shall increase at a
rate of $16,250 for every 100,000 eligible Settlement Class Members above 40 million, to be
paid by Home Depot.
39.
Identity Guard Monitoring Services offered under this Settlement include: (a)
Social Security number monitoring; (b) online “black market” monitoring; (c) financial account
identity verification alerts; (d) financial account takeover alerts; (e) identity theft victim
assistance; (f) lost wallet protection; (g) online username and password protection; and (f) one
million dollars ($1,000,000.00) in identity theft insurance.
VII.
PRELIMINARY APPROVAL
40.
Upon execution of this Agreement by the Parties, Class Counsel shall promptly
move the Court for an order granting preliminary approval of this Settlement (“Preliminary
Approval Order”), substantially in the form of Exhibit F. The motion for preliminary approval
shall request that the Court: (1) preliminarily approve the terms of the Settlement as within the
range of fair, adequate, and reasonable; (2) provisionally certify the Settlement Class pursuant to
Federal Rule of Civil Procedure 23(b)(3) and (e) for settlement purposes only; (3) approve the
Notice Program set forth herein and approve the form and content of the Notice; (4) approve the
procedures set forth in Section IX for Settlement Class Members to exclude themselves from the
Settlement Class or to object to the Settlement; (5) stay all proceedings in the Consumer Action
unrelated to the Settlement pending Final Approval of the Settlement; (6) stay and/or enjoin,
pending Final Approval of the Settlement, any actions brought by Settlement Class Members
concerning a Released Claim; and (7) schedule a Final Approval hearing for a time and date
convenient for the Court, at which the Court will conduct an inquiry into the fairness of the
Settlement, determine whether it was made in good faith and should be finally approved, and
determine whether to approve Class Counsel’s application for attorneys’ fees, costs, and
expenses (“Final Approval Hearing”).
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41.
Within 10 days of the filing of the motion for preliminary approval, Home Depot,
at its own expense, shall serve or cause to be served a notice of the proposed Settlement on
appropriate state officials in accordance with the requirements under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1715(b).
VIII.
SETTLEMENT ADMINISTRATOR
42.
The Settlement Administrator shall administer various aspects of the Settlement
as described in Paragraph 43 and perform such other functions as are specified for the Settlement
Administrator elsewhere in this Agreement, including, but not limited to, overseeing
administration of the Settlement Fund; providing E-mail Notice and Mail Notice to Settlement
Class Members as described in Section IX; effecting Publication Notice; establishing and
operating the Settlement Website and a toll-free number; administering the Claims processes;
and distributing cash payments according to the processes and criteria set forth herein and in
Exhibits B through E and G.
43.
The duties of the Settlement Administrator, in addition to other responsibilities
that are described in this Agreement, include:
a.
Obtaining from Home Depot the name, mailing address, and/or e-mail address
information of Settlement Class Members for the purpose of sending E-Mail
Notice and Mail Notice to Settlement Class Members to the extent that such
information is reasonably available from Home Depot’s records;
b.
Obtaining from Home Depot information necessary to establish a reasonably
practical procedure to verify Settlement Class Members who used a debit or credit
card at a self-checkout lane at a U.S. Home Depot store between April 10 and
September 13, 2014, and had their Personal Information compromised, including
a mechanism to verify such Settlement Class Members who do not have access to
the their compromised payment card number;
c.
Effecting the Publication Notice;
d.
Establishing and maintaining a post office box for mailed written notifications of
exclusion from the Settlement Class;
e.
Establishing and maintaining the Settlement Website;
f.
Establishing and maintaining a toll-free telephone line for Settlement Class
Members to call with Settlement-related inquiries, and answering the questions of
Settlement Class Members who call with or otherwise communicate such
inquiries;
g.
Responding to any mailed Settlement Class Member inquiries;
h.
Processing all written notifications of exclusion from the Settlement Class;
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i.
Providing weekly reports and, no later than ten days after the Opt-Out Deadline, a
final report to Class Counsel and Home Depot, that summarize the number of
written notifications of exclusion received that week, the total number of written
notifications of exclusion received to date, and other pertinent information as
requested by Class Counsel and Home Depot’s counsel;
j.
In advance of the Final Approval Hearing, preparing an affidavit to submit to the
Court that: (i) attests to implementation of the Notice Program in accordance with
the Preliminary Approval Order; and (ii) identifies each Settlement Class Member
who timely and properly provided written notification of exclusion from the
Settlement Class;
k.
Reviewing, determining the validity of, and responding to all Claims submitted by
Settlement Class Members, pursuant to criteria set forth in Sections V and VI;
l.
After the Effective Date, processing and transmitting distributions to Settlement
Class Members in accordance with Sections IV and V;
m.
Providing weekly reports and a final report to Class Counsel and Home Depot
that summarize the number of Claims since the prior reporting period, the total
number of Claims received to date, the number of any Claims approved and
denied since the prior reporting period, the total number of Claims approved and
denied to date, and other pertinent information as requested by Class Counsel and
Home Depot’s counsel; and
n.
Performing any function related to Settlement administration at the agreed-upon
instruction of both Class Counsel and Home Depot, including, but not limited to,
verifying that cash payments have been distributed in accordance with Sections
IV and V.
44.
All costs incurred by the Settlement Administrator shall be borne by and
separately paid by Home Depot. These payments shall be made separate and apart from the
Settlement Fund, subject to the Distribution of Remaining Funds provisions set forth in
Paragraph 36.
IX.
NOTICE, OPT-OUTS, AND OBJECTIONS
45.
Upon Preliminary Approval of the Settlement, at the direction of Class Counsel,
the Settlement Administrator will implement the Notice Program provided herein, using the
forms of Notice approved by the Court in the Preliminary Approval Order. The Notice will
include, among other information: a description of the material terms of the Settlement; a date by
which Settlement Class Members may object to the Settlement; the date upon which the Final
Approval Hearing will occur; and the address of the Settlement Website at which Settlement
Class Members may access this Agreement and other related documents and information.
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46.
The Notice Program has four components: (1) E-Mail Notice; (2) Mail Notice; (3)
Publication Notice; and (4) Notice on the Settlement Website. The Settlement Administrator
shall send E-mail Notice to all Settlement Class Members for whom Home Depot can ascertain
an e-mail address from its records with reasonable effort. If an e-mail address cannot be
ascertained or the Settlement Administrator learns (through an email bounce-back or otherwise)
that the e-mail address in Home Depot’s records is invalid, the Settlement Administrator shall
send direct Mail Notice to all Settlement Class Members for whom Home Depot can ascertain a
mailing address from its records with reasonable effort. For any Mail Notices that are returned
undeliverable with forwarding address information, the Settlement Administrator shall re-mail
the Mail Notice to the updated address as indicated. For any Mail Notices that are returned
undeliverable without forwarding address information, the Settlement Administrator shall use
reasonable efforts to identify updated mailing addresses (such as running the mailing address
through the National Change of Address Database) and re-mail the Mail Notice to the extent
updated addresses are identified. The Settlement Administrator need only make one attempt to
re-mail any Mail Notices that are returned as undeliverable.
47.
The Notice shall include a procedure for Settlement Class Members to exclude
themselves from the Settlement Class by notifying the Settlement Administrator in writing of the
intent to exclude himself or herself from the Settlement Class. Such written notification must be
postmarked no later than the Opt-Out Deadline, as specified in the Notice. The written
notification must include the individual’s name and address; a statement that he or she wants to
be excluded from the Consumer Action; and the individual’s signature. The Settlement
Administrator shall provide the Parties with copies of all opt-out notifications, and a final list of
all who have timely and validly excluded themselves from the Settlement Class, which Class
Counsel may move to file under seal with the Court no later than 10 days prior to the Final
Approval Hearing. Any Settlement Class Member who does not timely and validly exclude
himself or herself shall be bound by the terms of the Settlement.
48.
The Notice shall also include a procedure for Settlement Class Members to object
to the Settlement and/or to Class Counsel’s application for attorneys’ fees, costs and expenses.
Objections to the Settlement or to the application for fees, costs, and expenses must be filed
electronically with the Court, or mailed to the Clerk of the Court, Class Counsel, and Home
Depot’s counsel. For an objection to be considered by the Court, the objection must be: (a)
electronically filed by the Objection Deadline; or (b) mailed first-class postage prepaid to the
Clerk of Court, Class Counsel, and Home Depot’s Counsel, at the addresses listed in the Notice,
and postmarked by no later than the Objection Deadline, as specified in the Notice. For an
objection to be considered by the Court, the objection must also set forth:
a.
the name of the Consumer Action;
b.
the objector’s full name, address, email address, and telephone number;
c.
an explanation of the basis upon which the objector claims to be a Settlement
Class Member;
d.
all grounds for the objection, accompanied by any legal support for the objection;
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 13 of 102
13
e.
the identity of all counsel who represent the objector, including any former or
current counsel who may be entitled to compensation for any reason related to the
objection to the Settlement, the fee application, or the application for Service
Awards;
f.
the identity of all counsel representing the objector who will appear at the Final
Approval Hearing;
g.
the number of times in which the objector has objected to a class action settlement
within the five years preceding the date that the objector files the objection, the
caption of each case in which the objector has made such objection, and a copy of
any orders related to or ruling upon the objector’s prior such objections that were
issued by the trial and appellate courts in each listed case;
h.
the number of times in which the objector’s counsel and/or counsel’s law firm
have objected to a class action settlement within the five years preceding the date
that the objector files the objection, the caption of each case in which the counsel
or the firm has made such objection, and a copy of any orders related to or ruling
upon counsel’s or the firm’s prior such objections that were issued by the trial and
appellate courts in each listed case;
i.
any and all agreements that relate to the objection or the process of objecting,
whether written or verbal, between objector or objector’s counsel and any other
person or entity;
j.
a list of any persons who will be called to testify at the Final Approval Hearing in
support of the objection;
k.
a statement confirming whether the objector intends to personally appear and/or
testify at the Final Approval Hearing; and
l.
the objector’s signature on the written objection (an attorney’s signature is not
sufficient).
49.
The E-Mail and Mail Notice Program shall be completed by the Notice Deadline,
excluding any re-mails for Mail Notices that are returned undeliverable.
50.
The Settlement Administrator shall effectuate the Publication Notice by arranging
for publication of the Publication Notice in an appropriate nationwide magazine substantially in
a form as that attached as Exhibit D to this Agreement. The Settlement Administrator may also
utilize other means of Publication Notice including through electronic media. Publication Notice
shall be completed by the Notice Deadline.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 14 of 102
14
51.
The Settlement Administrator shall post the Notice on the Settlement Website in
the form agreed to by the Parties and approved by the Court. The Notice shall be posted on the
Settlement Website by the Notice Deadline.
52.
Within seven (7) days after the Notice Deadline, the Settlement Administrator
shall provide Class Counsel and Home Depot with one or more affidavits confirming that the E-
mail Notice and Mail Notice Program, Publication Notice, and posting of Notice on the
Settlement Website were completed in accordance with the Parties’ instructions and the Court’s
approval. Class Counsel shall file such affidavit(s) with the Court as an exhibit to or in
conjunction with Settlement Class Representatives’ motion for final approval of the Settlement.
53.
Home Depot shall pay all costs and expenses associated with providing notice to
Settlement Class Members including, but not limited to, the Settlement Administrator’s fees.
These payments shall be made separate and apart from the Settlement Fund, subject to the
Distribution of Remaining Funds provisions set forth in Paragraph 36.
X.
FINAL APPROVAL ORDER AND JUDGMENT
54.
Settlement Class Representatives’ motion for preliminary approval of the
Settlement will include a request to the Court for a scheduled date on which the Final Approval
Hearing will occur. The Final Approval Hearing shall be scheduled no earlier than 90 days after
the CAFA notices are mailed to ensure compliance with 28 U.S.C § 1715. By no later than 21
days prior to the Objection Deadline, Plaintiffs shall file a motion for final approval of the
Settlement and a motion for attorneys’ fees, costs, and expenses and for Service Awards. By no
later than 14 days prior to the Final Approval Hearing, the Parties shall file responses, if any, to
any objections, and any replies in support of final approval of the Settlement and/or Class
Counsel’s application for attorneys’ fees, costs, and expenses and for Service Awards. At the
Final Approval Hearing, the Court will consider Settlement Class Representatives’ motion for
final approval of the Settlement, and Class Counsel’s application for attorneys’ fees, costs, and
expenses and for Service Awards. In the Court’s discretion, the Court also may hear argument at
the Final Approval Hearing from any Settlement Class Members (or their counsel) who object to
the Settlement or to the application for attorneys’ fees, costs, expenses and for Service Awards,
provided the objectors filed timely objections that meet all of the requirements listed in
Paragraph 48.
55.
At or following the Final Approval Hearing, the Court will determine whether to
enter the Final Approval Order granting final approval of the Settlement, and whether to approve
Class Counsel’s request for attorneys’ fees, costs, expenses, and the Service Awards. The
proposed Final Approval Order that will be filed with the motion for final approval shall be in a
form agreed upon by Class Counsel and Home Depot. Such proposed Final Approval Order
shall, among other things:
a.
Determine that the Settlement is fair, adequate, and reasonable;
b.
Finally certify the Settlement Class for settlement purposes only;
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 15 of 102
15
c.
Determine that the Notice provided satisfied Due Process requirements;
d.
Dismiss the Consumer Action with prejudice;
e.
Bar and enjoin the Releasing Parties from asserting any of the Released Claims,
as set forth in Section XI, including during the pendency of any appeal from the
Final Approval Order;
f.
Release Home Depot and the Released Parties from the Released Claims, as set
forth in Section XI; and
g.
Reserve the Court’s continuing and exclusive jurisdiction over Home Depot and
all Settlement Class Members (including all objectors) to administer, supervise,
construe, and enforce this Agreement in accordance with its terms.
XI.
RELEASES
56.
As of the Effective Date, the Releasing Parties, each on behalf of himself or
herself and on behalf of his or her respective heirs, assigns, beneficiaries, and successors, shall
automatically be deemed to have fully and irrevocably released and forever discharged Home
Depot and each of its present and former parents, subsidiaries, divisions, affiliates, predecessors,
successors, and assigns, and the present and former directors, officers, employees, agents,
insurers, shareholders, attorneys, advisors, consultants, representatives, partners, joint venturers,
independent contractors, wholesalers, resellers, distributors, retailers, predecessors, successors,
and assigns of each of them (collectively the “Released Parties”), of and from any and all
liabilities, rights, claims, actions, causes of action, demands, damages, penalties, costs, attorneys’
fees, losses, and remedies, whether known or unknown, existing or potential, suspected or
unsuspected, liquidated or unliquidated, legal, statutory, or equitable, that result from, arise out
of, are based upon, or relate to the Data Breach that were or could have been alleged in the
Consumer Action, including, without limitation, any claims, actions, causes of action, demands,
damages, penalties, losses, or remedies relating to, based upon, resulting from, or arising out of
(1) the theft, exposure or disclosure of Settlement Class Members’ Personal Information; (2)
Home Depot’s maintenance and storage of Settlement Class Members’ Personal Information; (3)
Home Depot’s information security policies and practices; and (4) Home Depot’s notice of the
Data Breach to Settlement Class Members (the “Released Claims”).
57.
For the avoidance of doubt, the Released Claims include any claims that a
Releasing Party may have under the law of any jurisdiction, including, without limitation, those
arising under state or federal law of the United States (including, without limitation, any causes
of action under the California Business & Professions Code § 17200
et seq
., California Civil
Code § 1750
et seq
., California Civil Code § 1798.80
et seq
., California Civil Code § 56.10
et
seq
., and any similar statutes or data breach notification statutes in effect in the United States or
in any states in the United States); causes of action under the common or civil laws of any state
in the United States, including but not limited to: unjust enrichment, negligence, bailment,
conversion, negligence
per se
, breach of contract, breach of implied contract, breach of fiduciary
duty, breach of implied covenant of good faith and fair dealing, misrepresentation (whether
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 16 of 102
16
fraudulent, negligent, or innocent), fraudulent concealment or nondisclosure, invasion of privacy,
public disclosure of private facts, and misappropriation of likeness and identity; any causes of
action based on privacy rights provided for under the constitutions of the United States or of any
states in the United States; and also including, but not limited to, any and all claims in any state
or federal court of the United States, for damages, injunctive relief, restitution, disgorgement,
declaratory relief, equitable relief, attorneys’ fees and expenses, pre-judgment interest, credit or
financial account monitoring services, identity theft insurance, the creation of a fund for future
damages, statutory penalties, restitution, the appointment of a receiver, and any other form of
relief. The Released Claims do not include any claims arising from or relating to any conduct by
Home Depot after the date the Agreement is executed.
58.
As of the Effective Date, the Released Parties will be deemed to have completely
released and forever discharged the Releasing Parties and Class Counsel from and for any and all
liabilities, claims, cross-claims, causes of action, rights, actions, suits, debts, liens, contracts,
agreements, damages, costs, attorneys’ fees, losses, expenses, obligations, or demands, of any
kind whatsoever, whether known or unknown, existing or potential, or suspected or unsuspected,
whether raised by claim, counterclaim, setoff, or otherwise, including any known or unknown
claims, which they have or may claim now or in the future to have, relating to the institution,
prosecution, or settlement of the Consumer Action.
59.
Upon entry of the Final Judgment, the Settlement Class Members shall be
enjoined from prosecuting any claim they have released in the preceding paragraphs in any
proceeding against any of the Released Parties or based on any actions taken by any of the
Released Parties that are authorized or required by this Agreement or by the Final Judgment. It is
further agreed that the Settlement may be pleaded as a complete defense to any proceeding
subject to this section.
XII.
ATTORNEYS’ FEES, COSTS, EXPENSES AND SERVICE AWARDS
60.
Service Awards. Class Counsel will ask the Court to approve, and Home Depot
will not oppose, service awards not to exceed $1,000 for each Settlement Class Representative
and Consumer Plaintiff, which are intended to compensate such individuals for their efforts in
the litigation and commitment on behalf of the Settlement Class (“Service Awards”). Any
Service Awards approved will be paid from the Settlement Fund. Neither Class Counsel’s
application for, nor any individual’s entitlement to, a Service Award shall be conditioned in any
way upon such individual’s support for this Agreement.
61.
Attorneys’ Fees, Costs and Expenses. Home Depot agrees to pay the reasonable
attorneys’ fees, costs and expenses of counsel for the Consumer Plaintiffs separate from and in
addition to the Settlement Fund. Class Counsel will make its application for such attorneys’ fees,
costs and expenses pursuant to a Fee Request at least 21 days before the Objection Deadline.
Home Depot reserves the right to object to Class Counsel’s request for attorneys’ fees; provided,
however, that Home Depot waives its right to appeal if the amount awarded by the Court in
attorneys’ fees does not exceed $8,475,000.00. In addition, Home Depot agrees not to oppose
Class Counsel’s request for reimbursement of reasonable costs and expenses up to $300,000.00.
Any award of attorneys’ fees, costs, and expenses shall be paid separate from and in addition to
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 17 of 102
17
the Settlement Fund. The finality or effectiveness of the Settlement will not be dependent on the
Court awarding Class Counsel any particular amount on their Fee Request and shall not alter the
Effective Date.
62.
Within ten (10) business days of the later of the Effective Date or a final order
approving Class Counsel’s Fee Request after the time for seeking rehearing, appellate or other
review of the Fee Request has expired, Home Depot shall pay to Class Counsel all Court-
approved attorneys’ fees, costs, and expenses. In the event that the award of attorneys’ fees,
costs, and expenses is reduced on appeal, Home Depot shall only pay the reduced amount of
such award. Class Counsel shall timely furnish to Home Depot any required tax information,
account information or necessary forms before the payment is due.
63.
The payment of attorneys’ fees, costs, and expenses pursuant to Paragraphs 61-62
shall be made through a wired deposit by Home Depot into the attorney client trust account to be
designated by Class Counsel. After the attorneys’ fees, costs, and expenses have been deposited
into this account, Class Counsel shall be solely responsible for allocating such attorneys’ fees,
costs, and expenses and distributing each participating firm’s allocated share of such attorneys’
fees, costs, and expenses to that firm and Home Depot shall have no responsibility for
distribution of attorneys’ fees, costs, or expenses among participating firms.
64.
In the event the Court declines to approve, in whole or in part, the payment of
attorneys’ fees, costs, and expenses in the amounts that Class Counsel requests, the remaining
provisions of this Agreement shall remain in full force and effect. No order of the Court, or
modification or reversal or appeal of any order of the Court, concerning the amount(s) of
attorneys’ fees, costs, and expenses shall constitute grounds for cancellation or termination of
this Agreement.
XIII.
TERMINATION
65.
Home Depot shall have the sole discretion to terminate the Settlement Agreement
if a certain percentage of the total number of Settlement Class Members submit valid requests to
opt out as separately agreed to by the Parties and submitted to the Court for
in camera
review.
66.
This Settlement may be terminated by either Settlement Class Representatives or
Home Depot by serving on counsel for the opposing Party and filing with the Court a written
notice of termination within 14 days (or such longer time as may be agreed between Class
Counsel and Home Depot) after any of the following occurrences:
a.
Class Counsel and Home Depot agree to termination before the Effective Date;
b.
The Court rejects, materially modifies, materially amends or changes, or declines
to preliminarily or finally approve the Settlement;
c.
An appellate court reverses the Final Approval Order, and the Settlement is not
reinstated and finally approved without material change by the Court on remand;
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 18 of 102
18
d.
The Court or any reviewing appellate court incorporates material terms or
provisions into, or deletes or strikes material terms or provisions from, or
materially modifies, amends, or changes, the Preliminary Approval Order, the
proposed Final Approval Order, or the Settlement; or
e.
The Effective Date does not occur.
67.
In the event of a termination as provided in Paragraphs 65-66, this Agreement
shall be considered null and void; all of the Parties’ obligations under the Agreement shall cease
to be of any force and effect and the Parties shall return to the status quo ante in the Consumer
Action as if the Parties had not entered into this Agreement. In addition, in the event of such a
termination, all of the Parties’ respective pre-Settlement claims and defenses will be preserved.
XIV.
NO ADMISSION OF LIABILITY
68.
Home Depot disputes the claims alleged in the Consumer Action and does not by
this Agreement or otherwise admit any liability or wrongdoing of any kind. Home Depot has
agreed to enter into this Agreement solely to avoid the further expense, inconvenience, and
distraction of burdensome and protracted litigation, and to be completely free of any further
claims that were asserted or could have been asserted in the Consumer Action.
69.
Class Counsel and Settlement Class Representatives believe that the claims
asserted in the Action have merit, and they have examined and considered the benefits to be
obtained under the proposed Settlement set forth in this Agreement, the risks associated with the
continued prosecution of this complex, costly, and time-consuming litigation, and the likelihood
of success on the merits of the Action. Class Counsel and Settlement Class Representatives have
concluded that the proposed Settlement set forth in this Agreement is fair, adequate, reasonable,
and in the best interests of the Settlement Class Members.
70.
The Parties understand and acknowledge that this Agreement constitutes a
compromise and settlement of disputed claims. No action taken by the Parties either previously
or in connection with the negotiations or proceedings connected with this Agreement shall be
deemed or construed to be an admission of the truth or falsity of any claims or defenses
heretofore made, or an acknowledgment or admission by any party of any fault, liability, or
wrongdoing of any kind whatsoever.
71.
Neither the Settlement, nor any act performed or document executed pursuant to
or in furtherance of the Settlement: (a) is or may be deemed to be, or may be used as, an
admission of, or evidence of, the validity of any claim made by Consumer Plaintiffs or
Settlement Class Members, or of any wrongdoing or liability of the Released Parties; or (b) is or
may be deemed to be, or may be used as, an admission of, or evidence of, any fault or omission
of any of the Released Parties, in the Consumer Action or in any proceeding in any court,
administrative agency or other tribunal.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 19 of 102
19
XV.
MISCELLANEOUS
72.
Singular and Plurals. As used in this Agreement, all references to the plural shall
also mean the singular and to the singular shall also mean the plural whenever the context so
indicates.
73.
Binding Effect. This Agreement shall be binding upon, and inure to the benefit of,
the successors and assigns of the Releasing Parties and the Released Parties.
74.
Cooperation of Parties. The Parties to this Agreement agree to cooperate in good
faith to prepare and execute all documents, to seek Court approval, defend Court approval, and to
do all things reasonably necessary to complete and effectuate the Settlement described in this
Agreement.
75.
Obligation To Meet And Confer. Before filing any motion in the Court raising a
dispute arising out of or related to this Agreement, the Parties shall consult with each other and
certify to the Court that they have consulted in good faith.
76.
Integration. This Agreement (along with any Exhibits attached hereto) constitutes
a single, integrated written contract expressing the entire agreement of the Parties relative to the
subject matter hereof. No covenants, agreements, representations, or warranties of any kind
whatsoever have been made by any Party hereto, except as provided for herein.
77.
No Conflict Intended. Any inconsistency between the headings used in this
Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text.
78.
Governing Law. The Agreement shall be construed in accordance with, and be
governed by, the laws of the State of Georgia, without regard to the principles thereof regarding
choice of law.
79.
Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument, even though all signatories do not sign the same counterparts. Original
signatures are not required. Any signature submitted by facsimile or through email of an Adobe
PDF shall be deemed an original.
80.
Jurisdiction. The Court shall retain jurisdiction over the implementation,
enforcement, and performance of this Agreement, and shall have exclusive jurisdiction over any
suit, action, proceeding or dispute arising out of or relating to this Agreement that cannot be
resolved by negotiation and agreement by counsel for the Parties. The Court shall retain
jurisdiction with respect to the administration, consummation and enforcement of the Agreement
and shall retain jurisdiction for the purpose of enforcing all terms of the Agreement. The Court
shall also retain jurisdiction over all questions and/or disputes related to the Notice Program and
the Settlement Administrator. As part of its agreement to render services in connection with this
Settlement, the Settlement Administrator shall consent to the jurisdiction of the Court for this
purpose.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 20 of 102
20
81.
Notices. All notices to Class Counsel provided for herein, shall be sent by
overnight mail to:
Norman E. Siegel
Barrett J. Vahle
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Roy E. Barnes
John R. Bevis
THE BARNES LAW GROUP, LLC
31 Atlanta Street
Marietta, GA 30060
David J. Worley
James M. Evangelista
HARRIS PENN LOWRY, LLP
400 Colony Square
1201 Peachtree Street, NE, Suite 900
Atlanta, GA 30361
John A. Yanchunis, Sr.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N Franklin Street
Tampa, FL 33602
All notices to Home Depot provided for herein, shall be sent by overnight mail to:
Phyllis B. Sumner
S. Stewart Haskins II
KING & SPALDING LLP
1180 Peachtree Street, NE
Atlanta, Georgia 30309
The notice recipients and addresses designated above may be changed by written
notice. Upon the request of any of the Parties, the Parties agree to promptly
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 21 of 102
provide
each
other
with
copies
of
objections,
requests
for
exclusion,
or
other
filings
received
as
a
result
of
the
Notice
Program.
82.
Authority.
Any
person
executing
this
Agreement
in
a
representative
capacity
represents
and
warrants
that
he
or
she
is
fully authorized
to
do
so
and
to
bind
the
Party
on
whose
behalf
he
or
she
signs this
Agreement
to
all
of
the
tenns
and
provisions
of
this
Agreement.
83.
No
Construction
Against
Drafter.
This
Agreement
shall
be
deemed
to
have
been
drafted
by
the
Parties,
and
any
rule
that
a
document
shall
be
interpreted
against
the
drafter
shall
not apply
to
this
Agreement.
Norman
E.
Siegel
STUEVE
SIE
L
S
N
LLP
e•
John
R.
Bevis
BL7
David
J.
Worley
HARRIS
PENN
LO
LP
Phyllis
B.
Sumner
KiNG
&
SPALDING
S.
Stewart Hasldns
KING
&
SPALDING
William
P.
Bamette
Assistant
General
Counsel,
THE
HOME
DEPOT
John Yanchunis
MORGAN
&
MORGAN
COMPLEX
LITIGATION
GROUP
David
Steele
Deputy
General
Counsel,
THE
HOME
DEPOT
21
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 22 of 102
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Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 23 of 102
EXHIBIT A
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 24 of 102
SETTLEMENT CLASS REPRESENTATIVES
1. Catherine Adams
2. Laureen Anyon
3. Luis Araujo
4. Kitaisha Araujo
5. Kim Barrett
6. Richard Bergeron
7. Brenda Blough
8. Dennis Borrell
9. Martha Brantley
10. Brandyon Brantley
11. James Burden
12. Todd Burris
13. Ronald Castleberry
14. Dany Champion
15. Charles Chorman
16. Kent Coulson
17. Pauline Cuff
18. Daniel Durgin
19. Shonna Earls
20. Lawrence Elledge
21. David Erisman
22. Stephen Fenerjian
23. Scott Ferguson
24. DeAnn Fieselman
25. Larry Flores
26. Matthew Forrester
27. Glenda Fuller
28. Claude Garner
29. Marilyn Geller
30. Gary Gilchrist
31. Mary Gorman
32. Mary Hope Griffin
33. Jasmin Gonzales
34. James Hansen
35. Jeffrey Hartman
36. Douglas Hinton
37. Bruce Holdridge
38. Katherine Holmes
39. John Holt, Sr.
40. Nicholas Hott
41. Michelle Jhingoor
42. Walid Khalaf
43. Royce Kitchens
44. William Lambert
45. Kristine Larson
46. Pamela Lee
47. Ronald Levene
48. Kelli LoBello
49. Gary Lowenthal
50. Michael Marko
51. Allen Mazerolle
52. Rebecca McGhee
53. Scott McGiffid
54. Sandra McQuaig
55. Julian Metter
56. Joshua Michener
57. Bridgett Moody
58. Joseph Moran
59. Vincent Murphy
60. Nathanial Newton
61. Alexandra O’Brien
62. Jason O’Brien
63. Kelsey O’Brien
64. Steve O’Brien
65. Scott Pelky
66. Alma Pineda
67. Brion Reilly
68. Paula Ridenti
69. Raina Rothbaum
70. Travis Russell
71. Stephen Sadler
72. Barbara Saffran
73. Sara Saffran
74. John Simon
75. Carlton Smith
76. Sandra Smith
77. Michael Snow
78. Sandra Sowell
79. Mary Stenart
80. Mario Tolliver
81. Doug Travers
82. Inocencio Valencia
83. Robert Vandertoorn
84. Ivonda Washington
85. Samuel Welch
86. Linda Werak
87. Lindsay Wirth
88. Gilda Wynne
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 25 of 102
EXHIBIT B
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 26 of 102
1
DISTRIBUTION AND ALLOCATION PLAN
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
I.
CLAIMS
1.
Claim Form. The Claim Form shall be substantially in the form attached as Exhibit C to
the Settlement Agreement.
2.
Documented Claims. Settlement Class Members who submit a valid Claim Form and
Reasonable Documentation of Substantiated Losses for out-of-pocket losses,
unreimbursed charges, or time spent remedying issues fairly traceable to the Home Depot
data breach are eligible for reimbursement of Substantiated Losses up to a maximum of
$10,000 (“Documented Claim”). Settlement Class Members may submit a documented
claim for up to five hours of time spent remedying issues fairly traceable to the Home
Depot data breach to be compensated at $15 per hour. Settlement Class Members may
only make a single claim under the fund. Settlement Class Members who choose to
submit a Documented Claim must complete the “DOCUMENTED CLAIMS FOR OUT-
OF-POCKET
LOSSES,
UNREIMBURSED
CHARGES,
OR
TIME
SPENT
REMEDYING ISSUES RELATING TO THE DATA BREACH” section of the Claim
Form, and submit reasonable documentation as specified in the Claim Form and
Paragraph 17 of the Settlement Agreement.
3.
Self-Certified Time Claims. Settlement Class Members with Reasonable Documentation
of Substantiated Losses for out-of-pocket losses or unreimbursed charges who cannot
separately document their time remedying issues fairly traceable to the Home Depot data
breach may self-certify the amount of time they spent remedying issues relating to the
data breach and file a claim for up to two hours at $15 per hour (“Self-Certified Time”).
Settlement Class Members who choose to a claim for Self-Certified Time must provide
an attestation by signing and dating the “SELF-CERTIFIED CLAIMS FOR TIME”
section of the Claim Form.
4.
Identity Guard Monitoring Services. Settlement Class Members who used a debit or
credit card at a self-checkout lane at a U.S. Home Depot store between April 10, 2014
and September 13, 2014 and whose payment card information was compromised are
eligible to enroll in 18 months of free Identity Guard® “Essentials” account monitoring
services (“Identity Guard Monitoring Services”). Eligibility to enroll in Identity Guard
Monitoring Services is not dependent on submission of a Documented Claim. Settlement
Class Members who choose to enroll in Identity Guard Monitoring Services must
complete the “IDENTITY GUARD® ESSENTIALS MONITORING SERVICES”
section of the Claims Form.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 27 of 102
2
II.
CLAIM VALIDATION PROCESS
5.
Verification by the Settlement Administrator: The Settlement Administrator, in its sole
discretion to be reasonably exercised, will evaluate claims submitted to determine
whether: (a) the claimant is a Settlement Class Member; (b) the claimant used a debit or
credit card at a self-checkout lane at a U.S. Home Depot store between April 10, 2014
and September 13, 2014 and had his/her payment card information compromised in order
to enroll in Identity Guard Monitoring Services; (c) the Claim Form is complete and
accurate; (d) the Settlement Class Member signed the attestation as required to submit a
claim for Self-Certified Time; (d) the claimant provided the information needed to
evaluate the Claim Form; and (e) for Documented Claims, the information and
documentation submitted, if true, could lead a reasonable person to believe that, more
likely than not, the claimant has suffered Substantiated Losses.
6.
Determination by the Settlement Administrator: The Settlement Administrator, in its
discretion to be reasonably exercised, will determine the amount of Substantiated Losses
for Documented Claims and/or Self-Certified Time Claims, up to a maximum of $10,000
per Settlement Class Member. The Settlement Administrator’s decision will be final,
subject to the dispute resolution process in Section III below.
III.
DISPUTE RESOLUTION FOR DOCUMENTED CLAIMS
7.
Notification: If the Settlement Administrator determines the Substantiated Losses are less
than the amount requested by the claimant (including claims submitted with
documentation, but for which the Settlement Administrator determines the Substantiated
Losses are $0), the Settlement Administrator will notify the claimant by mail within 21
days of receipt by the Settlement Administrator.
8.
Dispute Procedures: Recipients will have 14 days from receipt to respond to the
Settlement Administrator by reply mail stating whether he or she accepts or rejects the
Settlement Administrator’s determination. If the claimant rejects the offer, the Settlement
Administrator will have 10 days to reconsider the original determination, make a final
determination, and communicate the final determination to the claimant by mail. The
claimant will have 10 days to reply back to the Settlement Administrator by mail to
accept or reject the final determination. If the claimant approves the final determination
or fails to send a timely response to any communication from the Settlement
Administrator, then the approved amount will be the amount to be paid. If the final
determination is timely rejected by the claimant, then the dispute will be resolved in
accordance with the procedures set out in Paragraphs 9-12 below.
9.
Claim File: After receipt of the claimant’s rejection of the final determination, the
Settlement Administrator will provide Class Counsel and Home Depot’s Counsel
(together “Counsel”) with a copy of the Claim Form and documentation submitted by the
claimant, and the communications between the Settlement Administrator and the
claimant (the “Claim File”).
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 28 of 102
3
10.
Counsel Determination: Counsel will confer regarding the amount of Substantiated
Losses. If Counsel agree that the claimant is entitled to the amount of Substantiated
Losses requested on the Claim Form, their determination will be final. Counsel will
inform the Settlement Administrator of their determination, and the Settlement
Administrator will provide notice of the decision to the claimant.
11.
Claim Referee: If Counsel agree that the claimant is entitled to less than the amount of
Substantiated Losses requested on the Claim Form, or if they cannot agree on the amount
of Substantiated Losses, they will notify the Settlement Administrator by email
(“Counsel’s Notice”) and the dispute will be submitted to one or more neutral third
parties designated by agreement of the Parties to make final decisions about disputed
claims (the “Claim Referee”).
12.
Final Decision: After receipt of Counsel’s Notice, the Settlement Administrator will
provide the Claim Referee with a copy of the Claim File. The Claim Referee will not
consider any other documentation or information in making a decision. The Claim
Referee will make a final determination of the amount of Substantiated Losses based on
whether the claimed amount or some portion of the claimed amount is reasonably
supported in fact and more likely than not caused by the Home Depot Data Breach. The
Claim Referee’s decision will be final and not subject to appeal or further review.
IV.
DISTRIBUTION ORDER AND DISTRIBUTION OF REMAINING FUNDS
13.
Distribution Order: The Settlement Administrator will distribute the Net Settlement Fund
in the following order: (1) payments to Settlement Class Members who submitted valid
Documented Claims and/or Self-Certified Time Claims; (2) Service Awards to
Settlement Class Representatives awarded by the Court.
14.
Pro-Rata Contingency. To the extent valid Documented Claims and/or Self-Certified
Time exceed the Net Settlement Fund, the cash benefit to each Settlement Class Member
shall be reduced and distributed by the Settlement Administrator on a
pro rata
basis
pursuant to Paragraph 35 of the Settlement Agreement
15.
Distribution of Remaining Funds: If the distributions set forth in Paragraph 13 do not
collectively exhaust the Net Settlement Fund, then the remaining proceeds will be
distributed as set forth in Paragraph 36 of the Settlement Agreement.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 29 of 102
EXHIBIT C
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 30 of 102
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
CLAIM FORM
CLASS MEMBER INFORMATION
Full Name: ______________________________________________________________________________________________
Mailing Address: _________________________________________________________________________________________
City: _________________________________________ State: _________________ ZIP: _______________________________
Telephone Number: _______________________________________________________________________________________
Email Address (optional): ___________________________________________________________________________________
(if provided, we will communicate primarily by email about your claim)
SETTLEMENT OVERVIEW
Documented Losses and Time
If you have documentation establishing that you suffered out-of-pocket losses, unreimbursed charges, or time spent remedying issues
relating to the Home Depot data breach, you can make a claim for reimbursement up to $10,000, including up to 5 hours of
documented time at $15 per hour. If you have documented out-of-pocket losses or unreimbursed charges, you will be eligible to self-
certify your time spent remedying issues relating to the data breach at $15 per hour for up to 2 hours.
Monitoring Services
If you used a credit or debit card at a self-checkout lane at a U.S. Home Depot store between April 10, 2014 and September 13, 2014,
and your payment card information was compromised, you are eligible to enroll in 18 months of free Identity Guard® Essentials
identity monitoring services, regardless of whether you are eligible to submit a claim for documented losses or time. You may make a
claim for documented losses or time and also enroll in monitoring services.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 31 of 102
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
1.
Did you receive notice from the settlement administrator that your personal information was compromised as a result of the data
breach announced by Home Depot in September of 2014?
Yes
☐
(
Provide ClaimID number below and skip to Question No. 3
) No
☐
(
Proceed to Question 2
)
ClaimID: __ __ __ __ __ __ __ __
2.
Did you use a credit or debit card at a self-checkout lane at a United States Home Depot store between April 10, 2014 and
September 13, 2014?
Yes
☐
If available, please provide the last six digits of your compromised credit or debit card here: __ __ __ __ __ __
OR
If you canceled your card or your card is no longer in your possession, please enter the location of the store where the card was
used: ________________________________
(
Proceed to Question 3
)
No
☐
(
You are not eligible to submit a claim
)
If you have questions about whether you are eligible to submit a claim, please contact the Settlement Administrator at 1-
800-xxx-xxxx or visit www.settlementwebsite.com.
DOCUMENTED CLAIMS FOR OUT-OF-POCKET LOSSES, UNREIMBURSED CHARGES, OR TIME SPENT REMEDYING
ISSUES RELATING TO THE DATA BREACH
3.
Do you have documents supporting that you experienced out-of-pocket losses, unreimbursed charges, or time spent remedying
issues relating to the Home Depot data breach?
Yes
☐
(
Proceed to Question 4
) No
☐
(
You are not eligible to submit a documented claim; skip to Question No. 6
)
Loss Type
(Check all that apply)
Date of Loss
Amount of Loss
Description of Supporting Documentation
(Identify what you are attaching and why)
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 32 of 102
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
☐
Unauthorized charges on credit
or debit card that were not
reimbursed
Examples:
Account statement with unauthorized charges
highlighted; Correspondence from financial institution
declining to reimburse you for fraudulent charges
☐
Costs and expenses spent
addressing identity theft or fraud
as a result of Home Depot data
breach
Examples:
Receipt or account statement reflecting fuel
costs for driving to bank or filing police report; Receipt
for hiring service to assist you in addressing identity theft
☐
Losses caused by restricted
access to funds (
i.e
., costs of
taking out a loan, ATM
withdrawal fees)
Examples:
Account statement with ATM withdrawal
highlighted; Loan agreement or bank statement with
additional interest paid highlighted
☐
Preventative costs including
purchasing credit monitoring,
placing security freezes on credit
reports, or requesting copies of
credit reports for review
Example:
Receipts or account statements reflecting
purchases made for credit monitoring services or to
place a credit freeze
☐
Losses caused by e-mail
related fraud such as phishing
scams
Example:
Documentation establishing that money was
transferred as part of an email fraud (e.g., money sent to
a fake charitable organization after being solicited by
email)
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 33 of 102
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
☐
Late fees, declined payment
fees, overdraft fees, returned
check fees, customer service fees,
and/or card cancellation or
replacement fees as a result of
Home Depot data breach
Example:
Account statements reflecting overdraft fees
☐
Time spent remedying issues
relating to the Home Depot data
breach
Number of Hours
Spent ______
Examples
:
Phone bill reflecting time spent on phone with
bank; Receipt or account statement reflecting purchases
for fuel used to drive to bank or file police report
(provide detailed description here)
☐
Other (provide detailed
description)
Please provide detailed description
SELF-CERTIFIED CLAIMS FOR TIME
4.
Did you submit documentation supporting that you experienced out-of-pocket losses, unreimbursed charges, or time spent
remedying issues relating to the Home Depot data breach?
Yes
☐
(
Proceed to Question No. 5
) No
☐
(
You are not eligible to self-certify a claim for time; skip to Question No. 6
)
5.
Did you spend time or additional time other than what is documented above remedying issues relating to the Home Depot data
breach?
Yes
☐
(
Please fill out the attestation section below
) No
☐
(
You are not eligible to self-certify a claim for time; skip to Question
No. 6
)
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 34 of 102
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT (N.D. Ga.)
ATTESTATION AND SIGNATURE
I hereby attest that I spent (up to two) ______ hours remedying issues relating to the Home Depot data breach to be reimbursed at a
rate of $15 per hour. I certify that the information I am providing in this claim form is true and correct.
Name: ____________________________________
Signature: _________________________________
Date: _____________________________________
IDENTITY GUARD® ESSENTIALS IDENTITY MONITORING SERVICES
6.
Did you use a credit or debit card at a self-checkout lane at a United States Home Depot store between April 10, 2014 and
September 13, 2014 and have your payment card information compromised?
Yes
☐
(
Proceed to Question No. 7
) No
☐
(
You are not eligible to enroll in monitoring services
)
If you have questions about whether you are eligible for monitoring services, please contact the Settlement Administrator at
1-800-xxx-xxxx or visit www.settlementwebsite.com.
7.
You are eligible to enroll in 18 months of free Identity Guard® Essentials identity monitoring services. Do you wish to enroll?
Yes
☐
By checking here, you will receive enrollment instructions shortly after final approval of the Settlement. Please provide the
email address where you would like to receive enrollment instructions: ______________________________.
No
☐
(
You have completed the claims process; thank you for participating
)
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 35 of 102
EXHIBIT D
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 36 of 102
L
EGAL
N
OTICE
If You Used a Credit or Debit Card at a Self-Checkout Lane at a U.S. Home
Depot Store Between April 10, 2014 and September 13, 2014 or Received
Notice From Home Depot That Your Information Was Compromised, You
May Be Eligible for Benefits from a Data Breach Class Action Settlement
A settlement has been proposed in lawsuits against The Home Depot, Inc. (“Home Depot”) relating to Home Depot
customers whose credit or debit card information or email information was stolen as a result of a data breach that was first
disclosed in September 2014 (“Home Depot Data Breach”).
Who is included in the Settlement?
You are a member of the Settlement Class if: (1) you used your credit or debit card at a self-checkout terminal at a U.S.
Home Depot store between April 10, 2014 and September 13, 2014 and your payment card information was
compromised; or (2) you received notification that your e-mail address was compromised; or (3) you received an email
notice stating that you are a Class Member.
If you are not sure whether you are included in the Settlement Class, call
1-8xx-xxx-xxxx.
What does the Settlement provide?
Cash Fund:
A $13 million Settlement Fund will provide payments to consumers who have documented losses caused by
the Home Depot Data Breach. If you are included in the Settlement Class, you may be entitled to receive reimbursement
of your documented losses relating to the Home Depot Data Breach, as well as time spent remedying issues relating to the
data breach, up to $10,000.
Monitoring Services
: Regardless of whether you submit a claim for documented losses or time, if you used a credit or
debit card at a self-checkout lane at a U.S. Home Depot store between April 10, 2014 and September 13, 2014 and your
payment card information was compromised, you are eligible to enroll in 18 months of free Identity Guard® Essentials
identity monitoring services.
You may make claims for
both
reimbursement under the Cash Fund and for Monitoring Services.
How can I get a payment?
Submit a Claim Form online or by mail by
Month XX, 2016
.
What are my rights?
Unless you exclude yourself, you will be bound by the Court’s decisions and you will give up your right to sue Home
Depot for the legal claims resolved by this Settlement. If you want to keep your right to sue Home Depot for the legal
claims resolved by this Settlement, you must exclude yourself by
Month XX, 2016
. If you stay in the Settlement, you
may object to it by
Month XX, 2016
. The U.S. District Court for the Northern District of Georgia will hold a hearing in
this case (
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
, No. 1:14-md-02583-TWT)
on
Month XX, 2016
to consider whether to approve the Settlement, a request for attorneys’ fees of up to $8,475,000.00, to
be paid by Home Depot separate from and in addition to the Cash Fund, reimbursement of reasonable costs and expenses,
and service awards of up to $1,000 each for the Settlement Class Representatives. If you have not excluded yourself from
the settlement, you or your own lawyer may appear and speak at the hearing at your own expense.
For More Information: 1-8XX-XXX-XXXX
www.____________.com
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 37 of 102
EXHIBIT E
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 38 of 102
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
If You Used a Credit or Debit Card at a Self-Checkout Lane at a
U. S. Home Depot Store Between April 10, 2014 and September
13, 2014 or Received Notice From Home Depot That Your
Information Was Compromised, You May Be Eligible for
Benefits from a Data Breach Class Action Settlement
For more information, visit www.____________.com or call 1-8XX-XXX-XXXX.
A federal court authorized this notice. This is not a solicitation from a lawyer.
A settlement has been proposed in lawsuits against The Home Depot, Inc. and Home Depot
U.S.A., Inc. (“Home Depot”) relating to Home Depot customers whose credit or debit card
information or email information was stolen as a result of a data breach that was first disclosed in
September 2014 (“Home Depot Data Breach”).
Cash Fund: A $13 million Settlement Fund will provide payments to consumers who have
documented losses caused by the Home Depot Data Breach. If you are included in the
Settlement Class, you may be entitled to receive reimbursement of your documented losses
relating to the Home Depot Data Breach, as well as time spent remedying issues relating to
the data breach, up to $10,000.
Monitoring Services: Regardless of whether you submit a claim for documented losses, if
you used a credit or debit card at a self-checkout lane at a U.S. Home Depot store between
April 10, 2014 and September 13, 2014 and your payment card information was
compromised, you are eligible to enroll in 18 months of free Identity Guard® Essentials
identity monitoring services. You may make claim for both reimbursement under the Cash
Fund and for Monitoring Services.
Your legal rights are affected whether or not you respond.
Read this notice carefully.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
FILE A CLAIM
The only way to get benefits under this settlement.
ASK TO BE
EXCLUDED
Get no benefits. This is the only option that may allow you to sue Home
Depot over the claims being resolved by this settlement.
OBJECT
Write to the Court about why you don’t think the settlement is fair,
reasonable, or adequate.
GO TO A
HEARING
Ask to speak in Court about the fairness of the settlement.
IF YOU DO
Get no benefits. Give up your rights to sue Home Depot about the legal
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 39 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
2
NOTHING
claims in this case.
Your rights and options—and the deadlines to exercise them—are explained in this
notice
.
The Court still must decide whether to approve the Settlement. No payments will be
made until after the Court grants final approval of the Settlement and all appeals, if any,
are resolved.
BASIC INFORMATION
1.
Why is there a notice?
A Court authorized this notice because you have a right to know about a proposed settlement in
several lawsuits against Home Depot, and all of your options, before the Court decides whether
to give final approval to the settlement. This notice explains the nature of the lawsuits, the
general terms of the settlement, and your legal rights and options.
The lawsuits were brought on behalf of consumers whose credit/debit card information or
personal information was stolen as a result of the Home Depot Breach. Judge Thomas W. Thrash
of the U.S. District Court for the Northern District of Georgia is overseeing this litigation. The
litigation is known as
In re: The Home Depot, Inc., Customer Data Security Breach Litigation
,
Case No. 1:14-md-02583-TWT. The consumers who sued are called the “Plaintiffs.” Home
Depot is the “Defendant.”
2.
What is this lawsuit about?
In September 2014, Home Depot announced that it had been the victim of a data breach by third-
party intruders who stole payment card data from consumers who made purchases using a self-
checkout terminal at a U.S. Home Depot store between April 10, 2014 and September 13, 2014.
The intruders also stole a separate email file which contained the email addresses of certain
Home Depot customers. Plaintiffs claim that Home Depot did not adequately protect its payment
card data and personal information and that Home Depot delayed in providing notice of the data
breach. Home Depot denies any wrongdoing, and no court or other judicial entity has made any
judgment or other determination of any wrongdoing.
3.
Why is this a class action?
In a class action, one or more people called “class representatives” sue on behalf of themselves
and other people with similar claims. All of these people together are the “class” or “class
members.” One court resolves the issues for all class members, except for those who exclude
themselves from the settlement class.
4.
Why is there a settlement?
The Court has not decided in favor of Plaintiffs or Home Depot. Instead, both sides agreed to a
settlement. Settlements avoid the costs and uncertainty of a trial and related appeals, while
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 40 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
3
providing benefits to members of the settlement class (“Settlement Class Members”). The
“Settlement Class Representatives” appointed to represent the class, and the attorneys for the
Settlement Class (“Settlement Class Counsel,”
see
Question 17) think the settlement is best for
all Settlement Class Members.
WHO IS PART OF THE SETTLEMENT?
5.
How do I know if I am part of the settlement?
You are a member of the Settlement Class and affected by the settlement if your personal
information was stolen as a result of the Home Depot Data Breach.
You are a member of the Settlement Class if:
You used your credit or debit card at a self-checkout lane at a U.S. Home Depot store
between April 10, 2014 and September 13, 2014 and your payment card information was
compromised;
You received notification that your e-mail address was compromised; or
You received a settlement notice by email stating that you are a Class Member.
Excluded from the settlement are:
Officers and directors of Home Depot;
The presiding judge and any judicial staff involved in the lawsuit; and
Any Class Member who opts out (
see
Question 14).
If you are not sure whether you are included in the Settlement Class, call 1-8xx-xxx-xxxx.
THE SETTLEMENT BENEFITS
6.
What does the settlement provide?
Home Depot will pay $13 million into a Settlement Fund to make payments to eligible
Settlement Class Members and service payments to the Settlement Class Representatives (
see
Question 18). Home Depot has also agreed to pay attorneys’ fees, costs, and expenses (
see
Question 18) and the costs of notifying the class and administering the settlement.
In addition, Home Depot will pay to provide for 18 months of Identity Guard® Essentials
monitoring services for all Settlement Class Members who used a payment card at self-checkout
lanes at U.S. Home Depot stores between April 10, 2014 and September 13, 2014 and had their
payment card information compromised, who elect to enroll in the service.
Home Depot has also agreed to maintain and implement certain business practices relating to its
information security program, including naming a high-level executive to coordinate the
program, conducting regular data risk assessments, implementing reasonable safeguards to
address issues raised in risk assessments, maintaining and making available to its customers clear
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 41 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
4
written disclosures explaining that Home Depot stores certain customer information and
describing how the company uses that information, implementing an employee education
program to educate and train its workforce on the importance of the privacy and security of
customer information, and adopting enhanced encryption and security measures for all credit and
debit card transactions. A more detailed description of these changes is available in the
Settlement Agreement which is available at www._________.com.
7.
What can I get from the settlement?
Cash Payments for Documented Losses and Time: If you have documentation showing that you
suffered out-of-pocket losses, unreimbursed charges, or time spent remedying issues relating to
the Home Depot data breach, you can make a claim for up to $10,000 as reimbursement of those
losses, including up to 5 hours of documented time at $15 per hour. If you have documented out-
of-pocket losses or unreimbursed charges, you will be eligible to self-certify your time spent
remedying issues relating to the Home Depot data breach at $15 per hour for up to 2 hours.
Monitoring Services: Regardless of whether you submit a claim for documented losses, if you
are a Settlement Class Member who used a credit or debit card at a self-checkout terminal at a
U.S. Home Depot store between April 10, 2014 and September 13, 2014 and your payment card
information was compromised, you are eligible to enroll in 18 months of free Identity Guard®
Essentials identity monitoring services.
You may make claim for both reimbursement under the Cash Fund and for Monitoring Services.
If you have questions about whether you are eligible to submit a claim, please contact the
Settlement Administrator at 1-800-xxx-xxxx or visit www.settlementwebsite.com
8.
What do “out-of-pocket losses” “unreimbursed charges” and “documented time”
include?
All Settlement Class Members who had their personal or financial information compromised can
get reimbursed for losses caused by the data breach of up to $10,000. These losses may include:
Unauthorized charges on credit or debit card that were not reimbursed;
Costs and expenses spent addressing identity theft or fraud as a result of Home Depot
data breach;
Losses caused by restricted access to funds (
i.e
., costs of taking out a loan, ATM
withdrawal fees);
Preventative costs including purchasing credit monitoring, placing security freezes on
credit reports, or requesting copies of credit reports for review;
Losses caused by e-mail related fraud such as phishing scams;
Late fees, declined payment fees, overdraft fees, returned check fees, customer service
fees, and/or card cancellation or replacement fees as a result of Home Depot data breach;
and
Any other losses that can be fairly traced to the Home Depot Data Breach.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 42 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
5
If you have documents supporting the time spent remedying issues relating to the Home Depot
data breach, you can receive $15 per hour for up to 5 hours. Documents reflecting time spent
may include, for example, phone bills reflecting time spent on the phone with your bank.
Settlement Class Members who have documented losses can self-certify their time spent
remedying issues relating to the Home Depot data breach at $15 per hour for up to 2 hours. Class
members without documented losses cannot self-certify claims for time.
9.
What benefits does Identity Guard® Essentials provide?
The Identity Guard® Essentials service is designed to help recover any financial losses and
restore identities. Settlement Class Members will have access to a specific hotline maintained by
Identity Guard ([PHONE NUMBER]) where you can speak to specialized fraud investigators,
who will provide any appropriate remediation services at no cost, including contacting creditors
and other involved parties to address and resolve issues such as unauthorized credit card charges
and bank fees.
This service also includes: (a) Social Security number monitoring; (b) online “black market”
monitoring; (c) financial account identity verification alerts; (d) financial account takeover alerts;
(e) identity theft victim assistance; (f) lost wallet protection; (g) online username and password
protection; and (f) one million dollars ($1,000,000.00) in identity theft insurance.
More
information
about
Identity
Guard®
Essentials
services
is
available
at
https://www.identityguard.com/service-details-essentials.
10.
How do I enroll in Identity Guard® Essentials for free?
If you submit a valid Claim Form and are eligible to enroll in Identity Guard® Essentials
services, you will receive enrollment instructions by email shortly after final approval of the
Settlement.
HOW TO GET BENEFITS
11.
How do I get a payment?
To get a payment, you will need to submit a Claim Form on the Settlement Website
(www._______.com) by
October 29, 2016
or submit a Claim Form by mail, which must be
postmarked by
October 29, 2016
. The Claim Form is available at www._________.com or by
calling 1-800-000-0000.
12.
When will I receive my payment?
If you submit a complete, accurate, valid, and timely Claim Form, the Settlement Administrator
will send your payment to you after the settlement is finally approved and all appeals and other
reviews have been resolved or exhausted.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 43 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
6
13.
What am I giving up to stay in the Settlement Class?
Unless you exclude yourself from the settlement, you will give up your right to sue Home Depot
or be part of any other lawsuit against Home Depot about the issues this settlement resolves.
Unless you exclude yourself, all of the Court’s decisions will bind you. The specific claims you
are giving up against Home Depot are called “Released Claims”. The Released Claims are
described
in
Section
XI
of
the
Settlement
Agreement
which
is
available
at
www.___________.com
. The Settlement Agreement describes the Released Claims with specific
and accurate legal descriptions, so read it carefully.
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you want to keep the right to sue or continue to sue Home Depot based on claims this
settlement resolves, you must take steps to get out of the Settlement Class.
14.
How do I exclude myself from the settlement?
To exclude yourself from the settlement, you must send a letter by U.S. Mail saying that you
wish to do so. Your “Request for Exclusion” must include:
The name of this proceeding (
In re: The Home Depot, Inc., Customer Data Security
Breach Litigation
, or similar identifying words);
Your name and address;
The words “Request for Exclusion” at the top of the document or a statement requesting
exclusion from the Class; and
Your signature.
You must mail your exclusion request, postmarked no later than
July 18, 2016
, to:
[MAILING ADDRESS]
You cannot exclude yourself by telephone or by email. You cannot exclude yourself by mailing a
notification to any other location or after the deadline of July 18, 2016. Your exclusion letter
must be signed by you, personally, and not your lawyer or anyone else acting on your behalf.
15.
If I do not exclude myself, can I sue Home Depot for the same thing later?
No. Unless you exclude yourself, you give up the right to sue Home Depot for the claims that
this settlement resolves.
16.
If I exclude myself, can I still get a settlement payment and free credit monitoring?
No. If you exclude yourself, you cannot receive a cash payment or credit monitoring from this
settlement.
THE LAWYERS REPRESENTING YOU
17.
Do I have a lawyer in the case?
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 44 of 102
Questions? Go to
www._________.com
or call 1-8xx-xxx-xxxx
7
Yes. The Court appointed the following attorneys to represent you and other Settlement Class
Members as “Settlement Class Counsel.”
Norman E. Siegel
Barrett J. Vahle
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Roy E. Barnes
John R. Bevis
THE BARNES LAW GROUP, LLC
31 Atlanta Street
Marietta, GA 30060
David J. Worley
James M. Evangelista
HARRIS PENN LOWRY, LLP
400 Colony Square
1201 Peachtree Street, NE, Suite 900
Atlanta, GA 30361
John A. Yanchunis, Sr.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N Franklin Street
Tampa, FL 33602
You will not be charged by these lawyers for their work on the case. If you want to be
represented by your own lawyer, you may hire one at your own expense.
18.
How will the lawyers be paid?
Settlement Class Counsel will ask the Court for attorneys’ fees of up to $8,475,000.00, and
reimbursement of reasonable costs and expenses. The Court will decide the amount of fees and
costs and expenses to be paid. These fees and costs will be paid separately by Home Depot and
will not reduce the amount of benefits provided to the Settlement Class. Settlement Class
Counsel will also ask the Court for service payments of up to $1,000 for each of the 88
Settlement Class Representatives for helping the lawyers on behalf of the Settlement Class.
These service payments will be paid out of the Settlement Fund. The Settlement Class
Representatives and Settlement Class Counsel will make their requests to the Court for
attorneys’ fees and costs and service payments on or before June 27, 2016. These requests will
be available on the Settlement Website or you can request a copy by contacting the Settlement
Administrator.
OBJECTING TO THE SETTLEMENT
19.
How do I tell the Court that I don’t like the settlement?
If you are a Settlement Class Member, you can object to the settlement if you don’t think it is
fair, reasonable, or adequate. You can give reasons why you think the Court should not approve
it. The Court will consider your views.
To object, you must send a letter stating that you object to the settlement. Your objection must
include:
The name of this proceeding (
In re: The Home Depot, Inc., Customer Data Security
Breach Litigation
, or similar identifying words);
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8
Your full name, address, email address, and telephone number;
Information illustrating that you are a Settlement Class Member;
The reasons for the objection, as well as any documents supporting the objection;
The identity your attorneys, if applicable, including any former or current counsel who
may be entitled to compensation for any reason related to the objection;
A description of the number of times in which you or your lawyer has objected to a class
action settlement within the previous five years, the caption of each case, and a copy of
any court orders related to or ruling upon you or your lawyer’s prior objections;
Any and all agreements, written or verbal, between you or your lawyer and any other
person or entity that relate to the objection or the process of objecting;
A list of any persons you or your lawyer plan to call to testify at the Final Approval
Hearing in support of your objection;
Any evidence or other information you wish to introduce in support of your objections;
A statement of whether you or your lawyer intends to appear and/or testify at the Final
Approval Hearing; and
Your signature on the written objection (an attorney’s signature is not sufficient).
To be considered by the Court, your objection must be mailed, postmarked no later than July 18,
2016, to the following three recipients at the following addresses:
COURT
CLASS COUNSEL
DEFENSE COUNSEL
XXXXXX
XXXXXX
XXXXXX
20.
What’s the difference between objecting and excluding myself?
Objecting is simply telling the Court that you don’t like something about the settlement. You can
object to the benefits provided by the settlement or other terms of the settlement only if you stay
in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be
included in the settlement. If you exclude yourself, you have no basis to object to the settlement
and related releases because the settlement no longer affects you.
FINAL APPROVAL HEARING
21.
When and where will the Court decide to approve the settlement?
The Court will hold a Final Approval Hearing at TIME on DATE, in the Courtroom of Judge
Thomas W. Thrash at the U.S. District Court for the Northern District of Georgia, located in
Courtroom 2108 of the Richard B. Russell Federal Building and United States Courthouse, 75
Ted Turner Dr., SW, Atlanta, Georgia 30303-3309. This hearing date and time may be moved.
Please refer to the Settlement Website for notice of any changes.
At the Final Approval Hearing, the Court will consider whether the settlement is fair, reasonable,
and adequate. If there are objections, the Court will consider them. The Court will listen to
people who appear at the hearing (
see
Question 22). The Court may also decide how much
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9
Settlement Class Counsel will receive as attorneys’ fees and costs and whether to award service
payments to Settlement Class Representatives. After the Final Approval Hearing, the Court will
decide whether to approve the settlement. We do not know how long these decisions will take.
22.
Do I have to come to the hearing?
No. Settlement Class Counsel will answer questions the Court may have. However, you are
welcome to come at your own expense. If you submit a written objection, you don’t have to
come to Court to talk about it. As long as you submitted your written objection on time, the
Court will consider it. You may also pay your own lawyer to attend, but it’s not necessary.
IF I DO NOTHING
23.
What happens if I do nothing?
If you are a Settlement Class Member and do nothing, you will not get any benefits from this
settlement. And, unless you exclude yourself, you will not be able to start a lawsuit or be part of
any other lawsuit against Home Depot about the claims resolved by this settlement, ever again.
GETTING MORE INFORMATION
24.
How do I get more information?
This notice summarizes the settlement. More details are in the Settlement Agreement itself. You
can get a copy of the Settlement Agreement at www.__________.com or from the Settlement
Administrator by calling toll-free __________ or writing to Settlement Administrator at
XXXXXXXXX. The status of the settlement, any appeals, any claims made, and the date of
payments will be posted on the Settlement Website.
Please do not contact the Court with questions about the settlement.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 47 of 102
EXHIBIT F
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 48 of 102
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
_________________________________
)
In re: The Home Depot, Inc., Customer
) Case No.: 1:14-md-02583-TWT
Data Security Breach Litigation
)
)
This document relates to:
)
)
CONSUMER CASES
)
_________________________________
)
[PROPOSED] ORDER CERTIFYING A SETTLEMENT CLASS,
PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT
AND DIRECTING NOTICE TO THE SETTLEMENT CLASS
This matter came before the Court on Consumer Plaintiffs’ Motion for
Certification of Settlement Class and Preliminary Approval of Class Action
Settlement.
Consumer Plaintiffs filed their Consolidated Class Action Complaint (ECF
No. 93) on May 1, 2015 (“Complaint”). In their Complaint, Consumer Plaintiffs
allege various claims against Defendants Home Depot U.S.A., Inc. and The Home
Depot, Inc. (collectively, “Home Depot”) arising out of the breach of Home
Depot’s payment data systems that Home Depot first announced in September
2014, including claims alleging violations of state consumer laws and state data
breach statutes, negligence, breach of implied contract, unjust enrichment, and
declaratory judgment claims. Following briefing on Home Depot’s motion to
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 49 of 102
2
dismiss, the Court heard oral argument on that motion, which presently is under
advisement.
Plaintiffs’ counsel have conducted a thorough examination, investigation,
and evaluation of the relevant law, facts and allegations sufficient to assess the
merits of the claims and Home Depot’s liability and defenses in the Consumer
Actions. Consumer Plaintiffs, by Consumer Plaintiffs’ co-lead and liaison Counsel,
and Home Depot, by Home Depot’s Counsel, have entered into a Settlement
Agreement following good faith, arm’s-length negotiations and mediation overseen
by Jonathan B. Marks of MarksADR, LLC, in which the Parties have agreed to
settle the Consumer Actions consolidated for pre-trial purposes in this MDL
proceeding, pursuant to the terms of the Settlement, and subject to the approval and
determination of the Court as to the fairness, reasonableness and adequacy of the
Settlement which, if approved, will result in dismissal of the Consumer Actions
with prejudice.
The Court having reviewed the Settlement Agreement and Release,
including the exhibits attached thereto (together, the “Settlement Agreement” or
“Settlement”), and all prior proceedings herein, and good cause appearing based on
the record,
IT IS HEREBY ORDERED
:
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 50 of 102
3
1.
Class Certification for Settlement Purposes Only.
The Settlement
Agreement provides for a Settlement Class defined as follows:
All residents of the United States whose Personal Information was
compromised as a result of the Data Breach first disclosed by Home
Depot in September 2014.
“Personal Information” means payment card data including payment
card account numbers, expiration dates, card verification values, and
cardholder names from payment cards used at self-checkout lanes at
U.S. Home Depot stores between April 10, 2014 and September 13,
2014, and/or e-mail addresses compromised as a result of the Data
Breach.
Excluded from the Settlement Class is the judge presiding over this
matter and any members of his judicial staff, the officers and
directors of Home Depot, and persons who timely and validly request
exclusion from the Settlement Class.
The Consumer Actions are provisionally certified as a class action for
settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(b)(3) and
(e). The Court finds for settlement purposes that: (a) the Settlement Class is so
numerous that joinder of all Settlement Class Members would be impracticable; (b)
there are issues of law and fact common to the Settlement Class; (c) the claims of
the Settlement Class Representatives are typical of and arise from the same
operative facts and seek similar relief as the claims of the Settlement Class
Members; (d) the Settlement Class Representatives and Settlement Class Counsel
will fairly and adequately protect the interests of the Settlement Class as the
Settlement Class Representatives have no interest antagonistic to or in conflict with
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 51 of 102
4
the Settlement Class and have retained experienced and competent counsel to
prosecute this matter on behalf of the Settlement Class; (e) questions of law or fact
common to Settlement Class Members predominate over any questions affecting
only individual members; and (f) a class action and class settlement is superior to
other methods available for a fair and efficient resolution of this controversy.
2.
Settlement Class Representatives and Settlement Class Counsel.
Class Members identified in Exhibit A attached to the Settlement Agreement
are designated and appointed as the Settlement Class Representatives. The Court
finds that the Settlement Class Representatives are similarly situated to absent
Class Members and therefore typical of the Class and that they will be adequate
Settlement Class Representatives.
The Court finds that the following counsel, previously appointed by the
Court as interim co-lead or liaison counsel, are experienced and adequate counsel
and are hereby designated as Settlement Class Counsel pursuant to Fed. R. Civ. P.
23(g): Norman E. Siegel and Barrett J. Vahle, Stueve Siegel Hanson LLP; Roy E.
Barnes and John R. Bevis, The Barnes Law Group, LLC; David J. Worley and
James M. Evangelista, Harris Penn Lowry, LLP; and John A. Yanchunis, Sr.,
Morgan & Morgan Complex Litigation Group.
3.
Preliminary Settlement Approval.
Upon preliminary review, the
Court finds that the proposed Settlement is fair, reasonable and adequate to warrant
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 52 of 102
5
providing notice of the Settlement to the Class and accordingly is preliminarily
approved.
4.
Jurisdiction.
The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 332(d)(2), and personal jurisdiction over the Parties before it.
Additionally, venue is proper in this District pursuant to 28 U.S.C. § 1391(a).
5.
Final Approval Hearing.
A Final Approval Hearing shall be held on
______, 2016 at ______ in Courtroom 2108 of the Richard B. Russell Federal
Building and United States Courthouse, 75 Ted Turner Dr., SW, Atlanta, Georgia
30303-3309, to determine, among other things, whether: (a) this matter should be
finally certified as a class action for settlement purposes pursuant to Fed. R. Civ. P.
23(b)(3) and (e); (b) the Settlement should be approved as fair, reasonable and
adequate, and finally approved pursuant to Fed. R. Civ. P. 23(e); (c) the Consumer
Actions should be dismissed with prejudice pursuant to the terms of the Settlement
Agreement; (d) Settlement Class Members should be bound by the releases set
forth in the Settlement Agreement; (e) the application of Settlement Class Counsel
for an award of attorneys’ fees, costs, and expenses (the “Fee Request”) should be
approved pursuant to Fed. R. Civ. P. 23(h); and (f) the application of Settlement
Class Representatives for Service Awards (the “Service Awards Request”) should
be approved.
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6
Plaintiffs’ motion for final approval of the Settlement, Service Awards
Request, and Fee Request shall be filed with the Court at least 21 days prior to the
deadline for submission of objections specified in the Notice. By no later than 14
days prior to the Final Approval Hearing, the Parties shall file responses, if any, to
any objections, and any replies in support of final approval of the Settlement
and/or the Service Awards Request and Fee Request.
6.
Administration.
The Court appoints KCC Class Action Services,
LLC as the Settlement Administrator, with responsibility for class notice and
claims administration. Home Depot shall pay all costs and expenses associated
with providing notice to Settlement Class Members including, but not limited to,
the Settlement Administrator’s fees. These payments shall be made separate and
apart from the Settlement Fund, subject to the Distribution of Remaining Funds
provisions set forth in Paragraph 36 of the Settlement Agreement.
7.
Notice to the Class.
The proposed Notice Program set forth in the
Settlement Agreement, and the Notice, Publication Notice, Claim Form, and
Notice Plan attached to the Settlement Agreement as Exhibits C, D, E, and G
satisfy the requirements of Fed. R. Civ. P. 23(c)(2)(B) and (e)(1) and are hereby
approved. Non-material modifications to these Exhibits may be made without
further order of the Court. The Settlement Administrator is directed to carry out the
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 54 of 102
7
Notice Program in conformance with the Settlement Agreement, including but not
limited to sections VIII and IX thereof.
By May 2, 2016 (the “Notice Deadline”), the Settlement Administrator shall
complete in the manner set forth in section IX of the Settlement Agreement the
E-Mail and Mail Notice Program, Publication Notice, and posting of Notice on the
Settlement Website.
Within 7 days after the Notice Deadline, the Settlement Administrator shall
provide Settlement Class Counsel and Home Depot with one or more affidavits
confirming that the E-mail Notice and Mail Notice Program, Publication Notice,
and posting of Notice on the Settlement Website were completed in accordance
with the Parties’ instructions and the Court’s approval. Settlement Class Counsel
shall file such affidavit(s) with the Court as an exhibit to or in conjunction with
Settlement Class Representatives’ motion for final approval of the Settlement.
8.
Findings Concerning Notice.
The Court finds that the form, content
and method of giving notice to the Class as described in Paragraph 7 of this Order
and the Settlement Agreement (including the exhibits thereto): (a) will constitute
the best practicable notice to the Settlement Class; (b) are reasonably calculated,
under the circumstances, to apprise Settlement Class Members of the pendency of
the action, the terms of the proposed settlement, and their rights under the proposed
settlement, including but not limited to their rights to object to or exclude
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 55 of 102
8
themselves from the proposed settlement and other rights under the terms of the
Settlement Agreement; (c) are reasonable and constitute due, adequate, and
sufficient notice to all Class Members and other persons entitled to receive notice;
and (d) meet all applicable requirements of law, including Fed. R. Civ. P. 23(c) and
(e), and the Due Process Clause(s) of the United States Constitution. The Court
further finds that the Notice is written in plain language, uses simple terminology,
and is designed to be readily understandable by Class Members.
9.
Appointment for Identity Guard Monitoring Services
. The Court
appoints Identity Guard, a subsidiary of Intersections, Inc., as the provider of
monitoring services to eligible Settlement Class Members as set forth in the
Settlement Agreement. The Court directs that Identity Guard effectuate the
Settlement Agreement in coordination with Settlement Class Counsel, Home
Depot, and the Settlement Administrator, subject to the jurisdiction and oversight
of this Court.
10.
Class Action Fairness Act Notice.
Within 10 days after the filing of
the motion for preliminary approval, Home Depot shall serve or cause to be served
a notice of the proposed Settlement on appropriate state officials in accordance
with the requirements under the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
1715(b).
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 56 of 102
9
11.
Exclusion from Class.
Any Settlement Class Member who wishes to
be excluded from the Settlement Class must mail a written notification of the intent
to exclude himself or herself from the Settlement Class to the Settlement
Administrator at the address provided in the Notice, postmarked no later than July
18, 2016 (the “Opt-Out Deadline”). The written notification must include the
individual’s name and address; a statement that he or she wants to be excluded
from the Consumer Action; and the individual’s signature.
The Settlement Administrator shall provide the Parties with copies of all
completed opt-out notifications, and a final list of all who have timely and validly
excluded themselves from the Settlement Class, which Settlement Class Counsel
may move to file under seal with the Court no later than 10 days prior to the Final
Approval Hearing.
Any Settlement Class Member who does not timely and validly exclude
herself or himself from the Settlement shall be bound by the terms of the
Settlement. If Final Judgment is entered, any Settlement Class Member who has
not submitted a timely, valid written notice of exclusion from the Settlement Class
shall be bound by all subsequent proceedings, orders and judgments in this matter,
including but not limited to the Release set forth in the Final Judgment, including
Settlement Class Members who have previously initiated or who subsequently
initiate any litigation against any or all of the Released Parties relating to the
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10
claims and transactions released in the Settlement Agreement. All Class Members
who submit valid and timely notices of exclusion from the Settlement Class shall
not be entitled to receive any benefits of the Settlement.
12.
Objections and Appearances.
A Settlement Class Member who
complies with the requirements of this paragraph may object to the Settlement, the
Service Awards Request, or the Fee Request.
No Settlement Class Member shall be heard, and no papers, briefs,
pleadings, or other documents submitted by any Settlement Class Member shall be
received and considered by the Court, unless the objection is (a) electronically filed
with the Court by the Objection Deadline; or (b) mailed first-class postage prepaid
to the Clerk of Court, Class Counsel, and Home Depot’s Counsel, at the addresses
listed in the Notice, and postmarked by no later than the Objection Deadline, as
specified in the Notice. For an objection to be considered by the Court, the
objection must also set forth:
(a) the name of the Consumer Action;
(b) the objector’s full name, address, email address, and telephone number;
(c) an explanation of the basis upon which the objector claims to be a
Settlement Class Member;
(d) all grounds for the objection, accompanied by any legal support for the
objection;
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11
(e) the identity of all counsel who represent the objector, including any
former or current counsel who may be entitled to compensation for any reason
related to the objection to the Settlement, the Service Awards Request, or the Fee
Request;
(f) the identity of all counsel representing the objector who will appear at the
Final Approval Hearing;
(g) the number of times in which the objector has objected to a class action
settlement within the five years preceding the date that the objector files the
objection, the caption of each case in which the objector has made such objection,
and a copy of any orders related to or ruling upon the objector’s prior such
objections that were issued by the trial and appellate courts in each listed case;
(h) the number of times in which the objector’s counsel and/or counsel’s law
firm have objected to a class action settlement within the five years preceding the
date that the objector files the objection, the caption of each case in which the
counsel or the firm has made such objection, and a copy of any orders related to or
ruling upon counsel’s or the firm’s prior such objections that were issued by the
trial and appellate courts in each listed case;
(i) any and all agreements that relate to the objection or the process of
objecting, whether written or verbal, between objector or objector’s counsel and
any other person or entity;
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12
(j) a list of any persons who will be called to testify at the Final Approval
Hearing in support of the objection;
(k) any evidence or other information the objector wishes to introduce in
support of the objection;
(l) a statement confirming whether the objector intends to personally appear
and/or testify at the Final Approval Hearing; and
(m) the objector’s signature on the written objection (an attorney’s signature
is not sufficient).
Any Settlement Class Member filing an objection may be required to sit for
a deposition regarding matters concerning the objection. Any Settlement Class
Member who fails to comply with the provisions in this Paragraph may waive and
forfeit any and all rights he or she may have to object, and shall be bound by all the
terms of the Settlement Agreement, this Order, and by all proceedings, orders, and
judgments, including, but not limited to, the Release in the Settlement Agreement
if Final Judgment is entered.
Any Settlement Class Member, including a Settlement Class Member who
files and serves a written objection, as described above, may appear at the Final
Approval Hearing, either in person or through counsel hired at the Settlement Class
Member’s expense, to object to or comment on the fairness, reasonableness, or
adequacy of the Settlement, the Service Awards Request, or the Fee Request.
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13
If Final Judgment is entered, any Settlement Class Member who fails to
object in the manner prescribed herein shall be deemed to have waived his or her
objections and shall be forever barred from making any such objections in the
Consumer Actions or in any other proceeding or from challenging or opposing, or
seeking to reverse, vacate, or modify any approval of the Settlement Agreement,
the Service Awards Request, or the Fee Request.
13.
Claims Process and Distribution and Allocation Plan.
Settlement
Class Representatives and Home Depot have created a process for assessing and
determining the validity and value of claims and a payment methodology to
Settlement Class Members who submit a timely, valid claim form. The Court
preliminarily approves the Distribution and Allocation Plan substantially in the
form attached to the Settlement Agreement as Exhibit B, and directs that the
Settlement Administrator effectuate the Distribution and Allocation Plan according
to the terms of the Settlement Agreement.
Settlement Class Members who qualify for and wish to submit a claim form
shall do so in accordance with the requirements and procedures specified in the
Notice and the Claim Form. If Final Judgment is entered, all Settlement Class
Members who qualify for any benefit under the Settlement but fail to submit a
claim in accordance with the requirements and procedures specified in the Notice
and the claim form shall be forever barred from receiving any such benefit, but will
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14
in all other respects be subject to and bound by the provisions in the Settlement
Agreement, the Release included in that Agreement, and the Final Judgment.
14.
Termination of Settlement.
This Order shall become null and void
and shall be without prejudice to the rights of the Parties, all of whom shall be
restored to their respective positions existing immediately before this Court entered
this Order, if the Settlement is not finally approved by the Court or is terminated in
accordance with section XIII of the Settlement Agreement. In such event, the
Settlement and Settlement Agreement shall become null and void and be of no
further force and effect, and neither the Settlement Agreement nor the Court’s
orders, including this Order, relating to the Settlement shall be used or referred to
for any purpose whatsoever.
15.
Use of Order.
This Order shall be of no force or effect if Final
Judgment is not entered or there is no Effective Date and shall not be construed or
used as an admission, concession, or declaration by or against Home Depot of any
fault, wrongdoing, breach, or liability. Nor shall this Order be construed or used as
an admission, concession, or declaration by or against any Settlement Class
Representative or any other Settlement Class Member that his or her claims lack
merit or that the relief requested is inappropriate, improper, unavailable, or as a
waiver by any Party of any defense or claims he, she, or it may have in this
litigation or in any other lawsuit.
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15
16.
Stay of Proceedings.
Except as necessary to effectuate this Order, the
Consumer Actions and all deadlines set by the Court in the Consumer Actions are
stayed and suspended pending the Final Approval Hearing and issuance of the
Final Judgment, or until further order of this Court.
17.
Continuance of Hearing.
The Court reserves the right to adjourn or
continue the Final Approval Hearing and related deadlines without further written
notice to the Class. If the Court alters any of those dates or times, the revised dates
and times shall be posted on the website maintained by the Settlement
Administrator.
18.
Summary of Deadlines.
The preliminarily approved Settlement shall
be administered according to its terms pending the Final Approval Hearing.
Deadlines arising under the Settlement Agreement and this Order include but are
not limited to:
Notice Deadline
: May 2, 2016
Motion for Final Approval
: June 27, 2016
Motion for Service Awards, Attorneys’ Fees and Costs
: June 27, 2016
Opt-Out and Objection Deadlines
: July 18, 2016
Replies in Support of Final Approval, Service Awards and Fee
Requests
: [14 days before Final Approval Hearing]
Final Approval Hearing
: [Friday August 12, 2016 or later date]
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16
Claims Deadline
: October 29, 2016
IT IS SO ORDERED this _____ day of __, 2016.
The Honorable Thomas W. Thrash, Jr.
United States District Court Judge
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EXHIBIT G
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 65 of 102
2016 KCC LLC
Proprietary and Confidential
Legal Notification Services
______________________________________________________________________
Settlement Notice Plan
In re: The Home Depot, Inc.
Customer Data Security Breach Litigation
Case No. 1:14-md-02583-TWT
United States District Court
Northern District of Georgia
Prepared: March 7, 2016
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 66 of 102
2016 KCC LLC
Proprietary and Confidential
2
Table of Contents
Page
Legal Notification Services
3
Our Experts
4
Relevant Case Experience
5
Expert Services
6
Media Terms
7
Media Resources
8
Program Overview
9
Target Analysis
10
Media Selection
12
Individual/Direct Notice
13
Consumer Magazines
14
Internet Banners
15
Response Mechanisms
16
Notice Design Strategies
17
Conclusion
18
Attachment A – Legal Notice c.v.
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Legal Notice Experts
Legal Notification Services
KCC’s Legal Notice experts, Gina M. Intrepido-Bowden and Carla A. Peak, specialize in the design and
implementation of class action notice programs devised to reach class members with clear, concise, plain
language notices. With over a decade of legal notice consulting experience, Ms. Intrepido-Bowden and
Ms. Peak have been directly responsible for more than 100 effective and efficient notice programs,
including some of the largest and most complex in history, reaching class members or claimants around
the globe and providing notice in over 35 languages.
Their programs satisfy due process requirements, as well as all applicable state and federal laws.
Judges, including in published decisions, have recognized the reach calculation methodology and notice
design strategies they use. Their notices follow the principles in the Federal Judicial Center’s (FJC)
illustrative model notices, which were written and designed to embody the satisfaction of the plain
language requirements of Federal Rule of Civil Procedure 23(c)(2).
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Our Experts
Consistent with the judicial standards set forth by
Daubert
and
Kumho
and as illustrated in the FJC’s
Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide
, KCC’s experts
utilize the same practices and statistical analyses that are relied upon in the advertising industry when
they design and measure the effectiveness of the notice programs they develop. Gina M. Intrepido-
Bowden and Carla A. Peak have personally designed the “Notice Plan" (Plan) and proposed notice
documents (Notice or Notices) that follow, and will directly oversee its implementation.
Gina Intrepido-Bowden
With 25 years of media research, planning and buying experience, Gina M. Intrepido-Bowden brings
substantive expertise to her role as VP, Legal Notification Services. A leading expert, she is responsible
for the design and implementation of evidence-based legal notice campaigns.
Gina has designed more than 90 judicially approved media campaigns across the United States and
Canada for antitrust, consumer and other class action matters. As a legal notice expert, she provides
Courts with the reach evidence they need to determine the adequacy of notice. In addition, she has
successfully critiqued other notice plans, causing Courts to modify programs to better meet due process
obligations.
She began her advertising career working for one of New York’s largest advertising agency media
departments. Gina is a frequent author and speaker on class notice issues including effective reach,
notice dissemination as well as noticing trends and innovations. She earned a Bachelor of Arts in
Advertising from Penn State University, graduating summa cum laude.
Carla Peak
With over a decade of industry experience, Carla A. Peak, also VP, Legal Notification Services,
specializes in the design of plain language legal notice documents to effectively address the challenges of
communicating complex information to class members in a manner that they can understand.
Carla’s notices satisfy the plain language requirements of Rule 23 and adhere to the guidelines set forth
in the Manual for Complex Litigation, Fourth and by the Federal Judicial Center (FJC), as well as
applicable state laws. She has successfully provided notice in both U.S. and international markets
including communications in more than 35 languages.
She has presented on and written numerous articles about class notification programs, the design of
effective notice documents as well as industry trends and innovations. Carla holds a Bachelor of Arts in
Sociology from Temple University, graduating cum laude.
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Relevant Case Experience
1
Our experts have designed and implemented numerous notice programs targeting Consumer Class
members, for example:
Honorable Mitchell D. Dembin,
Lermin v. Schiff Nutrition International, Inc
., (November 3, 2015)
No. 3:11-CV-01056 (S.D. Cal.):
o
According to Ms. Intrepido-Bowen, between June 29, 2015, and August 2, 2015,
consumer publications are estimated to have reached 53.9% of likely Class Members
and internet publications are estimated to have reached 58.9% of likely Class
Members…The Court finds this notice (i) constituted the best notice practicable under the
circumstances, (ii) constituted notice that was reasonably calculated, under the
circumstances, to apprise the putative Class Members of the pendency of the action, and
of their right to object and to appear at the Final Approval Hearing or to exclude
themselves from the Settlement, (iii) was reasonable and constituted due, adequate, and
sufficient notice to all persons entitled to be provided with notice, and (iv) fully complied
with due process principles and Federal Rule of Civil Procedure 23.
Honorable Sara I. Ellis,
Thomas v. Lennox Industries Inc
., (July 9, 2015) No. 1:13-CV-07747
(N.D. Ill.):
o
The Court approves the form and content of the Long-Form Notice, Summary Notice,
Postcard Notice, Dealer Notice, and Internet Banners (the “Notices”) attached as Exhibits
A-1, A-2, A-3, A-4 and A-5 respectively to the Settlement Agreement. The Court finds that
the Notice Plan, included in the Settlement Agreement and the Declaration of Gina M.
Intrepido-Bowden on Settlement Notice Plan and Notice Documents, constitutes the best
practicable notice under the circumstances as well as valid, due and sufficient notice to
all persons entitled thereto, and that the Notice Plan complies fully with the requirements
of Federal Rule of Civil Procedure 23 and provides Settlement Class Members due
process under the United States Constitution.
Honorable José L. Linares,
Demmick v. Cellco Partnership
, (May 1, 2015) No. 2:06-CV-2163 (D.
N.J.):
o
The Notice Plan, which this Court has already approved, was timely and properly
executed and that it provided the best notice practicable, as required by Federal Rule of
Civil Procedure 23, and met the “desire to actually inform” due process communications
standard of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)… The
Court thus affirms its finding and conclusion in the November 19, 2014 Preliminary
Approval Order that the notice in this case meets the requirements of the Federal Rules
of Civil Procedure and the Due Process Clause of the United States and/or any other
applicable law. All objections submitted which make mention of notice have been
considered and, in light of the above, overruled.
See
Attachment A
for additional recognition and example cases.
1 Includes work performed by our experts when employed at other firms.
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Expert Services
Our Legal Notification Services include:
Pre-Settlement Consulting
Review and advise clients of any potential obstacles relative to class definition or legal notification
processes
Develop a noticing plan strategy
Provide judicial decisions that are relevant to the case or terms of the settlement
Demographic Analysis
Define the target audience through research and analysis of class demographics
Identify the geographic location of potential class members giving specific consideration to the
class period
Research class member media usage to define the communication channels that will be most
effective
Notice Programs
Create custom notice programs that incorporate media such as newspapers, magazines, trade
journals, radio, television, social media and the internet to meet due process requirements
Develop press releases, social media enhancements, and broadcast public service
announcements (PSAs) as needed
Track media activity to verify the adequacy of placements
Plain Language Communication
Consider audience’s level of understanding and devise communications strategy accordingly
Design, draft and distribute plain-language notices that capture attention and are easily
understood by class members
Incorporate response mechanisms, such as a toll-free number, case website address, and/or QR
code into notice documents
Expert Testimony
Provide defensible opinions and testimony from subject-matter experts to verify the effectiveness
of notice programs
Supply proof of performance for each notice served, as required by the Courts
Provide evidence and judicial decisions to overcome objections
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Media Terms
The following provides the meaning of media terms highlighted throughout the Notice Plan:
Audience:
Net number of persons or different persons exposed to a media vehicle. It is larger than a
publication’s circulation because it includes pass-along readers who may obtain the publication second
hand (
e.g.
, from a reception room, neighbor, friend).
Circulation:
Total number of publication copies sold through all channels of distribution (
e.g.
,
subscriptions, newsstand, bulk).
Frequency:
Estimated average number of times a population group is exposed to a media vehicle or
combination of media vehicles containing a notice within a given period of time.
Impressions or Exposures:
Total number of opportunities to be exposed to a media vehicle or
combination of media vehicles containing a notice. It is a gross or cumulative number that may include
the same person more than once. Impressions can exceed the population size.
Reach or Coverage:
Net percentage of a specific population group exposed to a media vehicle or a
combination of media vehicles containing a notice at least once within a given period of time. Reach
factors out duplication, representing the total different/net persons.
Selectivity Index:
Shows the concentration of a specific population group relative to the general adult
population. For example, a publication selectivity index of 175 among men indicates that the publication’s
readers are 75% more likely to be men as compared to the general adult population.
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Media Resources
The resources we use to quantify our plan approach include the same resources used by media
professionals to guide the billions of dollars of advertising we see today:
Alliance for Audited Media (AAM)
AAM is a nonprofit organization that connects North America's leading media companies, advertisers and
ad agencies. Founded in 1914 as the Audit Bureau of Circulations, the AAM is the preeminent source of
cross-media verification and information services, providing standards, audit services and data critical to
the advertising industry. The organization independently verifies print and digital circulation, mobile apps,
website analytics, social media, technology platforms and audience information for newspapers,
magazines and digital media companies in the U.S. and Canada.
GfK Mediamark Research & Intelligence, LLC (MRI)
MRI is a nationally accredited research firm that provides consumer demographics, product and brand
usage, and audience/exposure in all forms of advertising media. Established in 1979, MRI measures the
usage of nearly 6,000 product and service brands across 550 categories, along with the readership of
hundreds of magazines and newspapers, internet usage, television viewership, national and local radio
listening, yellow page usage, and out-of-home exposure. Based on a yearly face-to-face interview of
26,000 consumers in their homes, MRI’s
Survey of the American Consumer™
is the primary source of
audience data for the U.S. consumer magazine industry and the most comprehensive and reliable source
of multi-media audience data available.
Nielsen Media Research (Nielsen)
Nielsen is the leading provider of television audience measurement and advertising information services
worldwide.
Telmar
Telmar is the world-leading supplier of computer based advertising media information services. Its
software provides for survey analysis, data integration, media planning and optimization. With over 5,000
users in 85 countries, Telmar’s clients include many of the world’s leading advertising agencies,
publishers, broadcasters and advertisers.
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Program Overview
Objective
To design a notice program that will effectively reach Class members and capture their attention with
notices communicated in clear, concise, plain language so that their rights and options may be fully
understood. The FJC’s
Judges’ Class Action Notice and Claims Process Checklist and Plain Language
Guide
considers 70-95% reach among class members reasonable.
Class Definition
The Class (or Class members) consists of all residents of the United States whose Personal Information
was compromised as a result of the Data Breach first disclosed by Home Depot in September 2014.
Case Analysis
The following known factors were considered when determining our recommendation:
1. The Settlement Class consists of approximately 40 million Class members who made credit or
debit card purchases in Home Depot’s U.S. stores from April 10 to September 13, 2014 (“POS
Incident Class members”), and 53 million are who had their email compromised through the theft
of a separate email file (“E-Mail File Incident Class members”). There is likely some Class
member overlap between the two categories but for planning purposes, we assumed an overlap
did not exist.
2. Class members are located throughout the U.S., including large cities and rural areas.
3. Contact information is available for at least 19.9 million POS Incident Class members and 53
million E-Mail File Incident Class members; however, a reasonable effort cannot identify and
locate
all
Class members.
4. Effective reach and notice content is vital to convey the importance of the information affecting
Class members’ rights, as well as to withstand challenge and collateral review.
Target Audience
To verify the program’s effectiveness, MRI data was studied among adults who have used any
credit/debit card in the last 12 months and who have shopped at the Home Depot in the last 12 months
(“Credit/Debit Card Home Depot Shoppers”), because this broad, over inclusive target group indicates
and best represents the Class.
Strategies
The Notice Plan utilizes individual notice to reach the Class. The individual notice effort will be
supplemented by paid notice in a well-read consumer magazine (
People
) and on a variety of websites.
Plan Delivery
The individual notice effort is expected to reach 74.5% of the Class. The notice placements in
People
magazine and on a variety of websites will increase the overall reach to 80.2%, exposing notice to likely
Class members on average 1.2 times each.
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Target Analysis
Knowing the characteristics, interests, and habits of a target group aids in the media selection process.
Demographic Highlights
Demographic highlights of Credit/Debit Card Home Depot Shoppers include the following:
98.6% speak English most often;
93.3% have graduated from high school and 70.4% have attended college or beyond;
92.4% are 25 years of age or older, 75.0% are 35 years of age or older, and 57.1% are 45 years
of age or older;
90.5% live in a Metropolitan CBSA;
2
89.0% live in a household consisting of two or more people, 73.4% live in a household consisting
of two to four people, and 55.7% live in a household consisting of three or more people;
83.0% are white;
79.3% live in County Size A or B, with 48.1% living in County Size A;
3
78.2% own a home;
76.6% have a household income of $50,000 or more, 68.9% have a household income of
$60,000 or more, and 58.1% have a household income of $75,000 or more;
70.5% own a home valued at $100,000 or more and 59.2% own a home valued between
$100,000-$499,999;
65.0% are married;
60.6% have lived at their current address for five years or more;
56.6% are working full time; and
52.2% are men.
2
Core Based Statistical Areas (CBSAs) consist of the county or counties or equivalent entities associated with at least one core
(urbanized area or urban cluster) of at least 10,000 population, plus adjacent counties having a high degree of social and economic
integration with the core as measured through commuting ties with the counties associated with the core. The general concept of a
CBSA is that of a core area containing a substantial population nucleus, together with adjacent communities having a high degree of
economic and social integration with that core. CBSAs are defined by the U.S. Office of Management and Budget to provide a
nationally consistent set of geographic entities for the United States and Puerto Rico for use in tabulating and presenting statistical
data. Metropolitan Statistical Areas are CBSAs associated with at least one urbanized area that has a population of at least 50,000.
The metropolitan statistical area comprises the central county or counties or equivalent entities containing the core, plus adjacent
outlying counties having a high degree of social and economic integration with the central county or counties as measured through
commuting. Micropolitan Statistical Areas are CBSAs associated with at least one urban cluster that has a population of at least
10,000 but less than 50,000. The micropolitan statistical area comprises the central county or counties or equivalent entities
containing the core, plus adjacent outlying counties having a high degree of social and economic integration with the central county
or counties as measured through commuting.
3
Nielsen County Size classifications are based on Census household counts and metropolitan proximity. “A” counties are highly
urbanized areas and belong to the 21 largest Metropolitan Statistical Areas. The combined counties contain 40% of United States
households. “B” counties are counties not defined as A counties that have more than 85,000 households. The combined counties
contain 30% of United States households. “C” counties are counties not defined as A or B counties that have more than 20,000
households or are in Consolidated Metropolitan Areas or Metropolitan Statistical Areas with more than 20,000 households. The
combined counties contain 15% of United States households. “D” counties are all counties not classified as A, B, or C counties.
They are considered very rural. The combined counties contain 15% of United States households.
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On average, Credit/Debit Card Home Depot Shoppers:
4
are 48 years of age;
have a household income of $99,157; and
own a home valued at $293,345.
Compared to the general adult population, Credit/Debit Card Home Depot Shoppers are:
57.1% more likely to own a home valued $500,000 or more, 39.9% more likely to own a home
valued between $200,000-$499,999, and 7.0% more likely to own a home valued between
$100,000-$199,999;
53.8% more likely to have a household income of $150,000 or more, 50.4% more likely to have a
household income between $100,000-$149,999, and 35.5% more likely to have a household
income of $60,000 or more;
48.7% more likely to work in management/business/finance operations, 36.4% more likely to work
as professionals, and 5.1% more likely to work in sales/office occupations;
44.4% more likely to have graduated from college or beyond;
41.5% more likely to be managers/professionals;
22.0% more likely to be married;
18.0% more likely to own a home;
17.2% more likely to be working full time;
16.9% more likely to be 45-54 years of age, 15.1% more likely to be 55-64 years of age, and
6.1% more likely to be 35-44 years of age;
16.1% more likely to live in the West Census Region and 15.1% more likely to live in the North
East Census Region;
15.4% more likely to live in County Size A and 5.1% more likely to live in County Size B;
12.8% more likely to speak a language other than English or Spanish and 5.8% more likely to
speak a language other than English or Spanish most often;
10.2% more likely to be white;
8.2% more likely to be men;
8.0% more likely to have lived at their current address for five years or more;
7.9% more likely to be parents;
7.7% more likely to have lived in a household consisting of three or four people and 5.6% more
likely to live in a household consisting of two people;
7.2% more likely to live in a Metropolitan CBSA; and
6.1% more likely to be working women.
Source: 2015 MRI Doublebase Study
4 The average age for U.S. adults is 47, the average household income is $77,026, and the average home value is $253,020.
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Media Selection
To create the optimal notice program, we evaluated the strengths and weaknesses of the various media,
as well as their reach and frequency potential, composition, format/content and efficiencies. Our
recommended media mix provides:
Broad national coverage into the largest cities as well as the smallest towns throughout the
nation;
Repeat notice exposures as a result of the overlapping media audiences;
A written summary of key information that may be easily referred to or passed on to others as a
result of the placement in
People
magazine, one of the largest and most well-read publications in
the country;
A direct link to the case website through the email notice and internet banner notices;
Easy access to the notice documents through an established case website.
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Individual/Direct Notice
E-Mail Notice
An E-Mail Notice containing a summary of the settlement in the body of the email, as well as a
link to the settlement website will be sent to all available email addresses.
It is our understanding that email addresses are available for at least 19.9 million POS Incident
Class members and all 53 million E-Mail File Incident Class members.
Factoring in bounce backs, we estimate that approximately 74.5% of the Class (or 69,255,000
Class members) will be reached through the E-Mail Notice effort.
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Consumer Magazines
To further extend reach among the Class, a third-page notice will be placed in a leading consumer
publication among Credit/Debit Card Home Depot Shoppers.
Circulation: 3,486,478
Adult Audience: 42,089,000
Weekly entertainment magazine featuring celebrity news, biographies and gossip
Reaches 17.9% of Credit/Debit Card Home Depot Shoppers
Readers are 1.1% more likely to be Credit/Debit Card Home Depot Shoppers, as compared to the
general adult population
Provides a large number of pass-along readers
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Internet Banners
According to MRI data, 93.5% of Credit/Debit Card Home Depot Shoppers have access to the internet at
home using a computer and 91.0% have looked at or used the internet in the last 30 days. Compared to
the general adult population, Credit/Debit Card Home Depot Shoppers are 9.2% more likely to have
access to the internet from home using a computer and 9.5% more likely to have looked at or used the
internet in the last 30 days. Therefore, to extend reach among the Class, 10 million
unique
impressions
will be purchased over a one-month period. The impressions will be targeted to credit card holders 18
years of age or older (Adult 18+ Credit Card Holders) and will include an embedded link to the case
website.
Sample sites may include:
L
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Response Mechanisms
Case Website
Allows Class members the ability to file a Claim Form online, as well as obtain additional
information and documents including the Detailed Notice, Settlement Agreement, Preliminary
Approval Order, Complaint, and any other information that the parties may agree to provide or
that the Court may require
Prominently displayed in all printed notice materials and accessible through a hyperlink
embedded in the internet banner ads
Toll-Free Telephone Support
Provides a simple way for Class members to obtain additional information about the settlement
Allows Class members the opportunity to learn more about the case in the form of frequently
asked questions and answers
Allows Class members to request to have more information mailed directly to them
Prominently displayed in all printed notice materials
.
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Notice Design Strategies
The design and content of all of the notice materials are consistent with the FJC’s “illustrative” forms of
model plain language notices, available at
www.fjc.gov
.
Postcard and Publication Summary Notices
Bold headline captures attention and speaks directly to Class Members, alerting them that they
should read the Notice and why it is important
Spanish language sentence under the headline of the Publication Summary Notices directs
Spanish speaking Class Members to the case website for a Spanish language notice
Prominent notice size promotes attention, readership, and comprehension
Legal significance is highlighted to ensure readers that the communication carries legitimate
information from the court and not commercial advertising
Concise plain language without “legalese” enhances comprehension
Content includes all critical information in simple format
Toll-free number and case website invite response, allowing Class Members the opportunity to
obtain additional information
Detailed Notice
Prominent “Your Rights and Options” table on first page immediately informs readers of their
rights and options in the case
Bold headline captures attention and speaks directly to Class Members, alerting them that they
should read the Notice and why it is important
Concise plain language without “legalese” enhances comprehension
Provides more detailed information than that of a Summary Notice
Content includes all essential information in simple format
Toll-free number and case website invite response, allowing Class Members the opportunity to
obtain additional information
Internet Banner Notices
Simple rotating message alerts Class Members about the settlement
An embedded link allows immediate access to the case website
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Conclusion
Our recommended Notice Plan:
Was designed by experts who are trained and experienced in their specific area of expertise
Is consistent with other effective settlement notice programs
Is consistent with the “desire to actually inform” due process communications standard of
Mullane
Provides the best notice practicable
Meets due process requirements
Provides the same reach and frequency evidence that Courts have approved, is recommended
by the FJC, and that has withstood appellate scrutiny, other expert critiques, as well as collateral
review
Leaves no holes or vulnerabilities that would leave the parties open to challenge
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Attachment A
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___________________________________________________________________________
KCC’s Legal Notification Services team provides expert legal notice services in class action,
mass tort and bankruptcy settings. We specialize in the design and implementation of notice
programs with plain language notices; expert opinions and testimony on the adequacy of
notice; and critiques of other notice programs and notices. With over a decade of experience,
our legal noticing team has been involved in more than a hundred effective and efficient
notice programs reaching class members and claimants in almost every country, dependency
and territory in the world, and providing notice in over 35 languages. Our programs satisfy
due process requirements, as well as all applicable state and federal laws. Some case
examples our experts have been involved with include:
Shames v. The Hertz Corporation
,
No. 3:07-cv-02174 (S.D. Cal.) A national antitrust
settlement involving several million class members who rented vehicles from a variety of car
rental companies.
In Re: Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation
,
No. 11-MD-
2247 (D. Minn.) A national products liability settlement providing reimbursement, repair and
replacement of affected plumbing components.
In re Trans Union Corp. Privacy Litigation
, MDL No. 1350 (N.D. Ill.) Perhaps the largest
discretionary class action notice campaign involving virtually every adult in the United States
and informing them about their rights in the $75 million data breach settlement.
In re TJX Companies, Inc., Customer Data Security Breach Litigation
, MDL No. 1838 (D.
Mass.) One of the largest U.S. and Canadian retail consumer security breach notice
programs.
Grays Harbor Adventist Christian School v. Carrier Corp.
,
No. 05-05437 (W.D. Wash.),
Donnelly v. United Technologies Corp.
No. 06-CV-320045CP (Ont. S.C.J.) and
Wener v.
United Technologies Corp.
500-06-000425-088 (QC. Super. Ct.) Product liability class
action settlements involving secondary heat exchangers in high efficiency gas furnaces,
affecting class members throughout the U.S. and Canada.
In re Residential Schools Litigation
, No. 00-CV-192059 (Ont. S.C.J.) The largest and most
complex class action in Canadian history incorporating a groundbreaking notice program to
disparate, remote aboriginal persons qualified to receive benefits in the multi-billion dollar
settlement.
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2
Our Experts
Gina M. Intrepido-Bowden
With 25 years of media research, planning and buying experience, Gina M. Intrepido-Bowden
brings substantive expertise to her role as VP, Legal Notification Services. A leading expert, she
is responsible for the design and implementation of evidence-based legal notice campaigns.
Gina has designed more than 85 judicially approved media campaigns across the United States
and Canada for antitrust, consumer and other class action matters. As a legal notice expert, she
provides Courts with the reach evidence they need to determine the adequacy of notice. In
addition, she has successfully critiqued other notice plans, causing Courts to modify programs to
better meet due process obligations.
She began her advertising career working for one of New York’s largest advertising agency
media departments. Gina is a frequent author and speaker on class notice issues including
effective reach, notice dissemination as well as noticing trends and innovations. She earned a
Bachelor of Arts in Advertising from Penn State University, graduating summa cum laude. Gina
can be reached at
gintrepidobowden@kccllc.com
.
Carla A. Peak
With over a decade of industry experience, Carla A. Peak, also VP, Legal Notification Services,
specializes in the design of plain language legal notice documents to effectively address the
challenges of communicating complex information to class members in a manner that they can
understand.
Carla’s notices satisfy the plain language requirements of Rule 23 and adhere to the guidelines
set forth in the Manual for Complex Litigation, Fourth and by the Federal Judicial Center (FJC), as
well as applicable state laws. She has successfully provided notice in both U.S. and international
markets including communications in more than 35 languages.
She has presented on and written numerous articles about class notification programs, the design
of effective notice documents as well as industry trends and innovations. Carla holds a Bachelor
of Arts in Sociology from Temple University, graduating cum laude. Carla can be reached at
cpeak@kccllc.com
.
Judicial Recognition
Following are some judicial comments recognizing the work of our expert(s):
Honorable Mitchell D. Dembin,
Lermin v. Schiff Nutrition International, Inc.
, (November 3,
2015) No. 3:11-CV-01056 (S.D. Cal.):
According to Ms. Intrepido-Bowen, between June 29, 2015, and August 2, 2015,
consumer publications are estimated to have reached 53.9% of likely Class
Members and internet publications are estimated to have reached 58.9% of likely
Class Members…
T
he Court finds this notice (i) constituted the best notice
practicable under the circumstances, (ii) constituted notice that was reasonably
calculated, under the circumstances, to apprise the putative Class Members of
the pendency of the action, and of their right to object and to appear at the Final
Approval Hearing or to exclude themselves from the Settlement, (iii) was
reasonable and constituted due, adequate, and sufficient notice to all persons
entitled to be provided with notice, and (iv) fully complied with due process
principles and Federal Rule of Civil Procedure 23.
Honorable Lynn Adelman,
Fond Du Lac Bumper Exchange, Inc. v. Jui Li Enterprises
Insurance Co.
,
(Direct Purchaser–Tong Yang & Gordon Settlements)
, (August 13, 2015) No.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 86 of 102
3
2:09-CV-00852 (E.D. Wis.):
The Court further finds that the Notice Plan, previously approved by the Court
(See ECF Nos. 619 & 641) and as executed by the Court-appointed Claims
Administrator, KCC, as set forth in the Declaration of Carla A. Peak on
Implementation and Overall Adequacy of Combined Settlement Notice Plan
(“Peak Declaration”) is the best notice practicable under the circumstances; is
valid, due and sufficient notice to all Settlement Class Members; and complied
fully with the requirements of Federal Rule of Civil Procedure 23 and the due
process requirements of the Constitution of the United States. The Court further
finds that the forms of Notice (Peak Declaration Exhibits 1 and 2) are written in
plain language, use simple terminology, and are designed to be readily
understandable and noticeable by Settlement Class Members.
Honorable Lynn Adelman,
Fond Du Lac Bumper Exchange, Inc. v. Jui Li Enterprises
Insurance Co.
,
(Indirect Purchaser–Gordon Settlement)
, (August 4, 2015) No. 2:09-CV-00852
(E.D. Wis.):
The Court approves the Notice Program set forth in the Declaration of Carla A.
Peak. The Court approves as to form and content the Postcard Notice, Summary
Publication Notice, and Detailed Notice in the forms attached as Exhibits 2–4,
respectively, to the Declaration of Carla A. Peak. The Court further finds that the
mailing and publication of Notice in the manner set forth in the Notice Program is
the best notice practicable under the circumstances; is valid, due and sufficient
notice to all Settlement Class members; and complies fully with the requirements
of Federal Rule of Civil Procedure 23 and the due process requirements of the
Constitution of the United States. The Court further finds that the forms of Notice
are written in plain language, use simple terminology, and are designed to be
readily understandable by Settlement Class members.
Honorable Sara I. Ellis,
Thomas v. Lennox Industries Inc.
, (July 9, 2015) No. 1:13-CV-07747
(N.D. Ill.):
The Court approves the form and content of the Long-Form Notice, Summary
Notice, Postcard Notice, Dealer Notice, and Internet Banners (the “Notices”)
attached as Exhibits A-1, A-2, A-3, A-4 and A-5 respectively to the Settlement
Agreement. The Court finds that the Notice Plan, included in the Settlement
Agreement and the Declaration of Gina M. Intrepido-Bowden on Settlement
Notice Plan and Notice Documents, constitutes the best practicable notice under
the circumstances as well as valid, due and sufficient notice to all persons
entitled thereto, and that the Notice Plan complies fully with the requirements of
Federal Rule of Civil Procedure 23 and provides Settlement Class Members due
process under the United States Constitution.
Honorable Lynn Adelman,
Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co.,
Ltd
. (Indirect Purchaser–Tong Yang Settlement)
, (May 29, 2015) No. 2:09-CV-00852 (E.D.
Wis.):
The Court approves the Notice Program set forth in the Declaration of Carla A.
Peak. The Court approves as to form and content the Postcard Notice, Summary
Publication Notice, and Detailed Notice in the forms attached as Exhibits 2–4,
respectively, to the Declaration of Carla A. Peak. The Court further finds that the
mailing and publication of Notice in the manner set forth in the Notice Program is
the best notice practicable under the circumstances; is valid, due and sufficient
notice to all Settlement Class members; and complies fully with the requirements
of Federal Rule of Civil Procedure 23 and the due process requirements of the
Constitution of the United States. The Court further finds that the forms of Notice
are written in plain language, use simple terminology, and are designed to be
readily understandable by Settlement Class members.
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4
Honorable Mitchell D. Dembin,
Lerma v. Schiff Nutrition International, Inc.
, (May 25, 2015)
No. 11-CV-01056 (S.D. Cal.):
The parties are to notify the Settlement Class in accordance with the Notice
Program outlined in the Second Supplemental Declaration of Gina M. Intrepido-
Bowden on Settlement Notice Program.
Honorable Lynn Adelman
, Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co.,
Ltd
. (Direct Purchaser–Gordon Settlement)
, (May 5, 2015) No. 2:09-CV-00852 (E.D. Wis.):
The Court approves the forms of the Notice of proposed class action settlement
attached to the Declaration of Carla Peak (“Peak Decl.”) at Exhibit 1 (Long-Form
Notice and Summary/Publication Notice). The Court further finds that the mailing
and publication of the Notice in the manner set forth below and in the Peak Decl.
is the best notice practicable under the circumstances; is valid, due and sufficient
notice to all Settlement Class members; and complies fully with the requirements
of Federal Rule of Civil Procedure 23 and the due process requirements of the
Constitution of the United States. The Court further finds that the forms of Notice
are written in plain language, use simple terminology, and are designed to be
readily understandable by Settlement Class Members. The Notice Program set
forth herein is substantially similar to the one set forth in the Court’s April 24,
2015 Order regarding notice of the Tong Yang Settlement (ECF. No. 619) and
combines the Notice for the Tong Yang Settlement with that of the Gordon
Settlement into a comprehensive Notice Program. To the extent differences exist
between the two, the Notice Program set forth and approved herein shall prevail
over that found in the April 24, 2015 Order.
Honorable José L. Linares,
Demmick v. Cellco Partnership
, (May 1, 2015) No. 2:06-CV-2163
(D. N.J.):
The Notice Plan, which this Court has already approved, was timely and properly
executed and that it provided the best notice practicable, as required by Federal
Rule of Civil Procedure 23, and met the “desire to actually inform” due process
communications standard of Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950)… The Court thus affirms its finding and conclusion in the
November 19, 2014 Preliminary Approval Order that the notice in this case meets
the requirements of the Federal Rules of Civil Procedure and the Due Process
Clause of the United States and/or any other applicable law. All objections
submitted which make mention of notice have been considered and, in light of
the above, overruled.
Honorable Lynn Adelman,
Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co.,
Ltd
. (Direct Purchaser–Tong Yang Settlement)
, (April 4, 2015) No. 2:09-CV-00852 (E.D. Wis.):
The Court approves the forms of the Notice of proposed class action settlement
attached to the Declaration of Carla A. Peak (“Peak Decl.”) as Exhibit 2 (Long-
Form Notice and Summary/Publication Notice). The Court further finds that the
mailing and publication of the Notice in the manner set forth below and in the
Peak Decl. is the best notice practicable under the circumstances; is valid, due
and sufficient notice to all Settlement Class Members; and complies fully with the
requirements of Federal Rule of Civil Procedure 23 and the due process
requirements of the Constitution of the United States. The Court further finds that
the forms of Notice are written in plain language, use simple terminology, and are
designed to be readily understandable by Settlement Class Members.
Honorable Rhonda A. Isiran Nishimura,
Charles v. Haskeo Homes, Inc.
, (February 24, 2015)
No. 09-1-1932-08 (Cir. Ct. Hawai’i):
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5
The Court approves, as to form and content, the Hurricane Straps Class Notice
and the Hurricane Straps Repose Subclass Notice, and the Notice Plan that are
attached as Exhibits 8-9 to the Declaration of Graham B. LippSmith ("LippSmith
Dec.") and in the Declaration of Carla Peak…The Court finds that the Hurricane
Straps Class Notice, the Hurricane Straps Repose Subclass Notice, and the
Notice Plan will fully and accurately inform the potential Hurricane Straps Class
Members and Hurricane Straps Repose Subclass Members of all material
elements of the proposed Settlement, of their right to be excluded from the
Hurricane Straps Class or Hurricane Straps Repose Subclass, and of each
Hurricane Straps Class Member's or Hurricane Straps Repose Subclass
Member's right and opportunity to object to the proposed Settlement. The Court
further finds that the mailing and distribution of the Hurricane Straps Class Notice
and the Hurricane Straps Repose Subclass Notice will (i) meet the requirements
of the laws of the State of Hawai'i (including Haw. R. Civ. P. 23), the United
States Constitution (including the Due Process Clause), the Rules of the Court,
and any other applicable law, (ii) constitute the best notice practicable under the
circumstances, and (iii) constitute due and sufficient notice to all potential
Hurricane Straps Class Members and Hurricane Straps Repose Subclass
Members.
Honorable Gary W.B. Chang,
Kai v. Haskeo Homes, Inc.
, (February 15, 2015) No. 09-1-2834-
12 (Cir. Ct. Hawai’i):
The Court approves, as to form and content, the PEX Class Notice and Notice
Plan attached as Exhibit 10 to the Declaration of Graham B. LippSmith
("LippSmith Dec.") and in the Declaration of Carla Peak. The Court finds that the
PEX Class Notice and the Notice Plan will fully and accurately inform the
potential PEX Class Members of all material elements of the proposed
Settlement, of their right to be excluded from the PEX Class, and of each PEX
Class Member's right and opportunity to object to the proposed Settlement. The
Court further finds that the mailing and distribution of the PEX Class Notice
substantially in the manner and form set forth in this Order will (i) meet the
requirements of the laws of the State of Hawai'i (including Haw. R. Civ. P. 23),
the United States Constitution (including the Due Process Clause), the Rules of
the Court, and any other applicable law, (ii) constitute the best notice practicable
under the circumstances, and (iii) constitute due and sufficient notice to all
potential Class Members.
Honorable David O. Carter,
Cobb v. BSH Home Appliances Corp.
, (December 29, 2014) No.
8:10-CV-0711 (C.D. Cal.):
The Notice Program complies with Rule 23(c)(2)(B) because it constitutes the
best notice practicable under the circumstances, provides individual notice to all
Class Members who can be identified through reasonable effort, and is
reasonably calculated under the circumstances to apprise the Class Members of
the nature of the action, the claims it asserts, the Class definition, the Settlement
terms, the right to appear through an attorney, the right to opt out of the Class or
to comment on or object to the Settlement (and how to do so), and the binding
effect of a final judgment upon Class Members who do not opt out.
Honorable José L. Linares,
Demmick v. Cellco Partnership
, (November 19, 2014) No. 2:06-
CV-2163 (D. N.J.):
The Court finds that the Parties’ plan for providing Notice to the Settlement
Classes as described in Article V of the Settlement Agreement and as detailed in
the Settlement Notice Plan attached to the Declaration of Gina M. Intrepido-
Bowden: (a) constitutes the best notice practicable under the circumstances of
this Action; (b) constitutes due and sufficient notice to the Settlement Classes of
the pendency of the Action, certification of the Settlement Classes, the terms of
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6
the Settlement Agreement, and the Final Approval Hearing; and (c) complies fully
with the requirements of the Federal Rules of Civil Procedure, the United States
Constitution, and any other applicable law.
The Court further finds that the Parties’ plan for providing Notice to the
Settlement Classes as described in Article V of the Settlement Agreement and as
detailed in the Settlement Notice Plan attached to the Declaration of Gina M.
Intrepido-Bowden, will adequately inform members of the Settlement Classes of
their right to exclude themselves from the Settlement Classes so as to not be
bound by the Settlement Agreement.
Honorable Christina A. Snyder,
Roberts v. Electrolux Home Products, Inc
.
, (September 11,
2014) No. 8:12-CV-01644 (C.D. Cal.):
The Court considered the Settlement Notice Plan submitted by the parties, and
the Declaration of Carla A. Peak of KCC describing the Notice Plan…The Court
finds that the Notice itself is appropriate, and complies with Fed. R. Civ. P.
23(b)(3), 23(c)(2)(B), and 23(e), because the Settlement Notice, FAQ, and
Publication Notice fairly, accurately, and reasonably informed members of the
Settlement Class, in plain language, of (1) appropriate information about the
nature of this litigation and the essential terms of the Settlement Agreement; (2)
appropriate information about, and means for obtaining, additional information
regarding this litigation and the Settlement Agreement; (3) appropriate
information about, and means for obtaining and submitting, a Claim Form; (4)
appropriate information about the right of members of the Settlement Class to
exclude themselves from the Settlement, object to the terms of the Settlement
Agreement, including Class Counsel’s request for an award of attorneys’ fees
and costs, and the procedures to do so; and (5) appropriate information about
the consequences of failing to submit a Claim Form or failing to comply with the
procedures and the deadline for opting out of, or objecting to, the
Settlement…Accordingly, the Court hereby finds and concludes that members of
the Settlement Class have been provided the best notice practicable of the
Settlement and that such notice satisfies all requirements of federal and
California laws and due process. The Court finally approves the Notice Plan in all
respects…Any objections to the notice provided to the Class are hereby
overruled.
Honorable David O. Carter,
Cobb v. BSH Home Appliances Corp.
, (August 25, 2014) No.
8:10-CV-0711 (C.D. Cal.):
…the Court also finding that the proposed notice plan and forms of notice are the
best notice practicable under the circumstances and satisfy all requirements of
the Federal Rules of Civil Procedure, including Fed. R. Civ. P. 23(c)(b)(2); and
for good cause shown,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Amend the Illinois Class
Definition is GRANTED; and it is further ORDERED that Plaintiffs’ Motion for
Approval of Notice Plan and Proposed Forms of Notice is GRANTED.
Judge Gregory A. Presnell,
Poertner v. The Gillette Co. and The Procter & Gamble Co.
,
(August 21, 2014) No. 6:12-CV-00803 (M.D. Fla.):
This Court has again reviewed the Notice and the accompanying documents and
finds that the “best practicable” notice was given to the Class and that the Notice
was “reasonably calculated” to (a) describe the Action and the Plaintiff’s and
Class Members’ rights in it; and (b) apprise interested parties of the pendency of
the Action and of their right to have their objections to the Settlement heard. See
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985). This Court further
finds that Class Members were given a reasonable opportunity to opt out of the
Action and that they were adequately represented by Plaintiff Joshua D.
Poertner. See Id. The Court thus reaffirms its findings that the Notice given to the
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7
Class satisfies the requirements of due process and holds that it has personal
jurisdiction over all Class Members.
Honorable Curtis L. Collier,
In re: Skelaxin (Metaxalone) Antitrust Litigation
, (August 5,
2014) No. 1:12-md-02343 (E.D. Tenn.):
The proposed form of Notice to End-Payor Settlement Class Members of the
pendency and proposed settlement of this action (“Settlement Notice”) set forth in
the Notice Plan and Declaration of Carla Peak and the proposed method of
dissemination of the Settlement Notice (“Notice Plan”)—first to Third-Party
Payors and then to Consumers—satisfy the requirements of Rule 23(e) of the
Federal Rules of Civil Procedure and due process, are otherwise fair and
reasonable, and therefore are approved.
Honorable Christina A. Snyder,
Roberts v. Electrolux Home Products, Inc
.
, (May 5, 2014)
No. 8:12-CV-01644 (C.D. Cal.):
The Court finds that the Notice Plan set forth in the Settlement Agreement (§ V.
of that Agreement)…is the best notice practicable under the circumstances, and
constitutes sufficient notice to all persons entitled to notice. The Court further
preliminarily finds that the Notice itself IS appropriate, and complies with Rules
23(b)(3), 23(c)(2)(B), and 23(e) because it describes in plain language (1) the
nature of the action, (2) the definition of the Settlement Class and Subclasses,
(3) the class claims, issues or defenses, (4) that a class member may enter an
appearance through an attorney if the member so desires, (5) that the Court will
exclude from the class any member who requests exclusion, (6) the time and
manner for requesting exclusion, and (7) the binding effect of a judgment on
Settlement Class Members under Rule 23(c)(3) and the terms of the releases.
Accordingly, the Court approves the Notice Plan in all respects…
Honorable Jose L. Linares,
In re Hypodermic Products Antitrust Litigation
, (March 17,
2014) MDL No. 1730, No. 2:05-CV-01602 (D. N.J.):
The Class Notice provides a description of the Indirect Purchaser Class, the
procedural status of the litigation, a brief description of the plan of allocation, the
court approval process for the proposed Settlement, and the significant terms of
the Settlement. The Class Notice also fully informed members of the Indirect
Purchaser Class of their rights with respect to the Settlement, including the right
to opt out of, object to the Settlement, or otherwise be heard as to the
resonableness and fairness of the Settlement. The Class Notice also informed
members of the Indirect Purchaser Class of their right to object to Indirect
Purchaser Plaintiffs’ Lead Counsel’s application for an award of attorneys’ fees,
an award of incentive fees, and reimbursement of expenses from the Settlement
Fund.…The Class Notice met the statutory requirements of notice under the
circumstances, and fully satisfied the requirements of Federal Rule of Civil
Procedure 23 and the requirements of due process.
Honorable William E. Smith,
Cappalli v. BJ’s Wholesale Club, Inc.
, (December 12, 2013) No.
1:10-CV-00407 (D. R.I.):
The Court finds that the form, content, and method of dissemination of the notice
given to the Settlement Class were adequate and reasonable, and constituted
the best notice practicable under the circumstances. The notice, as given,
provided valid, due, and sufficient notice of these proceedings of the proposed
Settlement, and of the terms set forth in the Stipulation and first Joint Addendum,
and the notice fully satisfied the requirements of Rule 23 of the Federal Rules of
Civil Procedure, Constitutional due process, and all other applicable laws.
Judge Gregory A. Presnell,
Poertner v. The Gillette Co. and The Procter & Gamble Co.
,
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8
(November 5, 2013) No. 6:12-CV-00803 (M.D. Fla.):
The proposed Class Notice and Claim Form are approved as to form and
content. The Court finds that the content of the Class Notice and the Claim Form
satisfy the requirements of Fed. R. Civ. P. 23(c)(2), Fed. R. Civ. P. 23(e)(1), and
due process and accordingly approves them…The Court finds that compliance
with the Notice Plan is the best practicable notice under the circumstances and
constitutes due and sufficient notice of this Order to all persons entitled thereto
and is in full compliance with the requirements of Rule 23, applicable law, and
due process.
Honorable Jose L. Linares,
In re Hypodermic Products Antitrust Litigation
, (November 4,
2013) No. 2:05-CV-01602 (D. N.J.):
Upon reviewing Plaintiffs’ Motion for Preliminary Approval of Class Action
Settlement, Conditional Class Certification and Approval of Notice Plan and the
Declarations of Karin E. Fisch, Esq. and Carla A. Peak and the documents
attached thereto, it is hereby ORDERED, ADJUDGED AND DECREED as
follows:…Proposed forms of Notice are attached hereto as Exhibit A. The Court
finds that the form fairly and adequately: (i) describes the terms and effect of the
Settlement Agreement and of the Settlement; (ii) notifies the Indirect Purchaser
Class concerning the proposed plan of allocation and distribution; (iii) notifies the
Indirect Purchaser Plaintiffs’ Lead Counsel will seek attorneys’ fees not to exceed
one-third of the Settlement Fund, reimbursement of expenses and incentive fees;
(iv) gives notice to the Indirect Purchaser Class of the time and place of the
Fairness Hearing; and (v) describes how the recipients of the Notice may submit
a claim, exclude themselves from the Settlement or object to any of the relief
requested.
Judge Marilyn L. Huff,
Beck-Ellman v. Kaz USA, Inc.
,
(June 11, 2013) No. 3:10-cv-02134 (S.
D. Cal.):
The Notice Plan has now been implemented in accordance with the Court’s
Preliminary Approval Order. The Publication Notice was designed to provide
potential class members with information about the Settlement and their rights, in
easy-to-comprehend language… The Notice Plan was specially developed to
cause class members to see the Publication Notice or see an advertisement that
directed them to the Settlement Website. KCC identified that the class members
belong to a demographic group known as “Pain Relief Users.” The Heating Pads
are considered a Pain Relief product. The publications that KCC’s Notice Plan
used are publications and websites whose viewers and readers include a high
percentage of Pain Relief product users…The Court concludes that the Class
Notice fully satisfied the requirements of Rule 23(c)(2) of the Federal Rules of
Civil Procedure and all due process requirements.
Judge Tom A. Lucas,
Stroud v. eMachines, Inc.
, (March 27, 2013) No. CJ-2003-968 L (D. Ct.
Cleveland Cnty, Okla.):
The Notices met the requirements of Okla. Stat. tit. 12 section 2023(C), due
process, and any other applicable law; constituted the best notice practicable
under the circumstances; and constituted due and sufficient notice to all persons
and entities entitled thereto. All objections are stricken. Alternatively, considered
on their merits, all objections are overruled.
Judge Marilyn L. Huff,
Beck-Ellman v. Kaz USA, Inc.
(January 7, 2013) No. 3:10-cv-02134 (S.
D. Cal.):
The proposed Class Notice, Publication Notice, and Settlement Website are
reasonably calculated to inform potential Class members of the Settlement, and
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9
are the best practicable methods under the circumstances… Notice is written in
easy and clear language, and provides all needed information, including: (l) basic
information about the lawsuit; (2) a description of the benefits provided by the
settlement; (3) an explanation of how Class members can obtain Settlement
benefits; (4) an explanation of how Class members can exercise their rights to
opt-out or object; (5) an explanation that any claims against Kaz that could have
been litigated in this action will be released if the Class member does not opt out;
(6) the names of Class Counsel and information regarding attorneys' fees; (7) the
fairness hearing date and procedure for appearing; and (8) the Settlement
Website and a toll free number where additional information, including Spanish
translations of all forms, can be obtained. After review of the proposed notice and
Settlement Agreement, the Court concludes that the Publication Notice and
Settlement Website are adequate and sufficient to inform the class members of
their rights. Accordingly, the Court approves the form and manner of giving notice
of the proposed settlement.
Judge Tom A. Lucas,
Stroud v. eMachines, Inc.
, (December 21, 2012) No. CJ-2003-968 L (D.
Ct. Cleveland Cnty, Okla.):
The Plan of Notice in the Settlement Agreement as well as the content of the
Claim Form, Class Notice, Post-Card Notice, and Summary Notice of Settlement
is hereby approved in all respects. The Court finds that the Plan of Notice and
the contents of the Class Notice, Post-Card Notice and Summary Notice of
Settlement and the manner of their dissemination described in the Settlement
Agreement is the best practicable notice under the circumstances and is
reasonably calculated, under the circumstances, to apprise Putative Class
Members of the pendency of this action, the terms of the Settlement Agreement,
and their right to object to the Settlement Agreement or exclude themselves from
the Certified Settlement Class and, therefore, the Plan of Notice, the Class
Notice, Post-Card Notice and Summary Notice of Settlement are approved in all
respects. The Court further finds that the Class Notice, Post-Card Notice and
Summary Notice of Settlement are reasonable, that they constitute due,
adequate, and sufficient notice to all persons entitled to receive notice, and that
they meet the requirements of due process.
Honorable Michael M. Anello,
Shames v. The Hertz Corporation
,
(November 5, 2012) No.
3:07-cv-02174 (S.D. Cal.):
…the Court is satisfied that the parties and the class administrator made
reasonable efforts to reach class members. Class members who did not receive
individualized notice still had opportunity for notice by publication, email, or
both…The Court is satisfied that the redundancies in the parties’ class notice
procedure—mailing, e-mailing, and publication—reasonably ensured the widest
possible dissemination of the notice…The Court OVERRULES all objections to
the class settlement…
Judge Ann D. Montgomery,
In Re: Uponor, Inc., F1807 Plumbing Fittings Products Liability
Litigation
,
(July 9, 2012) No. 11-MD-2247 (D. Minn.):
The objections filed by class members are overruled; The notice provided to the
class was reasonably calculated under the circumstances to apprise class
members of the pendency of this action, the terms of the Settlement Agreement,
and their right to object, opt out, and appear at the final fairness hearing;…
Judge Ann D. Montgomery,
In Re: Uponor, Inc., F1807 Plumbing Fittings Products Liability
Litigation
,
(June 29, 2012) No. 11-MD-2247 (D. Minn.):
After the preliminary approval of the Settlement, the parties carried out the notice
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10
program, hiring an experienced consulting firm to design and implement the plan.
The plan consisted of direct mail notices to known owners and warranty
claimants of the RTI F1807 system, direct mail notices to potential holders of
subrogation interests through insurance company mailings, notice publications in
leading consumer magazines which target home and property owners, and
earned media efforts through national press releases and the Settlement
website. The plan was intended to, and did in fact, reach a minimum of 70% of
potential class members, on average more than two notices each…The
California Objectors also take umbrage with the notice provided the class.
Specifically, they argue that the class notice fails to advise class members of the
true nature of the aforementioned release. This argument does not float, given
that the release is clearly set forth in the Settlement and the published notices
satisfy the requirements of Rule 23(c)(2)(B) by providing information regarding:
(1) the nature of the action class membership; (2) class claims, issues, and
defenses; (3) the ability to enter an appearance through an attorney; (4) the
procedure and ability to opt-out or object; (5) the process and instructions to
make a claim; (6) the binding effect of the class judgment; and (7) the specifics of
the final fairness hearing.
Honorable Michael M. Anello,
Shames v. The Hertz Corporation
,
(May 22, 2012) No. 3:07-cv-
02174 (S.D. Cal.):
The Court approves, as to form and content, the Notice of Proposed Settlement
of Class Action, substantially in the forms of Exhibits A-1 through A-6, as
appropriate, (individually or collectively, the “Notice”), and finds that the e-mailing
or mailing and distribution of the Notice and publishing of the Notice substantially
in the manner and form set forth in ¶ 7 of this Order meet the requirements of
Federal Rule of Civil Procedure 23 and due process, and is the best notice
practicable under the circumstances and shall constitute due and sufficient notice
to all Persons entitled thereto.
Judge Anthony Powell,
Molina v. Intrust Bank, N.A.
,
(May 21, 2012) No. 10-CV-3686 (18
th
J.D. Ct., Kan.):
The form, content, and method of dissemination of Class Notice given to the
Class were adequate and reasonable, and constituted the best notice practicable
under the circumstances. The Notice, as given, provided valid, due, and sufficient
notice of the proposed settlement, the terms and conditions set forth in the
Settlement Agreement, and these proceeding to all persons entitled to such
notice, and said notice fully satisfied the requirements of K.S.A. § 60-223 and
due process.
Judge Ronald L. Bauer,
Blue Cross of California Website Securities Litigation
,
(April 5,
2012) No. JCCP 4647 (Super. Ct. Cal.):
The form, content, and method of dissemination of the notice given to the
Settlement Class were adequate and reasonable, and constituted the best notice
practicable under the circumstances. The notice, as given, provided valid, due,
and sufficient notice of the proposed settlement, the terms and conditions set
forth in the Settlement Agreement, and these proceedings to all Person entitled
to such notice, and said notice satisfied the requirements of California Rules of
Court, Rule 3,766(e) and (f), and due process.
Judge Ann D. Montgomery,
In Re: Uponor, Inc., F1807 Plumbing Fittings Products Liability
Litigation
,
(January 18, 2012) No. 11-MD-2247 (D. Minn.):
The Notice Plan detailed by KCC in the Affidavit of Gina M. Intrepido-Bowden
provides the best notice practicable under the circumstances and constitutes due
and sufficient notice of the Settlement Agreement and the Final Fairness Hearing
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 94 of 102
11
to the Classes and all persons entitled to receive such notice as potential
members of the Class…The Notice Plan’s multi-faceted approach to providing
notice to Class Members whose identity is not known to the Settling Parties
constitutes ‘the best notice that is practicable under the circumstances’
consistent with Rule 23(c)(2)(B)…Notice to Class members must clearly and
concisely state the nature of the lawsuit and its claims and defenses, the Class
certified, the Class member’s right to appear through an attorney or opt out of the
Class, the time and manner for opting out, and the binding effect of a class
judgment on members of the Class. Fed. R. Civ. P. 23(c)(2)(B). Compliance with
Rule 23’s notice requirements also complies with Due Process requirements.
‘The combination of reasonable notice, the opportunity to be heard, and the
opportunity to withdraw from the class satisfy due process requirements of the
Fifth Amendment.’ Prudential, 148 F.3d at 306. The proposed notices in the
present case meet those requirements.
Judge Jeffrey Goering,
Molina v. Intrust Bank, N.A.
,
(January 17, 2012) No. 10-CV-3686 (18
th
J.D. Ct. Ks.):
The Court approved the form and content of the Class Notice, and finds that
transmission of the Notice as proposed by the Parties meets the requirements of
due process and Kansas law, is the best notice practicable under the
circumstances, and constitutes due and sufficient notice to all persons entitled
thereto.
Judge Charles E. Atwell,
Allen v. UMB Bank, N.A.
,
(October 31, 2011) No. 1016-CV34791
(Cir. Ct. Mo.):
The form, content, and method of dissemination of Class Notice given to the
Class were adequate and reasonable, and constituted the best notice practicable
under the circumstances. The Notice, as given, provided valid, due, and sufficient
notice of the proposed settlement, the terms and conditions set forth in the
Settlement Agreement, and these proceedings to all persons entitled to such
notice, and said notice fully satisfied the requirements of Rule 52.08 of the
Missouri Rules of Civil Procedure and due process.
Judge Charles E. Atwell,
Allen v. UMB Bank, N.A.
,
(June 27, 2011) No. 1016-CV34791 (Cir.
Ct. Mo.):
The Court approves the form and content of the Class Notice, and finds that
transmission of the Notice as proposed by the Parties meets the requirements of
due process and Missouri law, is the best notice practicable under the
circumstances, and constitutes due and sufficient notice to all persons entitled
thereto.
Judge Jeremy Fogel,
Ko v. Natura Pet Products, Inc.
,
(June 24, 2011) No. 5:09cv2619 (N.D.
Cal.):
The Court approves, as to form and content, the Long Form Notice of Pendency
and Settlement of Class Action (“Long Form Notice”), and the Summary Notice
attached as Exhibits to the Settlement Agreement, and finds that the e-mailing of
the Summary Notice, and posting on the dedicated internet website of the Long
Form Notice, mailing of the Summary Notice post-card, and newspaper and
magazine publication of the Summary Notice substantially in the manner as set
forth in this Order meets the requirements of Rule 23 of the Federal Rules of Civil
Procedure, and due process, and is the best notice practicable under the
circumstances and shall constitute due and sufficient notice to all persons
entitled to notice.
Judge M. Joseph Tiemann,
Billieson v. City of New Orleans
,
(May 27, 2011) No. 94-19231
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 95 of 102
12
(Civ. D. Ct. La.):
The plan to disseminate notice for the Insurance Settlements (the “Insurance
Settlements Notice Plan”) which was designed at the request of Class Counsel
by experienced Notice Professionals Gina Intrepido-Bowden and Carla A.
Peak… IT IS ORDERED as follows: 1. The Insurance Settlements Notice Plan is
hereby approved and shall be executed by the Notice Administrator; 2. The
Insurance Settlements Notice Documents, substantially in the form included in
the Insurance Settlements Notice Plan, are hereby approved.
Judge James Robertson,
In re Department of Veterans Affairs (VA) Data Theft Litig.
,
(February 11, 2009) MDL No. 1796 (D.C.):
The Court approves the proposed method of dissemination of notice set forth in
the Notice Plan, Exhibit 1 to the Settlement Agreement. The Notice Plan meets
the requirements of due process and is the best notice practicable under the
circumstances. This method of Class Action Settlement notice dissemination is
hereby approved by the Court.
Judge Louis J. Farina,
Soders v. General Motors Corp
.
, (December 19, 2008) No. CI-00-
04255 (C.P. Pa.):
The Court has considered the proposed forms of Notice to Class members of the
settlement and the plan for disseminating Notice, and finds that the form and
manner of notice proposed by the parties and approved herein meet the
requirements of due process, are the best notice practicable under the
circumstances, and constitute sufficient notice to all persons entitled to notice.
Judge Robert W. Gettleman,
In Re Trans Union Corp.
, (September 17, 2008) MDL No. 1350
(N.D. Ill.):
The Court finds that the dissemination of the Class Notice under the terms and in
the format provided for in its Preliminary Approval Order constitutes the best
notice practicable under the circumstances, is due and sufficient notice for all
purposes to all persons entitled to such notice, and fully satisfies the
requirements of the Federal Rules of Civil Procedure, the requirements of due
process under the Constitution of the United States, and any other applicable
law…Accordingly, all objections are hereby OVERRULED.
Judge William G. Young,
In re TJX Companies
, (September 2, 2008) MDL No. 1838 (D.
Mass.):
…as attested in the Affidavit of Gina M. Intrepido…The form, content, and
method of dissemination of notice provided to the Settlement Class were
adequate and reasonable, and constituted the best notice practicable under the
circumstances. The Notice, as given, provided valid, due, and sufficient notice of
the proposed settlement, the terms and conditions set forth in the Settlement
Agreement, and these proceedings to all Persons entitled to such notice, and
said Notice fully satisfied the requirements of Fed. R. Civ. P. 23 and due process.
Judge David De Alba,
Ford Explorer Cases
,
(May 29, 2008) JCCP Nos. 4226 & 4270 (Cal.
Super. Ct.):
[T]he Court is satisfied that the notice plan, design, implementation, costs, reach,
were all reasonable, and has no reservations about the notice to those in this
state and those in other states as well, including Texas, Connecticut, and Illinois;
that the plan that was approved -- submitted and approved, comports with the
fundamentals of due process as described in the case law that was offered by
counsel.
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 96 of 102
13
Judge Kirk D. Johnson,
Hunsucker v.
American Standard Ins. Co. of Wisconsin
, (August
10, 2007)
No. CV-2007-155-3 (Cir. Ct. Ark.):
Having admitted and reviewed the Affidavits of Carla Peak and Christine
Danielson concerning the success of the notice campaign, including the fact that
written notice reached approximately 86% of the potential Class Members, the
Court finds that it is unnecessary to afford a new opportunity
to
request exclusion
to individual class members who had an earlier opportunity to request exclusion
but failed to do so…Specifically, the Court received and admitted affidavits from
Carla Peak and Christine Danielson, setting forth the scope and results of the
notice campaign. Based on the Court’s review of the evidence admitted and
argument of counsel, the Court finds and concludes that the Class Notice and
settlement website as disseminated to members of the Settlement Class in
accordance with provisions of the Preliminarily Approval Order was the best
notice practicable under the circumstances to all members of the Settlement
Class.
Speaking Engagements
Ethics in Legal Notification
, accredited CLE Program, Gina Intrepido-Bowden, presented in
Radnor at Kessler Topaz Meltzer & Check LLP (September 2015); Carla Peak & Patrick Ivie,
presented in Philadelphia at Class Action Preservation Project (November 2014); Carla Peak &
Robert DeWitte, presented in Philadelphia at Saltz, Mongeluzzi, Barrett & Bendesky, P.C.
(August 2014); Gina Intrepido-Bowden & Patrick Ivie, presented in Utah at The St. Regis Deer
Valley Resort (March 2014); Gina Intrepido-Bowden, Carla Peak & Steven Weisbrot, presented in
New York at Morgan Lewis & Bockius (December 2012).
Big Shoulders and High Standards. Can Plaintiffs Scale the Third Circuit’s New Ascertainability
Wall?
A
MERICAN
B
AR
A
SSOCIATION
18
th
Annual National Institute on Class Actions, Gina Intrepido-
Bowden presenter/panelist (October 2014).
The Ethics of Class Action Settlements,
C
HICAGO
B
AR
A
SSOCIATION
,
Class Litigation Committee,
Carla Peak presenter/panelist (June 2014).
Pitfalls of Class Action Notice and Settlement Administration,
accredited CLE Program, Carla
Peak and Robert DeWitte, presented in Miami at Harke Clasby & Bushman LLP (March 2014);
P
RACTISING
L
AW
I
NSTITUTE
(PLI), Class Action Litigation 2013, Gina Intrepido-Bowden and Robert
DeWitte presenters/panelists (July 2013)
.
Designing a Settlement and Notice Program to Minimize Scrutiny and Objections,
A
MERICAN
C
ONFERENCE
I
NSTITUTE
(ACI), 16
th
National Conference on Consumer Finance Class Actions &
Litigation, Gina Intrepido-Bowden presenter/panelist (July 2013).
The Fundamentals of Settlement Administration
accredited CLE Program, Carla Peak and Steven
Weisbrot, presented in Philadelphia at DLA Piper LLP (August 2013); Carla Peak and Robert
DeWitte, presented in Illinois at Locke Lord LLP and broadcast to offices in California, Georgia,
New York, Texas and London (April 2013); Gina Intrepido-Bowden and Robert DeWitte,
presented in Illinois at Skadden, Arps, Slate, Meagher & Flom LLP and Wexler Wallace LLP
(January 2013); Gina Intrepido-Bowden and Robert DeWitte, presented in Illinois at Hinshaw &
Culbertson LLP (October 2012); Gina Intrepido-Bowden and Rob Taylor-Manning, presented in
Pennsylvania at Spector Roseman Kodroff & Willis, P.C. (December 2011).
Class Action Settlement Administration Tips & Pitfalls on the Path to Approval
accredited CLE
Program, Carla Peak, Gina Intrepido-Bowden & Robert DeWitte, presented in Illinois at Jenner &
Block and broadcast to offices in Washington DC, New York and California (October 2012).
Perspectives from Class Action Claims Administrators:
Innovations in Notification
, CLE
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 97 of 102
14
I
NTERNATIONAL
,
8
th
Annual Class Actions Conference, Gina Intrepido-Bowden, presenter/panelist
(May 2012).
Innovations in Notification
, C
HICAGO
B
AR
A
SSOCIATION
,
Class Litigation Committee Spring
Seminar, Carla Peak, presenter (May 2012).
Ethical Considerations in Canadian Class Actions
, accredited CLE Program, Gina Intrepido-
Bowden and Robert Taylor-Manning, presented in Canada at Rochon Genova, LLP (April 2012).
Reaching Class Members & Driving Take Rates
, C
ONSUMER
A
TTORNEYS OF
S
AN
D
IEGO
, 4th
Annual Class Action Symposium, Gina Intrepido-Bowden, presenter/panelist (October 2011).
Legal Notice Ethics
, accredited CLE Program, Gina Intrepido-Bowden, Carla Peak & Elizabeth
Grande, presented in New York at Cohen Milstein Sellers & Toll PLLC and Milberg LLP (May
2010), in Illinois at Miller Law LLC (May 2010), in Pennsylvania at Berger & Montague, P.C.,
Anapol Schwartz, Lundy Law, and
Dechert
LLP, which was broadcast to offices in California, New
Jersey, New York, North Carolina, Texas, Washington D.C., and London and sent via video to
their office in China (October 2010), and in Minnesota at Heins Mills & Olson, P.L.C., Lockridge
Grindal Nauen P.L.L.P., and Chestnut Cambronne (January 2011).
Class Actions 101: Best Practices and Potential Pitfalls in Providing Class Notice
, accredited CLE
Program, Brian Christensen, Gina Intrepido & Richard Simmons, presented to Kansas Bar
Association (March 2009).
Articles
Carla Peak and Steven Weisbrot.
How to Design Your Notice to Minimize Professional Objectors
,
Class Action Lawsuit Defense: Class Action Defense News, Developments and Commentary
provided by BakerHostetler (
www.classactionlawsuitdefense.com
) (July 20, 2012).
Carla Peak,
Is your legal notice designed to be noticed?
W
ESTLAW
J
OURNAL
C
LASS
A
CTION
Vol.18
Issue
10
(2011).
John B. Isbister, Todd B. Hilsee & Carla A. Peak,
Seven Steps to a Successful Class Action
Settlement
,
A
MERICAN
B
AR
A
SSOCIATION
,
S
ECTION OF
L
ITIGATION
,
C
LASS
A
CTIONS
T
ODAY
16
(2008).
Todd B. Hilsee, Gina M. Intrepido & Shannon R. Wheatman,
Hurricanes, Mobility and Due
Process: The “Desire-to-Inform” Requirement for Effective Class Action Notice Is Highlighted by
Katrina
, 80 T
ULANE
L
AW
R
EV
. 1771 (2006); reprinted in course materials for: A
MERICAN
B
AR
A
SSOCIATION
, 10
th
Annual National Institute on Class Actions (2006); N
ATIONAL
B
USINESS
I
NSTITUTE
,
Class Action Update:
Today’s Trends & Strategies for Success (2006); C
ENTER FOR
L
EGAL
E
DUCATION
I
NTERNATIONAL
, Class Actions: Prosecuting and Defending Complex Litigation
(2007).
Gina M. Intrepido,
Notice Experts May Help Resolve CAFA Removal Issues, Notification to
Officials
, 6 C
LASS
A
CTION
L
ITIG
.
R
EP
. 759 (2005).
Todd B. Hilsee, Shannon R. Wheatman, & Gina M. Intrepido,
Do You Really Want Me to Know
My Rights? The Ethics Behind Due Process in Class Action Notice Is More Than Just Plain
Language: A Desire to Actually Inform
, 18 G
EORGETOWN
J
OURNAL
L
EGAL
E
THICS
1359 (2005).
Legal Notice Case Examples
Following is a list of cases in which our expert(s) have been involved in the design and
implementation of the notice program and/or notice documents:
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 98 of 102
15
Naef v. Masonite Corp (Hardboard Siding)
Cir. Ct. Ala., CV-94-4033
Williams v. Weyerhaeuser Co. (Hardboard Siding)
Cal. Super. Ct., CV-995787
In re Babcock and Wilcox Co. (Asbestos Related Bankruptcy)
E.D. La., 00-10992
Brown v. Am. Tobacco
Cal. Super. Ct., J.C.C.P. 4042 No. 711400
Microsoft I-V Cases (Antitrust Litig. Mirroring Justice Dept.)
Cal. Super. Ct., J.C.C.P. No. 4106
Scott v. Blockbuster, Inc. (Extended Viewing Fees)
136
th
Tex. Jud. Dist., No. D 162-535
Talalai v. Cooper Tire & Rubber Co. (Tire Layer Adhesion)
N.J. Super. Ct., No. MID-L-8839-00 MT
Thompson v. Metropolitan Life Ins. Co. (Race Related Sales
Practices)
S.D. N.Y., No. 00-CIV-5071 HB
Ervin v. Movie Gallery Inc. (Extended Viewing Fees)
Tenn. Ch. Fayette Co., No. CV-13007
Walker v. Rite Aid of PA, Inc. (PA Act 6)
C.P. Pa., No. 99-6210
Myers v. Rite Aid of PA, Inc. (PA Act 6)
C.P. Pa., No. 01-2771
Baker v. Jewel Food Stores, Inc. & Dominick’s Finer Foods, Inc.
(Milk Price Fixing)
Cir. Ct. Ill. Cook Co., No. 00-L-9664
In re Columbia/HCA Healthcare Corp. (Billing Practices Litig.)
M.D. Tenn., MDL No. 1227
Soders v. General Motors Corp. (Marketing Initiative)
C.P. Pa., No. CI-00-04255
Nature Guard Cement Roofing Shingles Cases
Cal. Super. Ct., J.C.C.P. No. 4215
Defrates v. Hollywood Entertainment Corp. (Extended Viewing
Fees)
Cir. Ct. Ill., St. Clair. Co., No. 02L707
West v. G&H Seed Co. (Crawfish Farmers)
27
th
Jud. D. Ct. La., No. 99-C-4984-A
Baiz v. Mountain View Cemetery (Burial Practices)
Cal. Super. Ct., No. 809869-2
Richison v. American Cemwood Corp. (Roofing Durability)
Cal. Super. Ct., No. 005532
Friedman v. Microsoft Corp. (Antitrust)
Ariz. Super. Ct., No. CV 2000-000722
Davis v. Am. Home Prods. Corp. (Norplant Contraceptive)
Civ. D. Ct. La., Div. K, No. 94-11684
Gordon v. Microsoft Corp. (Antitrust)
D. Minn., No. 00-5994
Fisher v. Virginia Electric & Power Co.
E.D. Va., No 3:02-CV-431
Bardessono v. Ford Motor Co. (15 Passenger Vans Outreach)
Wash. Super. Ct., No. 32494
Gardner v. Stimson Lumber Co. (Forestex Siding)
Wash. Super. Ct., No. 00-2-17633-3SEA
Nichols v. SmithKline Beecham Corp. (Paxil)
E.D. Pa., No. 00-6222
In re Educ. Testing Serv. PLT 7-12 Test Scoring
E.D. La., 2:04md1643
In re Serzone Products Liability
S.D. W. Va., 02-md-1477
Ford Explorer Cases
Cal. Super. Ct., JCCP Nos. 4226 & 4270
In re Lupron Marketing & Sales Practices
D. Mass., MDL No.1430
Morris v. Liberty Mutual Fire Ins. Co.
D. Okla., NO. CJ-03-714
Thibodeaux v. Conoco Philips Co.
D. La., No. 2003-481
Morrow v. Conoco Inc.
D. La., No. 2002-3860
Tobacco Farmer Transition Program
U.S. Dept. of Agric.
Froeber v. Liberty Mutual Fire Ins. Co.
Cir. Ct. Ore., No. 00C15234
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 99 of 102
16
Carnegie v. Household Int’l, Inc.
N. D. Ill., No. 98-C-2178
In re Royal Ahold Securities and “ERISA”
D. Md., 1:03-md-01539
First State Orthopaedics et al. v. Concentra, Inc., et al.
E.D. Pa., No. 2:05-CV-04951-AB
Meckstroth v. Toyota Motor Sales, U.S.A., Inc.
24th Jud. D. Ct. La., No. 583-318
In re High Sulfur Content Gasoline Products Liability
E.D. La., MDL No. 1632
Desportes v. American General Assurance Co.
Ga. Super. Ct., No. SU-04-CV-3637
In re Residential Schools Litigation
Ont. Super. Ct., 00-CV-192059 CPA
Turner v. Murphy Oil USA, Inc.
E.D. La., No. 2:05-CV-04206-EEF-JCW
Carter v. North Central Life Ins. Co.
Ga. Super. Ct., No. SU-2006-CV-3764-6
Friedman v. Microsoft Corp. (Antitrust)
Ariz. Super. Ct., No. CV 2000-000722
Ciabattari v. Toyota Motor Sales, U.S.A., Inc.
N.D. Cal., No. C-05-04289-BZ
Peek v. Microsoft Corporation
Cir. Ct. Ark., No. CV-2006-2612
Reynolds v. The Hartford Financial Services Group, Inc.
D. Ore., No. CV-01-1529 BR
Zarebski v. Hartford Insurance Co. of the Midwest
Cir. Ct. Ark., No. CV-2006-409-3
In re Parmalat Securities
S.D. N.Y., 1:04-md-01653 (LAK)
Beasley v. The Reliable Life Insurance Co.
Cir. Ct. Ark., No. CV-2005-58-1
Sweeten v. American Empire Insurance Company
Cir. Ct. Ark., No. 2007-154-3
Gunderson v. F.A. Richard & Associates, Inc. (FARA)
14th Jud. D. Ct. La., No. 2004-2417-D
Gunderson v. F.A. Richard & Associates, Inc. (Focus)
14th Jud. D. Ct. La., No. 2004-2417-D
Hunsucker v. American Standard Ins. Co. of Wisconsin
Cir. Ct. Ark., No., CV-2007-155-3
Burgess v. Farmers Insurance Co., Inc.
D. Okla., No. CJ-2001-292
Grays Harbor v. Carrier Corporation
W.D. Wash., No. 05-05437-RBL
Donnelly v. United Technologies Corp.
Ont. S.C.J., 06-CV-320045CP
Wener v. United Technologies Corp.
QC. Super. Ct., 500-06-000425-088
Brookshire Bros. v. Chiquita (Antitrust)
S.D. Fla., No. 05-CIV-21962
Johnson v. Progressive
Cir. Ct. Ark., No. CV-2003-513
Bond v. American Family Insurance Co.
D. Ariz., CV06-01249-PXH-DGC
Angel v. U.S. Tire Recovery (Tire Fire)
Cir. Ct. W. Va., No. 06-C-855
In re TJX Companies Retail Security Breach
D. Mass., MDL No. 1838
Webb v. Liberty Mutual Insurance Co.
Cir. Ct. Ark., No. CV-2007-418-3
Shaffer v. Continental Casualty Co. (Long Term Care Insurance)
C.D. Cal., SACV06-2235-PSG (PJWx)
Palace v. DaimlerChrysler (Neon Head Gaskets)
Cir. Ct. Ill., Cook Co., No. 01-CH-13168
Beringer v. Certegy Check Services, Inc. (Data Breach)
M.D. Fla., No. 8:07-cv-1657-T-23TGW
Lockwood v. Certegy Check Services, Inc. (Data Breach)
M.D. Fla., No. 2:07-CV-587-FtM-29-DNF
Sherrill v. Progressive Northwestern Ins. Co.
18th D. Ct. Mont., No. DV-03-220
Gunderson v. F.A. Richard & Associates, Inc. (AIG)
14th Jud. D. Ct. La., No. 2004-2417-D
Jones v. Dominion Transmission, Inc.
S.D. W. Va., No. 2:06-cv-00671
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 100 of 102
17
Gunderson v. F.A. Richard & Associates, Inc. (Wal-Mart)
14th Jud. D. Ct. La., No. 2004-2417-D
In re Trans Union Corp. Privacy (Data Breach)
N.D. Ill., MDL No. 1350
Gunderson v. F.A. Richard & Associates., Inc. (Amerisafe)
14th Jud. D. Ct. La., No. 2004-002417
Bibb v. Monsanto Co. (Nitro)
Cir. Ct. W.Va., No. 041465
Carter v. Monsanto Co. (Nitro)
Cir. Ct. W.Va., No. 00-C-300
In re U.S. Department of Veterans Affairs (VA) Data Breach
D. D.C., MDL 1796
In re Countrywide Financial Corp. Customer Data Security
Breach
W.D. Ky., MDL No. 3:08-md-1998
Dolen v. ABN AMRO Bank N.V. (Callable CDs)
Nos. 01-L-454 & 01-L-493
Griffin v. Dell Canada Inc.
Ont. Super. Ct., No. 07-CV-325223D2
Plubell v. Merck & Co., Inc.
Cir. Ct. Mo., No. 04CV235817-01
Billieson v. City of New Orleans
Civ. D. Ct. La., No. 94-19231
Anderson v. Government of Canada
Sup. Ct. NL, No. 2008NLTD166
Ko v. Natura Pet Products, Inc.
N.D. Cal., No. 5:09cv02619
Allen v. UMB Bank, N.A.
Cir. Ct. Mo., No. 1016-CV34791
Blue Cross of California Website Security Cases
Sup. Ct. Cal., No. JCCP 4647
Alvarez v. Haseko Homes, Inc.
Cir. Ct. HI., No. 09-1-2691-11
LaRocque v. TRS Recovery Services, Inc.
D. Maine, No. 2:11cv00091
In re: Zurn Pex Plumbing Products Liability Litig.
D. Minn., MDL No. 08-1958
Molina v. Intrust
Bank, N.A
.
18
th
Jud. D. Ct., 10-cv-3686
In Re: Uponor, Inc., F1807 Products Liability Litigation
D. Minn, MDL No. 2247
Shames v. The Hertz Corporation
S.D. Cal., No. 07cv2174-MMA
Stroud v. eMachines, Inc
.
D. Ct. Cleveland Cnty, Okla., No. CJ-2003-
968-L
Holman v. Experian Information Solutions, Inc.
N.D. Cal., No. 4:11cv00180
Beck-Ellman v. Kaz USA Inc.
S.D. Cal., No. 10-cv-2134
Lee v. Stonebridge Life Insurance Company
N.D. Cal., No. 3:11-cv-00043
Steinfeld v. Discover Financial Services
N.D. Cal., No. 3:12-cv-01118
Cappalli v. BJ’s Wholesale Club, Inc.
D. R.I.,
No. 1:10-cv-00407
Poertner v. The Gillette Co. and The Procter & Gamble Co.
M.D. Fla., No. 6:12-cv-00803
In re Hypodermic Products Antitrust Litigation
D. N.J., No. 2:05-cv-01602
McCrary v. The Elations Company, LLC (class certification)
C.D. Cal., No. 13-cv-00242
Lerma v. Schiff Nutrition International, Inc.
S.D. Cal., No. 3:11-cv-01056
Charles v. Haseko Homes, Inc.
Cir. Ct. HI., No. 09-1-2697-11
Kai v. Haseko Homes, Inc.
Cir. Ct. HI., No. 09-1-2834-12
Roberts v. Electrolux Home Products, Inc
.
C.D. Cal., No. 8:12-cv-01644
Demereckis v. BSH Home Appliances Corporation
(Certification)
C.D. Cal., No. 8:10-cv-00711
In re Skelaxin (Metaxalone) Antitrust Litigation
E.D. Ten., MDL 2343, No. 1:12-cv-194
Case 1:14-md-02583-TWT Document 181-2 Filed 03/07/16 Page 101 of 102
18
Demmick v. Cellco Partnership d/b/a Verizon Wireless
D. Ct. N.J., No. 06-cv-2163
Cobb v. BSH Home Appliances Corporation
C.D. Cal., No. 8:10-cv-00711
Fond du Lac Bumper Exchange Inc. v. Jui Li
Enterprise Co. Ltd. (Direct & Indirect Purchasers Classes)
E.D. Wis., No. 2:09-cv-00852
Thomas v. Lennox Industries Inc.
N.D. Ill., No. 1:13-cv-07747
In re Sears, Roebuck and Co. Front-Loading Washer Products
Liability Litigation
N.D. Ill., No. 1:06-cv-07023
Chambers v. Whirlpool Corporation
C.D. Cal., No. 8:11-cv-01733
Dial Corp. v. News Corp.
S.D.N.Y., No. 1:13-cv-06802
Following is a list of cases in which our expert(s) were involved with a critique of the notice
program and/or notices:
Barbanti v. W.R. Grace and Co. (Zonolite/Asbestos Litig.)
Wash. Super. Ct., 00201756-6
In re W.R. Grace Co. (Asbestos Related Bankruptcy)
Bankr. D. Del., No. 01-3293-JCS
In re USG Corp. (Asbestos Related Bankruptcy)
Bankr. D. Del., No. 01-02094-RJN
Johnson v. Ethicon, Inc. (Product Liability Litigation)
Cir. Ct. W. Va., Nos. 01-C-1530, 1531,
1533, 01-C-2491 to 2500
Parsons/Currie v. McDonalds
Ont. S.C.J., No. 02-CV-235958CP/No. 02-
CV-238276
Chambers v. DaimlerChrysler Corp. (Neon Head Gaskets)
N.C. Super. Ct., No. 01:CVS-1555
West v. Carfax, Inc.
Ohio C.P., No. 04-CV-1898 (ADL)
Perrine v. E.I. Du Pont De Nemours & Co.
Cir. Ct. W. Va., No. 04-C-296-2
Clark v. Pfizer, Inc. (Neurontin)
C.P. Pa. Phila. Co., No. 9709-3162
In re Motor Fuel Temperature Sales Practices Litig.
D. Kan., MDL No. 1840
Gallucci v. Boiron, Inc.
S.D. Ca., No. 3:11-cv-02039
Tchoboian v. FedEx Office and Print Services, Inc.
C.D. Cal., No.10-CV01008
In re Vitamin C Antitrust Litigation
E.D. N.Y., No. 1:06-md-1738
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