IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN … overwhelmingly positive reaction by the...

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DAVID CORNEJO, individually and on behalf of the settlement class, Plaintiff, v. AMCOR RIGID PLASTICS USA, LLC, a Delaware corporation, Defendant.

Case No. 18-cv-07018 Hon. Martha M. Pacold

PLAINTIFF’S MOTION FOR AND MEMORANDUM IN SUPPORT OF

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Case: 1:18-cv-07018 Document #: 52-1 Filed: 08/19/20 Page 2 of 30 PageID #:688

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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................1 II. BACKGROUND ................................................................................................................2 A. Nature of the Litigation .........................................................................................3 B. The Claims ..............................................................................................................4 C. Procedural History .................................................................................................4 III. TERMS OF THE SETTLEMENT AGREEMENT .......................................................5 A. Class Definition ......................................................................................................6 B. Monetary Relief ......................................................................................................6 C. Injunctive and Prospective Relief .........................................................................6 6 D. Attorneys’ Fees and Incentive Award ..................................................................7 E. Release .....................................................................................................................7 IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS .....................................8 V. THE SETTLEMENT WARRANTS FINAL APPROVAL ...........................................9 A. The Class Representative and Class Counsel have Adequately Represented

the Class ................................................................................................................10 B. The Settlement Is the Product of Arm’s-Length, Non-Collusive Negotiations ..........................................................................................................12 C. The Settlement Treats Members of Respective Settlement Classes Equally ..13 D. The Relief Secured for the Settlement Class is Adequate and Warrants Final

Approval ...............................................................................................................14 1. The Relief Provided by the Settlement is Outstanding .........................14 2. The Cost, Risk, and Delay of Further Litigation Compared to the

Settlement’s Benefits Favors Final Approval ........................................16 3. The Method of Distributing Relief to the Settlement Class Members is

Effective and Supports Final Approval .................................................18


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4. The Terms of the Requested Attorneys’ Fees are Reasonable ............19 E. The Remaining Considerations Set Forth by the Seventh Circuit Support

Approval of the Settlement .................................................................................19 1. The Reaction of the Class Favors Approval ..........................................20 2. Experienced Counsel’s Belief that the Settlement is Beneficial to the

Class Weighs in Favor of Final Approval ..............................................20 3. The Settlement Raises No Red Flags ......................................................22 VI. CONCLUSION ................................................................................................................22


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TABLE OF AUTHORITIES United States Supreme Court Cases Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ............................................................................................................8 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ...........................................................................................................13 United States Circuit Court of Appeals Cases Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018) ...........................................................................................17 Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) .............................................................................................22 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) .........................................................................................2, 15 Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014) ...............................................................................................9 Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014) ...............................................................................................9 Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) .............................................................................................10 Uhl v. Thoroughbred Tech. & Telecommunications, Inc., 309 F.3d 978 (7th Cir. 2002) ....................................................................................... 1-2, 9 Wong v. Accretive Health, Inc., 773 F.3d 859 (7th Cir. 2014) ..................................................................................... passim United States District Court Cases Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., No. 07 CV 2898, 2012 WL 651727 (N.D. Ill. Feb. 28 2012) ........................................9, 20 Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240 (N.D. Ill. 2014) .........................................................................................21 Charvat v. Valente, No. 12-CV-05746, 2019 WL 5576932 (N.D. Ill. Oct. 28, 2019) ......................................10


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Gehrich v. Chase Bank USA, N.A., 316 F.R.D. 215 (N.D. Ill. 2016) .........................................................................................12 Goldsmith v. Tech. Sols. Co., No. 92 C 4374, 1995 WL 17009594 (N.D. Ill. Oct. 10, 1995) ..........................................16 Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 6606079 (S.D. Ill. Dec. 16, 2018) ......................................10 In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935 (N.D. Ill. 2011) ..................................................................... 10-11, 14 In re Facebook Privacy Litig., No. 5:10-cv-02389 (N.D. Cal. Dec. 10, 2010) ...................................................................21 In re Facebook Biometric Info. Privacy Litig., 326 F.R.D. 535 (N.D. Cal. 2018) .......................................................................................21 In re Google Buzz Privacy Litig., No. C 10-00672 JW, 2011 WL 7460099 (N.D. Cal. June 2, 2011) ...................................15 In re NCAA Student-Athlete Concussion Injury Litig., 332 F.R.D. 202 (N.D. Ill. 2019) .........................................................................................10 McDaniel v. Qwest Commc’ns Corp., No. CV 05 C 1008, 2011 WL 13257336 (N.D. Ill. Aug. 29, 2011) ..................................20 Pietrzycki v. Heights Tower Serv., Inc., 197 F. Supp. 3d 1007 (N.D. Ill. 2016) ...............................................................................21 Retsky Family Ltd. P'ship v. Price Waterhouse LLP, No. 97 C 7694, 2001 WL 1568856 (N.D. Ill. Dec. 10, 2001) ..................................... 20-21 Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011) .......................................................................8, 16, 20 Schulte v. Fifth Third Bank, No. 09-CV-6655, 2010 WL 8816289 (N.D. Ill. Sept. 10, 2010) .......................................13 Snyder v. Ocwen Loan Servicing, LLC, No. 14 c 8461, 2019 WL 2103379 (N.D. Ill. May 14, 2019) ........................................9, 12


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Illinois Supreme Court Cases Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186 ........................................................................................................2, 11, 21 Illinois Appellate Court Cases Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 ..................................................................................................21 Illinois Circuit Court Cases Aguilar v. Rexnord LLC, No. 2017-CH-14775 (Cir. Ct. Cook Cty.) .........................................................................15 Carroll v. Crème de la Crème, Inc., No. 2017-CH-01624 (Cir. Ct. Cook Cty.) .....................................................................2, 15 Svagdis v. Alro Steel Corp., No. 2017-CH-12566 (Cir. Ct. Cook Cty. Jan. 14, 2019) .............................................15, 19 Zepeda v. Intercontinental Hotels Grp., Inc., No. 2018-CH-02140 (Cir. Ct. Cook Cty. Dec. 5, 2018) ..........................................2, 15, 19 Statutory Provisions 740 ILCS 14 ........................................................................................................................... passim Fed. R. Civ. P. 23 ................................................................................................................... passim Miscellaneous Authority Federal Judicial Center, Judges’ Class Action Notice & Claims Process Checklist & Plain Language Guide,

(2010), available at https://www.fjc.gov/sites/default/files/2012/NotCheck.pdf ................8 Illinois House Transcript, 2008 Reg. Sess. No. 276 ........................................................................3 Manual for Complex Litigation, § 21.61 (4th ed. 2004). .........................................................................................................2 William B. Rubenstein, 4 Newberg on Class Actions § 13:53 ...........................................................................18, 19


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I. INTRODUCTION

In this case arising under the Illinois Biometric Information Privacy Act (“BIPA”),

740 ILCS 14/1 et seq., Plaintiff David Cornejo (“Plaintiff”) has secured excellent relief for a

class of employees (both current and former) of Defendant Amcor Rigid Plastics USA, LLC

(“Amcor”). While the Seventh Circuit has been rightly skeptical of class action settlements

where class members receive little relief, or where a complicated claims process deters would-be

claimants, this Settlement provides exactly the opposite. Each Settlement Class Member will

receive a check in the mail for approximately $810.00, more than 80% of the available damages

for a negligent violation of BIPA.1 Class members will be paid automatically with no claims

process whatsoever. On top of that, Amcor has agreed to prospective relief, including destruction

of all fingerprint data belonging to former employees. In exchange, and unlike in most

settlements, Settlement Class Members are not providing a general release, or even a release of

all BIPA claims. They are solely releasing claims under the subsections of BIPA involving the

unlawful collection and retention of biometric data.

After preliminary approval, notice was disseminated to the Settlement Class in accord

with the Court’s order. That notice reached one hundred percent of the Class Members. No one

has objected or excluded themselves. With that remarkably successful Notice Plan and the

overwhelmingly positive reaction by the Class, Plaintiff now requests final approval of this

Settlement.

Federal Rule of Civil Procedure 23(e) provides that the Court should grant final approval

to a settlement that is “fair, reasonable, and adequate[.]” Fed. R. Civ. P. 23(e)(2); Uhl v.

1 The capitalized terms used here are those used in the Stipulation of Class Action Settlement (the “Settlement”), attached hereto as Exhibit 1. This amount has increased due to lower-than-expected notice costs, discussed below.


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Thoroughbred Tech. & Telecommunications, Inc., 309 F.3d 978, 986 (7th Cir. 2002). According

to the Manual for Complex Litigation, in order to “determine whether a proposed settlement is

fair, reasonable, and adequate, the court must examine whether the interests of the class are

better served by the settlement than by further litigation.” § 21.61 (4th ed. 2004).

Here, the Court should find that the Settlement is lawful, fair, reasonable, and adequate.

Far too many privacy class actions settle without monetary relief to the class and resolve claims

for only cy pres relief. E.g., Lane v. Facebook, Inc., 696 F.3d 811, 820–22 (9th Cir. 2012).

Indeed, even settlements under BIPA have provided zero monetary relief to the class and only

given class members an offer of free credit monitoring. See Carroll v. Crème de la Crème, Inc.,

No. 2017-CH-01624 (Cir. Ct. Cook Cty., Ill. 2018). And those BIPA settlements that have

provided monetary relief generally pale in comparison to the relief secured in this case,

particularly those decided pre-Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186. See, e.g.,

Zepeda v. Intercontinental Hotels Grp., Inc., No. 2018-CH-02140 (Cir. Ct. Cook Cty. Dec. 5,

2018) (providing $500,000 claims-made settlement fund for approximately 1,000-member class).

Here, Class Members will receive real cash relief for only a partial release of their BIPA claims.

Further, without the barrier of a claims process, the Class will receive speedy relief during a time

of economic hardship for many Americans.

For all of these reasons, and as detailed below, this is an exceptional Settlement, and the

Court should grant final approval.

II. BACKGROUND

Though Plaintiff has laid out the background of this case in the earlier settlement papers,


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it is set forth in brief below.2

A. Nature of the Litigation

The Illinois Biometric Information Privacy Act was passed after the bankruptcy of a

company called Pay By Touch, which had partnered with gas stations and grocery stores in

Illinois to install checkout terminals that used fingerprint scanning to authenticate purchases.

When Pay By Touch’s parent company declared bankruptcy at the end of 2007 and began

shopping its Illinois consumers’ fingerprint database as an asset to its creditors, the Illinois

legislature responded to recognize the “very serious need” to protect Illinois citizens’ biometric

information. See Illinois House Transcript, 2008 Reg. Sess. No. 276. Therefore, in 2008, the

Illinois legislature passed BIPA, which makes it unlawful for any private entity to store

consumers’ biometric data unless it first obtains their informed written consent, provides details

related to the data’s purpose and storage, and establishes a publicly available retention and

destruction policy. See id.; 740 ILCS 14/5, 14/15. 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; (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 requires any company in possession of biometric data to establish

2 This background is also discussed in Plaintiff’s Motion for and Memorandum in Support of Preliminary Approval of Class Action Settlement (dkt. 38) and Plaintiff’s Memorandum of Law in Support of Motion for Approval of Attorneys’ Fees, Expenses, and Incentive Award (“Pl.’s Mot. for Award of Attorneys’ Fees, Expenses, and Incentive Award”) (dkt. 51).


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a publicly available retention schedule and guidelines for permanently destroying biometric data.

Id. 14/15(a). It additionally requires companies in possession of biometric data to protect the data

from disclosure, prohibits companies from selling or otherwise profiting from biometric data,

and prohibits the disclosure or dissemination of biometric data, excepting consent or limited

circumstances. Id. 14/15(c)-(e).

If a company fails to comply with BIPA’s provisions, the statute provides for a civil

private right of action allowing consumers to recover $1,000 for negligent violations or $5,000

for willful violations, plus costs and reasonable attorneys’ fees. See 740 ILCS 14/20.

B. The Claims

Plaintiff claims that Amcor used a fingerprint scanning system to regulate and monitor its

employees’ working hours. (Complaint (“Compl.”) ¶ 22.) He alleges that when he first began

working for Amcor, the company required him—and all other new employees—to scan his

fingerprint to enroll him in Amcor’s employee fingerprint database, and subsequently used his

fingerprint in order to “punch” in to or out of work. (Id. ¶¶ 21–22, 28–29.) Although Amcor

reaps a benefit from the decrease in “buddy punching” (one employee clocking in, or out, for

another), Plaintiff alleges that Amcor failed to comply with any one of BIPA’s requirements

when Amcor collected his fingerprints.

C. Procedural History

Plaintiff filed this lawsuit in the Circuit Court of Cook County seeking redress on behalf

of himself and a putative Class of Illinois employees for Defendant’s alleged BIPA violations.

After removing the case to federal court, Defendant moved to dismiss, arguing that Plaintiff

failed to state a claim under BIPA because he did not allege any “actual harm” beyond BIPA’s

explicit prohibitions, and thus he was not a person “aggrieved by a violation of [the] Act.”


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(Dkt. 7.) In the alternative, Defendant sought to stay all proceedings because the Illinois

Supreme Court was soon expected to decide the question at issue—whether a BIPA plaintiff

must allege any “actual harm” or some adverse effect to recover under the statute. In any event,

the Parties fully briefed Defendant’s motion, with Plaintiff vigorously arguing that both the text

and purpose of BIPA establishes that persons “aggrieved” are those who have had their BIPA-

protected privacy rights violated, and such persons need not allege any “actual harm” to state a

claim under the statute. (Dkt. 13.)

After the Illinois Supreme Court issued its decision siding with Plaintiff’s interpretation

of the statute, Judge Kennelly denied Amcor’s motion to dismiss and directed the Parties to

engage in settlement negotiations. (Dkt. 17.) To ensure well-informed negotiations, the Parties

exchanged informal discovery related to the size and composition of the putative Class and the

underlying facts of the case. (Declaration of J. Eli Wade-Scott, (“Wade-Scott Decl.”) attached

hereto as Exhibit 2 ¶ 3.) With that information in hand, and after several months of arm’s-length

negotiations, the Parties ultimately reached an agreement on the principal terms of the Settlement

in late July 2019. (Id.) The Parties then prepared and negotiated the final terms of the Settlement

over the next several months, resulting in the final executed Settlement. (Id.)

Plaintiff then promptly filed a motion for preliminary approval of the Settlement, which

the Court granted on May 21, 2020. (Preliminary Approval Order, dkt. 46.)

III. TERMS OF THE SETTLEMENT AGREEMENT

The terms of the Settlement are set forth in Exhibit 1 and discussed in Plaintiff’s Motion

for and Memorandum in Support of Preliminary Approval of Class Action Settlement (dkt. 38),

and are briefly summarized here:


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

Settlement Class of “all employees or independent contractors of Defendant who used a finger

scanner for timekeeping purposes in the State of Illinois between September 11, 2013 and [May

21, 2020.]” (Preliminary Approval Order ¶ 4.) The Settlement Class contains the usual

exclusions of the Court and Defendant.3 (Id.)

B. Monetary Relief: Each member of the Settlement Class will receive monetary

relief. Defendant has established a Settlement Fund constituting $1,400.00 per class member,

which amounts to $175,000.00 based on the 125 members of the Settlement Class. Those funds

will be distributed pro rata after payment of notice, administrative expenses, and any attorneys’

fees and incentive award approved by the Court. (Settlement § 1.25.) Should the Court approve

Plaintiff’s pending motions, each Settlement Class Member can expect to receive a check for

approximately $810.00.4

C. Injunctive and Prospective Relief: Defendant has agreed to implement

procedures to ensure that it will treat biometric information properly in the future, including by

establishing a written retention policy for collected fingerprint data, obtaining written releases

3 The following are excluded from the Settlement Class: (a) any Judge presiding over this action and members of their families; (b) Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest; (c) persons who properly execute and file a timely request for exclusion from the Settlement Class; (d) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released; and (e) the legal representatives, successors, or assignees of all excluded persons. (Settlement § 1.23.) 4 Now that notice has been completed and the objection/exclusion deadline has closed, notice costs have been finalized at $11,000.00. (Declaration of Scott M. Fenwick (“Fenwick Decl.”), attached hereto as Exhibit 3 ¶ 13.) If the Court approves all of the pending motions, payments to Class Members will be $812.80: the fund amount of $175,000, less Plaintiff’s requested fees of $57,400.00, less notice costs of $11,000.00, and less an incentive award of $5,000.00, is $101,600.00. That amount will be divided equally among the 125 Settlement Class Members.


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from its employees, and making all BIPA-mandated disclosures. (Settlement § 2.2.) Defendant

has further agreed to destroy all fingerprint data of former employees and independent

contractors within its possession. (Id.)

D. Attorneys’ Fees and Incentive Award: Defendant has agreed to pay reasonable

attorneys’ fees in an amount determined by this Court, to be paid from the Settlement Fund.

(Id. § 8.1). Plaintiff’s counsel voluntarily agreed to limit this request to 35% of the Settlement

Fund (Id.) which request they made by subsequent motion, (see Pl.’s Mot. for Award of

Attorneys’ Fees, Expenses, and Incentive Award). Defendant has also agreed to pay Plaintiff an

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

of his efforts in serving as Class Representative. (Settlement § 8.3; see Pl.’s Mot. for Award of

Attorneys’ Fees, Expenses, and Incentive Award.)

E. Release: In exchange for the relief described above, Defendant will receive only a

partial release of its potential BIPA liability. Specifically, Amcor and its agents will be released

only from claims arising from 740 ILCS 14/15(a) and (b)—Defendant’s failure (as alleged in the

Complaint) to provide a retention policy concerning biometric identifiers and/or biometric

information, and Defendant’s alleged failure to obtain informed consent to possess, collect, or

store biometric identifiers and/or biometric information. (Settlement §§ 1.18; 3.1.) The release

does not extend to any other claims, including claims arising from 740 ILCS 14/15(c)-(e) or

arising from the facts underlying those claims (i.e., any sale, lease, trade, or profit by Defendant

from biometric identifiers and/or information; any disclosure, redisclosure, or other

dissemination of biometric identifiers and/or information by Defendant, or Defendant’s

inadequate security practices concerning biometric identifiers and/or information, if any). (Id.

§ 1.18.)


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IV. THE CLASS NOTICE FULLY SATISFIED DUE PROCESS Prior to granting final approval to this Settlement, the Court must consider whether the

class members received “the best notice that is practicable under the circumstances, including

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ.

P. 23(c)(2)(B); accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Schulte v. Fifth

Third Bank, 805 F. Supp. 2d 560, 595 (N.D. Ill. 2011) (“Schulte I”). The “best notice

practicable” does not necessarily require receipt of actual notice by all class members in order to

comport with both Rule 23 and the requirements of due process. In general, a notice plan that

reaches at least 70% of class members is considered reasonable. See Federal Judicial Center,

Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide at 3

(2010), available at www.fjc.gov/sites/default/files/2012/NotCheck.pdf.

The Court-approved Notice Plan here directly reached every class member. The Notice

Plan called for direct notice to all members of the Settlement Class via email or U.S. Mail.

(Preliminary Approval Order ¶ 11; Settlement § 4.1.) Pursuant to the Notice Plan, Amcor

provided Class Counsel and settlement administrator Heffler Claims Group with a list of the 125

members of the Settlement Class, and their email addresses (to the extent available) and/or

mailing addresses. (Fenwick Decl. ¶ 4.) Heffler then sent the Court-approved direct notice to

every single Class Member, without exception. This notice was delivered via email to seventy-

nine (79) Settlement Class Members and via postcard to another forty-six (46) Class Members.

(Id. ¶¶ 7–9.) These summary notices also directed members of the Settlement Class to a

settlement website, www.amcorfingerscan.com, where they could—and are still able to—view

the “long form” notice; access important court filings, including the Motion for Attorneys’ Fees

and Incentive Award; and see deadlines and answers to frequently asked questions. (Id. ¶ 6.)


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Overall, the Notice Plan was extraordinarily successful and well exceeds that required for

due process.

V. THE SETTLEMENT WARRANTS FINAL APPROVAL

When analyzing class action settlements, “the law quite rightly requires more than a

judicial rubber stamp[.]” Redman v. RadioShack Corp., 768 F.3d 622, 629 (7th Cir. 2014). To

that end, the Seventh Circuit has established “the district judge as a fiduciary of the class, who is

subject therefore to the high duty of care that the law requires of fiduciaries.” Pearson v. NBTY,

Inc., 772 F.3d 778, 780 (7th Cir. 2014) (internal quotation marks omitted).

Federal Rule of Civil Procedure 23(e) governs court approval of class action settlements

and mandates that “claims, issues, or defenses of a certified class . . . may be settled . . . only

with the court’s approval . . . after a hearing and only on finding that it is fair, reasonable, and

adequate[.]” Fed. R. Civ. P. 23(e); Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., No. 07 CV

2898, 2012 WL 651727, at *1 (N.D. Ill. Feb. 28 2012); Uhl, 309 F.3d at 986. Rule 23(e)(2) sets

out that a court must consider whether (1) the class representative and class counsel have

adequately represented the class; (2) the settlement was negotiated at arm’s length; (3) the

settlement treats class members equitably relative to each other; and (4) the relief provided for

the class is adequate. Fed. R. Civ. P. 23(e)(2) (eff. Dec. 1, 2018); see, e.g., Snyder v. Ocwen

Loan Servicing, LLC, No. 14 c 8461, 2019 WL 2103379, at *4 (N.D. Ill. May 14, 2019).

As the Advisory Committee for the 2018 amendments to Rule 23 recognized that “each

circuit has developed its own vocabulary for expressing these concerns[,]” the Court should also

take into account the factors set out by the Seventh Circuit. These factors are: “(1) the strength of

the case for plaintiffs on the merits, balanced against the extent of settlement offer; (2) the

complexity, length, and expense of further litigation; (3) the amount of opposition to the


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settlement; (4) the reaction of members of the class to the settlement; (5) the opinion of

competent counsel; and (6) stage of the proceedings and the amount of discovery completed.”

Wong v. Accretive Health, Inc., 773 F.3d 859, 863 (7th Cir. 2014); accord Synfuel Techs., Inc. v.

DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006). Courts in the Seventh Circuit

continue to analyze these factors in tandem with the Rule 23(e)(2) factors to ensure that a

settlement is fair, reasonable, and adequate. See, e.g., In re NCAA Student-Athlete Concussion

Injury Litig., 332 F.R.D. 202, 217 (N.D. Ill. 2019); Charvat v. Valente, No. 12-CV-05746, 2019

WL 5576932, at *5 (N.D. Ill. Oct. 28, 2019); Hale v. State Farm Mut. Auto. Ins. Co., No. 12-

0660-DRH, 2018 WL 6606079, at *2 (S.D. Ill. Dec. 16, 2018).

The following discussion of the factors set out in Rule 23(e)(2) and their corresponding

factors set out by the Seventh Circuit demonstrates that the Settlement is fair, reasonable,

adequate, and deserving of final approval.

A. The Class Representative and Class Counsel have Adequately Represented the Class.

The first Rule 23(e)(2) factor, whether the class representative and class counsel have

adequately represented the class, focuses on class counsel’s and the class representative’s

performance as it relates to the “conduct of the litigation and of the negotiations leading up to the

proposed settlement.” Fed. R. Civ. P. 23(e), Advisory Committee’s Note to 2018 Amendment.

This factor is generally satisfied where the named plaintiff participated in the case diligently, and

class counsel fought vigorously in the litigation. Snyder, 2018 WL 4659274, at *3. In

considering this factor, courts are to examine whether the plaintiff and class counsel had

adequate information to negotiate a class-wide settlement, taking into account the nature and

amount of discovery completed, whether formally or informally. Id. at *4; see also In re AT & T

Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 966 (N.D. Ill. 2011) (St.


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Eve, J.) (approving settlement where the parties had not conducted any formal discovery but

engaged in considerable informal discovery). This inquiry is coextensive with the Seventh

Circuit’s direction to consider the “stage of the proceedings and the amount of discovery

completed.” See Wong, 773 F.3d at 863.

The knowledge and negotiating position, vigor, participation, and conduct of the Class

Representative and Class Counsel have not changed since this Court granted preliminary

approval. (Dkt. 46.) Plaintiff Cornejo’s interests have remained aligned with the Class through

the Notice Process and preparation for Final Approval. Without Mr. Cornejo stepping up to

represent the class and taking on these tasks as the lead plaintiff—particularly in the far more

uncertain legal environment pre-Rosenbach—the relief secured for the Settlement Class

wouldn’t have been possible. Given his efforts and aligned interest with the class, there can be no

doubt that Mr. Cornejo has only acted in the best interest of the Settlement Class and has

adequately represented them.

Likewise, Class Counsel worked vigorously to protect the interests of the Class and

ensure that the Class was represented beyond the simple “adequate measure.” First, the

considerable amount of investigation and informal discovery completed by Plaintiff’s counsel

ensured that they had adequate information to assess the strength of the case and engage in

settlement discussions and Class Counsel has done so since the outset of the case. Settlement

Class Counsel has conducted substantial investigation and informal discovery into the

technology used by Defendant to allegedly collect fingerprints of the Class. (Wade-Scott Decl. ¶

4.) The facts underlying Plaintiff’s allegations in this case—though by no means their legal

import—are now substantially undisputed: Defendant used a biometric time clock with a finger

scanner to verify its employees’ identities without complying with BIPA. Furthermore, the


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Parties conducted informal discovery concerning the composition of the class. (Id. ¶ 3.) This

combination of investigation and informal discovery has amounted to a clarity of issues in the

case that is sufficient for the Parties to assess their negotiating positions (based upon the

litigation to date, the anticipated outcomes of fact and expert discovery, and additional motion

practice) and evaluate the appropriateness of any proposed resolutions.

It bears mention that the relief here is in the same range as the relief available at trial,

even though the case is at a relatively early stage. See infra § V.D. The fact that the Class will

not take a substantial discount by virtue of an early resolution also weighs in favor of approval.

See Gehrich v. Chase Bank USA, N.A., 316 F.R.D. 215, 230 (N.D. Ill. 2016) (“[E]xtensive

formal discovery would entail substantial cost and might not have placed the parties in a

materially better position than they are now to determine an appropriate settlement value.”).

Therefore, the Settlement unequivocally meets this 23(e)(2)(C) requirement.

B. The Settlement Is the Product of Arm’s-Length, Non-Collusive Negotiations

For the requirements of the second factor in Rule 23(e)(2), a proposed settlement is fair

and reasonable when it is the result of arm’s-length negotiations. See Wong, 773 F.3d at 864. As

set out in earlier sections, the Parties took several months to reach agreement on the terms of this

Settlement and did so only when directed by Judge Kennelly and after receipt of informal

discovery. (Dkt. 17.) The arm’s-length nature of these negotiations is further confirmed by the

Settlement itself: it is non-reversionary, provides significant cash payments to Settlement Class

Members, and contains no provisions that might suggest fraud or collusion, such as “clear

sailing” or “kicker” clauses regarding attorneys’ fees. See Snyder, 2019 WL 2103379, at *4

(approving settlement where “there is no provision for reversion of unclaimed amounts, no clear

sailing clause regarding attorneys’ fees, and none of the other types of settlement terms that

sometimes suggest something other than an arm’s length negotiation”). For these reasons, there


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should be no question that the Settlement here was the result of good-faith, arm’s-length

negotiations and is entirely free from fraud or collusion. See Schulte v. Fifth Third Bank, No. 09-

CV-6655, 2010 WL 8816289, at *4 n.5 (N.D. Ill. Sept. 10, 2010) (noting that courts “presume

the absence of fraud or collusion in negotiating the settlement, unless evidence to the contrary is

offered”) (internal quotation marks omitted).

C. The Settlement Treats Members of Respective Settlement Classes Equally.

Next, Rule 23(e)(2) requires the proposed settlement to treat class members “equitably

relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). Given that the Settlement Class here has

nearly identical BIPA claims, the Settlement treats each of them identically. Defendant will

contribute $1,400.00 per member of the Settlement Class to the Settlement Fund, from which

each Settlement Class Member will receive a single, pro rata cash payment of approximately

$750. (Settlement §§ 1.25, 1.26, 2.1); see Ortiz v. Fibreboard Corp., 527 U.S. 815, 855 (1999)

(where class members are similarly situated with similar claims, equitable treatment is “assured

by straightforward pro rata distribution of the limited fund”).

As demonstrated by the 100% direct notice rate, every Settlement Class Member will

receive a check because there is no claims process. The prospective relief under this Settlement

also treats Settlement Class Members identically as Amcor has agreed to destroy each Settlement

Class Member’s biometric data. (Settlement § 2.2.) Further, in terms of the release, each

Settlement Class Member will be releasing the same BIPA claims against Amcor, only under

740 ILCS 14/15(a) and (b), while preserving their claims under 740 ILCS 14/15(c)-(e). (Id. §§

1.18; 3.1.) Because the Settlement treats each member of the Settlement Class equally, this factor

is well satisfied.


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D. The Relief Secured for the Settlement Class is Adequate and Warrants Final Approval.

The final and most important factor under Rule 23(e)(2) examines whether the relief

provided for the class is adequate. Fed. R. Civ. P. 23(e)(2)(C). In making this determination,

Rule 23 instructs courts to take into account several sub-factors, including (i) the cost, risks, and

delay of trial and appeal; (ii) the effectiveness of the proposed method of distributing relief to the

class; and (iii) the terms of any proposed award of attorneys’ fees, including timing of payment;.

Id.5 This analysis necessarily encompasses two of the Seventh Circuit’s factors: “(1) the strength

of the case for plaintiffs on the merits, balanced against the extent of settlement offer; (2) the

complexity, length, and expense of further litigation.” Wong, 773 F.3d at 863. Because the first

Seventh Circuit factor “[is the] most important factor relevant to the fairness of a class action

settlement[,]” it is critically important for a settlement to meet this standard. In re AT & T

Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d at 958 (internal quotations

omitted). This Settlement does so.

1. The Relief Provided by the Settlement is Outstanding.

The benefits of this Settlement represent an excellent recovery for the class and simply

dwarf other class action settlements, including those under BIPA. Defendant has created a fund

amounting to $1,400 per Settlement Class Member, which will provide approximately $810 in

cash relief to every single class member. At trial, Settlement Class Members theoretically stood

to recover statutory damages of $1,000 for a negligent violation of the statute or $5,000 for an

intentional or reckless violation. 740 ILCS 14/20.

5 The fourth sub-factor, which requires the parties to identify any side agreements made in connection with the settlement, Fed. R. Civ. P. 23(e)(2)(C)(iv), is not applicable here as the written Settlement Agreement provided to the Court represents the entirety of the proposed Settlement. (Wade-Scott Decl. ¶ 5.)


15

Settlements in other statutory privacy class actions don’t come near this amount, either in

terms of raw numbers or percentage of available relief. Such settlements all too often secure cy

pres relief without any individual payments to class members. See, e.g., Lane, 696 F.3d at 820–

22 (affirming $9.5 million cy pres payment as sole monetary relief in case where statutory

damages of up to $10,000 per claim were available in class of millions); In re Google Buzz

Privacy Litig., No. C 10-00672 JW, 2011 WL 7460099, at *3–5 (N.D. Cal. June 2, 2011)

(approving $8.5 million cy pres payment as sole monetary relief in case where statutory damages

of up to $10,000 per claim were available to a class of millions). This has been true in finally-

approved settlements in the BIPA context as well, where some settlements have provided only

credit monitoring and no monetary relief for the class. See Carroll, No. 2017-CH-01624.

Even narrowing the comparison to the handful of BIPA settlements in which class

members actually received monetary relief, this Settlement’s Fund represents the some of the

largest per-class member relief in a BIPA case. While the other BIPA settlements were a good

result for those classes, they pale in comparison to this Settlement, not only because the relief

achieved was much smaller, but also because they required a claims process, meaning that only a

fraction of the class received payments. See Aguilar v. Rexnord LLC, No. 2017-CH-14775 (Cir.

Ct. Cook Cty.) (providing $341,000 claims-made settlement fund for approximately 341-member

class); Zepeda, No. 2018-CH-02140 (providing $500,000 claims-made settlement fund for

approximately 1,000-member class); Svagdis v. Alro Steel Corp., No. 2017-CH-12566 (Cir. Ct.

Cook Cty. Jan. 14, 2019) (providing $300,000 claims-made settlement fund for approximately

250-member class). Here, everyone in the class will automatically receive payment.

Aside from the monetary relief, the non-monetary benefits created by the Settlement are

significant. Defendant has agreed to destroy former employees’ biometric data and implement


16

policies. This prospective relief will ensure that Defendant’s past, current, and future employees

and independent contractors are protected as the legislature intended.

2. The Cost, Risk, and Delay of Further Litigation Compared to the Settlement’s Benefits Favors Final Approval.

“As courts recognize, a dollar obtained in settlement today is worth more than a dollar

obtained after a trial and appeals years later.” Goldsmith v. Tech. Sols. Co., No. 92 C 4374, 1995

WL 17009594, at *4 (N.D. Ill. Oct. 10, 1995). In evaluating the adequacy of the relief provided

to the class, courts should first compare the cost, risks, and delay of pursing a litigated outcome

to the settlement’s immediate benefits. Fed. R. Civ. P. 23(e)(2), Advisory Committee’s Note to

2018 amendment.

The Settlement here meets both the 23(e)(2)(C) requirements and the Seventh Circuit’s

first and second factors because it provides immediate relief to the settlement class while

avoiding potentially years of litigation and appeals, with both Plaintiff and Defendant believing

that they have strong cases for their side. See Schulte I, 805 F. Supp. 2d at 586 (“Settlement

allows the class to avoid the inherent risk, complexity, time, and cost associated with continued

litigation.”). Here, continued litigation would have caused great delay and expense, without any

guarantee of a recovery for the Class. The Settlement allows the Class to avoid that risk, and this

factor thus strongly weighs in favor of approval.

Defendant had a number of defenses and arguments it intended to raise to defeat

Plaintiff’s and the Class’s claims to relief. First, like nearly every other BIPA defendant, Amcor

was expected to contend that it neither captured nor stored employees’ fingerprints. Plaintiff also

anticipated that Amcor would deny that it failed to inform employees of the extent of its

purposes for collecting fingerprints and argue that it did provide employees with publicly

available retention and destruction policies. Plaintiff intended to disprove these factual


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arguments at trial, and is confident he could have done so, but the Settlement provides excellent

relief to the Class without the delay necessitated by briefing and a trial on these questions, and

without the inherent risk of presenting such a matter to a jury.

Plaintiff would also be required to use significant resources to litigate the issue of class

certification adversarially. As the Advisory Committee notes to amended Rule 23(e) suggest that

courts should consider the likelihood of certifying a class for litigation in evaluating this sub-

factor, the issue of litigating class certification is a salient one. While Plaintiff believes that he

would ultimately prevail on certification issues, given Defendant’s uniform conduct, class

certification is still a significant hurdle and presents a risk to any class recovery. Were

adversarial class certification to be granted, the possibility of an interlocutory appeal would still

risk causing significant delay to any recovery. Cf. Beaton v. SpeedyPC Software, 907 F.3d 1018

(7th Cir. 2018), cert. denied 139 S. Ct. 1465 (2019) (affirming class certification on interlocutory

appeal in case filed five years earlier).

Even if Plaintiff had succeeded at summary judgment and/or trial, Plaintiff recognizes

that Defendant would have the ability to appeal the merits of any adverse decision on the myriad

issues of first impression posed by BIPA cases. Ultimately, failure at any one of these points

could strip Plaintiff and the Class of most or all recovery, making further litigation a risky

endeavor. While Plaintiff does not believe that any of the arguments above are viable, he

recognizes that, to his knowledge, no BIPA case has ever been tried. This Settlement factors in

that uncertainty, as well as the delays that would necessarily accompany briefing the arguments

before this Court and the Seventh Circuit.

Finally, there is no guarantee that the Settlement Class would receive any benefit from

protracted litigation. Protracted litigation is costly and time consuming, and it is possible that it


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“would provide [Settlement] Class Members with either no in-court recovery or some recovery

many years from now . . .” In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 789 F.

Supp. at 964. This Settlement provides immediate and guaranteed relief to Settlement Class

Members and a prompt end to Defendant’s misconduct, without the risk of protracted litigation.

Thus, given the substantial risks, expense, and delay that would accompany further litigation,

and in comparison to other BIPA class action settlements, the Settlement offers substantial value

relative to the strength of Plaintiff’s case. The most important factor therefore strongly supports

final approval.

3. The Method of Distributing Relief to the Settlement Class Members is Effective and Supports Final Approval.

The “effectiveness of [the]…method of distributing relief to the class” weighs strongly in

favor of the adequacy of this Settlement under Rule 23(e)(2)(C)(ii) and the first Seventh Circuit

factor. An effective distribution method “get[s] as much of the available damages remedy to

class members as possible and in as simple and expedient a manner as possible.” William B.

Rubenstein, 4 Newberg on Class Actions § 13:53. This Settlement is one of the few privacy

settlements to provide relief directly to Class Members without the need to submit a claim form,

meaning every Settlement Class Member will receive payment. Of course, settlements that

establish a fund and require a claim form are not necessarily bad. They’re the norm because, in

most cases, defendants simply don’t have enough information about class members to avoid it.

But here, Settlement Class Members used to work for Defendant, so direct contact information is

readily available. Avoiding the claims process ensures that every Settlement Class Member will

get paid, and that less of the Settlement Fund will be spent on administrative overhead. It is an

enormous benefit to the class and fully satisfies this consideration under Rule 23(e)(2)(C)(ii).


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4. The Terms of the Requested Attorneys’ Fees are Reasonable.

The third and final relevant sub-factor considers the adequacy of the relief provided to the

class taking into account “the terms of [the] proposed award of attorney’s fees, including timing

of payment[.]” Fed. R. Civ. P. 23(e)(2)(C)(iii).

Class Counsel has petitioned the Court for an award of reasonable attorneys’ fees after

the Settlement Class has received notice of the Settlement. (Dkt. 51.) The Settlement’s

contemplated method of calculating attorneys’ fees (i.e., the percentage-of-the-fund method) and

its limit on attorneys’ fees (i.e., no more than 35% of the non-reversionary Settlement Fund) are

reasonable and predicated on the outstanding relief provided to the Settlement Class. To be sure,

the percentage-of-the-fund method has been used to determine a reasonable fee award in every

BIPA class action settlement creating a common fund to date, and a 35% award falls comfortably

within the range of typical fee awards in these cases. See, e.g., Zepeda, No. 2018-CH-02140

(awarding 40% of fund); Svagdis, No. 2017-CH-12566 (awarding 40% of fund); see also

Newberg On Class Actions § 15:83 (noting that, generally, “50% of the fund is the upper limit on

a reasonable fee award from any common fund”). Accordingly, that the Settlement permits the

Court to award 35% of the fund in attorneys’ fees is more than appropriate. Finally, if approved,

the Settlement provides that attorneys’ fees will be paid within six business day after final

judgment, including any appeals. (Settlement §§ 1.8, 8.2.) These terms are reasonable and should

be approved.

E. The Remaining Considerations Set Forth by the Seventh Circuit Support Approval of the Settlement.

In addition to the requirements that overlap with those now required by Rule 23(e), the

Seventh Circuit requires consideration of a few additional matters: the class’s reaction to the

settlement, the opinion of competent counsel, and whether the settlement raises any red flags that


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courts should be wary of. Wong, 773 F.3d at 863. Here, the positive reaction of the Class, the

support of counsel, and the lack of red flags all favor approval.

1. The Reaction of the Class Favors Approval.

Lack of opposition to a class action settlement “indicates that the class members consider

the settlement to be in their best interest.” Am. Int’l Grp., Inc., 2012 WL 651727, at *6. Here, the

Court-approved Settlement Administrator diligently implemented the Notice Plan, and the

objection and exclusion deadlines have passed without a single person objecting to the

Settlement or opting out of participating. That not one person has objected to or requested to be

excluded from the Settlement is powerful evidence of the Class’s support for the Settlement. See

McDaniel v. Qwest Commc’ns Corp., No. CV 05 C 1008, 2011 WL 13257336, at *4 (N.D. Ill.

Aug. 29, 2011) (finally approving settlement with no objections and noting that “[a]n absence of

objection is a ‘rare phenomenon[]’ and ‘indicates the appropriateness of the request[]’”)

(citations omitted); see also Retsky Family Ltd. P'ship v. Price Waterhouse LLP, No. 97 C 7694,

2001 WL 1568856, at *3 (N.D. Ill. Dec. 10, 2001) (stating that “[t]he absence of objection to a

proposed class settlement is evidence that the settlement is fair, reasonable and adequate”). This

factors thus strongly supports granting final approval to the Settlement.

2. Experienced Counsel’s Belief that the Settlement is Beneficial to the Class Weighs in Favor of Final Approval.

The opinion of competent counsel also supports final approval of the Settlement. Where

class counsel has “extensive experience in consumer class actions and complex litigation[,]”

their “belie[f] that the settlement is beneficial to the Class” supports approval of the settlement.

Schulte I, 805 F. Supp. 2d at 586; see also Retsky Family Ltd. P’ship, 2001 WL 1568856, at *3

(finding plaintiff’s counsel competent, and their endorsement of a settlement thus supporting

approval, where counsel were “experienced and skilled practitioners in the [relevant] field, and


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[were] responsible for significant settlements as well as legal decisions that enable litigation such

as this to be successfully prosecuted”).

Courts in this District have routinely found that the attorneys at Edelson PC and the Fish

Law Firm are qualified class counsel. See, e.g., Birchmeier v. Caribbean Cruise Line, Inc., 302

F.R.D. 240, 252 (N.D. Ill. 2014) (appointing Edelson PC as class counsel in adversarial class

certification); see also, e.g., Pietrzycki v. Heights Tower Serv., Inc., 197 F. Supp. 3d 1007, 1019

(N.D. Ill. 2016) (appointing David Fish class counsel after noting his “litigation experience in

labor/employment cases as well as class actions[,]” as well as his and his firm’s diligence). Class

Counsel are competent to give their opinion on this Settlement in particular because they are

well-versed in the facts of this litigation and have been recognized as “pioneers in the electronic

privacy class action field, having litigated some of the largest consumer class actions in the

country on this issue.” In re Facebook Privacy Litig., No. 5:10-cv-02389, dkt. 69 at 5 (N.D. Cal.

Dec. 10, 2010). Class Counsel are also leaders in litigation under BIPA, specifically. See, e.g., In

re Facebook Biometric Info. Privacy Litig., 326 F.R.D. 535 (N.D. Cal. 2018), aff'd 932 F.3d

1264 (9th Cir. 2019); Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶ 72

(pre-Rosenbach case setting out that plaintiffs did not need to allege additional harms under

BIPA). Thus, they are more than competent to provide their opinion on the strength of the

Settlement.

Put simply, and for the reasons discussed in detail above, Class Counsel believe that the

Settlement provides outstanding monetary and prospective relief without the uncertainty and

delay that years of litigation would bring and in exchange for only a limited release. (Wade-Scott

Decl. ¶ 6.) That certainly in the best interests of the Settlement Class. (Id.)

For these reasons, the opinion of Class Counsel weighs in favor of final approval.


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3. The Settlement Raises No Red Flags.

Finally, the Settlement raises none of the red flags identified by the Seventh Circuit in

analyzing class settlements. In Eubank v. Pella Corp., the Seventh Circuit identified “almost

every danger sign in a class action settlement that our court and other courts have warned district

judges to be on the lookout for[.]” 753 F.3d 718, 728 (7th Cir. 2014). Those signs included (i) a

single class containing two adverse subgroups, (ii) a family relationship between class counsel

and the class representative, (iii) failure to establish the amount of class member recovery, (iv)

the reversion of any unawarded attorneys’ fees to defendant, (v) an advance of attorneys’ fees

before notice of the settlement was provided to class members, (vi) a provision in the settlement

agreement denying incentive awards to class representatives who objected to the settlement, (vii)

the provision to some class members of only coupons, and (viii) a complicated claims procedure

creating substantial obstacles to recovery. (Id. at 721-28).

Here, none of those red flags are present. There are no subgroups to this class and no

familial relationship between the Parties and the Settlement Class Members. Any unawarded

attorneys’ fees will be distributed to Settlement Class Members, not revert to Amcor (Settlement

§ 8.1); there has been no advance of attorneys’ fees to class counsel; and there is no provision in

the Settlement Agreement denying an incentive award to a named plaintiff who does not support

the Settlement.

The Settlement here is beneficial to Settlement Class Members and displays no warning

signs that should give this Court pause. The Settlement should therefore be approved.

VI. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court enter an order

finally approving the Parties’ Settlement and ordering such other relief as this Court deems

reasonable and just.


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Respectfully submitted,

DAVID CORNEJO, individually and on behalf of the Settlement Class,

Dated: August 19, 2020 By: /s/ J. Eli Wade-Scott One of Plaintiff’s attorneys

Jay Edelson [email protected] Ari J. Scharg [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 David J. Fish [email protected] THE FISH LAW FIRM 200 East 5th Avenue, Suite 123 Naperville, Illinois 60563 Tel: 630.355.7590

Settlement Class Counsel


Exhibit 1


David CornejoDavid Cornejo

12/14/2019

12/16/2019

J. Eli Wade-Scott

Associate


•

•

•

•

•

•


Exhibit 2


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DAVID CORNEJO, individually and on behalf of all others similarly situated, Plaintiff, v. AMCOR RIGID PLASTICS USA, LLC, a Delaware limited liability company.

Defendant.

Case No.: 18-cv-07018 Hon. Martha M. Pacold

DECLARATION OF J. ELI WADE-SCOTT

IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Pursuant to 28 U.S.C. § 1746, I hereby declare and state as follows:

1. I am an attorney admitted to practice before the Supreme Court of the State of

Illinois and the Northern District of Illinois, and am a member of this Court’s trial bar. I am over

the age of eighteen years old. I am entering this Declaration in support of Plaintiff’s Motion for

and Memorandum in Support of Final Approval of Class Action Settlement. This Declaration is

based upon my personal knowledge except where expressly noted otherwise. If called upon to

testify to the matters stated herein, I could and would competently do so.

2. After Plaintiff Cornejo filed this action in September 2018, Defendant removed to

this Court, the Parties fully briefed a motion to dismiss, and the Court ruled in Plaintiff’s favor,

the Parties began to negotiate a resolution of this action when the Court ordered Plaintiff to

tender a settlement demand.

3. The Settlement before the Court was reached through arm’s-length negotiations

and without collusion. To ensure well informed negotiations, the Parties first exchanged informal


discovery related to the size and composition of the putative class and the underlying facts of the

case. With that information in hand, and after several months of arm’s-length negotiations, the

Parties reached an agreement on the principal terms of the Settlement in late July 2019. It then

took the Parties several more months and considerable negotiation to reach the detailed terms of

the finally executed Settlement Agreement.

4. We have devoted substantial resources to prosecuting this action, including

investigating Amcor Rigid Plastics USA, LLC (“Amcor”), the technology that Amcor allegedly

used to collect Plaintiff’s and the Class’s biometric data, and the proposed Settlement Class’s

claims. Proposed Class Counsel also engaged in months’-long negotiations with Amcor to reach

the Settlement before the Court today. Proposed Class Counsel vigorously represented Plaintiff

and the proposed Settlement Class throughout the case’s pendency.

5. The written Settlement Agreement provided to the Court represents the entirety of

the Parties’ proposed Settlement.

6. Class Counsel believes that the Settlement is in the best interests of the Settlement

Class. For the reasons discussed in Plaintiff’s motion, the Settlement provides outstanding

monetary and prospective relief without the uncertainty and delay that years of litigation would

bring, and in exchange for only a limited release.

* * *

I declare under penalty of the perjury that the foregoing is true and correct.

Executed this 19th day of August, 2020 at Chicago, Illinois.

/s/ J. Eli Wade-Scott J. Eli Wade-Scott


Exhibit 3


1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS – EASTERN DIVISION

DAVID CORNEJO, individually, and on behalf of all others similarly situated;

Plaintiff,

v.

AMCOR RIGID PLASTICS USA, LLC, a Delaware limited liability company.

Defendant.

Case No. 18-CV-07018 The Honorable Martha M. Pacold

DECLARATION OF SCOTT M. FENWICK. OF HEFFLER CLAIMS GROUP REGARDING CLASS NOTICE PLAN

I, Scott M. Fenwick hereby declare:

1. I am the Chief of Operations for Heffler Claims Group (“Heffler”) in Philadelphia,

Pennsylvania. I am over 21 years of age and am authorized to make this declaration on behalf of

Heffler and myself. The following statements are based on my personal knowledge and

information provided by other experienced Heffler employees working under my supervision.

This declaration is being filed in support of final approval.

2. Heffler has extensive experience in class action matters, having provided services

in class action settlements involving antitrust, securities fraud, employment and labor, consumer,

and government enforcement matters. Heffler has provided notification and/or claims

administration services in more than 2,500 cases.

3. Heffler has provided a full complement of applicable services for the Settlement,

including: (a) receive and analyze the Class List; (b) establishing a post office box for the receipt


2

of mail; (c) creating a website with online claim filing capabilities; (d) preparing and sending email

Notice; (e) preparing and sending mailed Notice; (f); receive and processed mail; and (g) such

other tasks as counsel for the Parties or the Court orders Heffler to perform.

4. Class List: On January 31, 2020, Heffler was provided the Class List of 125

individuals that contains a combination of names, employment information, email addresses and/or

mailing addresses. All 125 records had a mailing address and 102 of the 125 records contained an

email address (23 records had a mailing address only).

5. On May 27, 2020, Heffler obtained a post office box with the mailing address

Cornejo v Amcor Rigid Plastics LLC, c/o Administrator, P.O. Box 34334, Philadelphia, PA 19101-

4334 in order to receive requests for exclusion, objections, and correspondence from Class

Members.

6. On or about May 29, 2020, Heffler activated the Settlement Website

www.amcorfingerscan.com. The Website contains a summary of the Settlement, frequently asked

questions, information on the exclusion/objection deadlines and applicable documents including:

the Complaint, the Settlement Agreement, the Motion for Preliminary Approval, the Preliminary

Approval Order, the Long Form Notice and the Attorneys’ Fees Petition. As of August 17, 2020,

the Website has had 109 visits with a total number of 195 pages visited.

7. Email Notice: In preparation for the email notices, Heffler worked with the parties

to finalize the language for the email Notice. After the email Notice was approved by the parties,

on June 18, 2020, pursuant to the terms of the Settlement, Heffler emailed the Notice to the 102

members for whom it received email addresses.

8. Of the 102 emails sent, 23 of the emails were rejected or bounced.


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9. Mailed Notice: In preparation for the mailed Notice, Heffler worked with the

Parties to finalize the language for the mailed Notice. After the Notice content and layout was

approved, on June 18, 2020, Heffler mailed the Notice to the 23 Class Members for whom it had

not received an email address. In addition, Heffler mailed the Notice to the 23 Class Members

who were sent Notice via email, but the email was rejected or bounced. In total, Heffler mailed

46 Notices.

10. As of August 17, 2020, Heffler has received no Notices returned as undeliverable-

as-addressed by the United States Postal Service.

11. As of August 17, 2020, Heffler received a total of three (3) pieces of email/web

correspondence. All correspondence has been reviewed and responded to accordingly.

12. The deadline for exclusions and objections was August 13, 2020 (postmarked or

received). Heffler has not received any exclusions or objections as of August 17, 2020.

13. The fees and costs to administer the Settlement are $11,000

I certify the foregoing statements are true and correct under penalty of perjury under the

laws of the United States of America. Executed this 19th day of August 2020, in Woodbury,

Minnesota.

Scott M. Fenwick


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