ADP BIPA Settlement - IN THE CIRCUIT COURT OF COOK ......A. BIPA and the Underlying Claims..... 3 B....
Transcript of ADP BIPA Settlement - IN THE CIRCUIT COURT OF COOK ......A. BIPA and the Underlying Claims..... 3 B....
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
MARTIN KUSINSKI, JAMES BRYSKI, and FELIPE BERNAL individually and on behalf of all others similarly situated, Plaintiffs, v. ADP, LLC, a Delaware limited liability company, Defendant.
No. 2017-CH-12364 (consolidated with 2018-CH-07139 and 2019-CH-01612) Hon. David B. Atkins
PLAINTIFFS’ MOTION AND MEMORANDUM OF LAW FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD
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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ................................................................................................................ 3
A. BIPA and the Underlying Claims ......................................................................... 3
B. Litigation History and the Work Performed for the Settlement Class ............ 4
C. The Settlement Secures Excellent Relief for the Settlement Class .................. 11 III. THE REQUESTED ATTORNEYS’ FEES AND INCENTIVE AWARD ARE
REASONABLE AND SHOULD BE APPROVED ....................................................... 11
A. Percentage-of-the-Recovery Should be Used to Determine Fees Here ........... 12
B. 35% Is a Reasonable Fee Award ........................................................................ 14
1. This case presented serious obstacles to recovery, and Class Counsel litigated the case mindful of the possibility that the Class might recover nothing ............................................................................................................ 16
2. Class Counsel achieved an exceptional result for the Class ......................... 18
C. The Court Need Not Undertake a Lodestar Crosscheck ................................. 21
IV. THE COURT SHOULD APPROVE THE REQUESTED INCENTIVE AWARD .. 23 V. CONCLUSION ............................................................................................................... 23
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TABLE OF AUTHORITIES United States Supreme Court Cases: Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .......................................................................................................... 12 Frank v. Gaos, 139 S. Ct. 1041 (2019) ....................................................................................................... 19 Hall v. Cole, 412 U.S. 1 (1973) .............................................................................................................. 21 United States Circuit Court of Appeals Cases: Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019) ............................................................................................. 18 In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017) ............................................................................................. 19 Silverman v. Motorola Sols., Inc., 739 F.3d 956 (7th Cir. 2013) ............................................................................................. 16 United States District Court Cases: Adkins v. Facebook, Inc., No. 18-cv-05982-WHA (N.D. Cal. Nov. 15, 2020) .......................................................... 19 Heard v. Becton, Dickinson & Co., No. 19 C 4158, 2020 WL 887460 (N.D. Ill. Feb. 24, 2020) ............................................. 17 In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD, 2018 WL 2197546 (N.D. Cal. May 14, 2018) ............................ 18 In re Google LLC Street View Elec. Commc’ns Litig., No. 10-md-02184-CRB, 2020 WL 1288377 (N.D. Cal. Mar. 18, 2020) .......................... 19 Lopez-McNear v. Superior Health Linens LLC, 19-cv-2390 (N.D. Ill.) ........................................................................................................ 10 Mansfield, Jr. v. Air Line Pilots Ass’n, Int’l, No. 06-cv-6869 (N.D. Ill. Dec. 14, 2009) ......................................................................... 15 Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279 (N.D. Ill. 2019) ................................................................................. 17
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Perlin v. Time Inc., 237 F. Supp. 3d 623 (E.D. Mich. 2017) ............................................................................ 18 Spano v. Boeing Co., No. 06-cv-743-NJR-DGW, 2016 WL 3791123, 2016 WL 3791123 (S.D. Ill. Mar. 31,
2016) .................................................................................................................................. 23 Thome v. NOVAtime Tech., Inc., No. 19-cv-6256 (N.D. Ill.) ................................................................................................. 20 State Supreme Court Cases: Brundidge v. Glendale Fed. Bank F.S.B., 168 Ill. 2d 235 (1995) ................................................................................................. passim Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186 ................................................................................................................... 7 State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d 533 (1992) .......................................................................................................... 5 Wendling v. S. Ill. Hosp. Servs., 242 Ill. 2d 261 (2011) ........................................................................................................ 12 State Appellate Court Cases: GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d 486 (1st Dist. 1992) ................................................................................ 23 Langendorf v. Irving Trust Co., 244 Ill. App. 3d 70 (1st Dist. 1992) ................................................................................... 21 Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645 ............................................................................................... 7-8 McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398 ................................................................................................... 7 Rosenbach v. Six Flags Ent. Corp., 2017 IL App (2d) 170317 ........................................................................................... passim Ryan v. City of Chicago, 274 Ill. App. 3d 913 (1st Dist. 1995) .......................................................................... passim
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Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 ................................................................................................... 6 Shaun Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236 ............................................................................................ 21, 22 State Trial Court Cases: Barnes v. Aryzta, 2017-CH-11312 ............................................................................................................. 4, 15 Bernal v. Rockit Ranch, 2017-CH-12364 .......................................................................................................... passim Bruhn v. New Albertson’s, 2018-CH-01737 ................................................................................................................... 8 Cameron v. Polar Tech Indus., Inc., 2019-CH-000013 (Cir. Ct. DeKalb Cty. Aug. 23, 2019) .................................................. 17 Carroll v. Crème de la Crème, 2017-CH-01624 ........................................................................................................... 14, 19 Collier, et. al. v. Pete’s Fresh Market 2526 Corp., et. al., 2019-CH-05125 ................................................................................................................. 14 Doporcyk v. Roundy’s Supermarkets, 2017-CH-08092 ................................................................................................................... 4 Fluker v. Glanbia Performance Nutrition, Inc., 2017-CH-12993 ..................................................................................................... 14, 15, 20 George v. Schulte Hosp. Grp., Inc., et al., 2018-CH-04413 ................................................................................................................. 15 Goings v. AEP NVH OPCO, LLC d/b/a Applied Acoustics, et al., 2017-CH-14954 (Cir. Ct. Cook. Cty.) ............................................................................... 20 Gutierrez v. Senior Lifestyle Corp., 2017-CH-11314 ................................................................................................................. 10 Henderson, Bernal, and Zepeda v. ADP LLC, 2019-CH-01612 ................................................................................................................... 9 Hoormann v. Smithkline Beecham, No. 04-L-715, 2007 WL 1591510 (Cir. Ct. Madison Co. May 17, 2007) ........................ 16
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Lloyd v. Xanitos, 2018-CH-15351 ................................................................................................................. 15 Marshall v. Lifetime Fitness, 2017-CH-14262 ................................................................................................................ 20 Mazurkiewicz v. Mid-City Nissan, Inc., 2018-CH-09798 ................................................................................................................. 10 McGee v. LSC Commc’ns, No. 2017-CH-12818 ...................................................................................................... 2, 15 Muniz v. Workwell Techs., Inc., 2019-CH-04061 (Cir. Ct. Cook Cty.) ................................................................................ 20 Parker v. Sears, Roebuck & Co, No. 04-L-716, 2008 WL 8772260 (Cir. Ct. Madison Co. Jan. 15, 2008) ......................... 16 Prelipceanu v. Jumio Corp., 2018-CH-15883 ............................................................................................................. 2, 20 Robertson v. Hostmark Hosp. Grp., et al., 2018-CH-05194 ................................................................................................................... 8 Sekura v. Krishna Schaumburg Tan, Inc., 2016-CH-04945 ................................................................................................................... 6 Sekura v. L.A. Tan Enters., 2015-CH-16694 .......................................................................................................... passim Sparks v. AT&T Corp., No. 01-L-1668, 2002 WL 34503097 (Cir. Ct. Madison Cty. Nov. 04, 2002) ................... 16 Svagdis v. Alro Steel Corp., 2017-CH-12566 ................................................................................................................. 14 Taylor v. Sunrise Senior Living Mgmt., Inc., 2017-CH-15152 ........................................................................................................... 14, 15 Walton v. Roosevelt, 2019-CH-04176 ................................................................................................................... 7 Willis, et al. v. iHeartMedia, Inc., 2016-CH-02455 ................................................................................................................. 15
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Zepeda v. Kimpton Hotel & Rest., 2018-CH-02140 ................................................................................................................. 14 Zhirovetskiy v. Zayo Group, LLC, 2017-CH-09323 ................................................................................................................. 15 Rules and Statutory Provisions: 740 ILCS 14 ............................................................................................................................ passim Other Authorities: David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, 64 ALA. L. REV. 335 (2012) .............................................................................................. 22 HB 5103 ........................................................................................................................................... 7 Herbert M. Kritzer, RISKS, REPUTATIONS, AND REWARDS 39–40 (2004) .......................................................... 22 NEWBERG ON CLASS ACTIONS § 15.83 (5th ed.) ................................................................................................................. 15 NEWBERG ON CLASS ACTIONS § 15:65 (5th ed.) ................................................................................................................. 22 SB 3053 ........................................................................................................................................... 7 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303 (2006) ...................................................................................... 3, 23
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I. INTRODUCTION
This Court is familiar with the now-common class action under the Illinois Biometric
Information Privacy Act (“BIPA”), where an employee sues an employer for being forced to
clock in and out of work using her biometric identifier—most often, a fingerprint or handprint—
without the employer complying with BIPA. Class Counsel have prosecuted, and continue to
prosecute, several such cases. But during their investigation and discovery into Illinois
employers’ use of biometric time clocks, Class Counsel discovered that ADP—one of the largest
providers of biometric-based timeclocks used to track employee time—had itself been collecting
Illinois workers’ biometric data without complying with BIPA’s informed consent requirements.
See generally 740 ILCS 14/15. Class Counsel brought this novel BIPA suit against ADP, seeking
to represent a class of all individuals in Illinois from whom ADP had taken biometric data
through its timeclocks.
In June 2018, when Class Counsel took this case on, things were not looking good for
BIPA plaintiffs in this nascent area of law. The Second District had ruled—in an opinion binding
on this Court—that plaintiffs needed to allege actual harm in order to be “aggrieved” and state a
claim to BIPA’s statutory damages. See Rosenbach v. Six Flags Entm’t Corp., 2017 IL App (2d)
170317 (“Rosenbach I”). And even where the law was developing quickly (if unfavorably) in
cases brought by employees against employers, there was no law at all about a timeclock
vendor’s liability to a class under BIPA for its own violations of the statute. Since then,
timeclock vendors have secured both wins and losses on the question of their own liability,
including this Court’s grant—before consolidation of these cases—of ADP’s motion to dismiss
without prejudice on Plaintiff Felipe Bernal’s claims. Nor were these the only risks: throughout
the case’s pendency, industry and corporate interest groups spent incredible sums in their push to
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amend or repeal BIPA outright in Springfield to strip the class of BIPA’s protections, which
Class Counsel continually organized opposition to fend off.
Despite these risks, Class Counsel aggressively pursued ADP for years. They completed
hundreds of pages of briefing, secured relevant discovery, and—over the course of two years of
litigation—gradually cornered ADP until it had no choice but to come to the table to discuss
settlement. Even this process was a challenge, with the Parties mediating over four separate days
with an experienced mediator, Honorable Wayne R. Andersen (Ret.). But that work proved
fruitful: ADP has agreed to pay a record-breaking $25,000,000.000 non-reversionary fund to this
Class, the largest ever produced in a BIPA timeclock vendor case by several orders of
magnitude. The Settlement Fund will be distributed pro rata to Class Members, after fees and
costs, with no money going back to ADP.1
Class Counsel now request that they be compensated for taking on an untested case like
this and obtaining the extraordinary outcome they did. Counsel request 35% of the Settlement
Fund, or $8,750,000.00. This is in line with historical common fund fee awards, and in fact less
as a percentage than that commonly awarded in BIPA cases. See, e.g., Sekura v. L.A. Tan
Enters., Inc., 2015-CH-16694 (Cir. Ct. Cook Cty. Dec. 1, 2016) (awarding 40% of fund);
Prelipceanu v. Jumio Corp., 2018-CH-15883 (Cir. Ct. Cook Cty. July 21, 2020) (awarding 40%
of fund); McGee v. LSC Commc’ns, Inc., 2017-CH-12818 (Cir. Ct. Cook Cty. Nov. 11, 2019)
(Atkins, J.) (awarding 40% of fund). An award of 35% reasonably and fairly reflects the
outstanding result produced here in the face of the considerable risk this case presented. See
Ryan v. City of Chicago, 274 Ill. App. 3d 913, 924 (1st Dist. 1995).
1 Unless otherwise specified, all capitalized terms are defined in the Stipulation of Class Action Settlement (the “Agreement” or “Settlement”), which is attached hereto as Exhibit 1.
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Plaintiffs also request reasonable incentive awards of $7,500.00. Incentive awards in
class action settlements frequently exceed $10,000.00. See Theodore Eisenberg & Geoffrey P.
Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303,
1308 (2006) (finding that “[t]he average award per class representative was $15,992”); e.g.,
Ryan, 274 Ill. App. 3d at 917 (noting approval of $10,000 incentive award to two plaintiffs).
These class representatives similarly stepped forward to represent this Class, accepting the
significant possibility that their efforts would return nothing. The incentive awards should be
approved as well.
II. BACKGROUND
A brief summary of Class Counsel’s investigation, the underlying facts, and the law lend
some context to the instant Motion and demonstrate the reasonableness of the requested fees,
costs, and incentive award.
A. BIPA and the Underlying Claims.
BIPA is landmark privacy law in Illinois, and one of the country’s only meaningful
regulations on the collection and use of biometric data. Recognizing the “very serious need” to
protect Illinois citizens’ biometric data—which includes retina scans, fingerprints, voiceprints,
and scans of hand or face geometry—the Illinois Legislature unanimously passed BIPA in 2008
to provide individuals recourse when companies failed to appropriately handle their biometric
data in accordance with the statute. (See Compl. ¶ 15; 740 ILCS 14/5.) BIPA makes it unlawful
for any private entity to “collect, capture, purchase, receive through trade, or otherwise obtain a
person’s or a customer’s biometric identifier or biometric information, unless it first:”
(1) informs the subject . . . in writing that a biometric identifier or biometric information is being collected or stored;
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(2) informs the subject . . . in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information[.]
740 ILCS 14/15(b). BIPA also establishes standards for how companies must handle Illinois
consumers’ biometric identifiers and biometric information. For example, BIPA requires
companies to develop and comply with a written policy establishing a retention schedule and
guidelines for permanently destroying biometric information. 740 ILCS 14/15(a). To enforce the
statute, BIPA provides a civil private right of action and allows for the recovery of statutory
damages in the amount of $1,000 for negligent violations—or $5,000 for willful violations—plus
costs and reasonable attorneys’ fees to any person “aggrieved by a violation” of the statute. See
740 ILCS 14/20.
B. Litigation History and the Work Performed for the Settlement Class.
While BIPA became law in 2008, cases seeking to enforce it did not begin in earnest until
years later. Beginning in 2017, employees began filing BIPA cases against employers who had
used biometric timeclocks to collect employees’ biometric data without complying with the
law’s requirements. Class Counsel represented the plaintiffs in a number of these earliest-filed
cases. See, e.g., Doporcyk v. Roundy’s Supermarkets, 2017-CH-08092 (Cir. Ct. Cook Cty. Jun. 9,
2017); Barnes v. Aryzta, 2017-CH-11312 (Cir. Ct. Cook Cty. Aug. 17, 2017); Bernal v. Rockit
Ranch, 2017-CH-12364 (Cir. Ct. Cook Cty. Sept. 12, 2017). In litigating these early BIPA cases,
Class Counsel’s investigation revealed that the vendors of these timeclocks themselves—not just
the employers—were collecting employee biometric data and violating BIPA in some
circumstances. Indeed, ADP was the vendor at issue in at least two of the early cases, including
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Barnes and Bernal. Class Counsel named ADP2 as a respondent-in-discovery in the Barnes
matter in August 2017, served discovery requests on it in October 2017, and secured responses to
that discovery in May 2018.
Meanwhile, courts began deciding the many questions of first impression posed by BIPA
cases. The most important unresolved question was who an “aggrieved” person—as used in
BIPA’s damages provision—was. See 740 ILCS 14/20. BIPA defendants argued that a person
was “aggrieved” only if they had suffered some consequential harm in addition to violation of
their privacy rights under the statute, an interpretation that would deprive nearly all BIPA
plaintiffs of the $1,000 or $5,000 liquidated damages provided by BIPA. That argument found
purchase before the Second District in Rosenbach I, 2017 IL App (2d) 170317, just months
before this case was filed. There, the Court held that a plaintiff must identify “actual injury,
adverse effect, or harm [beyond violation of their rights] in order for the person to be
‘aggrieved.’” Id. at ¶ 20. BIPA’s informed consent rules are largely designed to prevent actual
injury, not redress it, so few BIPA plaintiffs could survive the Rosenbach I holding. The case
was binding on all circuit courts in Illinois. State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d
533, 539 (1992) (“A decision of the appellate court, though not binding on other appellate
districts, is binding on the circuit courts throughout the State.”).
It was into this foreboding environment that Class Counsel filed a BIPA case that not
only relied on overturning the Second District’s Rosenbach I opinion, but also was a type of
BIPA case that had never been filed before: against the timeclock vendor directly. Class Counsel
filed an action in June 2018 against ADP, representing Plaintiffs Maurice Henderson and
Chiquita Alston, seeking redress for ADP’s violations of BIPA on behalf of a statewide class of
2 Counsel had named Automated Data Processing, Inc., a related entity.
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individuals (the “Henderson action”). That case was assigned to Judge Mullen. In July 2018,
Plaintiff Bernal amended his complaint to similarly name ADP (the “Bernal action”). The two
cases proceeded separately for nearly a year of litigation.
ADP filed its motion to dismiss in the Henderson action on September 7, 2018, relying
predictably on the argument that Plaintiffs were not “aggrieved” under the then-binding
Rosenbach I opinion. Just a few weeks later, Class Counsel succeeded in securing countervailing
First District authority in Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, a
case originally before this Court. The First District unequivocally disagreed with the Second
District, finding “the trial court was initially correct and that, pursuant to both the plain language
of the statute itself and its legislative history and purpose, the Act does not require a harm in
addition to a violation of the Act in order to file suit.” Id. at ¶ 84.3 Meanwhile, the Illinois
Supreme Court had accepted review of Rosenbach I, and both the Henderson and Bernal cases
were stayed to await an answer on this pivotal question.
But courts were not the only battleground where the rights of BIPA plaintiffs were being
decided. Facebook and other technology giants had undertaken a major push to amend the law in
Springfield, during which Class Counsel Edelson PC became deeply involved with an on-the-
ground presence in the legislature around the clock for months, meeting with and organizing
consumer rights groups, civil rights groups, unions, and other stakeholders to successfully
oppose the attempt to eviscerate BIPA rights. But the attack from industry on BIPA continued in
subsequent sessions, including, notably, in the 2018 session when these cases were filed: a
3 This Court had, prior to the Second District’s Rosenbach I decision, held that “aggrieved” referred to violation of rights under the statute, and not some additional harm. See Sekura v. Krishna Schaumburg Tan, Inc., 2016-CH-04945 (Cir. Ct. Cook Cty. Feb. 9, 2017). In light of Rosenbach I, the Court was required to overturn itself, which set the matter for appellate review in which the Court’s original holding was vindicated.
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coalition led by the Chamber of Commerce—and supported by a number of Illinois employer
groups—succeeded in persuading legislators to introduce bills in both chambers of the
legislature, with both a Democratic and Republican sponsor, that would have made Rosenbach I
the law of the land. See SB 3053, HB 5103. Among others, timeclock vendors were behind this
bill; Kronos Incorporated (another timeclock vendor and a business partner of ADP) appeared in
meetings with representatives to encourage legislators to canonize the Rosenbach I reasoning.
Again, Class Counsel led efforts of unions, consumer rights organizations, and the ACLU to
persuade sponsors that the rights provided by BIPA were too important to be taken away at the
behest of industry. The bill, as a result of that work, did not make it to the legislative floor.4
Back on the judicial front, the Illinois Supreme Court finally put the “aggrieved”
argument to rest in January 2019, agreeing with Sekura that “an individual need not allege some
actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to
qualify as an ‘aggrieved’ person and be entitled to seek liquidated damages and injunctive relief
pursuant to the Act.” Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186, ¶¶ 23, 40
(“Rosenbach II”).5 But that far from ended the novel arguments that ADP could raise here as a
4 In addition to their advocacy on the judicial and legislative fronts, Class Counsel have taken an active role in organizing and establishing working relationships with members of the plaintiffs’ bar who are prosecuting BIPA litigation, efforts which have succeeded in identifying and developing underlying legal theories, strategies and responses to the various defenses being asserted, which has enabled Class Counsel to maximize outcomes for BIPA plaintiffs. In furtherance of this goal, Class Counsel monitor hundreds of BIPA filings in state and federal court. 5 Class Counsel have also fought—and consistently won—other courtroom battles on BIPA defenses of first impression, all of which could have been raised by ADP to eliminate or severely curtail the scope of the class, including that BIPA claims are not preempted by the Worker’s Compensation Act, McDonald v. Symphony Bronzeville Park, LLC, 2020 IL App (1st) 192398, that BIPA claims are not subject to preemption under the Labor Management Relations Act (“LMRA”), e.g., Walton v. Roosevelt, 2019-CH-04176 (Cir. Ct. Cook Cty. May 5, 2020), that BIPA claims are not subject to arbitration as “wage and hour” claims, Liu v. Four Seasons Hotel,
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timeclock vendor, rather than a mine-run employer case. It moved to dismiss the Henderson
action in March 2019 on numerous different grounds, arguing that (1) ADP could not have
violated BIPA’s provisions governing collection, 740 ILCS 14/15(b), because Section 15(b)
applied only to the employer in the employment context due to definition of “written release,”
and could not apply to a timeclock vendor as a “third party technology provider” because ADP
did not “collect” the data but merely “possessed” it, (2) that ADP had not violated BIPA’s
provisions requiring a public retention policy, 740 ILCS 14/15(a), because ADP had belatedly
created such a policy, (3) that Plaintiffs had not alleged a violation of BIPA’s prohibition against
profiting from biometric data, 740 ILCS 14/15(c), and (4) seeking to dismiss all of Plaintiffs’
common-law claims. ADP also moved to dismiss the Bernal action on similar grounds in March
2019, though also took aim at Bernal’s allegation that ADP’s “technology” collected the
biometric data as too vague to establish that ADP itself collected the data.
Class Counsel in the Henderson action filed a response brief on April 29, 2019, and ADP
timely filed its reply brief on May 20, 2019. After a clerks’ status, Judge Mullen set the matter
for oral argument on August 12, 2019—the next available date—though the Court ultimately
continued the hearing on its own motion to August 27, 2019. Class Counsel in the Bernal action
also briefed ADP’s motion to dismiss, and the matter was fully briefed on July 10, 2019.
This Court ultimately ruled on the papers in Bernal just a few days before the Henderson
motion was to be heard, granting ADP’s motion to dismiss without prejudice. The Court’s
Ltd., 2019 IL App (1st) 182645, the constitutionality of BIPA, Bruhn v. New Albertson’s, 2018-CH-01737 (Cir. Ct. Cook Cty. Jan. 30, 2020), the inapplicability of BIPA’s “HIPAA exemption” to employees, e.g., Bruhn, 2018-CH-01737 (Cir. Ct. Cook Cty. July 2, 2019), and the first decision in which a court held that the statute of limitations under BIPA is five years, rather than one or two. Robertson v. Hostmark Hosp. Grp., et al., 2018-CH-05194 (Cir. Ct. Cook Cty. July 31, 2019).
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holding on Section 15(b) was limited to finding that Bernal did not allege sufficient facts to find
ADP in fact collected his biometric data, “beyond the fact that Defendant supplied [Bernal’s
employer] with the technology.” (Aug. 23, 2019 Order at 3.) The Court expressed skepticism,
however, that timeclock vendors could in fact be held liable under BIPA, finding “compelling”
ADP’s argument that the definition of “written release” expressly included employers to the
implicit exclusion of vendors, and that BIPA required a “direct relationship” with the subject of
collection. (Id. at 2.) The Court also rejected Bernal’s Section 15(a) claim, finding that he had
failed to allege that ADP in fact lacked a retention policy, but again suggested that ADP may
have rendered the issue moot by adopting a policy. (Id. at 4.) The Court granted Bernal leave to
amend.
The day before this Court’s order, on August 22, 2019, Bernal’s counsel had moved to
consolidate the Bernal and Henderson actions, as well as a number of others that named ADP in
addition to an employer in a BIPA case. The motion to consolidate was fully briefed before
Judge Jacobius, who consolidated the three actions that named only ADP as a defendant and
sought to represent a statewide class of individuals against ADP: Henderson, Bernal, and Zepeda
v. ADP LLC, 2019-CH-01612 (in the last, the plaintiffs were also represented by Bernal’s
counsel). Counsel in the Henderson action moved to appoint interim lead counsel, which was
fully briefed. On November 19, 2019, this Court appointed Edelson PC, James B. Zouras of
Stephan Zouras LLP, and McGuire Law, P.C. as interim co-lead counsel.
In order to streamline the action, the Parties agreed that a consolidated complaint should
be filed. Plaintiffs Kusinski, Bryski, and Bernal filed a Consolidated Amended Complaint on
February 4, 2020. Amid the COVID-19 pandemic, and while most matters were stayed or
suspended, Class Counsel nevertheless sought to advance the case by both issuing discovery and
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promptly briefing ADP’s motion to dismiss. Class Counsel issued written discovery requests to
ADP on February 28, 2020. ADP moved to dismiss the complaint on April 14, 2020, and
Plaintiffs filed their response brief on May 18, 2020.
While the briefing on the motion to dismiss was pending here, Class Counsel were
pursuing discovery from ADP in actions between employers and employees where ADP was a
third party—that is, where employers had used ADP’s timeclocks, and ADP therefore had
relevant discovery in the actions. In addition to obtaining the first discovery responses from ADP
in the beginning of 2018 in the Barnes case, Class Counsel issued discovery requests to ADP as
a third party in a number of other employee-employer cases and pressed ADP extensively until it
made productions. See, e.g., Gutierrez v. Senior Lifestyle Corp., 2017-CH-11314 (Cir. Ct. Cook
Cty.) (ADP was respondent-in-discovery, made two productions in November 2019 and March
2020); Lopez-McNear v. Superior Health Linens LLC, 19-cv-2390 (N.D. Ill.) (subpoena issued to
ADP, received production in March 2020); Mazurkiewicz v. Mid-City Nissan, Inc., 2018-CH-
09798 (Cir. Ct. Cook Cty.) (subpoena issued to ADP, ADP responded in March 2020).
During this period, the Parties began to explore settlement and agreed that a formal
mediation would be productive. In addition to relevant discovery that Class Counsel had already
received, the Parties exchanged informal discovery in advance of the mediation about the
estimated size of the putative Settlement Class and the claims to be resolved, including full
mediation briefs. On June 10, 2020, the Parties engaged in a formal mediation with an
experienced BIPA mediator, Judge Wayne Andersen (Ret.) of JAMS in Chicago.6 That
mediation was not successful, but the Parties agreed that progress could still be made on future
6 Due to the COVID-19 pandemic, the mediation sessions were conducted remotely via videoconference.
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mediation dates. The Parties again engaged in a formal mediation with Judge Andersen on June
16, 2020. An agreement was again not reached. The Parties mediated for a third time on June 23,
2020 with Judge Andersen, and ultimately reached an agreement in principle. The Parties then
mediated for a final time with Judge Andersen on June 29, 2020 to complete negotiations, which
continued into the next day. Finally, the Parties agreed to the Settlement now before the Court.
C. The Settlement’s Excellent Relief for the Settlement Class.
As detailed in Plaintiffs’ motion for preliminary approval, the relief to the Class is an
outstanding result. The Settlement creates a non-reversionary fund of $25 million, which will be
split pro rata between approved claimants after Court-approved fees and costs. Even if a
relatively high 20% of Class Members submit a claim, payments are expected to be $250 for
each valid claimant.
Finally, aside from the monetary relief, the Settlement creates significant non-monetary
benefits. ADP has agreed to publicize on its website ADP’s written policy establishing a
retention schedule and guidelines for permanently destroying biometric identifiers and
information and has agreed to comply with its written retention schedule and guidelines. ADP
has further agreed to notify its Illinois clients using ADP’s finger-scan or hand-scan timeclocks
of their obligation to (a) notify the subjects of collection in writing that biometric identifiers or
biometric information are being collected, stored, and used by the employer and/or ADP, (b)
notify the subjects of collection in writing of the purposes and length of term that biometric
identifiers or biometric information are being collected, stored, and used, and (c) obtain a written
release to the collection, storage, and use.
III. THE REQUESTED ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARDS ARE REASONABLE AND SHOULD BE APPROVED.
Class Counsel took this case on a contingent basis, at a time when there was no judicial
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authority whatsoever on the Class’s ability to succeed against ADP as a timeclock vendor, strong
countervailing authority against BIPA plaintiffs generally, and serious legislative efforts to strip
plaintiffs of BIPA rights. In the face of those headwinds, Class Counsel have secured a
$25,000,000 cash settlement. Counsel respectfully request compensation of 35% of the
Settlement Fund to reflect the extraordinary result they produced here, which is in line with fee
awards in BIPA cases and Illinois courts more broadly.
A. Percentage-of-the-Recovery Should be Used to Determine Fees Here. Illinois has adopted the “common fund doctrine” for the payment of attorneys’ fees in
class action cases. Wendling v. S. Ill. Hosp. Servs., 242 Ill. 2d 261, 265 (2011). “The doctrine
provides that a litigant or a lawyer who recovers a common fund for the benefit of persons other
than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Id.
(internal quotations omitted). The basis of the doctrine is the equitable principle that “successful
litigants would be unjustly enriched if their attorneys were not compensated from the common
fund created for the litigants’ benefit.” Brundidge v. Glendale Fed. Bank F.S.B., 168 Ill. 2d 235,
238 (1995). Consequently, “[b]y awarding fees payable from the common fund created for the
benefit of the entire class, the court spreads the costs of litigation proportionately among those
who will benefit from the fund.” Id. (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478
(1980)).
The Illinois Supreme Court last considered how fees should be awarded in a common
fund case in Brundidge. See 168 Ill. 2d at 243–44. There are two methods: percentage-of-the-
recovery or lodestar. Under the percentage-of-the-recovery approach, as the name suggests, a
reasonable attorneys’ fee is awarded “based upon a percentage of the amount recovered on
behalf of the plaintiff class.” Id. at 238. Under the lodestar approach, on the other hand, a fee
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award is determined by taking the reasonable value of the services rendered (based on the hours
devoted to the matter by class counsel), and increasing that amount by “a weighted multiplier
representing the significance of other pertinent considerations,” such as the contingent nature of
the litigation, its complexity, and the benefit conferred upon class members. Id. at 239–40.
The Brundidge court was asked to determine whether Illinois courts should exclusively
follow the lodestar method and declined to do so. Id. at 238. The Court found that the lodestar
method was the “object of increasing criticism,” and that both federal and state courts across the
country had begun to move away from the lodestar method as needlessly laborious and
unpredictable, and had moved toward adopting the percentage-of-the-recovery method. Id. at
241–43. That trend was present in Illinois as well: Brundidge was preceded, that same year, by a
First District opinion that was even harsher in its criticism of the lodestar method, decrying it as
“increas[ing] the workload of an already overtaxed judicial system, . . . creat[ing] a sense of
mathematical precision that is unwarranted in terms of the realities of the practice of law, . . .
le[ading] to abuses such as lawyers billing excessive hours, . . . not provid[ing] the trial court
with enough flexibility to reward or deter lawyers so that desirable objectives will be fostered, . .
. . [and being] confusing and unpredictable in its administration.” Ryan, 274 Ill. App. 3d at 923
(summarizing findings of a Third Circuit task force appointed to compare the respective merits
of the percentage-of-the-recovery and lodestar methods). In this case, the percentage-of-the-
recovery method is the most appropriate way to evaluate fees. Percentage-of-the-recovery not
only avoids some of the abuses and arbitrariness of the lodestar method, but also it “eliminates
the need for additional major litigation and further taxing of scarce judicial resources which
occur[] . . . as a result of plaintiffs’ request for attorneys’ fees.” Ryan, 274 Ill. App. 3d at 924.
In fact, percentage-of-the-recovery has been used to determine a reasonable fee award in
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every BIPA class action settlement in Cook County where the defendant—as here—created a
monetary common fund. See, e.g., Sekura, 2015-CH-16694 (Cir. Ct. Cook Cty., Ill. Dec. 1,
2016); Zepeda v. Kimpton Hotel & Rest. Grp., 2018-CH-02140 (Cir. Ct. Cook Cty. Dec. 5,
2018); Taylor v. Sunrise Senior Living Mgmt., Inc., 2017-CH-15152 (Cir. Ct. Cook Cty. Feb. 14,
2019); Svagdis v. Alro Steel Corp., 2017-CH-12566 (Cir. Ct. Cook Cty. Jan. 14, 2019); Fluker v.
Glanbia Performance Nutrition, Inc., 2017-CH-12993 (Cir. Ct. Cook Cty. Aug. 25, 2020);
Collier v. Pete’s Fresh Market 2526 Corp., et. al., 2019-CH-05125 (Cir. Ct. Cook Cty. Dec. 8,
2020). In contrast, to Class Counsel’s knowledge, the lodestar approach hasn’t once been used to
evaluate fees in these cases where the Class received money.7 More broadly, of the nearly eighty
final approval decisions of Illinois circuit courts indexed on Westlaw, it appears that the lodestar
method has never been used in a final class action approval with a non-reversionary fund after
Brundidge. (See Table of Decisions, attached hereto as Exhibit 2.) Consequently, this Court
should have no hesitation in applying the percentage-of-the-recovery method here. See Ryan, 274
Ill. App. 3d at 925.
B. 35% Is a Reasonable Fee Award. The 35% fee request falls comfortably within the range of typical fee awards in Illinois.
Under Illinois law, “an attorney is entitled to an award from the fund for the reasonable value of
his or her services.” Ryan, 274 Ill. App. 3d at 922. Courts in Cook County have commonly
awarded higher percentages of the fund than the 35% requested here, including in many BIPA
cases. See, e.g., Sekura, 2015-CH-16694 (in BIPA case, awarding 40% of fund); Zepeda, 2018-
CH-02140 (in BIPA case, awarding 40% of fund); Svagdis, 2017-CH-12566 (same);
7 The one exception is Carroll v. Crème de la Crème, 2017-CH-01624 (Cir. Ct. Cook Cty. June 6, 2018), which produced no monetary recovery for the class and instead provided credit monitoring.
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Zhirovetskiy v. Zayo Group, LLC, 2017-CH-09323 (Cir. Ct. Cook Cty. Apr. 8, 2019) (same);
McGee, 2017-CH-12818 (Cir. Ct. Cook Cty. Aug. 7, 2019) (same); Willis, et al. v. iHeartMedia,
Inc., 2016-CH-02455 (Cir. Ct. Cook Cty. June 24 and Aug. 11, 2016) (awarding 40% of
common fund); see also NEWBERG ON CLASS ACTIONS § 15:83 (5th ed.) (noting that, generally,
“50% of the fund is the upper limit on a reasonable fee award from any common fund”). A
request for 35% of the fund is comfortably in line with other BIPA cases. See Taylor, 2017-CH-
15152 (in BIPA case, awarding 35% of gross payments to class members in fees); Lloyd v.
Xanitos, 2018-CH-15351 (Cir. Ct. Cook Cty. Ill., July 25, 2019) (same); Fluker, 2017-CH-12993
(same); Barnes, 2017-CH-11312 (Cir. Ct. Cook Cty. Nov. 13, 2020) (same); George, et. al. v.
Schulte Hosp. Grp., Inc., 2019-CH-04413 (Cir. Ct. Cook Cty. Dec. 16, 2019) (same).
In addition to falling within the range of typical fee awards, the 35% requested here is
further justified—as explained below—in light of both (1) the considerable risk Class Counsel
undertook in pursuing this litigation on a contingency basis, when every matter under BIPA was
a question of first impression, and (2) the excellent relief Class Counsel ultimately obtained for
the Settlement Class. See Ryan, 274 Ill. App. 3d at 924 (affirming district court’s attorney fee
award due to the “extreme contingency risk” of pursuing the litigation, and the “hard cash
benefit” obtained); cf. Mansfield, Jr. v. Air Line Pilots Ass’n, Int’l, No. 06-cv-6869, dkt. 373 at
7–9 (N.D. Ill. Dec. 14, 2009) (approving 35% of a $44 million common fund and finding 35%
consistent with awards in cases similarly involving a “significant risk” that Class would not
prevail). Critically, the Settlement Fund here is made up of $25 million in non-reversionary cash,
not a claims-made “fund” that may or may not actually be distributed to the class. This means
that, when compared against the Class’s actual recovery, Class Counsel’s request for 35% of that
fund is in fact far less than what numerous finally-approved settlements have ultimately
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awarded—and when far larger fees were requested. See, e.g., Hoormann v. Smithkline Beecham,
No. 04-L-715, 2007 WL 1591510 (Cir. Ct. Madison Cty. May 17, 2007) (awarding nearly $17
million in fees where $63.8 million was set aside to provide reimbursement of out-of-pocket
expenses to claimants who could prove them; $300,000 in cash to other claimants); see Parker v.
Sears, Roebuck & Co, No. 04-L-716, 2008 WL 8772260 (Cir. Ct. Madison Cty. Jan. 15, 2008)
(awarding $17 million in fees in settlement providing free installations to fix faulty stove
brackets to claimants who requested them, or reimbursement of up to $100 in expenses, or a $50
gift card); Sparks v. AT&T Corp., No. 01-L-1668, 2002 WL 34503097 (Cir. Ct. Madison Cty.
Nov. 04, 2002) (awarding $84 million in fees on claims-made settlement of up to $300 million
and $50 million to cy pres). Class Counsel’s choice to request a flat fee of an easily-ascertainable
fund ensures that what is asked for is in fact what they would get: 35% of the cash relief to the
Class.
1. This case presented serious obstacles to recovery, and Class Counsel litigated the case mindful of the possibility that the Class might recover nothing.
Class Counsel took this case on a contingency basis, and for that reason, faced a
substantial risk of recovering nothing. The requested fee, accordingly, appropriately reflects that
risk. See Ryan, 274 Ill. App. at 924. Indeed, even compared to typical contingent fee litigation,
the risks posed in this case were significant: BIPA cases are filled with matters of first
impression, and in cases concerning timeclock vendors, there was no law at all when this case
was filed. See Silverman v. Motorola Sols., Inc., 739 F.3d 956, 958 (7th Cir. 2013) (“Contingent
fees compensate lawyers for the risk of nonpayment. The greater the risk of walking away
empty-handed, the higher the award must be to attract competent and energetic counsel.”).
Aware of these risks but confident in the case’s merits, Class Counsel forged ahead, fronting
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costs and expenses and incurring the opportunity cost of other work despite the considerable risk
of non-recovery.
These consolidated actions were filed against ADP in, effectively, June 2018.8 At that
time, not only was there little binding interpretation of any of BIPA’s provisions, but then-
binding appellate authority held that Plaintiffs and the class should lose outright; they were likely
not “aggrieved” persons under the Second District’s interpretation of BIPA’s damages provision.
See Rosenbach I, 2017 IL App (2d) 170317. While this tide later reversed, Class Counsel took
this case knowing that it was far larger and more complex than most BIPA cases—and
accordingly would require even more resources—and did so on the substantial bet that they
would prevail against existing appellate authority.
Nor was “aggrieved” the only hurdle. When Class Counsel filed their respective cases, no
suits had yet been brought against timeclock vendors like ADP, and no opinions yet existed on
ADP’s argument that it was not subject to BIPA. ADP moved to dismiss in both the Henderson
action (before these matters were consolidated) and in the Bernal action, with this Court ruling
against Plaintiff Bernal and granting ADP’s motion, expressing skepticism that vendors could be
liable at all. (See August 23, 2019 Order.) Some courts have joined that position to some degree,
depending on how the claims are pleaded. Cameron v. Polar Tech Indus., Inc., 2019-CH-000013
(Cir. Ct. DeKalb Cty. Aug. 23, 2019); Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279, 285–86
(N.D. Ill. 2019); Heard v. Becton, Dickinson & Co., No. 19 C 4158, 2020 WL 887460, at *4
(N.D. Ill. Feb. 24, 2020). ADP’s motion to dismiss the consolidated complaint, as Plaintiffs re-
pleaded these claims, has not yet been ruled on by this Court. Again, while Class Counsel were
and are confident in the merits of the case, it is relevant to the analysis that courts—and perhaps even
8 As discussed above, Plaintiff Bernal filed an action against his employer in 2017 and added ADP as a defendant in July 2018.
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this Court—might not have agreed. The result produced here in the face of those risks is even more
remarkable.
Even beyond the issues above, questions remain in BIPA cases: ADP, like nearly every
other BIPA defendant, was expected to argue that it hadn’t collected “fingerprints” or
“handprints” regulated by the statute at all. The question of what data ADP actually collected and
whether it constitutes “biometric identifiers,” or “biometric information” as defined in the
statute, 740 ILCS 14/10, is the subject of dispute in existing BIPA cases and hasn’t yet been
resolved by the courts. Cf. In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD,
2018 WL 2197546, at *2–3 (N.D. Cal. May 14, 2018) (denying motion for summary judgment
on whether facial scans were biometric data regulated by BIPA). Class certification remains
unanswered, as does the Class’s ability to actually recover—post-trial—what would be massive
damages against ADP. See, e.g., Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019)
(statutory award in TCPA class action of $1.6 billion reduced to $32 million). Furthermore, the
attempts to gut BIPA in the legislature have been relentless, and it is not unprecedented for
legislation to be amended while a class action is pending in a way that threatens the Class’s
entire recovery. See Perlin v. Time Inc., 237 F. Supp. 3d 623, 629–30 (E.D. Mich. 2017).
Losses on any of these fronts would decimate the Class’s—and Class Counsel’s—ability
to get paid. In that light, the many risks Class Counsel have faced combine to further support a
finding that the requested attorneys’ fees and expenses here are reasonable. See Ryan, 274 Ill.
App. 3d at 924.
2. Class Counsel achieved an exceptional result for the Class.
When viewed in light of the foregoing risks and this Court’s previous ruling, what Class
Counsel were able to produce here is extraordinary. This Settlement is the largest BIPA
settlement in the employment context by an enormous margin. Claiming Class Members will
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split this $25 million fund, after fees and expenses, evenly—with no reversion going back to
ADP. Class Counsel expects that, even with a relatively high 20% claims rate, claimants will get
a check in the mail for at least $250.
Class Counsel secured this exceptional result by aggressively pursuing ADP and, when it
came time to negotiate, insisting on a strong settlement that would ensure that real monetary
relief went to the class members. Far too often, settlements in privacy cases like this go to cy
pres or produce only injunctive relief. See, e.g., In re Google Referrer Header Privacy Litig., 869
F.3d 737, 740 (9th Cir. 2017), vacated on other grounds by Frank v. Gaos, 139 S. Ct. 1041
(2019) (approving 25% award of attorneys’ fees on cy pres-only fund with not a penny to class
members); In re Google LLC Street View Elec. Commc’ns Litig., No. 10-md-02184-CRB, 2020
WL 1288377, at *11–14 (N.D. Cal. Mar. 18, 2020) (approving, over objections of class members
and state attorney general, a settlement providing only cy pres relief for violations of Electronic
Communications Privacy Act); Adkins v. Facebook, Inc., No. 18-cv-05982-WHA, dkt. 314 (N.D.
Cal. Nov. 15, 2020) (preliminary approval of settlement for injunctive relief only in class action
arising out of Facebook data breach). That’s been the case in BIPA, too. Carroll, 2017-CH-
01624 (approving BIPA settlement for free credit monitoring to class members, but no cash
relief). Class Counsel here, even in the context of a challenging case against ADP, would accept
nothing less than a strong, non-reversionary, cash deal. Recognizing that creating a meaningful
fund was the only way to settle the case, ADP agreed to those terms.
In the BIPA context specifically, extracting monetary relief from a timeclock vendor on
this scale is unprecedented. Prior settlements in the employment context have released the
timeclock vendor alongside the release to the employer, with no separate payment or promise of
injunctive relief—much less produced millions in monetary relief. And at the time this
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Settlement was reached, the only other settlement with a timeclock vendor was Muniz v.
Workwell Technologies, Inc., which was simply a much smaller Class and allowed employers to
join. See 2019-CH-04061 (Cir. Ct. Cook Cty.) (timeclock provider paid substantially entire
insurance policy of $900,000, and employers were permitted to join the Settlement for $1,000
per class member).9 Indeed, even when compared to BIPA settlements which have achieved final
approval, this Settlement favorably compares. See Marshall v. Lifetime Fitness, Inc., 2017-CH-
14262 (Cir. Ct. Cook Cty.) (in case against employer, paying claimants $270 in addition to credit
monitoring); Sekura, 2015-CH-16694 (in case against tanning salon, claimants split $1.5 million
fund for a total of approximately $150 per claimant); Prelipceanu, 2018-CH-15883 (in case
against facial recognition provider, claimants split $7,000,000 fund for approximately $260
each). But critically, in addition to providing a significant sum of money from ADP, the
Settlement leaves in place any claims that the Class might have against their employers.
Plaintiffs have been successful in BIPA cases in obtaining substantial settlements for the
employer liability alone. See, e.g., Fluker, 2017-CH-12993 (settlement of $1,300 per class
member for employer liability only); Goings v. AEP NVH OPCO, LLC d/b/a Applied Acoustics,
et al., 2017-CH-14954 (Cir. Ct. Cook. Cty.) (settlement of $1,200 per class member for
employer liability only). Producing this level of monetary relief for the class, in a case of this
size, is an exceptional outcome.
Additionally, the non-monetary benefits created by a class action settlement are properly
considered for purposes of determining fees. See Hall v. Cole, 412 U.S. 1, 5 n.7 (1973) (noting
9 In a BIPA class action against another timeclock vendor, one of Class Counsel’s firms recently obtained preliminary approval of a $4.1 million settlement for a class of approximately 62,000, along with the assignment of rights to a substantial insurance policy. Thome v. NOVAtime Tech., Inc., No. 19-cv-6256, dkt. 76 (N.D. Ill.).
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that the common fund doctrine “must logically extend, not only to litigation that confers a
monetary benefit on others, but also litigation ‘which corrects or prevents an abuse which would
be prejudicial to the rights and interests’ of those others”). The prospective relief here—that
ADP will maintain a retention policy and notify employers of the BIPA obligation to get consent
for ADP—benefits the Settlement Class by ensuring the privacy interests recognized by the
legislature in passing BIPA will be protected. Thus, awarding Class Counsel a 35% share of the
common fund “equitably compensates counsel for the time, effort, and risks associated with
representing the plaintiff class.” Brundidge, 168 Ill. 2d at 244.
C. The Court Need Not Undertake a Lodestar Crosscheck.
It is settled law in Illinois that the Court need not perform a “crosscheck” of the
percentage of the fund requested against Class Counsel’s lodestar. Shaun Fauley, Sabon, Inc. v.
Metro. Life Ins. Co., 2016 IL App (2d) 150236, ¶ 59. The reason for this is simple: it
reintroduces the same problems that the Illinois Supreme Court decided to avoid by giving courts
the ability to choose percentage-of-the-fund. Brundidge, 168 Ill. 2d at 242–43 (discussing
concerns about lodestar method). Here, the Court would be required to review the hours of
numerous attorneys across three firms, as well as perform the imprecise work of calculating an
appropriate “risk multiplier” in this extraordinarily risky case. See Langendorf v. Irving Trust
Co., 244 Ill. App. 3d 70, 80 (1st Dist. 1992), abrogated on other grounds by 168 Ill. 2d 235.
Moreover, Class Counsel performed a great deal of work creating the result here outside of this
case. Class Counsel Edelson PC dedicated thousands of hours in the legislature in its multi-year
defense of BIPA against the efforts of industry to overturn it, with several of its attorneys
stationed in Springfield for months. Class Counsel also produced this Settlement by hemming
ADP in through other actions in which counsel sought discovery from ADP as a third party,
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which gave Class Counsel more faith in the claims and, one suspects, ADP more pause about
continuing. While Class Counsel can report this time (and request the appropriate risk multiplier
for it), it demonstrates the needless imprecision in the lodestar assessment—exactly why courts
have abandoned the method.
The percentage-of-the-recovery method is superior because it ensures that the incentives
of Class Counsel and the Class are aligned—as evidenced by the outcome here. 5 NEWBERG ON
CLASS ACTIONS § 15:65 (5th ed.) (“Under the percentage method, counsel have an interest in
generating as large a recovery for the class as possible, as their fee increases with the class’s
take. By contrast, when class counsel’s fee is set by an hourly rate, the lawyers have an incentive
to run up as many hours as possible in the litigation so as to ensure a hefty fee, even if the
additional hours are not serving the clients’ interests in any way.”). A review of available final
approval orders suggests that Illinois courts rarely undertake lodestar crosschecks. (See Ex. 2.)
Nor, empirical evidence demonstrates, would the Class have put a lodestar crosscheck into their
agreements if they had gone into the market to find an attorney for their many individual
claims—they would have, as Class Counsel request here, agreed to a flat contingency fee in a
case like this. See Herbert M. Kritzer, RISKS, REPUTATIONS, AND REWARDS 39–40 (2004) (in
large empirical study of contingency fee agreements, finding no client agreed to a crosscheck);
David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, 64 ALA. L.
REV. 335, 360 (2012) (in study of sophisticated entity’s retention of counsel on contingent basis
in patent dispute litigation, no evidence of lodestar crosscheck). The Court should decline a
crosscheck here, as binding appellate authority expressly allows. Shaun Fauley, Sabon, Inc, 2016
IL App (2d) 150236, ¶ 59. Should the Court desire to perform a lodestar crosscheck, Class
Counsel will readily submit their hours for in camera review.
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IV. THE COURT SHOULD APPROVE THE REQUESTED INCENTIVE AWARDS.
The Settlement Agreement also provides for incentive awards of $7,500 each to Plaintiffs
Kusinski, Bernal, and Bryski for serving as class representatives, who prosecuted this action in
their own names despite the risk of retaliation by future employers. Incentive awards are
appropriate in class actions because a representative’s efforts benefit the absent class and
encourage the filing of beneficial litigation. GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill.
App. 3d 486, 497 (1st Dist. 1992).
The willingness of Plaintiffs Kusinski, Bernal, and Bryski was critical to the success of
the case. Their willingness to commit time and effort to this representative litigation produced an
immense benefit to the Class that fully justifies the requested incentive awards. As a monetary
matter, the requested awards are eminently reasonable: each is but a fraction of the amounts
often awarded in comparable class settlements in Illinois and elsewhere. See Theodore Eisenberg
& Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53
UCLA L. Rev. 1303 (2006) (finding that “[t]he average award per class representative was
$15,992”); Ryan, 274 Ill. App. 3d at 917 (noting that the trial court had awarded $10,000
incentive awards to each of two plaintiffs); Spano v. Boeing Co., No. 06-cv-743-NJR-DGW,
2016 WL 3791123, at *4 (S.D. Ill. Mar. 31, 2016) (approving incentive awards of $25,000 and
$10,000 for class representatives). Accordingly, a $7,500 incentive award is reasonable to
compensate each Plaintiff for their time and willingness to step up in this case.
V. CONCLUSION
For the foregoing reasons, Plaintiffs Martin Kusinski, James Bryski and Felipe Bernal
respectfully request that this Court enter an order (1) granting Class Counsel’s request for an
award of attorneys’ fees and expenses in the amount of $8,750,000.00, (2) awarding each
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Plaintiff a $7,500 incentive award; and (3) providing such other and further relief as the Court
deems reasonable and just.
Dated: January 4, 2021 Respectfully submitted,
MARTIN KUSINSKI, JAMES BRYSKI, AND FELIPE BERNAL, individually and on behalf of a class of similarly situated individuals,
By: /s/J. Eli Wade-Scott One of Plaintiffs’ attorneys
Jay Edelson [email protected] J. Eli Wade-Scott [email protected] EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Firm ID: 62075
James B. Zouras [email protected] Ryan F. Stephan [email protected] STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, Illinois 60606 Tel: 312.233.1550 Fax: 312.233.1560 Firm ID: 43734 Myles McGuire [email protected] Evan M. Meyers [email protected] MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, Illinois 60601 Tel: 312.893.7002 Fax: 312.275.7895 Firm ID: 56618
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CERTIFICATE OF SERVICE
I, J. Eli Wade-Scott, an attorney, hereby certify that I served the above and foregoing Plaintiffs’ Motion and Memorandum of Law for Attorneys’ Fees, Expenses, and Incentive Award , by transmitting such document via the Court’s electronic filing system to all counsel of record.
/s/J. Eli Wade-Scott
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Exhibit 1 FILED
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17C
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION
MARTIN KUSINSKI, JAMES BRYSKI, and FELIPE BERNAL, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
ADP, LLC, a Delaware limited liability company,
Defendant.
No. 2017-CH-12364 (consolidated with 2018-CH-07139 and 2019-CH-01612)
Hon. David B. Atkins
STIPULATION OF CLASS ACTION SETTLEMENT
This Stipulation of Class Action Settlement is entered into by and among Plaintiffs
Martin Kusinski, James Bryski, and Felipe Bernal (“Plaintiffs”), for themselves individually and
on behalf of the Settlement Class, and Defendant ADP, LLC (“ADP” or “Defendant”) (Plaintiffs
and ADP are referred to collectively as the “Parties”). This Settlement Agreement is intended by
the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims upon
and subject to the terms and conditions hereof, and subject to the approval of the Court.
RECITALS
A. On September 12, 2017, Plaintiff Bernal filed a putative class action against his
former employer, seeking damages and an injunction under the Illinois Biometric Information
Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”). The claims related to the alleged unauthorized
collection, storage, and use of Plaintiff’s biometric data through the use of finger-scan
timeclocks used by his employer for timekeeping purposes, which were provided to his employer
by ADP. The action was assigned case number 2017-CH-12364 and assigned to Judge David
Atkins’s calendar (the “Bernal action”).
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B. On June 5, 2018, Maurice Henderson and Chiquita Alston filed a putative class
against ADP, seeking damages and an injunction against ADP for violating BIPA by allegedly
collecting and possessing biometric data through the finger-scan and hand-scan timeclocks
deployed at ADP’s clients’ sites (the putative class’s employers) without complying with BIPA’s
requirements. That action was assigned case number 2018-CH-07139, and assigned to Judge
Michael Mullen’s calendar (the “Henderson action”).
C. On July 26, 2018, Plaintiff Bernal amended his complaint to similarly name ADP
and similarly seek to represent a statewide class of individuals against ADP.
D. On September 7, 2018, ADP filed a motion to dismiss in the Henderson action.
ADP then filed a motion to stay on October 30, 2018 pending the Illinois Supreme Court’s ruling
in Rosenbach v. Six Flags Entm’t Co., 2019 IL 123186. The Court granted the motion to stay on
November 13, 2018.
E. The Illinois Supreme Court decided Rosenbach on January 25, 2019. ADP re-
filed a motion to dismiss in the Henderson action on March 21, 2019. The motion was fully
briefed on May 20, 2019 and set for hearing to take place in August 2019 before Judge Mullen.
ADP also filed a motion to dismiss in the Bernal case, which was fully briefed on July 10, 2019.
Judge Atkins granted ADP’s motion to dismiss in the Bernal action in its entirety on August 23,
2019, and granted Bernal leave to file an amended complaint.
F. Meanwhile, Bernal’s counsel moved to consolidate the Bernal and Henderson
actions, among others, on August 22, 2019. The motion was fully briefed and three cases—
Bernal, Henderson, and Zepeda v. ADP, LLC (another putative statewide action against ADP,
filed by Bernal’s counsel)—were consolidated before Judge Atkins.
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G. Following consolidation, the Court, on November 19, 2019, appointed Edelson
PC, James B. Zouras of Stephan Zouras LLP, and McGuire Law, P.C. as interim class counsel.
H. With the actions consolidated, the above-named Plaintiffs filed a consolidated
complaint on February 4, 2020. Amid the COVID-19 pandemic and while most matters were
stayed or suspended, the Parties nevertheless sought to move the case forward by briefing ADP’s
motion to dismiss. ADP moved to dismiss the complaint on April 14, 2020. Plaintiffs filed their
response brief on May 18, 2020.
I. During this period, the Parties began to explore settlement and agreed that a
formal mediation would be productive. The Parties exchanged informal discovery in advance of
the mediation about the estimated size of the putative settlement class and the claims to be
resolved, in addition to the fact that Plaintiffs’ counsel had received relevant discovery in other
cases involving ADP. On June 10, 2020, the Parties engaged in a formal mediation with an
experienced BIPA mediator, Judge Wayne Andersen (Ret.) of JAMS in Chicago.1 That
mediation was not successful, but the Parties agreed that progress could still be made on future
mediation dates. The Parties again engaged in a formal mediation with Judge Andersen on June
16, 2020. An agreement was again not reached. The Parties mediated for a third time on June 23,
2020 with Judge Andersen, and ultimately reached an agreement in principle. The Parties then
mediated for a final time with Judge Andersen on June 29, 2020 to complete negotiations on the
full settlement document.
J. Plaintiffs and Class Counsel conducted a comprehensive examination of the law
and facts relating to the allegations in the Action and Defendant’s potential defenses. Plaintiffs
believe that the claims asserted in the Action have merit, that they would have ultimately
1 Due to COVID-19, the mediation sessions were conducted via videoconference.
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succeeded in obtaining adversarial certification of the proposed Settlement Class, and that they
would have prevailed on the merits at summary judgment or at trial. However, Plaintiffs and
Class Counsel recognize that Defendant has raised factual and legal defenses in the Action that
presented a significant risk that Plaintiffs would not prevail and/or that a class would not be
certified for trial. Class Counsel have also taken into account the uncertain outcome and risks of
any litigation, especially in complex actions, as well as the difficulty and delay inherent in such
litigation. Plaintiffs and Class Counsel believe that this Agreement presents an exceptional result
for the Settlement Class, and one that will be provided to the Settlement Class without delay.
Plaintiffs and Class Counsel are satisfied that the terms and conditions of this Agreement are fair,
reasonable, adequate, and based on good faith negotiations, and in the best interests of Plaintiffs
and the Settlement Class. Therefore, Plaintiffs believe that it is desirable that the Released
Claims be fully and finally compromised, settled, and resolved with prejudice, and forever barred
pursuant to the terms and conditions set forth in this Settlement Agreement.
K. Defendant denies the material allegations in the Action, as well as all allegations
of wrongdoing and liability, including that it is subject to or violated BIPA, and believes that it
would have prevailed on the merits and that a class would not be certified for trial. Nevertheless,
Defendant has similarly concluded that this settlement is desirable to avoid the time, risk, and
expense of defending protracted litigation, and to avoid the risk posed by the Settlement Class’s
claims for liquidated damages under BIPA. ADP thus desires to resolve finally and completely
the pending and potential claims of Plaintiffs and the Settlement Class.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among
Plaintiffs, the Settlement Class, and ADP that, subject to the approval of the Court after a hearing
as provided for in this Settlement Agreement, and in consideration of the benefits flowing to the
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Parties from the Settlement set forth herein, the Released Claims shall be fully and finally
compromised, settled, and released, and the Action shall be dismissed with prejudice, upon and
subject to the terms and conditions set forth in this Settlement Agreement.
AGREEMENT
1. DEFINITIONS
As used herein, in addition to any definitions set forth elsewhere in this Settlement
Agreement, the following terms shall have the meanings set forth below:
1.1 “Action” means the case captioned Kusinski, et al. v. ADP, LLC, 2017-CH-12364
(consolidated with 2018-CH-07139 and 2019-CH-01612) (Cir. Ct. Cook Cty.).
1.2 “ADP” or “Defendant” means ADP, LLC, a Delaware limited liability
corporation.
1.3 “Agreement” or “Settlement Agreement” means this Stipulation of Class
Action Settlement and the attached Exhibits.
1.4 “Approved Claim” means a Claim Form submitted by a Settlement Class
Member that is (a) timely and submitted in accordance with the directions on the Claim Form
and the terms of this Agreement, (b) is fully completed and physically signed or electronically
signed by the Settlement Class Member, and (c) satisfies the conditions of eligibility for a
Settlement Payment as set forth in this Agreement.
1.5 “Claims Deadline” means the date by which all Claim Forms must be
postmarked or submitted on the Settlement Website to be considered timely, and shall be set as a
date no later than sixty-three (63) days following the Notice Date, subject to Court approval. The
Claims Deadline shall be clearly set forth in the Preliminary Approval Order, as well as in the
Notice and the Claim Form.
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1.6 “Claim Form” means the document substantially in the form attached hereto as
Exhibit A, as approved by the Court. The Claim Form, which shall be completed by Settlement
Class Members who wish to file a claim for a Settlement Payment, shall be available in paper
and electronic format. The Claim Form will require claiming Settlement Class Members to
provide the following information: (i) full name, (ii) current U.S. Mail address, (iii) current
contact telephone number and email address, (iv) name of their employer, and (iv) a statement
that he or she scanned their finger or hand on an ADP-branded finger-scan or hand-scan
timeclock in the state of Illinois between June 5, 2013 and the date of the Preliminary Approval
Order. The Claim Form will not require notarization, but will require affirmation that the
information supplied is true and correct.
1.7 “Class Counsel” means attorneys Jay Edelson of Edelson PC, James B. Zouras of
Stephan Zouras LLP, and Myles McGuire of McGuire Law PC.
1.8 “Class Representatives” means the named Plaintiffs in the Action, Martin
Kusinski, James Bryski, and Felipe Bernal.
1.9 “Court” means the Circuit Court of Cook County, Illinois, the Honorable David
B. Atkins presiding, or any judge who shall succeed him as the Judge assigned to the Action.
1.10 “Defendant’s Counsel” or “ADP’s Counsel” means attorneys Ross Bricker,
David Layden, and Precious Jacobs of Jenner & Block LLP.
1.11 “Effective Date” means one business day following the later of: (i) the date upon
which the time expires for filing or noticing any appeal of the Final Approval Order; (ii) if there
is an appeal or appeals, other than an appeal or appeals solely with respect to the Fee Award, the
date of completion, in a manner that finally affirms and leaves in place the Final Approval Order
without any material modification, of all proceedings arising out of the appeal(s) (including, but
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not limited to, the expiration of all deadlines for motions for reconsideration or petitions for
review and/or certiorari, all proceedings ordered on remand, and all proceedings arising out of
any subsequent appeal(s) following decisions on remand); or (iii) the date of final dismissal of
any appeal or the final dismissal of any proceeding on appeal with respect to the Final Approval
Order.
1.12 “Escrow Account” means the separate, interest-bearing escrow account to be
established by the Settlement Administrator under terms acceptable to Class Counsel and
Defendant at a depository institution insured by the Federal Deposit Insurance Corporation. The
money in the Escrow Account shall be invested in the following types of accounts and/or
instruments and no other: (a) demand deposit accounts and/or (b) time deposit accounts and
certificates of deposit, in either case with maturities of forty-five (45) days or less. Any interest
earned on the Escrow Account shall inure to the benefit of the Settlement Class as part of the
Settlement Payment, if practicable. The Settlement Administrator shall be responsible for all tax
filings with respect to the Escrow Account.
1.13 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs
awarded to Class Counsel by the Court to be paid out of the Settlement Fund.
1.14 “Final Approval Hearing” means the hearing before the Court where Plaintiffs
will request that the Final Approval Order be entered by the Court finally approving the
Settlement as fair, reasonable, adequate, and made in good faith, and approving the Fee Award
and the Incentive Award to the Class Representatives. If required by orders of the Court, the
Final Approval Hearing may be held by telephone or videoconference.
1.15 “Final Approval Order” means the final approval order to be entered by the
Court approving the settlement of the Action in accordance with this Settlement Agreement after
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the Final Approval Hearing, and dismissing the Action with prejudice. A proposed version of the
Final Approval Order shall be submitted to the Court in the form attached hereto as Exhibit B.
1.16 “Incentive Award” means the proposed amount of seven thousand five hundred
dollars ($7,500.00) to be paid to each of the Class Representatives in return for the services they
provided to the Settlement Class and to be approved at the Final Approval Hearing.
1.17 “Notice” means the notice of the proposed Settlement and Final Approval
Hearing approved by the Court, which is to be disseminated to the Settlement Class substantially
in the manner set forth in this Settlement Agreement, fulfills the requirements of Due Process
and 735 ILCS 5/2-801 et seq., and is substantially in the form of Exhibits C, D, E, and F attached
hereto.
1.18 “Notice Date” means the date by which the Notice is disseminated to the
Settlement Class, which shall be a date no later than twenty-eight (28) days after entry of the
Preliminary Approval Order.
1.19 “Objection/Exclusion Deadline” means the date by which a written objection to
the Settlement Agreement or a request for exclusion from the Settlement Class submitted by a
person within the Settlement Class must be filed with the Court and/or postmarked or e-mailed
(for exclusion requests), which shall be designated as a date approximately forty-two (42) days
after the Notice Date, as approved by the Court. The Objection/Exclusion Deadline will be set
forth in the Notice and on the Settlement Website.
1.20 “Plaintiffs” means Martin Kusinski, James Bryski, and Felipe Bernal.
1.21 “Preliminary Approval Order” means the Court’s order preliminarily approving
the Agreement, preliminarily certifying the Settlement Class for settlement purposes, and
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approving the form and manner of the Notice. A proposed version of the Preliminary Approval
Order shall be submitted to the Court in the form attached hereto as Exhibit G.
1.22 “Released Claims” means any and all actual, potential, filed, unfiled, known or
unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims,
demands, liabilities, rights, causes of action, damages, punitive, exemplary or multiplied
damages, expenses, costs, attorneys’ fees and/or obligations, whether in law or in equity, accrued
or unaccrued, direct, individual or representative, of every nature and description whatsoever,
whether based on the Illinois Biometric Information Privacy Act or other federal, state, local,
statutory or common law or any other law, against the Released Parties, or any of them, arising
out of or relating to actual or alleged facts, transactions, events, matters, occurrences, acts,
disclosures, statements, representations, omissions or failures to act regarding the collection,
capture, storage, use, profit