Fitton v. Pinnacle Propane LLC — Entry #29: MOTION Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement filed by Amanda Fitton
Case: Fitton v. Pinnacle Propane LLC txnd · 3:23-cv-01559
filed July 13, 2023
What this document is
Docket entry #29 · filed November 04, 2024
MOTION Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement filed by Amanda Fitton (Attachments: # 1 Plaintiff's Memorandum in Support of Unopposed Motion for Final Approval of Class Action Settlement, # 2 Declaration(s) of Settlement Administrator Regarding Notice, # 3 Proposed Order Granting Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement) (Borrelli, Raina) (Entered: 11/04/2024)
Who is involved
- Amanda Fitton
- Pinnacle Propane LLC
Why we have it
We follow this case because it names a company we track, although that company is not a party:
- Applied Digital: its name “Applied Digital Corporation” appears in a filing in this case.
…LLC 90 3:23-cv-01805-E McConnell v. Applied Digital Corporation et al 91 3:23-cv-01832-8 Doe v. Dallas…
A free copy from the RECAP archive of federal court filings (mirrored at the Internet Archive), retrieved October 24, 2026. Federal court filings are public records.
Document text
31 page(s), 64,237 characters, converted from the PDF's text layer · plain text.
Full text
Case 3:23-cv-01559-B Document 29-1 Filed 11/04/24 Page 1 of 31 PageID 532
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AMANDA FITTON, on behalf of herself and
all others similarly situated, Case No. 3:23cv1559
Plaintiff,
v.
PINNACLE PROPANE, LLC,
Defendant.
PLAINTIFF’S MEMORANDUM IN SUPPORT OF UNOPPOSED MOTION FOR
FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Case 3:23-cv-01559-B Document 29-1 Filed 11/04/24 Page 2 of 31 PageID 533
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................................. 1
II. FACTUAL AND PROCEDURAL BACKGROUND ........................................................... 2
III. SUMMARY OF SETTLEMENT ........................................................................................... 4
A. The Settlement Class........................................................................................................... 4
B. Settlement Benefits ............................................................................................................. 4
C. Notice, Fees, Costs, and Service Awards ........................................................................... 6
IV. LEGAL STANDARD............................................................................................................. 7
V. ARGUMENT .......................................................................................................................... 9
A. The Settlement is Fair, Reasonable, and Adequate............................................................. 9
1. Plaintiff and Settlement Class Counsel Provided Excellent Representation. ............... 10
2. The Settlement is the product of serious, informed, arm’s-length negotiations. .......... 11
3. The Settlement is Favorable Given the Complexity, Expense, and Likely Duration of the
Litigation. .............................................................................................................................. 12
4. The State of Litigation and the Available Discovery.................................................... 12
5. The Settlement Terms Appropriately Balance the Merits of Plaintiff’s Claims and the
Likelihood of Success with the Attendant Risks. ................................................................. 13
6. Class Counsel and Plaintiff Believe the Settlement is in the Settlement Class’s Best
Interest................................................................................................................................... 16
7. The Effectiveness of the Proposed Method of Distributing Relief to the Class Supports
Final Approval. ..................................................................................................................... 16
i
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8. The Settlement Treats Class Members Equitably Relative to Each Other. .................. 17
9. Reaction of Settlement Class Members. ....................................................................... 17
B. The Court Should Finally Certify the Settlement Class.................................................... 17
C. The Settlement Administrator Provided Notice Pursuant to the Court’s Preliminary
Approval Order and Satisfied Rule 23 and Due Process. ......................................................... 20
VI. CONCLUSION ..................................................................................................................... 22
ii
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TABLE OF AUTHORITIES
Cases
Assoc. for Disabled Am., Inc. v. Amoco Oil Co.,
211 F.R.D. 457 (S.D. Fla. 2002) ............................................................................................... 12
Ayers v. Thompson,
358 F.3d 356 (5th Cir. 2004) ............................................................................................... 12, 13
Baksh v. IvyRehab Network, Inc.,
No. 7:20-cv-01845 (S.D.N.Y. Jan. 27, 2021) ............................................................................ 14
Billittri v. Securities America, Inc.,
Nos. 3:09-cv-01568-F, 3:10-cv-01833-F, 2011 WL 3586217 (N.D. Tex. Aug. 4, 2011) ......... 21
Burford v. Cargill, Inc.,
No. 05-0283, 2012 U.S. Dist. LEXIS 161292 (W.D. La. Nov. 8, 2012) .................................... 9
Corra v. ACTS Ret. Servs.,
No. 22-2917, 2024 U.S. Dist. LEXIS 500 (E.D. Pa. Jan. 2, 2024)............................................ 14
Cotton v. Hinton,
559 F.2d 1326 (5th Cir. 1977) ......................................................................................... 9, 12, 16
DeHoyos v. Allstate Corp.,
240 F.R.D (W.D. Tex. Feb. 21, 2007) ........................................................................... 13, 14, 16
Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC,
807 F. App'x 752 (10th Cir.), cert. denied sub nom. Gonzalez v. Elna Sefcovic, LLC, 141 S. Ct.
851 (2020) ................................................................................................................................. 21
Feder v. Elec. Data Sys. Corp.,
429 F.3d 125, 130 (5th Cir. 2005) ............................................................................................. 19
Grimm v. American Eagle Airlines, Inc.,
No. LA CV 11-00406 JAK(MANx), 2014 WL 1274376 (C.D. Cal. Sept. 24, 2014)............... 15
Hapka v. Carecentrix, Inc.,
Case No. 2:16-cv-02372-KGG (D. Kan. Feb. 15, 2018) ........................................................... 20
In re Corrugated Container Antitrust Litig.,
659 F.2d 1322 (5th Cir. 1981) ................................................................................................... 14
In re Deepwater Horizon,
739 F.3d 790, 810–11 (5th Cir. 2014) ....................................................................................... 18
In re Hannaford Bros. Co. Customer Data Sec. Breach Litig.,
293 F.R.D. 21 (D. Me. 2013)..................................................................................................... 15
iii
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In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig.,
851 F. Supp. 2d (S.D. Tex. 2012) .................................................................................. 10, 11, 12
Jenkins v. Raymark Industries, Inc.,
782 F.2d 468, 472 (5th Cir. 1986) ............................................................................................. 19
Klein v. O'Neal, Inc.,
705 F. Supp. 2d 632 (N.D. Tex. 2010) ........................................................................ 8, 9, 12, 16
Linnins v. HAECO Ams., Inc.,
No. 16-cv-486, 2018 WL 5312193 (M.D.N.C. Oct. 26, 2018) ................................................. 15
Manchaca v. Chater,
927 F. Supp. 962 (E.D. Tex. 1996) ........................................................................................... 10
Mowery v. Saint Francis Healthcare Sys.,
No. 1:20-cv-00013-SPC (E.D. Mo. Dec. 22, 2020) .................................................................. 14
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950) .................................................................................................................. 20
Mullen v. Treasure Chest Casino, LLC,
186 F.3d 620, 624 (5th Cir. 1999) ............................................................................................. 18
Nelson v. Constant,
2020 WL 5258454 .................................................................................................................... 18
ODonnell v. Harris Cnty., Texas,
No. CV H-16-1414, 22019 U.S. Dist. LEXIS 151159 (S.D. Tex. Sept. 5, 2019) ....................... 8
Ortiz v. Fibreboard Corp.,
527 U.S. 815 (1999) .................................................................................................................. 11
Parker v. Anderson,
667 F.2d 1204 (5th Cir. 1982) ................................................................................................... 13
Pettway v. Am. Cast Iron Pipe Co.,
576 F.2d 1157 (5th Cir. 1978) ............................................................................................... 9, 16
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) .................................................................................................................. 20
Purdie v. Ace Cash Express, Inc.,
No. 301CV1754L, 2003 U.S. Dist. LEXIS 22547 (N.D. Tex. Dec. 11, 2003) ........................... 8
Quintanilla v. A & R Demolition Inc.,
2007 WL 5166849 (S.D. Tex. May 7, 2007)............................................................................. 11
iv
Case 3:23-cv-01559-B Document 29-1 Filed 11/04/24 Page 6 of 31 PageID 537
Reed v. General Motors Corp.,
703 F.2d 170 (5th Cir. 1983) ................................................................................. 8, 9, 12, 13, 14
San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio,
188 F.R.D. 433 (W.D. Tex. 1999) ............................................................................................. 13
Stirman v. Exxon Corp.,
280 F.3d 554, 562 (5th Cir. 2002) ............................................................................................. 19
Stott v. Capital Financial Services,
277 F.R.D. 316 (N.D. Tex. 2011) ........................................................................................ 16, 21
Union Asset Mgmt. Holding A.G. v. Dell, Inc.,
669 F.3d 632 (5th Cir. 2012) ....................................................................................................... 8
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 347 (2011) .......................................................................................................... 18
v
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Plaintiff Amanda Fitton, by and through the undersigned Settlement Class Counsel 1,
submits this Unopposed Motion for Final Approval of Class Settlement and Memorandum in
Support, requesting final approval of this proposed class action settlement (“Settlement”) pursuant
to Fed. R. Civ. P. 23(e) on the terms set forth in the Settlement Agreement (Doc. 20-1, or “S.A.”) 2
and for final certification of the Settlement Class. 3
I. INTRODUCTION
If approved, the Settlement will successfully resolve the claims of approximately 10,000
individuals nationwide whose personal identifying information (“PII”) was allegedly accessed, as
the result of a cyberattack, by an unauthorized third party to certain computer systems of Defendant
Pinnacle Propane, LLC (“Pinnacle”) between November 28, 2022, and December 6, 2022. The
Settlement negotiated on behalf of Plaintiff and the Class provided significant benefits to the
Settlement Class through a $490,000 non-reversionary common fund. Under the Settlement,
Settlement Class Members are eligible to recover compensation for up to $2,000 in out-of-pocket
expenses, up to $40 per hour for up to six hours of lost time (up to $240 total), three years of credit
monitoring protection, or alternatively, a $100 cash payment in lieu of all other aforementioned
compensation and credit monitoring. Additionally, Pinnacle will undertake commitments to
implement or maintain additional data security measures at its own expense (i.e. separate from the
Settlement Fund) and separate from the other settlement benefits for the Settlement Class. The
settlement fund also covers all costs of class notice and settlement administration, attorneys’ fees
and costs, and a Class Representative service award. This Settlement represents an excellent result
1
The Court preliminarily appointed Plaintiff Amanda Fitton as the Settlement Class Representative and appointed
Raina Borrelli of Strauss Borrelli PLLC (formerly Turke & Strauss LLP) as Settlement Class Counsel. Doc. 26.
2
As modified by the First Stipulation to Amend the Settlement Agreement, Doc. 24.
3
Unless otherwise defined, all capitalized terms have the meanings set forth in the Settlement Agreement .
1
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for the Settlement Class and provides them with meaningful benefits to remedy the harm they have
allegedly suffered, or will suffer, due to the Incident.
On June 26, 2024, this Court granted preliminary approval to the Settlement, finding that
it is “fair, reasonable, and adequate,” and ordered that notice to the Settlement Class Commence.
Doc. 26, ¶3. The Court-ordered notice plan has since been successfully executed and the response
to the Settlement has been overwhelmingly favorable, with no opt outs and no objections.
Declaration of Settlement Administrator Regarding Notie (“Analytics Decl.”), ¶13. This response
weighs in favor of final approval. For the reasons detailed below, Plaintiff and Settlement Class
Counsel respectfully submit that the Settlement meets the standards for final approval under Rule
23, and is a fair, reasonable, and adequate result for the Settlement Class. Plaintiff respectfully
requests the Court to finally approve the Settlement, approve the requested attorneys’ fees, costs,
and service award,4 and enter a final judgment dismissing this case.
II. FACTUAL AND PROCEDURAL BACKGROUND
Pinnacle is a propane supplier based in Irving, Texas and claims to be the largest global
liquefied petroleum gas distributor. Doc. 1 (“Compl.”), ¶¶ 2, 18. Plaintiff alleges that Pinnacle
collects PII an from its employees, including names and Social security numbers and, in doing
so, agreed it would safeguard the data in accordance with its internal policies, state law, and
federal law. Id. ¶¶ 3, 4, 7. However, on December 4, 2022, Pinnacle discovered that an
unauthorized third party had accessed its computer network between November 28, 2022, and
December 6, 2022. Id. ¶¶ 4, 23. Plaintiff alleges that her information was impacted in the Data
Incident. In July 2023, Ms. Fitton sued Pinnacle to remediate the alleged harm the incident may
4
See Motion filed at Doc. 28.
2
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have caused her and the class, asserting six counts and demanding that Pinnacle reimburse the
class’s losses. Id. Prayer for Relief.
On September 7, 2023, Defendant filed a Motion to Dismiss, generally denying each and
every cause of action asserted by Plaintiff in her Complaint. Doc. 11. Shortly after Defendant
filed its Motion to Dismiss, the Parties agreed to explore mediation. No formal discovery was
conducted. Instead, the Parties engaged early in Federal Rule of Evidence 408 communications
and discovery. Doc. 28-2, ¶ 8.
Shortly thereafter, the parties agreed to mediate this case with Hon. Jay C. Ghandhi (Ret.),
a mediator experienced in settling data security cases. Id. ¶ 9. After a lengthy mediation,
conducted at arms-length with Judge Ghandhi’s assistance, the parties were able to reach a
settlement. Id. ¶ 10. From the start, the parties agreed they would not negotiate the proposed
class’s attorney fees or plaintiff’s service award until they agreed on the settlement agreement’s
core terms, thus avoiding conflict between plaintiff and the class. Id.
On June 18, 2024, the parties attended the preliminary approval hearing in Dallas, Texas
where the Court requested that the parties address certain items related to the Settlement and
requested that Plaintiff file a supplemental declaration containing detailed time records in support
of the attorney’s fees contemplated by the proposed Settlement. Docs. 23, 24. A stipulation to
amend the Settlement Agreement and a supplemental declaration in support of Plaintiff’s
unopposed motion for preliminary approval was subsequently filed by Plaintiff on June 21, 2024.
Doc. 24.
On June 26, 2024, the Court granted preliminary approval to the Settlement. Doc. 26. Since
this Court granted entered the Preliminary Approval Order, the Parties, in conjunction with the
3
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Settlement Administrator, Analytics, have effectuated Notice consistent with the Settlement and
Preliminary Approval Order. See generally Analytics Decl.
III. SUMMARY OF SETTLEMENT
A. The Settlement Class
The Settlement provides for the certification of the Settlement Class defined as “[a]ll
individuals whose Private Information was compromised or potentially compromised in the Data
Incident disclosed by Pinnacle in June 2023.” S.A. ¶ 56.
Private Information includes, but is not limited to, names, addresses, Social Security
numbers, additional personally identifiable information, and any other types of personally
identifiable information that Defendant may have collected and maintained. S.A. ¶ 46. All
members of the Settlement Class that do not opt-out of the settlement shall be referred to as
Settlement Class Members.
B. Settlement Benefits
The Settlement establishes a $490,000 non-reversionary common fund (the “Settlement
Fund”) from which Pinnacle will provide Settlement Class Members with timely benefits targeted
at remediating the specific harms they claim to have suffered as a result of the Incident. The
benefits of the Settlement are available to all Settlement Class Members. The Settlement provides
the following benefits to all Settlement Class Members who submit a valid claim:
First, Settlement Class Members are eligible to receive compensation for up to $2,000
through submission of a valid and timely claim and supporting documentation for their out-of-
pocket losses, including documented Unreimbursed Economic Losses, lost time, and documented
fees for credit reports, credit monitoring, or other identity theft insurance products that were
incurred as a result of the Data Incident. S.A. ¶ 70. Documented ordinary out-of-pocket expenses
4
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include unreimbursed bank fees, long distance phone charges, cell phone charges (only if charged
by the minute), data charges (only if charged based on the amount of data used), postage, or
gasoline for local travel. S.A. ¶ 70(ii). The expenses must have been incurred between December
4, 2022, and the Claims Deadline, which is 90 days after notice is sent. S.A. ¶¶ 70(ii),74.
Documents fees for credit reports, credit monitoring, or other identify theft insurance products
purchased between December 4, 2022, and the Claims Deadline are also recoverable, subject to
the $2,000 cap. S.A. ¶ 70(ii).
Second, , the Settlement also allows Settlement Class Members who have spent at least
one full hour dealing with the Data Incident to claim up to six hours of lost time at $40 per hour,
for a maximum of $240.00, by submitting a claim attesting to the number of hours spent responding
to issues raised by the Data Incident and checking a box describing how the claimed lost time was
spent. S.A. ¶ 70(iii). Claims for lost time may be combined with claims for documented out-of-
pocket expenses and documented fees for credit reports, credit monitoring, or other identity theft
insurance products and are subject to the same $2,000 cap. Id.
Third, Settlement Class Members, including those previously enrolled in the credit
monitoring offered by Defendant at the time it provided notice of the Data Incident, shall have the
ability to make a claim for three years of credit monitoring in three (3) years of one-bureau Credit
Monitoring Services, which will include identity restoration services and $1 million in identity
theft insurance, provided by Experian, or any other comparable provider. S.A. ¶ 70(i). This
Settlement benefit bears with it significant value, and Pinnacle will pay for this benefit separate
and apart from the other benefits offered by the Settlement. Id.
Fourth, in lieu of the Settlement Benefits for the aforementioned Out-Pocket-Costs Losses,
Lost Time, and Credit monitoring, Settlement Class Members can elect to make a claim for a $100
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Alternative Cash Payment. S.A. ¶ 70(iv). Submission for the $100 Alternative Cash Payment can
be made on or before the Claims Deadline and, significantly, requires no additional documentation.
Fifth, Separate from and in addition to the other Settlement Benefits described above,
Pinnacle agrees to implement or maintain additional data security measures and improvements.
S.A. ¶ 71.
C. Notice, Fees, Costs, and Service Awards
The parties did not discuss or agree upon payment of attorneys’ fees, costs, and expenses
or Plaintiff’s service award until after they agreed on all material terms of relief to the Settlement
Class. Doc. 28-2, ¶ 10. Pinnacle will pay the costs of notice to the Settlement Class, costs of Claims
Administration, and the costs of dispute resolution through the Settlement Fund. S.A. ¶ 95.
Pinnacle will also pay for Plaintiff’s attorneys’ fees, costs, and expenses, and service award to
Plaintiff through the Settlement Fund, as approved by the Court. S.A. ¶¶ 125, 129. Plaintiffs filed
a motion seeking attorneys’ fees of $163,333.33, litigation expenses of $18,668.33, and a service
award to Plaintiff of $5,000, subject to Court approval. Doc. 28.
On July 3, 2024, Analytics received Settlement Class Member data from Defendant that
included files containing 10,011 records of names and addresses of Settlement Class Members.
Analytics Decl., ¶ 5. Of these, 37 were identified as duplicate records and three (3) records had
no mailing address listed, and thus were removed from the notice list. Id. Analytics then sent
postcard notice to a total of 9,971 unique Settlement Class Members (after updating addresses
using the United States Postal Service National Change of Address database). Id. ¶ 7. Of those
notices, very few were undeliverable, with 94.5% of the Settlement Class successfully receiving
direct notice. Id. ¶ 12.
6
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Additionally, Analytics established the Settlement Website,
www.PinnaclePropaneDataSettlement.com, where Settlement Class Members could obtain
copies of the Settlement Agreement and Release, Long Form Notice, Postcard Notice, Claim
Form, and the Court’s Preliminary Approval Order. Id. ¶ 8. The Settlement Website also permitted
Settlement Class Members to submit a claim form. Id. Analytics also established a toll-free phone
number of (1-877-410-5068) and a dedicated email box
([email protected]) to receive and respond to
Settlement Class Member inquiries. Id. ¶ 9. The phone number and email address were included
in the Class Notice. Id.
In response to the Notice, no Settlement Class Members have opted out and there have
been no objections to-date (the deadline to do so is November 13, 2024). Id. ¶ 13. The deadline
for the submission of claims is December 13, 2024, and Analytics has already received a number
of claims that they continue to review for validity. Id. ¶ 15. Additionally, on November 4, 2024,
Analytics sent a reminder postcard notice to all Settlement Class Members who had not yet
submitted a claim form. Id. ¶ 12.
IV. LEGAL STANDARD
Plaintiff brings this motion pursuant to Federal Rule Civil Procedure 23(e), under which a
class action may not be settled without approval of the Court. The general standard for final
approval of a proposed settlement of a class action under Rule 23(e)(2) remains whether it is “fair,
reasonable and adequate.” To make that determination, Rule 23(e)(2) provides that a court should
consider whether:
(A) the class representatives and class counsel have adequately represented the
class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for
the class is adequate, taking into account: (i) the costs, risks, and delay of trial and
appeal; (ii) the effectiveness of any proposed method of distributing relief to the
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class, including the method of processing class-member claims; (iii) the terms of
any proposed award of attorney’s fees, including timing of payment; and (iv) any
agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats
class members equitably relative to each other.
Rule 23(e)(2).5 These factors are consistent with the common-law criteria that preceded Rule 23.
See Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (laying out six factors for
courts to consider in determining the fairness, reasonableness, and adequacy of a proposed class
settlement: (1) the existence of fraud or collusion behind the settlement; (2) the complexity,
expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of
discovery completed; (4) the probability of the plaintiffs’ success on the merits; (5) the range of
possible recovery; and (6) the opinions of the class counsel, class representatives, and absent class
members); see also Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 n.11 (5th
Cir. 2012) (quoting Reed, 703 F.2d at 172).
“Because the Rule 23 and case-law factors overlap, courts in this circuit often combine
them in analyzing class settlements.” ODonnell v. Harris Cnty., Texas, No. CV H-16-1414, 22019
U.S. Dist. LEXIS 151159, at *26 (S.D. Tex. Sept. 5, 2019). “When considering [Rule 23(e)(2)]
factors, the court should keep in mind the strong presumption in favor of finding a settlement fair.”
Purdie v. Ace Cash Express, Inc., No. 301CV1754L, 2003 U.S. Dist. LEXIS 22547, at *16 (N.D.
Tex. Dec. 11, 2003); see also Klein v. O'Neal, Inc., 705 F. Supp. 2d 632, 650 (N.D. Tex. 2010)
(There is a “strong presumption that an arms-length class action settlement is fair—especially
when doing so will result in significant economies of judicial resources”).
A “proposed settlement need not obtain the largest conceivable recovery for the class to be
worthy of approval; it must simply be fair and adequate considering all the relevant
5
Here, there are no agreements between the Parties except those set forth in, or explicitly referenced in, the Settlement
Agreement. Thus Rule 23(e)(2)(C)(iv) is irrelevant here.
8
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circumstances.” Klein, 705 F. Supp. 2d at 649. Indeed, because “compromise is the essence of a
settlement…the settlement need not accord the plaintiff class every benefit that might have been
gained after full trial.” Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978);
see also Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) (“The trial court should not make a
proponent of a proposed settlement justify each term of settlement against a hypothetical or
speculative measure of what concessions might have been gained; inherent in compromise is a
yielding of absolutes and an abandoning of highest hopes.”). Accordingly, “absent fraud, collusion,
or the like, [courts] should be hesitant to substitute [their] own judgment for that of counsel.” Klein,
705 F. Supp. 2d at 649.
V. ARGUMENT
A. The Settlement is Fair, Reasonable, and Adequate
Under both the Rule 23(e) factors and the Fifth Circuit’s Reed factors, the Court should
grant Plaintiff’s motion seeking final approval of this Settlement, which offers significant and
immediate relief to the nearly 10,000 individuals affected by Pinnacle’s Data Incident. As the
Court held when it granted preliminary approval, the Settlement is “fair, reasonable, and
adequate,” and was negotiated at arms-length. Doc. 26 at pg. 2; id. ¶ 3. Nothing has changed since
preliminary approval that should alter this assessment. In fact, the response of the Settlement Class
to the Settlement (no requests for exclusion and no objections out of a class of nearly 10,000 people
who were sent notice by first-class mail) further underscores that the Settlement is, in fact, fair,
reasonable, and adequate. See Burford v. Cargill, Inc., No. 05-0283, 2012 U.S. Dist. LEXIS
161292, at *17 (W.D. La. Nov. 8, 2012) (approving a class settlement because “not a single class
member objected to the settlement” and that “the existence of 2 opt-outs established that “the
settlement process worked” while also showing there was not “dissatisfaction with the
9
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settlement.”). For these reasons, and for the additional reasons Class Counsel will show the Court
below, the Court should finally approve the Settlement.
1. Plaintiff and Settlement Class Counsel Provided Excellent Representation.
Plaintiff and Class Counsel certainly satisfy the adequacy of representation factor under
Rule 23(e)(2)(A). Plaintiff has no conflicts of interest with other Settlement Class Members, is not
subject to any unique defenses, and she and her counsel vigorously prosecuted and continue to
vigorously prosecute this case on behalf of the Class. See generally Doc. 28-2 (“Borrelli Fee
Decl.”). Further, Class Counsel are experienced in the successful litigation and settlement of class
action litigation, including data privacy cases. See id. ¶¶ 37-45; In re Heartland Payment Sys., Inc.
Customer Data Sec. Breach Litig., 851 F. Supp. 2d at 1055 (S.D. Tex. 2012) (adequacy satisfied
where class counsel had “extensive experience representing consumers, and other plaintiff classes,
in class-action litigation,” including “experience representing consumer classes in similar data-
breach cases”).
Class Counsel also conducted a thorough investigation of the facts both before and during
the course of this action, including prior to engaging in mediation and negotiating the Settlement.
This investigation allowed Class Counsel to have a “full understanding of the legal and factual
issues surrounding this case” prior to reaching the Settlement. Manchaca v. Chater, 927 F. Supp.
962, 967 (E.D. Tex. 1996). Having completed their investigation and given the risks of no recovery
at all, Settlement Class Counsel, together with Plaintiff, settled this matter in a way that not only
provides timely and important benefits to the Settlement Class, but also avoids the expense and
risk of ongoing litigation.
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2. The Settlement is the product of serious, informed, arm’s-length
negotiations.
This Settlement is the result of a thorough investigation and arm’s-length negotiations
between attorneys experienced in consumer class actions and claims regarding data breaches. See
Ortiz v. Fibreboard Corp., 527 U.S. 815, 852 (1999) (“[O]ne may take a settlement amount as
good evidence of the maximum available if one can assume that parties of equal knowledge and
negotiating skill agreed upon the figure through arms-length bargaining.”). The Parties engaged a
well-respected and experienced mediator, Judge Jay Gandhi (Ret.) of JAMS, to assist them in
resolving this case via mediation. Borrelli Fee Decl., ¶ 9 In the weeks leading up to the mediation,
the parties exchanged key information needed to inform their strategies. Id. ¶¶ 8-9. Throughout all
negotiations, Settlement Class Counsel and counsel for Pinnacle fought hard for the interests of
their respective clients. Id. ¶ 11.
This exchange of information prior to settlement discussions and the involvement of a
third-party mediator all weigh in favor of final approval as they demonstrate that negotiations were
all at arms-length and supported by all relevant factual information needed. See In re Heartland
Payment Sys., 851 F. Supp. 2d at 1064 (approving settlement because “[t]he parties have shown
that they possessed sufficient information to gauge the strengths and weaknesses of the claims and
defenses” despite the fact that only informal discovery was taken and the case settled at an early
stage); see also Quintanilla v. A & R Demolition Inc., 2007 WL 5166849, at *4 (S.D. Tex. May 7,
2007) (holding a class action settlement to be free of fraud or collusion when “[t]he settlement was
reached through arms-length negotiations after a long, hard-fought mediation with a neutral”).
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3. The Settlement is Favorable Given the Complexity, Expense, and Likely
Duration of the Litigation.
There exists “an overriding public interest in favor of settlement, particularly in class
actions that have the well-deserved reputation as being most complex.” Assoc. for Disabled Am.,
Inc. v. Amoco Oil Co., 211 F.R.D. 457, 466 (S.D. Fla. 2002) (citing Cotton, 559 F.2d at 1331).
“When the prospect of ongoing litigation threatens to impose high costs of time and money on the
parties, the reasonableness of approving a mutually-agreeable settlement is strengthened.” Klein,
705 F. Supp. 2d at 651 (citing Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004)). Here,
Pinnacle entirely denied liability for the Data Incident and in fact moved to dismiss Plaintiff’s
Complaint in its entirety prior to mediation.
This case is settling in its early stages; if the Settlement is not finally approved, the parties
will likely need to litigate through multiple dispositive motions, a motion for class certification, a
potential motion to decertify the class, and multiple Daubert motions, among other things. That
process could take years to resolve, involve expensive expert discovery, and would not guarantee
any greater benefits for the Settlement Class than what has been achieved through the Settlement.
Moreover, the parties will bear the cost of this litigation if it continues. While Plaintiff believes
she has strong claims and would be able to prevail, an early resolution, before both sides spend
time and money on litigation is in the best interest of the Settlement Class. Ayers, 358 F.3d at 369
(“Settling now avoids the risks and burdens of potentially protracted litigation.”).
4. The State of Litigation and the Available Discovery.
Under the third Reed factor, the key issue is whether “the parties and the district court
possess ample information with which to evaluate the merits of the competing positions.” In re
Heartland Payment Sys., Inc., 851 F. Supp. 2d at 1064 (quoting Ayers, 358 F.3d at 369). “A
settlement can be approved under this factor even if the parties have not conducted much formal
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discovery.” Id. (citations omitted). The “[s]ufficiency of information does not depend on the
amount of formal discovery which has been taken because other sources of information may be
available to show the settlement may be approved even when little or no formal discovery has been
completed.” San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D.
433, 459 (W.D. Tex. 1999). “The Court should consider all information which has been available
to all parties.” DeHoyos v. Allstate Corp., 240 F.R.D. at 292 (W.D. Tex. Feb. 21, 2007).
Here, during the settlement negotiations and prior to mediation, Pinnacle produced
significant information about the scope of the Data Incident, the number of potential class
members, the scope of the Data Incident, and the Defendant’s remedial efforts. Doc. 28-2, ¶ 9.
Drawing on their significant and substantial experience in other data breach class action litigation,
Class Counsel were able to determine the Settlement’s adequacy in relation to the probability of
success on the merits were this litigation to continue. Id., ¶¶ 19-21. Because the parties “possess
ample information with which to evaluate the merits of the competing positions,” Ayers, 358 F.3d
at 369, this factor also favors final approval of the proposed settlement. See Reed, 703 F.2d at 172.
5. The Settlement Terms Appropriately Balance the Merits of Plaintiff’s
Claims and the Likelihood of Success with the Attendant Risks.
When evaluating a proposed class action settlement, “the most important factor is the
[fourth Reed factor,] probability of plaintiffs’ success on the merits.” Parker v. Anderson, 667 F.2d
1204, 1209 (5th Cir. 1982). “[T]he Court must compare the terms of the settlement with the
rewards the class would have been likely to receive following a successful trial.” DeHoyos, 240
F.R.D. at 287 (W.D. Tex. 2007) (citing Reed, 703 F.2d at 172 (5th Cir. 1983)). At the same time,
a district court “must not try the case in the settlement hearings because the very purpose of the
compromise is to avoid the delay and expense of such a trial.” Id. (internal quotation marks and
alteration omitted). This factor favors approval of the settlement when the class’s likelihood of
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success on the merits is not absolute. See In re Corrugated Container Antitrust Litig., 659 F.2d
1322, 1326-27 (5th Cir. 1981) (affirming district court’s finding that this factor favored approving
the settlement when the class faced major obstacles in establishing proof of liability and damages);
Combustion, 968 F. Supp. at 1128 (“On the other hand, Plaintiffs will have very serious legal and
evidentiary hurdles to meet in order to get their case to the jury.”).
Similarly, the fifth Reed factor—the range of possible recovery—concerns “whether the
range of possible recovery or the benefit of the settlement to plaintiffs outweighs the risks of
proceeding through litigation.” DeHoyos, 240 F.R.D. at 290-91. Both of these factors likewise
weigh in favor of final approval.
As outlined above, this Settlement guarantees Settlement Class Members real relief for
harms and protections from potential future fall-out from the Data Incident. The Settlement meets,
or even exceeds, similar to results obtained in other data breach cases, further supporting that this
settlement is fair and adequate such that it should be approved. See, e.g. Corra v. ACTS Ret. Servs.,
No. 22-2917, 2024 U.S. Dist. LEXIS 500 (E.D. Pa. Jan. 2, 2024) (preliminary approving data
breach settlement on behalf of 20,754 class members with a $350,000 cap on monetary claims that
provided up to $3,500 for extraordinary losses, up to $350 in ordinary out-of-pocket losses, up to
$75 in lost time, and two years of credit monitoring); Mowery v. Saint Francis Healthcare Sys.,
No. 1:20-cv-00013-SPC (E.D. Mo. Dec. 22, 2020) (data breach settlement providing up to $280
in value to Class Members in the form of: reimbursement up to $180 of out-of-pocket expenses
and time spent dealing with the data breach and credit monitoring services valued at $100); Baksh
v. IvyRehab Network, Inc., No. 7:20-cv-01845 (S.D.N.Y. Jan. 27, 2021) (providing up to $75 per
class member for out-of-pocket expenses incurred related to the data breach and $20
reimbursement for lost time, with payments capped at $75,000 in aggregate; credit monitoring for
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claimants; and equitable relief in the form of data security enhancements); Rutledge, et al. v. Saint
Francis Healthcare Sys., No. 1:20-cv-00013-SPC (E.D. Mo.) (data breach settlement providing
up to $280 in value to Class Members in the form of: reimbursement of up to $180 of out-of-pocket
expenses and time spent dealing with the data breach; credit monitoring services valued at $100;
and equitable relief in the form of data security enhancements); Linnins v. HAECO Ams., Inc., No.
16-cv-486, 2018 WL 5312193, at *1-3 (M.D.N.C. Oct. 26, 2018) (settlement included $312,500
claim fund for reimbursement of specified expenses to employees whose PII was allegedly
disclosed in breach).
The value achieved through the Settlement is guaranteed, where chances of prevailing on
the merits are uncertain. Should litigation continue, Plaintiff would likely have to immediately
survive a motion to dismiss in order to proceed with litigation. Due at least in part to the rapidly
evolving law and minimal Fifth Circuit guidance on data breach jurisprudence, this case faces
uncertainties. Although nearly all class actions involve a high level of risk, expense, and
complexity, this is a particularly complex area of the law given the need to show the technicalities
of how the breach occurred, how it should be prevented, and precisely what information was
impacted. Moreover, the damages methodologies, while theoretically sound in Plaintiff’s view,
remain unproven in front of a jury. Class certification is another hurdle that would have to be
met—and one that has been denied in other data breach cases. See, e.g., In re Hannaford Bros. Co.
Customer Data Sec. Breach Litig., 293 F.R.D. 21 (D. Me. 2013). Another significant risk faced by
Plaintiff here is the risk of maintaining class action status through trial. The class has not yet been
certified, and Defendant will certainly oppose certification if the case proceeds. Thus, Plaintiff
“necessarily risk[ed] losing class action status.” Grimm v. American Eagle Airlines, Inc., No. LA
CV 11-00406 JAK(MANx), 2014 WL 1274376, at *10 (C.D. Cal. Sept. 24, 2014). While Plaintiff
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disputes any defenses Pinnacle asserts and is confident that class certification, and ultimately a
class judgment, is achievable, success is not guaranteed. But through the Settlement, Plaintiff and
the Settlement Class gain significant benefits without having to face the risk of recovering no relief
at all.
6. Class Counsel and Plaintiff Believe the Settlement is in the Settlement
Class’s Best Interest.
Plaintiff and Class Counsel firmly believe that this Settlement is fair, reasonable, and
adequate, and in the best interests of the Settlement Class, which is an important consideration in
any class settlement analysis. “The Fifth Circuit has repeatedly stated that the opinion of class
counsel should be accorded great weight” when “evaluating a proposed settlement.” Klein, 705 F.
Supp. at 649 (citing Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978));
DeHoyos, 240 F.R.D. at 292 (“The endorsement of class counsel is entitled to deference.”). Here,
Settlement Class Counsel are highly experienced in class action litigation generally, and data
breach litigation in particular, and are well positioned to evaluate the strengths and weaknesses of
continued litigation, as well as the reasonableness of the Settlement. The assessment of Class
Counsel weighs in favor of final approval. See Stott v. Capital Financial Services, Inc., 277 F.R.D.
316, 346 (N.D. Tex. 2011) (“As class counsel tends to be the most familiar with the intricacies of
a class action lawsuit and settlement, ‘the trial court is entitled to rely upon the judgment of
experienced counsel for the parties.’”) (quoting Cotton, 559 F.2d at 1330).
7. The Effectiveness of the Proposed Method of Distributing Relief to the
Class Supports Final Approval.
Subject to Court approval, eligible claims will be paid either electronically or by written
check. Settlement checks and credit monitoring codes will be delivered by the Settlement
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Administrator to Settlement Class Members after the Effective Date. This is a simple, clean, and
effective distribution process.
8. The Settlement Treats Class Members Equitably Relative to Each Other.
The final factor, Rule 23(e)(2)(D), looks at whether Class Members are treated equitably.
See Fed. R. Civ. P. 23(e)(2)(D). Here, the Settlement provided for a notice plan that is designed to
reach as many Class Members as possible and provided Class Members with direct mail notice of
the Settlement. It also informed Class Members of their right to object to, or opt out of, the
Settlement. All Class Members were eligible to make a claim for the same categories of monetary
relief and/or to elect the credit monitoring service. Thus, the Settlement treats Class Members
equitably relative to each other, satisfying Rule 23(e)(2)(D).
9. Reaction of Settlement Class Members.
The reaction of the Settlement Class to this Settlement is overwhelmingly positive. Out of
a class of nearly 10,000 individuals, no one requested exclusion and there were no objections. See
Analytics Decl., ¶ 12. A number of valid claims have already been submitted, with the claim
deadline still over one month away, indicating that Settlement Class Members are taking advantage
of the availability of the Settlement benefits. Id. ¶ 14. These benefits, which directly address the
harm claimed in this case, may not have been available at all to Settlement Class Members without
this Settlement.
B. The Court Should Finally Certify the Settlement Class
Settlement classes are routinely certified in consumer data breach cases. There is nothing
unique about this case that would counsel otherwise. This Court already found when it
preliminarily approved the Settlement that it likely would certify the Settlement Class. The
Settlement Class still meets the requirements of numerosity, commonality, typicality, and
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adequacy, and because common issues predominate and a class action is the superior means by
which to resolve class member claims, the Court should finally certify the Settlement Class for
settlement purposes. Where nothing has changed relative to the Rule 23(a) and pertinent Rule
23(b) factors since preliminary approval, that decision should be made final, for the reasons set
forth in the Plaintiff’s Preliminary Approval Motion and Supporting Memorandum. See Doc. 19.
For completeness purposes, the reasoning in favor of final certification of the Settlement Class
pursuant to Rule 23 is laid out below.
Numerosity. Numerosity requires “the class [be] so numerous that joinder of all members
is impractical.” Fed. R. Civ. P. 23(a)(1). The Fifth Circuit has found that a class of 100 to 150
members “is within the range that generally satisfie[s] the numerosity requirement.” Mullen v.
Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). Here, the Settlement Class of
nearly 10,000 satisfies numerosity.
Commonality. Commonality requires Plaintiff to demonstrate “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality does not require that every question
be common to every member of the class, but rather that the questions linking class members are
substantially related to the resolution of the litigation and are capable of generating common
answers “apt to drive the resolution of the litigation,” even where the individuals are not identically
situated. See In re Heartland, 851 F. Supp. 2d at 1052 (citing Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 347 (2011)). Commonality can be satisfied by an “instance of the defendant's injurious
conduct, even when the resulting injurious effects—the damages—are diverse.” Nelson v.
Constant, 2020 WL 5258454, at *5 (quoting In re Deepwater Horizon, 739 F.3d 790, 810–11 (5th
Cir. 2014)). Plaintiff here easily meets the commonality requirement because she can demonstrate
numerous common issues exist, including whether Defendant had a duty to use reasonable care in
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safeguarding Plaintiff’s and the Class’s PII, whether Defendant was negligent in maintaining,
protecting, and securing PII, and whether Defendant breached contract promises to safeguard
Plaintiff and the Class’s PII.
Typicality. Under Rule 23(a)(3), the typicality requirement is satisfied where “the claims
or defenses of the class representatives have the same essential characteristics as those of the class
as a whole.” Fed. R. Civ. P. 23(a)(3). “If the claims arise from a similar course of conduct and
share the same legal theory, factual differences will not defeat typicality.” See Stirman v. Exxon
Corp., 280 F.3d 554, 562 (5th Cir. 2002); Fed. R. Civ. P. 23(a)(3). Here, Plaintiff’s and Settlement
Class Members’ claims all stem from the same event—the cybersecurity attack on Pinnacle’s
computer system—and whether Pinnacle took reasonable steps to protect Plaintiff’s and
Settlement Class Members’ data.
Adequacy. To be adequate, Plaintiff must establish that: (1) there is no antagonism or
conflict of interest between the Class Representative and other class members; and (2) counsel and
the Class Representative are competent, willing, and able to protect the interests of absent class
members. See Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 130 (5th Cir. 2005). Here, Plaintiff’s
interests are aligned with those of the Settlement Class as they are all victims of the Data Incident
and all entitled to the same relief under the Settlement. And Settlement Class Counsel is adequate
based on their significant experience litigating data breach class actions. Doc. 28-2, Exs. C, D.
Predominance. “In order to ‘predominate,’ common issues must constitute a significant
part of the individual cases.” Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir.
1986). In this case, key predominating questions are whether Pinnacle had a duty to exercise
reasonable care in safeguarding, securing, and protecting the personal information of Plaintiff and
the Settlement Class Members, and whether Pinnacle breached that duty. The common questions
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that arise from Pinnacle’s conduct predominate over any individualized issues. This satisfies the
predominance element. See, e.g., In re Heartland, 851 F. Supp. 2d at 1059 (finding predominance
satisfied in data breach case despite variations in state laws at issue, concluding such variations
went only to trial management, which was inapplicable for settlement class); Hapka v.
Carecentrix, Inc., Case No. 2:16-cv-02372-KGG, 2018 WL 1871449, at *2, 2018 U.S. Dist.
LEXIS 68185 (D. Kan. Feb. 15, 2018) (finding predominance was satisfied in a data breach case,
stating “[t]he many common questions of fact and law that arise from the E-mail Security Incident
and [defendant’s] alleged conduct predominate over any individualized issues”).
Superiority. The resolution of thousands of claims in one action is far superior to litigation
via individual lawsuits. Class certification—and class resolution—guarantee an increase in judicial
efficiency and conservation of resources over the alternative of individually litigating thousands
of data breach cases arising out of the same Data Incident. Because the common questions of fact
and law that arise from Pinnacle’s conduct predominate over any individualized issues, and a class
action is the superior vehicle by which to resolve these issues, and the requirements of
Rule 23(b)(3) are met. Thus, the class should be finally certified for settlement purposes.
C. The Settlement Administrator Provided Notice Pursuant to the Court’s
Preliminary Approval Order and Satisfied Rule 23 and Due Process.
To satisfy due process, notice to class members must be the best practicable, and
reasonably calculated under all the circumstances to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections. Fed. R. Civ. P. 23(e); Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Notice provided to the class must be sufficient
to allow class members “a full and fair opportunity to consider the proposed decree and develop a
response.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). While
individual notice should be provided where class members can be located and identified through
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reasonable effort, notice may also be provided by U.S. Mail, electronic, or other appropriate means.
Fed. R. Civ. P. 23(c)(2)(B). Under Rule 23(c)(2)(B), the notice must:
clearly and concisely state in plain, easily understood language: (i) the nature of the
action; (ii) the definition of the class certified; (iii) the class claims, issues, or
defenses; (iv) that a class member may enter an appearance through an attorney if
the member so desires; (v) that the court will exclude from the class any member
who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii)
the binding effect of a class judgment on members under Rule 23(c)(3).
Here, the direct mail Postcard Notice is the gold standard, and is consistent with Notice
programs approved by other courts. See Stott v. Capital Financial Services, 277 F.R.D. 316, 342,
(N.D. Tex. 2011) (approving notice sent to all class members by first class mail); Billittri v.
Securities America, Inc., Nos. 3:09-cv-01568-F, 3:10-cv-01833-F, 2011 WL 3586217, *9 (N.D.
Tex. Aug. 4, 2011) (same). The content of the Notice provided adequately informed Settlement
Class Members of the nature of the action, the definition of the class, the claims at issue, the ability
of a class member to object or exclude themselves, and/or enter an appearance through an attorney,
and the binding effect of final approval and class judgment. The Notice utilized clear and concise
language that is easy to understand and organized the Notice in a way that allowed Class Members
to easily find any section that they may be looking for. Thus, it was substantively adequate. See
Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC, 807 F. App'x 752, 764 (10th Cir.), cert. denied
sub nom. Gonzalez v. Elna Sefcovic, LLC, 141 S. Ct. 851 (2020) (“All that the notice must do is
‘fairly apprise ... prospective members of the class of the terms of the proposed settlement’ so that
class members may come to their own conclusions about whether the settlement serves their
interests.”) (internal citations omitted).
As outlined in detail in the supporting declaration of the Settlement Administrator, the
Notice Plan here, and its execution, satisfied all the requirements of Rule 23(c). Analytics mailed
notice directly to 9,971 Settlement Class Members. Analytics Decl., ¶ 7. The Short Notice provided
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an overview of the settlement terms, the benefits available, the options available to Class Members,
and the settlement website and toll-free number where additional settlement information could be
obtained. Id., Ex. B. After re-sending undeliverable notices following an advanced address search,
Analytics believes that notice reached 94.5% of the Settlement Class. Id. ¶ 12. This is an excellent
result. Id.
In addition to the direct mail notice, Analytics established a dedicated website for the
Settlement where relevant documents were posted for Settlement Class Members to review. Id. ¶
8. Also, Analytics established a toll-free telephone number where Settlement Class Members could
call and obtain additional information regarding the Settlement. Id. ¶ 9.
In sum, the Settlement Administrator and Class Counsel executed a highly successful
notice program that meets all the requirements of Rule 23 and satisfies due process requirements.
The Notice Plan provided the best notice practicable and afforded enough time to provide full and
proper notice to Settlement Class Members before the opt-opt and objection deadlines.
VI. CONCLUSION
For the reasons set forth above, Plaintiff requests that the Court enter an order finally
approving the Settlement as fair, reasonable, and adequate under Rule 23(e)(2), certifying the
Settlement Class for purposes of judgment on the Settlement, and incorporating its prior Order
granting the request for attorneys’ fees, expenses, and service awards.
Dated: November 4, 2024 Respectfully Submitted,
By: /s/ Raina C. Borrelli
Raina C. Borrelli (pro hac vice)
STRAUSS BORRELLI PLLC
One Magnificent Mile
980 N. Michigan Avenue, Suite 1610
Chicago, IL, 60611
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Telephone: (872) 263-1100
Facsimile: (872) 263-1109
[email protected]
Joe Kendall
KENDALL LAW GROUP PLLC
3811 Turtle Creek Blvd., Suite 1450
Dallas, TX 75219
Telephone: (214) 744-3000
Facsimile: (214) 744-3015
[email protected]
Attorneys for Plaintiff and the Proposed Class
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CERTIFICATE OF CONFERENCE
I certify that on November 4, 2024, I conferred with John Vogt, counsel for Defendant,
regarding the substance of this motion and he stated that defendant does not oppose the relief
requested herein.
By: /s/ Raina C. Borrelli
Raina C. Borrelli
STRAUSS BORRELLI PLLC
One Magnificent Mile
980 N Michigan Avenue, Suite 1610
Chicago IL, 60611
Telephone: (872) 263-1100
Facsimile: (872) 263-1109
[email protected]
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CERTIFICATE OF SERVICE
I, Raina C. Borrelli, hereby certify that on November 4, 2024, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to counsel of record, below, via the ECF system.
DATED this 4th day of November, 2024.
STRAUSS BORRELLI PLLC
By: /s/ Raina C. Borrelli
Raina C. Borrelli
STRAUSS BORRELLI PLLC
One Magnificent Mile
980 N Michigan Avenue, Suite 1610
Chicago IL, 60611
Telephone: (872) 263-1100
Facsimile: (872) 263-1109
[email protected]
25