Preview
Hearing Date: No hearing scheduled
Location: <>
Judge: Calendar, 15
FILED
2/28/2024 9:45 PM
IRIS Y. MARTINEZ
CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
2018CH11423
Calendar, 15
26609177
EXHIBIT 1
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
MARTINIQUE OWENS and AMELIA
GARCIA, individually and on behalf of all
others similarly situated,
Case No.: 2018-CH-11423
Plaintiffs,
Calendar 15
v.
Hon. Anna M. Loftus
WENDY’S INTERNATIONAL, LLC, an Ohio
limited liability company,
Defendant.
CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement (“Settlement Agreement”) is entered into by and
among Plaintiffs Martinique Owens (“Owens”) and Amelia Garcia (“Garcia”) (collectively,
“Plaintiffs”), for themselves individually and on behalf of the Settlement Class and Defendant
Wendy’s International, LLC (“Wendy’s” or “Defendant”) (each Plaintiff and Wendy’s are referred
to individually as a “Party” and collectively referred to as the “Parties.”). This Settlement
Agreement is intended by the Parties to fully, finally, and forever resolve, discharge, and settle the
Released Claims (as defined below), upon and subject to the terms and conditions of this
Settlement Agreement, and is subject to the final approval of the Court.
RECITALS
A. On September 11, 2018, Plaintiffs Martinique Owens and Amelia Garcia filed a
putative class action complaint against Defendant Wendy’s in the Circuit Court of Cook County,
Illinois. In their complaint, Plaintiffs alleged that Wendy’s (Plaintiffs’ former employer) collected
and stored their fingerprints without their consent in violation of the Biometric Information Privacy
Act, 740 ILCS 14/1 et seq. (“BIPA” or “Privacy Act”), and sought statutory damages and
injunctive relief.
B. On November 19, 2018, Wendy’s moved to stay proceedings pending the Illinois
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. While
the motion was pending, Plaintiffs served a set of interrogatories and requests for production to
former Respondent in Discovery NCR Corporation (“NCR”) on December 10, 2018. After
briefing, the Court granted Wendy’s motion to stay. The stay continued until the Supreme Court
decided Rosenbach on January 25, 2019.
C. After the stay was lifted, NCR responded to Plaintiffs’ discovery requests on March
15, 2019 and produced responsive documents shortly thereafter.
D. On March 5, 2019, Wendy’s moved to dismiss pursuant to 735 ILCS 5/2-619,
arguing that Plaintiffs’ Privacy Act claims accrued on the first collection, were time-barred by the
one-year privacy statute of limitations or the two-year personal injury and statutory penalty statutes
of limitations (735 ILCS 5/13-201, 202), and that their statutory damages claims were preempted
by the exclusive remedy provisions of the Illinois Worker’s Compensation Act (“WCA”) (820
ILCS 305/5(a), 11). Plaintiffs opposed, arguing that the WCA did not preempt their statutory
damages claims and that the five-year “catch-all” statute of limitations applied to Privacy Act
claims (735 ILCS 5/13-205).
E. On June 8, 2020, the Court denied Wendy’s motion to dismiss, finding that the
Privacy Act was not preempted by the WCA, and that Plaintiffs’ claims were subject to a five-year
statute of limitations. The Court did not address Wendy’s argument that Plaintiffs’ claims accrued
and the statute of limitations began to run on the “first collection.”
F. On September 4, 2020, Wendy’s moved to stay discovery pending the Illinois
Appellate Court’s decisions in McDonald v. Symphony Bronzeville, No. 1-19-2398, Tims v. Black
2
Horse Carriers, Inc., No. 1-20-0563, and Marion v. Ring Container Tech., LLC, No. 3-20-0184.
The Court granted Wendy’s motion and stayed discovery through January 20, 2021.
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
G. Then, on September 24, 2020, Wendy’s filed a Motion to Reconsider, to
Supplement its Motion to Dismiss, or to Certify for Interlocutory Appeal. The motion argued inter
alia that the Privacy Act is arbitrary, unconstitutional “special legislation” in violation of Article
IV, Section 13 of the Illinois Constitution. After full briefing, the Court denied Wendy’s motion
on January 20, 2021. The Court further ordered Wendy’s to answer Plaintiffs’ complaint by
February 24, 2021.
H. Wendy’s answered the complaint on February 24, 2021, and asserted seventeen
affirmative defenses, to which Plaintiffs replied on March 16, 2021.
I. On March 10, 2021, Wendy’s moved to extend the existing stay of discovery
pending decisions in Tims and Marion, and to extend the stay pending the Illinois Supreme Court’s
decision in McDonald. The Court granted the motion and later entered a subsequent order
extending the stay pending the Illinois Supreme Court’s decision in Cothron v. White Castle
System, Inc., No. 128004.
J. In the interim, the Parties began discussing the possibility of settlement, and agreed
that a mediation would aid settlement discussions. As part of these discussions, Wendy’s
represented that the class consisted of approximately 15,055 individuals.
K. On April 25, 2023, the Parties participated in a mediation with the Honorable James
F. Holderman (Ret.) of JAMS, which lasted almost thirteen hours. With the assistance of Judge
Holderman, the Parties ultimately reached agreement on key material terms of a class-wide
settlement at the end of the session and executed a binding Memorandum of Understanding
(“MOU”) memorializing these terms that evening is attached as Exhibit A. To the extent there is
3
any discrepancy between the language of the MOU and this Settlement Agreement, the Settlement
Agreement controls.
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
L. 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 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
significant risk that Plaintiffs may not prevail and/or that a class might 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, 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 barred pursuant to the terms and conditions
set forth in this Settlement Agreement.
M. 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 the Privacy Act, and believes
that it would have prevailed on the merits and that a class would not be certified for trial.
Accordingly, any references to alleged Privacy Act violations in this Agreement, any settlement
document, or the related Court hearings and processes will raise no inference with respect to
4
Defendant’s compliance or its business practices. Nevertheless, Defendant has similarly concluded
that this settlement is desirable to avoid the time, risk, inconvenience, burden, and expense of
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
defending protracted litigation, and to avoid the risk posed by the Settlement Class’s claims for
statutory damages under the Privacy Act. Defendant 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 Defendant that, subject to Court approval after a hearing as
provided for in this Settlement Agreement, and in consideration of the benefits flowing to the
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
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 Martinique Owens and Amelia Garcia v.
Wendy’s International, LLC, No. 2018-CH-11423 (Cir. Ct. Cook Cty. Ill.).
1.2 “Agreement” or “Settlement” or “Settlement Agreement” means this Class
Action Settlement Agreement and the attached exhibits.
1.3 “Class Counsel” means attorneys Jay Edelson, J. Eli Wade-Scott, and Schuyler
Ufkes of Edelson PC and David Fish and Mara Baltabols of Fish Potter Bolaños, P.C.
1.4 “Class Representatives” or “Plaintiffs” means the named Plaintiffs in the Action,
Martinique Owens and Amelia Garcia.
5
1.5 “Court” means the Circuit Court of Cook County, Illinois, the Honorable Anna M.
Loftus presiding, or any judge who shall succeed her as the Judge assigned to the Action.
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
1.6 “Defendant” or “Wendy’s” means Wendy’s International, LLC, an Ohio Limited
Liability Company.
1.7 “Defendant’s Counsel” means attorney Anne E. Larson of Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.
1.8 “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 or
incentive awards, 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 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 certiorari with
respect to the Final Approval Order.
1.9 “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 that
will constitute a court-approved Qualified Settlement Fund (QSF) for federal tax purposes
pursuant to Treas. Reg. § 1.468B-1. 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
6
(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
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
shall be responsible for all tax filings with respect to the Escrow Account.
1.10 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs
awarded to Class Counsel by the Court to be paid from the Settlement Fund.
1.11 “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, and adequate, and deciding the Fee Award and the incentive awards to the
Class Representatives.
1.12 “Final Approval Order” means the final judgment and approval order to be
entered by the Court approving the settlement of the Action in accordance with this Settlement
Agreement after the Final Approval Hearing and dismissing the Action with prejudice.
1.13 “Notice” means the notice of the proposed Settlement and Final Approval Hearing,
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 B and C attached hereto.
1.14 “Notice Date” means the date by which the Notice is first disseminated to the
Settlement Class, which shall be forty-two (42) days after entry of the Preliminary Approval Order
(that is, fourteen (14) days after Defendant delivers the Class List to the Settlement Administrator).
1.15 “Objection Deadline” means the date by which a written objection to the
Settlement Agreement by a Class Member must be filed with the Court and postmarked or e-
mailed to Class Counsel and the Settlement Administrator, which shall be designated as a date
sixty-three (63) days after the Notice Date, as approved by the Court. The Objection Deadline will
7
be set forth in the Notice, the Preliminary Approval Order, and on the Settlement Website.
1.16 “Exclusion Deadline” means the date by which a request for exclusion submitted
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
by a person within the Settlement Class must be postmarked or emailed the Settlement
Administrator, which shall be designated as a date sixty-three (63) days after the Notice Date, as
approved by the Court. The Exclusion Deadline will be set forth in the Notice, the Preliminary
Approval Order, and on the Settlement Website.
1.17 “Plaintiffs” means Martinique Owens and Amelia Garcia.
1.18 “Preliminary Approval Order” means the Court’s order preliminarily approving
the Agreement, appointing Class Counsel and the Class Representatives, certifying the Settlement
Class for settlement purposes, and approving the form, substance, and manner of the Notice.
1.19 “Released Claims” means any and all claims or causes of action for actual
damages, liquidated damages, penalties, injunctive relief, declaratory relief, attorneys’ fees and
costs, expenses and interest, liabilities, demands or lawsuits against the Released Parties under the
Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”), whether known or unknown,
whether legal, statutory, equitable or of any other type or form, and whether brought in an
individual, representative or any other capacity, of every nature and description whatsoever that
were or could have been brought in any of the actions filed (or to be filed) by Plaintiffs and the
Settlement Class Members, accrued through the date of Preliminary Approval. “Released Claims”
includes all BIPA claims of any nature whatsoever, whether known or unknown.
1.20 “Released Parties” means Defendant and its current and former affiliates, parents,
subsidiaries, related entities, joint venturers, predecessors, successors and assigns, and the past and
present owners, members, shareholders, officers, directors, trustees, managers, employees, agents,
insurers, reinsurers and retrocessionaires, and attorneys of these entities, their employee benefit
8
plans and the sponsors, fiduciaries and administrators of said employee benefit plans. “Released
Parties” shall not include NCR Corporation, and its parents and subsidiaries, or any of Defendant’s
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
franchisees.
1.21 “Releasing Parties” means Plaintiffs and each Settlement Class Member and their
respective present or past heirs, executors, estates, administrators, assigns and agents.
1.22 “Settlement Administration Expenses” means all expenses reasonably incurred
by the Settlement Administrator in or relating to administering the Settlement, providing Notice,
creating and maintaining the Settlement Website, disbursing Settlement Payments by mail and
electronic means, related tax expenses, fees of the escrow agent, and other such related expenses,
with all such expenses to be paid from the Settlement Fund.
1.23 “Settlement Administrator” means Simpluris, Inc., subject to approval of the
Court, which will provide the Notice, create and maintain the Settlement Website, put reasonable
anti-fraud measures in place to prevent theft of Settlement Class Members’ Settlement Payments
via, inter alia, the Settlement Website’s change of contact information and election of electronic
payment features, send Settlement Payments to Settlement Class Members, be responsible for tax
withholding and reporting, and perform such other settlement administration matters set forth
herein or contemplated by the Settlement. The Released Parties shall have no liability whatsoever
for the distribution of the Settlement Fund or the determination, calculation, or payment of any
claim, for website set up, maintenance and compliance, for the payment or withholding of taxes
(including interest and penalties) owed by the Settlement Fund, for any losses incurred in
connection with Settlement Administration, or for any other acts, omissions or nonperformance of
the Settlement Administrator.
1.24 “Settlement Class” means all individuals who worked or are currently working
9
for Defendant in the State of Illinois who scanned their finger at a Wendy’s corporate-operated
restaurant in Illinois between September 11, 2013 and the date of Preliminary Approval Order.
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
Excluded from the Settlement Class are (1) any Judge or Magistrate presiding over this action and
members of their families, (2) Defendant, Defendant’s subsidiaries, parent companies, successors,
predecessors, and any entity in which Defendant or its parents have a controlling interest, (3)
persons who properly execute and submit a timely request for exclusion from the Settlement Class,
(4) persons for whom Defendant’s records reflect an executed consent form related to biometrics
prior to their first use of Defendant’s PointOfSale (POS) system, (5) the legal representatives,
successors or assigns of any such excluded persons and (6) Defendant’s employees who executed
a general release of all claims against the Released Parties in prior settlement agreements.
1.25 “Settlement Class Member” or “Class Member” means a person who falls within
the definition of the Settlement Class and who does not submit a timely and valid request for
exclusion from the Settlement Class.
1.26 “Settlement Fund” means the non-reversionary cash fund that shall be established
by Defendant, subject to potential adjustments in Section 7.2, in the amount of Fourteen Million
Nine Hundred Four Thousand Four Hundred Fifty Dollars ($14,904,450.00) to be deposited into
the Escrow Account, plus all interest earned thereon. Within twenty-one (21) days after entry of
the Preliminary Approval Order, Defendant shall deposit $100,000 for initial Settlement
Administration Expenses into the Escrow Account, provided the Settlement Administrator has
supplied Defendant with the wire and other information needed to transmit said funds to the
Escrow Account. Within thirty (30) days after the entry of the Final Approval Order, Defendant
and/or its insurers shall transmit the remaining balance of the Settlement Fund less the amounts
already transferred and any adjustments per Section 7.2, to the Escrow Account. The total
10
Settlement Fund represents the total monetary obligations of Defendant and any other Released
Party under this Settlement Agreement, including the Settlement Payments, Settlement
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
Administration Expenses, Fee Award, litigation costs, incentive awards, taxes, and any other
payments or other monetary obligations contemplated by this Agreement. The Settlement Fund
shall be kept in the Escrow Account with permissions granted to the Settlement Administrator to
access said funds until such time as the above-listed payments are made. If the settlement is not
approved because the Court fails to enter the Final Approval Order or the Final Approval Order is
reversed on appeal, the Settlement Administrator shall promptly return to Defendant and its
insurers (the “Payors”) the respective amounts paid by each Payor into the Settlement Fund, plus
the pro rata interest earned on those specific sums, less certain Settlement Administrative
Expenses (i.e., set up and notice). In no other event shall any amount paid by or on behalf of
Defendant into the Escrow Account, or any interest earned thereon, revert to Defendant or any
other Released Party.
1.27 “Settlement Payment” means a pro rata portion of the Settlement Fund less any
applicable tax withholdings, Settlement Administration Expenses, incentive awards to the Class
Representatives, and Fee Award.
1.28 “Settlement Website” means the website to be created, launched, and maintained
by the Settlement Administrator, which will allow class members to elect to receive their Settlement
Payment through Venmo, Zelle, or check in the mail and will provide access to relevant settlement
administration documents, including the Notice, relevant case documents, and other related
material. The Settlement Administrator shall put in place reasonable anti-fraud measures to protect
electronic payments from being improperly directed. The URL of the Settlement Website shall be
www.WENBIPASettlement.com, or such other URL to which the Parties may subsequently agree.
11
2. SETTLEMENT RELIEF
2.1 Settlement Payments to Settlement Class Members.
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
a. Within twenty-eight (28) days of the Effective Date, or such other date as
the Court may set, the Settlement Administrator shall send Settlement Payments from the
Settlement Fund by check or electronic deposit, as elected by the Class Member, along
with an accompanying Form 1099, if legally required. No claims procedure will be
required.
b. Class Members will have the option of having their Settlement Payment
transmitted to them through Venmo, Zelle, or check. Class Members who do not choose a
payment method via the Settlement Website by seventy (70) days after the Notice Date
will be sent a check via First Class U.S. Mail to their last-known mailing address, as
updated through the National Change of Address database if necessary by the Settlement
Administrator.
c. Each payment issued to a Class Member by check will state on the face of
the check that it will become null and void unless cashed within one hundred twenty (120)
calendar days after the date of issuance.
d. In the event that an electronic deposit to a Class Member is unable to be
processed, the Settlement Administrator shall attempt to contact the Class Member via the
email provided by the Class Member, if applicable, within thirty (30) calendar days to
correct the problem.
e. To the extent that a check issued to a Settlement Class Member is not cashed
within one twenty eighty (120) days after the date of issuance or an electronic deposit is
unable to be processed within one hundred twenty (120) days of the first attempt, the Parties
12
will recommend to the Court that such funds be deemed abandoned and turned over to the
Unclaimed Property Division of the Illinois Treasurer’s Office, subject to approval by the
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
Court. If approved, the Settlement Administrator shall identify to the Illinois Treasurer’s
Office each Class Member who abandoned their Settlement Payment and the amount each
Class Member abandoned. If the Court does not approve distributing the residual funds to
the Unclaimed Property Division, the Parties will negotiate to arrive at a different approach
to submit to the Court, and if the Parties cannot agree, the Parties will submit their positions
to the Court for determination.
f. If the settlement is not approved because the Court fails to enter the Final
Approval Order or the Final Approval Order is reversed on appeal, the Settlement
Administrator shall promptly return to the Payors the respective amounts paid by each
Payor into the Settlement Fund, plus the pro rata interest earned on those specific sums,
less Settlement Administrative Expenses already incurred. In no other event shall any
amount paid by or on behalf of Defendant into the Escrow Account, or any interest earned
thereon, revert to Defendant or any other Released Party.
2.2 Prospective Relief.
a. Without admitting any liability or that it was required by law to do so,
Defendant acknowledges that as a direct result of this Action, it has ceased use of its finger-
scanning technology in Illinois. Further without admitting liability, or agreeing that the
Privacy Act requires the following steps, and further expressly maintaining its position that
the Privacy Act does not cover finger-scanning technology as it was used by
Defendant, Defendant agrees that if it decides in the future to use finger-scanning
technology in Illinois, Defendant shall obtain informed written consent prior to collecting
13
finger-scan data, create a publicly-available retention schedule, and destroy finger-scan
data consistent with its retention schedule. If any of the informed-consent, retention
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
schedule, or destruction requirements in the Privacy Act (or their application to finger-
scanning technology) are altered, amended, or withdrawn either by legislative, regulatory,
or judicial action, Defendant’s obligations shall be automatically so amended.
3. RELEASE
3.1 The Release. Upon the Effective Date, and in consideration of the settlement relief
and other consideration described herein, the Releasing Parties, and each of them, shall be deemed
to have released, and by operation of the Final Approval Order shall have, fully, finally, and
forever, released, acquitted, relinquished and completely discharged all Released Claims against
each and every one of the Released Parties.
4. NOTICE TO THE CLASS
4.1 The Notice shall include:
a. Class List. Defendant shall provide the Settlement Administrator with a list
of all names, social security or tax identification numbers, personal phone numbers (if
maintained in the Company’s HRIS database) and last-known U.S. mail addresses of all
persons in the Settlement Class (the “Class List”) twenty-eight (28) days after entry of the
Preliminary Approval Order or as soon as practicable thereafter. Within two (2) business
days after the Class List is provided to the Settlement Administrator, the Settlement
Administrator shall provide Class Counsel a report detailing the total number of unique
names on the Class List, the number of unique names for whom an address is available on
the Class List, the number of unique names for whom a phone number is available on the
Class List, the number of unique names for whom no address or phone number is available
14
on the Class List, and the total number of social security or tax identification numbers
available on the Class List. The Settlement Administrator shall keep the Class List and all
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
personal information obtained therefrom including the identity, social security or tax
identification numbers, mailing addresses, and phone numbers of all persons strictly
confidential. The Class List may not be used by the Settlement Administrator or Class
Counsel for any purpose other than advising specific individual Settlement Class members
of their rights under this Settlement Agreement, distributing Settlement Payments,
complying with applicable tax obligations, and otherwise effectuating the terms of the
Settlement Agreement or the duties arising thereunder, including the provision of Notice
of the Settlement.
b. Update Addresses. Prior to mailing any Notice, the Settlement
Administrator will update the U.S. Mail addresses of persons on the Class List using the
National Change of Address database and other available resources deemed suitable by the
Settlement Administrator. The Settlement Administrator shall take all reasonable steps to
obtain the correct mailing address of any Settlement Class members for whom Notice is
returned by the U.S. Postal Service as undeliverable and shall attempt re-mailings as
described below in Section 5.1.
c. Direct Notice. No later than the Notice Date, the Settlement Administrator
shall send Notice via First Class U.S. Mail, substantially in the form of Exhibit B, to the
physical address of each person in the Settlement Class for whom an address is available
in the Class List as updated through the National Change of Address database if necessary
by the Settlement Administrator.
15
d. Internet Notice. Within fourteen (14) days after the entry of the Preliminary
Approval Order, the Settlement Administrator will develop, host, administer, and maintain
FILED DATE: 2/28/2024 9:45 PM 2018CH11423
the Settlement Website, containing the notice substantially in the form of Exhibit C.
4.2 The Notice shall advise the Settlement Class of their rights under the Settlement
Agreement, including the right to be excluded from or object to the Settlement Agreement or its
terms, and the deadline for each. The Notice shall specify that any objection to this Settlement
Agreement, and any papers submitted in support of an objection, shall be received by the Court at
the Final Approval Hearing, only if, on or before the ObjectionDeadline approved by the Court
and specified in the Notice, the person making an objection shall file notice of his or her intention
to do so and at the same time (a) file copies of such papers he or she proposes to submit at the
Final Approval Hearing with the Clerk of the Court, (b) file copies of such papers through the
Court’s eFileIL system if the objection is from a Settlement Class Member represented by counsel,
who must also file an appearance, and (c) send copies of such papers via e-mail, U.S. mail, hand,
or overnight delivery service to Class Counsel.
4.3 Right to Object or Comment. Any Settlement Class Member who intends to
object to this Settlement Agreement mus
Preview
Hearing Date: No hearing scheduled Location: <> Judge: Calendar, 15 FILED 2/28/2024 9:45 PM IRIS Y. MARTINEZ CIRCUIT CLERK COOK COUNTY, IL FILED DATE: 2/28/2024 9:45 PM 2018CH11423 2018CH11423 Calendar, 15 26609177 EXHIBIT 1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION FILED DATE: 2/28/2024 9:45 PM 2018CH11423 MARTINIQUE OWENS and AMELIA GARCIA, individually and on behalf of all others similarly situated, Case No.: 2018-CH-11423 Plaintiffs, Calendar 15 v. Hon. Anna M. Loftus WENDY’S INTERNATIONAL, LLC, an Ohio limited liability company, Defendant. CLASS ACTION SETTLEMENT AGREEMENT This Class Action Settlement Agreement (“Settlement Agreement”) is entered into by and among Plaintiffs Martinique Owens (“Owens”) and Amelia Garcia (“Garcia”) (collectively, “Plaintiffs”), for themselves individually and on behalf of the Settlement Class and Defendant Wendy’s International, LLC (“Wendy’s” or “Defendant”) (each Plaintiff and Wendy’s are referred to individually as a “Party” and collectively referred to as the “Parties.”). This Settlement Agreement is intended by the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims (as defined below), upon and subject to the terms and conditions of this Settlement Agreement, and is subject to the final approval of the Court. RECITALS A. On September 11, 2018, Plaintiffs Martinique Owens and Amelia Garcia filed a putative class action complaint against Defendant Wendy’s in the Circuit Court of Cook County, Illinois. In their complaint, Plaintiffs alleged that Wendy’s (Plaintiffs’ former employer) collected and stored their fingerprints without their consent in violation of the Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA” or “Privacy Act”), and sought statutory damages and injunctive relief. B. On November 19, 2018, Wendy’s moved to stay proceedings pending the Illinois FILED DATE: 2/28/2024 9:45 PM 2018CH11423 Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. While the motion was pending, Plaintiffs served a set of interrogatories and requests for production to former Respondent in Discovery NCR Corporation (“NCR”) on December 10, 2018. After briefing, the Court granted Wendy’s motion to stay. The stay continued until the Supreme Court decided Rosenbach on January 25, 2019. C. After the stay was lifted, NCR responded to Plaintiffs’ discovery requests on March 15, 2019 and produced responsive documents shortly thereafter. D. On March 5, 2019, Wendy’s moved to dismiss pursuant to 735 ILCS 5/2-619, arguing that Plaintiffs’ Privacy Act claims accrued on the first collection, were time-barred by the one-year privacy statute of limitations or the two-year personal injury and statutory penalty statutes of limitations (735 ILCS 5/13-201, 202), and that their statutory damages claims were preempted by the exclusive remedy provisions of the Illinois Worker’s Compensation Act (“WCA”) (820 ILCS 305/5(a), 11). Plaintiffs opposed, arguing that the WCA did not preempt their statutory damages claims and that the five-year “catch-all” statute of limitations applied to Privacy Act claims (735 ILCS 5/13-205). E. On June 8, 2020, the Court denied Wendy’s motion to dismiss, finding that the Privacy Act was not preempted by the WCA, and that Plaintiffs’ claims were subject to a five-year statute of limitations. The Court did not address Wendy’s argument that Plaintiffs’ claims accrued and the statute of limitations began to run on the “first collection.” F. On September 4, 2020, Wendy’s moved to stay discovery pending the Illinois Appellate Court’s decisions in McDonald v. Symphony Bronzeville, No. 1-19-2398, Tims v. Black 2 Horse Carriers, Inc., No. 1-20-0563, and Marion v. Ring Container Tech., LLC, No. 3-20-0184. The Court granted Wendy’s motion and stayed discovery through January 20, 2021. FILED DATE: 2/28/2024 9:45 PM 2018CH11423 G. Then, on September 24, 2020, Wendy’s filed a Motion to Reconsider, to Supplement its Motion to Dismiss, or to Certify for Interlocutory Appeal. The motion argued inter alia that the Privacy Act is arbitrary, unconstitutional “special legislation” in violation of Article IV, Section 13 of the Illinois Constitution. After full briefing, the Court denied Wendy’s motion on January 20, 2021. The Court further ordered Wendy’s to answer Plaintiffs’ complaint by February 24, 2021. H. Wendy’s answered the complaint on February 24, 2021, and asserted seventeen affirmative defenses, to which Plaintiffs replied on March 16, 2021. I. On March 10, 2021, Wendy’s moved to extend the existing stay of discovery pending decisions in Tims and Marion, and to extend the stay pending the Illinois Supreme Court’s decision in McDonald. The Court granted the motion and later entered a subsequent order extending the stay pending the Illinois Supreme Court’s decision in Cothron v. White Castle System, Inc., No. 128004. J. In the interim, the Parties began discussing the possibility of settlement, and agreed that a mediation would aid settlement discussions. As part of these discussions, Wendy’s represented that the class consisted of approximately 15,055 individuals. K. On April 25, 2023, the Parties participated in a mediation with the Honorable James F. Holderman (Ret.) of JAMS, which lasted almost thirteen hours. With the assistance of Judge Holderman, the Parties ultimately reached agreement on key material terms of a class-wide settlement at the end of the session and executed a binding Memorandum of Understanding (“MOU”) memorializing these terms that evening is attached as Exhibit A. To the extent there is 3 any discrepancy between the language of the MOU and this Settlement Agreement, the Settlement Agreement controls. FILED DATE: 2/28/2024 9:45 PM 2018CH11423 L. 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 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 significant risk that Plaintiffs may not prevail and/or that a class might 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, 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 barred pursuant to the terms and conditions set forth in this Settlement Agreement. M. 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 the Privacy Act, and believes that it would have prevailed on the merits and that a class would not be certified for trial. Accordingly, any references to alleged Privacy Act violations in this Agreement, any settlement document, or the related Court hearings and processes will raise no inference with respect to 4 Defendant’s compliance or its business practices. Nevertheless, Defendant has similarly concluded that this settlement is desirable to avoid the time, risk, inconvenience, burden, and expense of FILED DATE: 2/28/2024 9:45 PM 2018CH11423 defending protracted litigation, and to avoid the risk posed by the Settlement Class’s claims for statutory damages under the Privacy Act. Defendant 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 Defendant that, subject to Court approval after a hearing as provided for in this Settlement Agreement, and in consideration of the benefits flowing to the 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 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 Martinique Owens and Amelia Garcia v. Wendy’s International, LLC, No. 2018-CH-11423 (Cir. Ct. Cook Cty. Ill.). 1.2 “Agreement” or “Settlement” or “Settlement Agreement” means this Class Action Settlement Agreement and the attached exhibits. 1.3 “Class Counsel” means attorneys Jay Edelson, J. Eli Wade-Scott, and Schuyler Ufkes of Edelson PC and David Fish and Mara Baltabols of Fish Potter Bolaños, P.C. 1.4 “Class Representatives” or “Plaintiffs” means the named Plaintiffs in the Action, Martinique Owens and Amelia Garcia. 5 1.5 “Court” means the Circuit Court of Cook County, Illinois, the Honorable Anna M. Loftus presiding, or any judge who shall succeed her as the Judge assigned to the Action. FILED DATE: 2/28/2024 9:45 PM 2018CH11423 1.6 “Defendant” or “Wendy’s” means Wendy’s International, LLC, an Ohio Limited Liability Company. 1.7 “Defendant’s Counsel” means attorney Anne E. Larson of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1.8 “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 or incentive awards, 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 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 certiorari with respect to the Final Approval Order. 1.9 “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 that will constitute a court-approved Qualified Settlement Fund (QSF) for federal tax purposes pursuant to Treas. Reg. § 1.468B-1. 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 6 (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 FILED DATE: 2/28/2024 9:45 PM 2018CH11423 shall be responsible for all tax filings with respect to the Escrow Account. 1.10 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs awarded to Class Counsel by the Court to be paid from the Settlement Fund. 1.11 “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, and adequate, and deciding the Fee Award and the incentive awards to the Class Representatives. 1.12 “Final Approval Order” means the final judgment and approval order to be entered by the Court approving the settlement of the Action in accordance with this Settlement Agreement after the Final Approval Hearing and dismissing the Action with prejudice. 1.13 “Notice” means the notice of the proposed Settlement and Final Approval Hearing, 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 B and C attached hereto. 1.14 “Notice Date” means the date by which the Notice is first disseminated to the Settlement Class, which shall be forty-two (42) days after entry of the Preliminary Approval Order (that is, fourteen (14) days after Defendant delivers the Class List to the Settlement Administrator). 1.15 “Objection Deadline” means the date by which a written objection to the Settlement Agreement by a Class Member must be filed with the Court and postmarked or e- mailed to Class Counsel and the Settlement Administrator, which shall be designated as a date sixty-three (63) days after the Notice Date, as approved by the Court. The Objection Deadline will 7 be set forth in the Notice, the Preliminary Approval Order, and on the Settlement Website. 1.16 “Exclusion Deadline” means the date by which a request for exclusion submitted FILED DATE: 2/28/2024 9:45 PM 2018CH11423 by a person within the Settlement Class must be postmarked or emailed the Settlement Administrator, which shall be designated as a date sixty-three (63) days after the Notice Date, as approved by the Court. The Exclusion Deadline will be set forth in the Notice, the Preliminary Approval Order, and on the Settlement Website. 1.17 “Plaintiffs” means Martinique Owens and Amelia Garcia. 1.18 “Preliminary Approval Order” means the Court’s order preliminarily approving the Agreement, appointing Class Counsel and the Class Representatives, certifying the Settlement Class for settlement purposes, and approving the form, substance, and manner of the Notice. 1.19 “Released Claims” means any and all claims or causes of action for actual damages, liquidated damages, penalties, injunctive relief, declaratory relief, attorneys’ fees and costs, expenses and interest, liabilities, demands or lawsuits against the Released Parties under the Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”), whether known or unknown, whether legal, statutory, equitable or of any other type or form, and whether brought in an individual, representative or any other capacity, of every nature and description whatsoever that were or could have been brought in any of the actions filed (or to be filed) by Plaintiffs and the Settlement Class Members, accrued through the date of Preliminary Approval. “Released Claims” includes all BIPA claims of any nature whatsoever, whether known or unknown. 1.20 “Released Parties” means Defendant and its current and former affiliates, parents, subsidiaries, related entities, joint venturers, predecessors, successors and assigns, and the past and present owners, members, shareholders, officers, directors, trustees, managers, employees, agents, insurers, reinsurers and retrocessionaires, and attorneys of these entities, their employee benefit 8 plans and the sponsors, fiduciaries and administrators of said employee benefit plans. “Released Parties” shall not include NCR Corporation, and its parents and subsidiaries, or any of Defendant’s FILED DATE: 2/28/2024 9:45 PM 2018CH11423 franchisees. 1.21 “Releasing Parties” means Plaintiffs and each Settlement Class Member and their respective present or past heirs, executors, estates, administrators, assigns and agents. 1.22 “Settlement Administration Expenses” means all expenses reasonably incurred by the Settlement Administrator in or relating to administering the Settlement, providing Notice, creating and maintaining the Settlement Website, disbursing Settlement Payments by mail and electronic means, related tax expenses, fees of the escrow agent, and other such related expenses, with all such expenses to be paid from the Settlement Fund. 1.23 “Settlement Administrator” means Simpluris, Inc., subject to approval of the Court, which will provide the Notice, create and maintain the Settlement Website, put reasonable anti-fraud measures in place to prevent theft of Settlement Class Members’ Settlement Payments via, inter alia, the Settlement Website’s change of contact information and election of electronic payment features, send Settlement Payments to Settlement Class Members, be responsible for tax withholding and reporting, and perform such other settlement administration matters set forth herein or contemplated by the Settlement. The Released Parties shall have no liability whatsoever for the distribution of the Settlement Fund or the determination, calculation, or payment of any claim, for website set up, maintenance and compliance, for the payment or withholding of taxes (including interest and penalties) owed by the Settlement Fund, for any losses incurred in connection with Settlement Administration, or for any other acts, omissions or nonperformance of the Settlement Administrator. 1.24 “Settlement Class” means all individuals who worked or are currently working 9 for Defendant in the State of Illinois who scanned their finger at a Wendy’s corporate-operated restaurant in Illinois between September 11, 2013 and the date of Preliminary Approval Order. FILED DATE: 2/28/2024 9:45 PM 2018CH11423 Excluded from the Settlement Class are (1) any Judge or Magistrate presiding over this action and members of their families, (2) Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, (3) persons who properly execute and submit a timely request for exclusion from the Settlement Class, (4) persons for whom Defendant’s records reflect an executed consent form related to biometrics prior to their first use of Defendant’s PointOfSale (POS) system, (5) the legal representatives, successors or assigns of any such excluded persons and (6) Defendant’s employees who executed a general release of all claims against the Released Parties in prior settlement agreements. 1.25 “Settlement Class Member” or “Class Member” means a person who falls within the definition of the Settlement Class and who does not submit a timely and valid request for exclusion from the Settlement Class. 1.26 “Settlement Fund” means the non-reversionary cash fund that shall be established by Defendant, subject to potential adjustments in Section 7.2, in the amount of Fourteen Million Nine Hundred Four Thousand Four Hundred Fifty Dollars ($14,904,450.00) to be deposited into the Escrow Account, plus all interest earned thereon. Within twenty-one (21) days after entry of the Preliminary Approval Order, Defendant shall deposit $100,000 for initial Settlement Administration Expenses into the Escrow Account, provided the Settlement Administrator has supplied Defendant with the wire and other information needed to transmit said funds to the Escrow Account. Within thirty (30) days after the entry of the Final Approval Order, Defendant and/or its insurers shall transmit the remaining balance of the Settlement Fund less the amounts already transferred and any adjustments per Section 7.2, to the Escrow Account. The total 10 Settlement Fund represents the total monetary obligations of Defendant and any other Released Party under this Settlement Agreement, including the Settlement Payments, Settlement FILED DATE: 2/28/2024 9:45 PM 2018CH11423 Administration Expenses, Fee Award, litigation costs, incentive awards, taxes, and any other payments or other monetary obligations contemplated by this Agreement. The Settlement Fund shall be kept in the Escrow Account with permissions granted to the Settlement Administrator to access said funds until such time as the above-listed payments are made. If the settlement is not approved because the Court fails to enter the Final Approval Order or the Final Approval Order is reversed on appeal, the Settlement Administrator shall promptly return to Defendant and its insurers (the “Payors”) the respective amounts paid by each Payor into the Settlement Fund, plus the pro rata interest earned on those specific sums, less certain Settlement Administrative Expenses (i.e., set up and notice). In no other event shall any amount paid by or on behalf of Defendant into the Escrow Account, or any interest earned thereon, revert to Defendant or any other Released Party. 1.27 “Settlement Payment” means a pro rata portion of the Settlement Fund less any applicable tax withholdings, Settlement Administration Expenses, incentive awards to the Class Representatives, and Fee Award. 1.28 “Settlement Website” means the website to be created, launched, and maintained by the Settlement Administrator, which will allow class members to elect to receive their Settlement Payment through Venmo, Zelle, or check in the mail and will provide access to relevant settlement administration documents, including the Notice, relevant case documents, and other related material. The Settlement Administrator shall put in place reasonable anti-fraud measures to protect electronic payments from being improperly directed. The URL of the Settlement Website shall be www.WENBIPASettlement.com, or such other URL to which the Parties may subsequently agree. 11 2. SETTLEMENT RELIEF 2.1 Settlement Payments to Settlement Class Members. FILED DATE: 2/28/2024 9:45 PM 2018CH11423 a. Within twenty-eight (28) days of the Effective Date, or such other date as the Court may set, the Settlement Administrator shall send Settlement Payments from the Settlement Fund by check or electronic deposit, as elected by the Class Member, along with an accompanying Form 1099, if legally required. No claims procedure will be required. b. Class Members will have the option of having their Settlement Payment transmitted to them through Venmo, Zelle, or check. Class Members who do not choose a payment method via the Settlement Website by seventy (70) days after the Notice Date will be sent a check via First Class U.S. Mail to their last-known mailing address, as updated through the National Change of Address database if necessary by the Settlement Administrator. c. Each payment issued to a Class Member by check will state on the face of the check that it will become null and void unless cashed within one hundred twenty (120) calendar days after the date of issuance. d. In the event that an electronic deposit to a Class Member is unable to be processed, the Settlement Administrator shall attempt to contact the Class Member via the email provided by the Class Member, if applicable, within thirty (30) calendar days to correct the problem. e. To the extent that a check issued to a Settlement Class Member is not cashed within one twenty eighty (120) days after the date of issuance or an electronic deposit is unable to be processed within one hundred twenty (120) days of the first attempt, the Parties 12 will recommend to the Court that such funds be deemed abandoned and turned over to the Unclaimed Property Division of the Illinois Treasurer’s Office, subject to approval by the FILED DATE: 2/28/2024 9:45 PM 2018CH11423 Court. If approved, the Settlement Administrator shall identify to the Illinois Treasurer’s Office each Class Member who abandoned their Settlement Payment and the amount each Class Member abandoned. If the Court does not approve distributing the residual funds to the Unclaimed Property Division, the Parties will negotiate to arrive at a different approach to submit to the Court, and if the Parties cannot agree, the Parties will submit their positions to the Court for determination. f. If the settlement is not approved because the Court fails to enter the Final Approval Order or the Final Approval Order is reversed on appeal, the Settlement Administrator shall promptly return to the Payors the respective amounts paid by each Payor into the Settlement Fund, plus the pro rata interest earned on those specific sums, less Settlement Administrative Expenses already incurred. In no other event shall any amount paid by or on behalf of Defendant into the Escrow Account, or any interest earned thereon, revert to Defendant or any other Released Party. 2.2 Prospective Relief. a. Without admitting any liability or that it was required by law to do so, Defendant acknowledges that as a direct result of this Action, it has ceased use of its finger- scanning technology in Illinois. Further without admitting liability, or agreeing that the Privacy Act requires the following steps, and further expressly maintaining its position that the Privacy Act does not cover finger-scanning technology as it was used by Defendant, Defendant agrees that if it decides in the future to use finger-scanning technology in Illinois, Defendant shall obtain informed written consent prior to collecting 13 finger-scan data, create a publicly-available retention schedule, and destroy finger-scan data consistent with its retention schedule. If any of the informed-consent, retention FILED DATE: 2/28/2024 9:45 PM 2018CH11423 schedule, or destruction requirements in the Privacy Act (or their application to finger- scanning technology) are altered, amended, or withdrawn either by legislative, regulatory, or judicial action, Defendant’s obligations shall be automatically so amended. 3. RELEASE 3.1 The Release. Upon the Effective Date, and in consideration of the settlement relief and other consideration described herein, the Releasing Parties, and each of them, shall be deemed to have released, and by operation of the Final Approval Order shall have, fully, finally, and forever, released, acquitted, relinquished and completely discharged all Released Claims against each and every one of the Released Parties. 4. NOTICE TO THE CLASS 4.1 The Notice shall include: a. Class List. Defendant shall provide the Settlement Administrator with a list of all names, social security or tax identification numbers, personal phone numbers (if maintained in the Company’s HRIS database) and last-known U.S. mail addresses of all persons in the Settlement Class (the “Class List”) twenty-eight (28) days after entry of the Preliminary Approval Order or as soon as practicable thereafter. Within two (2) business days after the Class List is provided to the Settlement Administrator, the Settlement Administrator shall provide Class Counsel a report detailing the total number of unique names on the Class List, the number of unique names for whom an address is available on the Class List, the number of unique names for whom a phone number is available on the Class List, the number of unique names for whom no address or phone number is available 14 on the Class List, and the total number of social security or tax identification numbers available on the Class List. The Settlement Administrator shall keep the Class List and all FILED DATE: 2/28/2024 9:45 PM 2018CH11423 personal information obtained therefrom including the identity, social security or tax identification numbers, mailing addresses, and phone numbers of all persons strictly confidential. The Class List may not be used by the Settlement Administrator or Class Counsel for any purpose other than advising specific individual Settlement Class members of their rights under this Settlement Agreement, distributing Settlement Payments, complying with applicable tax obligations, and otherwise effectuating the terms of the Settlement Agreement or the duties arising thereunder, including the provision of Notice of the Settlement. b. Update Addresses. Prior to mailing any Notice, the Settlement Administrator will update the U.S. Mail addresses of persons on the Class List using the National Change of Address database and other available resources deemed suitable by the Settlement Administrator. The Settlement Administrator shall take all reasonable steps to obtain the correct mailing address of any Settlement Class members for whom Notice is returned by the U.S. Postal Service as undeliverable and shall attempt re-mailings as described below in Section 5.1. c. Direct Notice. No later than the Notice Date, the Settlement Administrator shall send Notice via First Class U.S. Mail, substantially in the form of Exhibit B, to the physical address of each person in the Settlement Class for whom an address is available in the Class List as updated through the National Change of Address database if necessary by the Settlement Administrator. 15 d. Internet Notice. Within fourteen (14) days after the entry of the Preliminary Approval Order, the Settlement Administrator will develop, host, administer, and maintain FILED DATE: 2/28/2024 9:45 PM 2018CH11423 the Settlement Website, containing the notice substantially in the form of Exhibit C. 4.2 The Notice shall advise the Settlement Class of their rights under the Settlement Agreement, including the right to be excluded from or object to the Settlement Agreement or its terms, and the deadline for each. The Notice shall specify that any objection to this Settlement Agreement, and any papers submitted in support of an objection, shall be received by the Court at the Final Approval Hearing, only if, on or before the ObjectionDeadline approved by the Court and specified in the Notice, the person making an objection shall file notice of his or her intention to do so and at the same time (a) file copies of such papers he or she proposes to submit at the Final Approval Hearing with the Clerk of the Court, (b) file copies of such papers through the Court’s eFileIL system if the objection is from a Settlement Class Member represented by counsel, who must also file an appearance, and (c) send copies of such papers via e-mail, U.S. mail, hand, or overnight delivery service to Class Counsel. 4.3 Right to Object or Comment. Any Settlement Class Member who intends to object to this Settlement Agreement mus