Further Information about this Notice and the Lawsuit
Settlement Class Members are eligible to receive payment from a proposed settlement of the class action lawsuit entitled James, et al. v. DAVACO, Inc., et al., United States District Court, Northern District of Texas, Case No. 3:21-cv-02318-M (the “Lawsuit”). The court overseeing the Lawsuit authorized this Notice to advise Settlement Class Members about the proposed settlement that will affect their legal rights. This Notice explains certain legal rights and options Settlement Class Members have in connection with the settlement.
The Lawsuit is a proposed class action lawsuit brought on behalf of current and former DAVACO employees whose Personal Information may have been accessed and/or taken by unauthorized individuals as part of the Security Incident. The affected information may include names, Social Security numbers, and driver’s license or government issued identification numbers.
The Lawsuit claims Defendants are legally responsible for the Security Incident and asserts various legal claims, including negligence, declaratory relief, and violations of the California Consumer Privacy Act. Defendants deny these claims and deny that they did anything wrong.
In a class action, one or more representative plaintiffs bring a lawsuit on behalf of others who have similar claims. Together, all of these people are the “class” and each individually is a “class member.” There are four Representative Plaintiffs in this case: Travis James, Stefanie Sheehan, Kimberly Gamboa, and Korey Williams. The class in this case is referred to in this Notice as the “Settlement Class.”
The Representative Plaintiffs in the Lawsuit, through their attorneys, investigated the facts and law relating to the issues in the Lawsuit. The Representative Plaintiffs and Class Counsel believe that the settlement is fair, reasonable, and adequate and will provide substantial benefits to the Settlement Class. The Court has not decided whether the Representative Plaintiffs’ claims or Defendants’ defenses have any merit, and it will not do so if the proposed settlement is approved. By agreeing to settle, both sides avoid the cost and risk of a trial, and people who submit valid claims will receive compensation. The settlement does not mean that Defendants did anything wrong, or that the Representative Plaintiffs and the Class would or would not win their case if it were to go to trial.
Terms of the Proposed Settlement
The Settlement Class is defined by the Court as all individuals identified by DAVACO and to whom DAVACO sent notice that their information may have been impacted in the Security Incident.
The proposed settlement would create a Settlement Fund of $540,000.00 that would be used to pay all costs of the settlement, including: (i) payments to Settlement Class Members who submit valid claims; (ii) costs of Claims Administration and notice (approximately $50,000); (iii) any attorneys’ fees and costs awarded by the Court to Class Counsel (up to $180,000 plus litigation costs and expenses of approximately $15,000); (iv) the cost of providing members of the Settlement Class 36 months of identity theft protection services; and (v) any service awards to the Representative Plaintiffs awarded by the Court (up to $10,000 total). The settlement also releases all claims or potential claims of Settlement Class Members against Defendants arising from or related to the Security Incident, as detailed in the Settlement Agreement.
Settlement Class Members who do not validly exclude themselves from the settlement will be bound by the Settlement Agreement and any final judgment entered by the Court, and will give up their right to sue Defendants for the claims being resolved by the settlement, including all claims or potential claims of Settlement Class Members against Defendants arising from or related to the Security Incident. The claims that Settlement Class Members are releasing are described in Section 1.27 of the Settlement Agreement and the persons and entities being released from those claims are described in Section 1.28 of the Settlement Agreement. Section VIII of the Settlement Agreement explains when such releases will occur.
Payments to Settlement Class Members
Settlement Class Members who submit valid claims and any required documentation may receive one or more of three types of payments to be paid from the Settlement Fund: (1) a Basic Award of $185 or Identity-Theft Protection Services; (2) a California Subclass Award of $175; (2) a Reimbursement Award; and (3) a Time Spent Award. Settlement Class Members who were residents of California on June 11, 2022 (“California Settlement Subclass Members”) who submit valid claims will receive the $175 California Subclass Award in addition to the Reimbursement Award, the Time Spent Award, and either the $185 Basic Award or Identity-Theft Protection Services. Other Settlement Class Members may receive only a Reimbursement Award, a Time Spent Award, and either a $185 Basic Award or Identity-Theft Protection Services, but not both. Depending on how many valid claims are submitted, the amounts of the Basic Award and California Subclass Award will be adjusted upward or downward proportionally among Settlement Class Members submitting valid claims for those awards, as explained further below in FAQ 11.
Every Settlement Class Member is eligible to receive a $185 Basic Award, and every California Settlement Subclass Member is eligible to receive an additional $175 California Subclass Award regardless of whether he or she experienced any unauthorized charges or identifiable losses related to the Security Incident. Settlement Class Members seeking a Basic Award and/or a California Subclass Award must provide the information required on the Claim Form. The $185 Basic Award and the $175 California Subclass Award are subject to upward or downward adjustment as described below in FAQ 11.
Eligibility for any award, including the Basic Award and California Subclass Award, is within the discretion of the Settlement Administrator as outlined in Paragraph 16.
Settlement Class Members who, at any time from June 11, 2021 to January 12, 2023, experienced unauthorized charges or identifiable losses that were not denied, reversed or otherwise credited or reimbursed, which charges are fairly traceable to the Security Incident, and certain out-of-pocket expenses related to the Security Incident, are eligible to receive a Reimbursement Award of up to $5,000 as reimbursement for those charges and expenses. The following types of out of pocket expenses may be claimed:
- payment card fees or bank fees, including card reissuance fees, overdraft fees, charges related to unavailability of funds, late fees, over-limit fees and fees relating to an account being frozen or otherwise unavailable due to the Security Incident;
- cell, internet or text charges;
- costs or charges for obtaining credit reports, credit freezes, or credit monitoring or identity theft protection services (up to two years of coverage); and
- postage costs.
You cannot recover for emotional distress. Claimants must exhaust all available credit monitoring insurance and identity theft insurance before seeking a Reimbursement Award. Settlement Class Members seeking a Reimbursement Award must provide the information and documents required on the Claim Form.
The amounts paid for all Basic Awards and California Subclass Awards will be adjusted upward or downward from the amounts listed in FAQ 9 depending on how many Settlement Class Members submit valid claims.
If the total dollar value of all valid claims is less than the amount of money available in the Settlement Fund for payment of those claims, the amounts for Basic Awards and California Subclass Awards will be adjusted upward proportionally among all valid claims for those awards, until the amounts remaining in the Settlement Fund are exhausted (or as nearly as possible).
If the total dollar value of all valid claims is more than the amount of money available in the Settlement Fund for payment of those claims, the amount of the payments for Basic Awards and California Subclass Awards will be adjusted downward proportionally among all Settlement Class Members who submitted valid claims for Basic Awards and California Subclass Awards.
If there are any funds remaining after all valid claims are processed and the time to cash any payment checks has passed, those funds shall be distributed as directed by the Court, including potential distribution to a charitable organization. No remaining funds will be returned to Defendants.
Your Options as a Settlement Class Member
If you are a Settlement Class Member, you do not have to do anything to remain in the settlement. However, if you wish to seek an award under the settlement, you must complete and submit a Claim Form postmarked or submitted online at www.DavacoDataBreachSettlement.com by January 12, 2023.
If you do not want to give up your right to sue Defendants about the Security Incident or the issues raised in this case, you must exclude yourself (or “opt out”) from the Settlement Class. See FAQ 17 below for instructions on how to exclude yourself.
If you wish to object to the settlement, you must remain a Settlement Class Member (i.e., you may not also exclude yourself from the Settlement Class by opting out) and submit a written objection. See FAQ 20 below for instructions on how to submit an objection.
If you do nothing, you will get no award from this settlement. Unless you exclude yourself, after the settlement is granted final approval and the judgment becomes final, you will be bound by the judgment and you will never be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants related to the claims released by the settlement.
You may complete the Claim Form online on the Claim Form page. You may also obtain a paper Claim Form by downloading it from the Important Documents page or by calling the claims administrator at 1-888-885-5108. If you choose to complete a paper Claim Form, you may either submit the completed and signed Claim Form and any supporting materials electronically or mail them to:
|Davaco Data Breach Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103.
The Claims Administrator will decide whether a Claim Form is complete and valid and includes all required documentation. The Claims Administrator may require additional information from any claimant. Failure to timely provide all required information will invalidate a claim and it will not be paid.
To opt out of the settlement you must make a signed, written request that (i) says you wish to exclude yourself from the Settlement Class in this Lawsuit, and (ii) includes your name, address and phone number. You must submit your request through the settlement website (www.DavacoDataBreachSettlement.com) or mail your request to this address:
Davaco Data Breach Settlement Administrator
Attn: Exclusion Request
P.O. Box 58220
Philadelphia, PA 19102
Your request must submitted online or postmarked by November 28, 2022.
No. If you exclude yourself, you will not be entitled to any award. However, you will also not be bound by any judgment in this Lawsuit.
No. Unless you exclude yourself, you give up any right to sue Defendants for the claims that this settlement resolves. You must exclude yourself from the Settlement Class to start your own lawsuit or to be part of any different lawsuit relating to the claims in this case. If you exclude yourself, do not submit a Claim Form requesting a payment.
All Settlement Class Members who do not request exclusion from the Settlement Class have the right to object to the settlement or any part of it. You can ask the Court to deny approval by filing an objection. You can’t ask the Court to order a different settlement; the Court can only approve or reject the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.
Any objection to the proposed settlement must be in writing and it and any supporting papers must be mailed to the Claims Administrator at the following address:
Davaco Data Breach Settlement Administrator
P.O. Box 58220
Philadelphia, PA 19102
Objections must be postmarked no later than November 28, 2022.
To be considered by the Court, your objection must list the name of this Lawsuit, James v. Davaco, Inc, and the case number, Case No. 3:21-cv-02318-M, and include all of the following information: (i) your name, address, phone number, and an email address (if you have one); (ii) a statement that you are a member of the Settlement Class and any proof of your membership (e.g., a copy of Defendants’ notice of the Security Incident sent to your physical or email address or a copy of the notice of this settlement sent to your physical or email address); (iii) whether your objection applies only to yourself, to a specific subset of the Settlement Class, or to the entire class; (iv) a detailed statement of the specific legal and factual bases for all of your objections, along with any applicable legal support; (v) the identity of any lawyer representing you; (vi) whether you intend to appear at the Final Approval Hearing and the identity of any lawyer(s) who will attend that hearing with you or on your behalf; (vii) a list of anyone you plan to have testify at the Final Approval Hearing in support of your objections; and (viii) your signature and the signature of your attorney or other authorized representative, if any.
If you submit a timely written objection, you may, but are not required to, appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for hiring and paying that attorney.
Court Approval of the Settlement
The Court will hold a Final Approval Hearing to decide whether to approve the settlement. That hearing is scheduled for February 15, 2023 at 1:00 p.m. CT at the United States District Court, Northern District of Texas, 1100 Commerce Street, Dallas, TX 75242, Courtroom 1570. Please visit the Court’s website at https://www.txnd.uscourts.gov for current information regarding courthouse access and court hearings. At the Final Approval Hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are timely objections, the Court will consider them and will listen to people who have properly requested to speak at the hearing. The Court may also consider Class Counsel’s request for attorneys’ fees and costs, and the request for service awards for the Representative Plaintiffs. After the hearing, the Court will decide whether to approve the settlement.
It is possible the Court could reschedule the hearing to a different date or time without notice, so it is a good idea before the hearing to check www.DavacoDataBreachSettlement.com or access the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.txnd.uscourts.gov/cgi-bin/ShowIndex.pl to confirm the schedule if you wish to attend.
No. You do not need to attend the hearing unless you object to the settlement and wish to appear in person. It is not necessary to appear in person in order to make an objection; the Court will consider any written objections properly submitted according to the instructions in FAQ 20. You or your own lawyer are welcome to attend the hearing at your expense, but are not required to do so.
If the Court approves the settlement and no appeal is taken, the Settlement Fund will be fully funded. The Claims Administrator will pay any attorney fees’ and costs award and any Representative Plaintiffs’ service awards from the Settlement Fund. Then, within the later of 90 days after the Effective Date or 30 days after all disputed claims have been resolved, the Claims Administrator will send Settlement Payments to Settlement Class Members who submitted timely and valid Settlement Claims.
If any appeal is taken, it is possible the settlement could be disapproved on appeal.
If the Court does not approve the settlement, no Settlement Fund will be created, there will be no Settlement Payments to Settlement Class Members, Class Counsel or the Representative Plaintiffs, and the case will proceed as if no settlement had been attempted.
Lawyers for the Settlement Class and Defendants
The Court has appointed the following Class Counsel to represent the Settlement Class in this Lawsuit:
|Rachele R. Byrd
Wolf Haldenstein Adler
Freeman & Herz LLP
750 B Street, Suite 1820
San Diego, CA 92101
|M. Anderson Berry
Clayeo C. Arnold, A Professional Law Corporation
865 Howe Avenue
Sacramento, CA 95825
|Gayle M. Blatt
Casey Gerry Schenk Francavilla Blatt & Penfield LLP
110 Laurel Street
San Diego, CA 92101
|Joshua B. Swigart
Swigart Law Group, APC
2221 Camino del Rio South, Ste. 308
San Diego, CA 92108
Settlement Class Members will not be charged for the services of Class Counsel; Class Counsel will be paid out of the Settlement Fund, subject to Court approval. However, you may hire your own attorney at your own cost to advise you in this matter or represent you in making an objection or appearing at the Final Approval Hearing.
Class Counsel will request the Court’s approval of an award for attorneys’ fees up to one-third (33.33%) of the Settlement Fund (or up to $180,000), plus reasonable costs and expenses (approximately $15,000), which shall be paid from the Settlement Fund. Class Counsel will also request approval of service awards of $2,500 to each of the Representative Plaintiffs (a total of $10,000), which shall also be paid from the Settlement Fund.
Defendants are represented by the following lawyers:
|Adam A. Cooke
Hogans Lovells US LLP
555 Thirteenth Street, NW
Washington, DC 20004
|Russell A. Welch
Hogan Lovells US LLP
609 Main Street
Houston, TX 77002
For Further Information
This notice summarizes the proposed settlement. For the precise terms and conditions of the settlement, please see the Settlement Agreement available on the Important Documents page, by contacting Class Counsel at the phone numbers provided in response to FAQ 25 above, by accessing the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.txnd.uscourts.gov/cgi-bin/ShowIndex.pl, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of Texas, Dallas Division, 1100 Commerce Street, Dallas, TX 75242 between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.
Angeion Group, LLC will act as the Claims Administrator for the settlement. You can contact the Claims Administrator at:
Davaco Data Breach Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
Please do not contact the Court.