IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

DAWN MEEGAN, individually and on 

behalf of all others similarly situated, 

Plaintiff, 

v. 

NFI INDUSTRIES, INC., 

Defendant.

)

) 

) 

) 

) Case No. 1:20-cv-00465 

) 

) Hon. Thomas M. Durkin 

) 

) 

)

PLAINTIFF’S UNOPPOSED MOTION AND MEMORANDUM IN SUPPORT OF

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

James B. Zouras

Haley R. Jenkins 

STEPHAN ZOURAS, LLP

100 N. Riverside Plaza 

Suite 2150 

Chicago, Illinois 60606 

312.233.1550 

312.233.1560 f

jzouras@stephanzouras.com 

hjenkins@stephanzouras.com 

COUNSEL FOR PLAINTIFF AND THE 

PUTATIVE CLASS

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 1 of 37 PageID #:2066
i 

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

RELEVANT BACKGROUND .......................................................................................... 2

BIPA ............................................................................................................................. 2

Procedural History ........................................................................................................ 3

THE PROPOSED SETTLEMENT .................................................................................... 4

The Settlement Class .................................................................................................... 4

The Settlement Fund ..................................................................................................... 5

Additional Relief .......................................................................................................... 6

Notice and Settlement Administration ......................................................................... 6

Exclusion and Objection Procedures ............................................................................ 6

Release .......................................................................................................................... 7

CLASS ACTION SETTLEMENT PROCEDURE .......................................................... 7

THE COURT SHOULD PROVISIONALLY CERTIFY THE SETTLEMENT CLASS 

UNDER RULE 23 ...................................................................................................................... 9

PRELIMINARY APPROVAL OF THE SETTLEMENT IS WARRANTED ................ 17

The Terms of the Settlement Are Fair and Reasonable and Warrant Preliminary 

Approval. .............................................................................................................................. 20

i. The Settlement Amount Is Substantial Given the Strengths of Plaintiff’s Claims and 

Attendant Risks (First Factor). .......................................................................................... 21

ii. Litigation Through Trial Would Be Complex, Costly, and Long (Second Factor). 24

iii. The Reaction of the Class Has Been Positive (Third Factor). ................................ 26

iv. Competent Class Counsel Endorse this Agreement (Fourth Factor). ..................... 26

v. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case 

Responsibly (Fifth Factor). ............................................................................................... 26

The Settlement Was the Result of Arm’s-Length Negotiations, Without Any Hint of 

Collusion. .............................................................................................................................. 27

THE PROPOSED CLASS NOTICE SHOULD BE APPROVED. ............................... 28

PRELIMINARY APPROVAL OF PLAINTIFF’S COUNSEL’S REASONABLE FEES 

AND COSTS IS APPROPRIATE ............................................................................................ 29

CONCLUSION ............................................................................................................................. 30

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 2 of 37 PageID #:2067
ii

TABLE OF AUTHORITIES

Cases

Am. Int’l Grp., Inc. et al v. ACE INA Holdings, et al., 

Nos. 07-cv-2898, 09-cv-2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) ......................... 2, 18 

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ........................................................................................................... passim

Armstrong v. Bd. of Sch. Dirs. of Milwaukee, 

616 F.2d 305 (7th Cir. 1980) .................................................................................. 18, 19, 21, 27 

Barragan v. Evanger’s Dog & Cat Food Co., 

259 F.R.D. 330 (N.D. Ill. 2009) ................................................................................................ 11 

Boeing Co. v. VanGemert, 

444 U.S. 472 (1980) .................................................................................................................. 30 

Campbell v. Advantage Sales & Mktg. LLC, 

No. 09 Civ. 1430, 2012 WL 1424417 (S.D. Ind. Apr. 24, 2012) ............................................. 29 

Castillo v. Noodles & Co., 

No. 16-CV-03036, 2016 WL 7451626 (N.D. Ill. Dec. 23, 2016) ............................................. 29 

City P’ship Co. v. Atl. Acquisition Ltd. P’ship, 

100 F.3d 1041 (1st Cir. 1996) ................................................................................................... 27 

Cook v. McCarron, 

92 C 7042, 1997 WL 47448 (N.D. Ill. Jan. 30, 1997) .............................................................. 19 

Curtiss-Wright Corporation v. Helfand, 

687 F.2d 171 (7th Cir. 1982) .................................................................................................... 23 

De La Fuente v. Stokely-VanCamp, Inc.,

713 F.2d 225 (7th Cir. 1983) .............................................................................................. 11, 12 

Donovan v. Estate of Fitzsimmons, 

778 F.2d 298 (7th Cir. 1985) .................................................................................................... 25 

Driver v. AppleIllinois, 

265 F.R.D. 293 (N.D. Ill. 2010) ................................................................................................ 16 

EEOC v. Hiram Walker & Sons, Inc., 

768 F.2d 884 (7th Cir. 1985) ........................................................................................ 21, 22, 23 

Equity Funding Corp. of America Securities Litigation, 

603 F.2d 1353 (9th Cir. 1979) .................................................................................................. 23 

Felzen v. Andreas, 

134 F.3d 873 (7th Cir. 1998) .............................................................................................. 18, 19 

Florin v. Nationsbank of Ga., N.A., 

24 F.3d 560 (7th Cir. 1994) ...................................................................................................... 29 

Gautreaux v. Pierce, 

690 F.2d 616 (7th Cir. 1982) .............................................................................................. 19, 26 

GMAC Mortgage Corp. of PA v. Stapleton, 

236 Ill. App. 3d 486 (Ill. App. 1st Dist. 1992) .......................................................................... 17 

Golon v. Ohio Savs. Bank, 

No. 98-cv-7430, 1999 WL 965593 (N.D. Ill. Oct. 15, 1999) ................................................... 15 

Hispanics United of DuPage Cty. v. Vill. of Addison, Ill., 

988 F. Supp. 1130 (N.D. Ill. 1997) ........................................................................................... 21 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 3 of 37 PageID #:2068
iii

In re "Agent Orange" Product Liability Litigation, 

818 F.2d 179 (2d Cir. 1987)...................................................................................................... 23

In re AT&T Mobility Wireless Data Servs. Sales Litig.,

270 F.R.D. 330 (N.D. Ill. 2010).............................................................................. 13, 14, 19, 26

In re Cendant Corp. PRIDES Litig.,

243 F.3d 722 (3d Cir. 2001)...................................................................................................... 30

In re Chocolate Confectionary Antitrust Litig.,

289 F.R.D. 200 (M.D. Pa. 2012)............................................................................................... 15

In re Inter-Op Hip Prosthesis Liab. Litig.,

204 F.R.D. 330 (N.D. Ohio 2001) ............................................................................................ 19

In re Prudential,

148 F.3d 283 (3d Cir. 1998)...................................................................................................... 30

In re Traffic Exec. Ass’n-E. R.R.,

627 F.2d 631 (2d Cir. 1980)...................................................................................................... 20

Isby v. Bayh,

75 F.3d 1191 (7th Cir. 1996) ............................................................................................. passim

Kaufman v. American Express Travel Related Servs. Co., Inc.,

264 F.R.D. 438 (N.D. Ill. 2009).................................................................................................. 9

Kessler v. Am. Resorts Int’l’s Holiday Network, Ltd.,

Nos. 05 cv 5944, 07 cv 2439, 2007 WL 4105204 (N.D. Ill. Nov. 14, 2007) ........................... 19

Kurgan v. Chiro One Wellness Ctrs. LLC,

No. 10 Civ. 1899, 2014 WL 642092 (N.D. Ill. Feb. 19, 2014)..................................... 10, 11, 16

Ladegaard v. Hard Rock Concrete Cutters, Inc.,

No. 00 Civ. 5755, 2000 WL 1774091 (N.D. Ill. Dec. 1, 2000) ................................................ 14

Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust,

834 F.2d 677 (7th Cir. 1987) .................................................................................................... 23

Matter of Cont’l Ill. Secs. Litig.,

962 F.2d 566 (7th Cir. 1992) .................................................................................................... 29

Matter of Cont’l Ill. Secs. Litig.,

985 F.2d 867 (7th Cir. 1993) .................................................................................................... 29

McCue v. MB Financial, Inc.,

No. 15 Civ. 0988, 2015 WL 1020348 (N.D. Ill. Mar. 6, 2015)................................................ 15

McKinnie v. JP Morgan Chase Bank, N.A.,

678 F. Supp. 2d 806 (E.D. Wis. 2009)...................................................................................... 15

Moore v. Nat’l Ass’n of Sec. Dealers, Inc.,

762 F.2d 1093 (D.C. Cir. 1985)................................................................................................ 18

Moreno v. Napolitano,

No. 11 Civ. 5452, 2014 WL 4911938 (N.D. Ill. Sept. 30, 2014) ............................................. 12

Muro v. Target Corp.,

580 F.3d 485 (7th Cir. 2009) .................................................................................................... 12

Owner-Operator Indep. Drivers Ass’n v. Allied Van Lines, Inc.,

231 F.R.D. 280 (N.D. Ill. 2005)................................................................................................ 12

Patterson v. Stovall,

528 F.2d 108 (7th Cir. 1976) .............................................................................................. 18, 21

Redman v. RadioShack Corp.,

763 F.3d 622 (7th Cir. 2014) .................................................................................................... 29

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 4 of 37 PageID #:2069
iv

Retired Chicago Police Assoc. v. City of Chicago,

7 F.3d 584 (7th Cir. 1993) ........................................................................................................ 13

Reynolds v. Beneficial Nat’l Bank,

288 F.3d 277 (7th Cir. 2002) .................................................................................................... 25

Robles v. Corporate Receivables, Inc.,

220 F.R.D. 306 (N.D. Ill. 2004)................................................................................................ 14

Rosario v. Livaditis,

963 F.2d 1013 (7th Cir. 1992) .................................................................................................. 11

Rubenstein v. Republic Nat’l Life Ins. Co.,

74 F.R.D. 337 (N.D. Tex. 1976)............................................................................................... 25

Saltzman v. Pella Corp.,

257 F.R.D. 471 (N.D. Ill. 2009).......................................................................................... 11, 12

Schulte v. Fifth Third Bank,

805 F. Supp. 2d 560 (N.D. Ill. 2011)........................................................................................ 22

Seiden v. Nicholson,

72 F.R.D. 201 (N.D. Ill. 1976).................................................................................................. 25

Smith v. Sprint Commc’ns Co.,

387 F.3d 612 (7th Cir. 2004) ...................................................................................................... 9

Synfuel Techs., Inc. v. DHL Express (USA), Inc.,

463 F.3d 646 (7th Cir. 2006) .............................................................................................. 20, 21

Teamsters Local Union No. 604 v. Inter-Rail Transp., Inc.,

No. 02 Civ. 1109, 2004 WL 768658 (S.D. Ill. Mar. 19, 2004)................................................. 29

Tims v. Black Horse Carriers, Inc., 

No. 1-20-0563............................................................................................................................. 4

Uhl v. Thoroughbred Tech. & Telecomms., Inc.,

309 F.3d 978 (7th Cir. 2002) .................................................................................................... 17

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

396 F.3d 96 (2d Cir. 2005)........................................................................................................ 29

Zolkos v. Scriptfleet, Inc.,

No. 12 Civ. 8230, 2014 WL 7011819 (N.D. Ill. Dec. 12, 2014) ................................................ 9

Statutes

Illinois Biometric Information Privacy Act

740 ILCS 14/1, et seq.............................................................................................................. 1, 3

Other Authorities

5 James Wm. Moore,

Moore’s Federal Practice ¶ 23.80[1], at 23-36 (3d ed. 2001 .................................................... 30

Herbert B. Newberg & Alba Conte,

Newberg on Class Actions, § 11.22 et seq. (4th ed. 2002) ................................................ passim

Manual for Complex Litigation (Fourth)

§ 21.612..................................................................................................................................... 10

Manual for Complex Litigation (Third),

§ 30.41 (1995)..................................................................................................................... 18, 19

Rules

Fed. R. Civ. P. 23............................................................................................................................ 1

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 5 of 37 PageID #:2070
1 

INTRODUCTION

Plaintiff Dawn Meegan (“Meegan” or “Plaintiff”) brought a putative class action on 

December 16, 2019, in the Circuit Court of Cook County against Defendant NFI Industries, Inc. 

(“NFI” or “Defendant”), asserting class claims under the Illinois Biometric Information Privacy 

Act (“BIPA”), 740 ILCS 14/1, et seq. On January 21, 2020, Defendant filed a Notice of Removal 

in the United States District Court for the Northern District of Illinois.

The Parties have reached a proposed Settlement that provides all Settlement Class 

Members with the ability to receive a share of the proposed Settlement Fund. See Settlement 

Agreement, attached hereto as Exhibit 1.

1 The Settlement Agreement provides significant relief to 

approximately 3,879 current and former persons who worked at NFI and establishes a common 

cash settlement fund in the amount of $3,491,100.00, from which Settlement Class Members will 

be compensated without having to file claim forms or take any other action. If approved, the 

Settlement Agreement will bring certainty, closure, and significant and valuable relief for 

individuals to what otherwise would likely be contentious and costly litigation regarding 

Defendant’s alleged unlawful collection, use, storage, and dissemination of individuals’ biometric 

identifiers and/or biometric information (collectively referred to herein as “biometric data”). 

Plaintiff now seeks preliminary approval of the Settlement, certification of a Settlement 

Class, appointment of Class Counsel, and approval of the proposed form and method of Class 

Notice. This Motion describes in detail the reasons why preliminary approval is in the best interests 

of the Class and is consistent with Rule 23 of the Federal Rules of Civil Procedure. As discussed 

in more detail below, the most important consideration in evaluating the fairness of a proposed 

1 Unless otherwise defined herein, all capitalized terms used herein will have the same meaning as 

defined in the Settlement Agreement.

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 6 of 37 PageID #:2071
2

class action settlement is the strength of the plaintiff’s case on the merits balanced against the relief 

obtained in the settlement. See Am. Int’l Grp., Inc. et al v. ACE INA Holdings, et al., Nos. 07-cv2898, 09-cv-2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012). While Plaintiff believes she could 

secure class certification and prevail on the merits at trial, success is not guaranteed, particularly 

given the uncertainty in the law surrounding BIPA, and that Defendant denies Plaintiff’s 

allegations and is prepared to vigorously defend this case. The terms of the Settlement, which 

includes a Settlement Fund providing Settlement Class Members the ability to receive meaningful 

cash compensation, along with obtaining Defendant’s acknowledgment that it has implemented 

procedures to comply with BIPA, meet and exceed the applicable standards of fairness. 

Accordingly, the Court should preliminarily approve the Settlement so that Settlement Class 

Members can receive notice of their rights and the claims administration process may begin. 

RELEVANT BACKGROUND

BIPA

BIPA is an Illinois statute that provides individuals with certain protections for biometric 

data covered by the statute. To effectuate its purpose, BIPA requires private entities that seek to 

use “biometric identifiers” and “biometric information” to:

1. Inform the individual in writing that biometric identifiers and/or biometric 

information will be collected, stored, used, or disseminated; 

2. Inform the individual in writing of the specific purpose and length of time 

for which such biometric identifiers and/or information is being collected, 

stored, used, and disseminated; 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 7 of 37 PageID #:2072
3

3. Obtain a written release from the individual allowing the capture, 

collection, storage, use, and dissemination of their biometric identifiers 

and/or information; and

4. Develop and adhere to a publicly available retention schedule and 

guidelines for permanently destroying biometric identifiers and/or 

information. 

740 ILCS 14/15.

BIPA was enacted in large part to protect certain individual biometric data, provide 

individuals with a means of enforcing their statutory rights, and regulate the practice of collecting, 

using, and disseminating such sensitive information. 

Procedural History

Plaintiff filed her putative Class Action Complaint in the Circuit Court of Cook County on 

December 16, 2019, alleging that Defendant utilizes biometric timekeeping devices at its facilities 

in Illinois and requires its direct employees and staffed temporary workers to use the devices when 

clocking into and out of work but failed to comply with BIPA by: (1) failing to inform individuals 

in writing that they will be capturing, collecting, storing, using, and disseminating biometric data 

prior to doing so; (2) failing to obtain a written release for the capture of biometric data prior to 

such capture; (3) failing to inform individuals in writing of the specific purpose and length of time 

for which biometric data is captured; and (4) failing to develop and adhere to a publicly available 

retention schedule and guidelines for permanently destroying biometric data. 

On January 21, 2020, Defendant filed a Notice of Removal in the United States District 

Court for the Northern District of Illinois (Dkt. No. 1), where it was assigned to and remains 

pending before the Hon. Thomas M. Durkin. Defendant moved to dismiss Plaintiff’s Class Action 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 8 of 37 PageID #:2073
4 

Complaint on January 28, 2020, arguing that Plaintiff’s complaint was untimely. The Parties 

completed briefing on March 12, 2020, and the Court entered an opinion on June 4, 2020, denying 

Defendant’s motion. NFI answered Plaintiff’s Complaint on June 18, 2020. 

In July 2020, Plaintiff issued Rule 26(a)(1) disclosures and her first set of discovery 

requests. Defendant moved to stay this matter on September 14, 2020, citing the Illinois Appellate 

Court case regarding BIPA’s statute of limitations, Tims v. Black Horse Carriers, Inc., No. 1-20-

0563. After the Parties fully briefed the motion to stay, the Court denied the motion on October 8, 

2020, and entered a discovery schedule on October 19, 2020. The Parties engaged in written and 

oral discovery, including the production of hundreds of pages of documents, three depositions, and 

a subpoena to Kronos Incorporated, Defendant’s third-party biometric timekeeping provider. 

Following the completion of discovery, Plaintiff filed and the Parties fully briefed her Motion and 

Memorandum in Support of Rule 23 Class Certification. The Court took the motion under 

advisement on March 9, 2022. 

On April 28, 022, the Parties jointly moved for a stay of proceedings to explore resolution. 

Counsel for the Parties informally exchanged information prior to the mediation, and the Parties 

participated in a full-day mediation with Hon. Morton Denlow (Ret.) of JAMS on June 7, 2022. 

At the mediation, the Parties were able to enter into an agreement in principle and executed a 

Memorandum of Understanding. Following subsequent negotiations throughout June and July

2022, the Parties executed the Settlement Agreement for which the Parties now seek preliminary 

approval, attached hereto as Exhibit 1. 

THE PROPOSED SETTLEMENT

The Settlement Class

The proposed Settlement would establish a Settlement Class defined as follows: 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 9 of 37 PageID #:2074
5 

All individuals currently or formerly working at NFI, or any of its subsidiaries or 

affiliates, in the State of Illinois who had their fingerprint data collected, captured, 

received, obtained, maintained, stored, or disclosed between December 16, 2014, 

and November 30, 2018 (“Settlement Class”). 

Exhibit 1, ¶ 39. The Parties estimate that the Class size is approximately 3,879 members. Id. ¶ 5. 

The Settlement Fund

The proposed Settlement will establish a common $3,491,100.00 Settlement Fund. Exhibit 

1, ¶¶ 36, 43(a). The Settlement Fund shall be divided among members of the Settlement Class that 

do not opt out as follows: $900.00 per Settlement Class Member, less pro rata reductions for Class 

Counsel’s Fee Award, Service Award to the Class Representative and Administrative Expenses. 

Id. ¶¶ 36, 44. Importantly, Settlement Class Members do not have to submit a claim form or 

otherwise “opt in” to the Settlement. Id. ¶ 45. Checks to the Settlement Class Members shall remain 

valid and negotiable for 180 days from the date of their issuance, and thereafter shall become void 

if not cashed within that time. Id. ¶¶ 46, 51(d). Within 75 days of issuance of settlement checks, 

the Settlement Administrator shall provide a list of any settlement checks that are not 

cashed/negotiated within 60 days of issuance to Counsel for the Parties. Id. ¶ 51(d). Within 10 

days thereafter, the Settlement Administrator shall attempt to confirm or obtain valid mailing 

addresses, including by telephone, and send a reminder post-card to affected Class Members. 

Id. Additionally, at the conclusion of the 180-day period, the Settlement Administrator shall 

provide a list of any settlement checks that are not then cashed/negotiated to Counsel for the 

Parties. Id. Within 10 days of the expiration of the 180-day period, the Settlement Administrator 

shall transfer such uncashed funds to NFI Cares2 as a cy pres. Id. 

2 NFI Cares is administered by an independent charitable foundation called Helping 

Hands. Helping Hands has no affiliation with NFI and is responsible for reviewing and approving 

grants to employees in need. Once Helping Hands approves an applicant, the grant is executed by 

another independent entity, the NEMA Foundation, which does business as Provision Bridge. NFI 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 10 of 37 PageID #:2075
6 

Additional Relief

The Settlement also provides significant injunctive relief to the Settlement Class. 

Specifically, Defendant agreed to provide a declaration attesting that it came into compliance with 

BIPA by November 30, 2018. Exhibit 1, ¶ 52. 

Notice and Settlement Administration

The claims at issue in the Litigation consist of Defendant’s alleged violations of BIPA with 

respect to a group of workers, including both NFI’s direct employees and temporary workers 

obtained through staffing companies. Accordingly, to reach as many potential Class Members as 

possible, the Settlement Administrator will provide individual Notice of the Settlement, 

substantially in the form of Exhibit A to the Settlement Agreement, to Class Members via U.S. 

Mail and email where Defendant or the relevant staffing company has a last-known mailing and 

email address or the mailing address information can be determined by the Settlement 

Administrator. Exhibit 1, ¶ 50(b). For all mailings returned as undeliverable, the Settlement 

Administrator shall perform a reverse look-up to find updated addresses and will cause the Notice 

mailing to be re-mailed to those members of the Settlement Class. Id. 

Exclusion and Objection Procedures

While the Parties expect little to no opposition, Settlement Class Members will have an 

opportunity to exclude themselves from the Settlement or object to its approval. The procedures 

and deadlines for filing exclusion requests and objections (see Exhibit 1, § IX) will be identified 

in the Notice directly sent to Class Members. The Notice informs Settlement Class Members that 

is not involved in making decisions regarding grants or in administering their funding. The 

organization exists to provide NFI workers in need with support. The Parties have agreed to restrict 

the cy pres so that any funds would only go to Illinois workers. See Exhibit 2, Decl. of JeanMarie 

Decker. 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 11 of 37 PageID #:2076
7 

the Final Approval Hearing will be their opportunity to appear and have their objections heard. 

The Notice also informs Settlement Class Members that they will be bound by the Release 

contained in the Settlement Agreement unless they exercise their right to exclusion in a timely 

manner. See Exhibit A to the Settlement Agreement.

Release

In exchange for the relief described above, Settlement Class Members who do not exclude 

themselves will provide Defendant and the other Released Parties a full release of all claims 

relating to the Released Parties which relate to or arise out of the allegations in the Complaint and 

which relate in any way to information that is or could be protected under the Illinois Biometric 

Information Privacy Act, 740 ILCS 14/1 et seq., or any other similar state, local, or federal law, 

regulation, or ordinance, or common law. Exhibit 1, Sec. VII. 

CLASS ACTION SETTLEMENT PROCEDURE

The well-defined class action settlement procedure includes three distinct steps: 

1. Preliminary approval of the proposed settlement after submission to the Court of a 

written motion for preliminary approval; 

2. Dissemination of mailed and/or published notice of settlement to all affected class 

members; and

3. A final settlement approval hearing at which class members may be heard 

regarding the settlement, and at which argument concerning the fairness, 

adequacy, and reasonableness of the settlement may be presented.

See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions 

(“Newberg”), § 11.22 et seq. (4th ed. 2002). This process safeguards Class Members’ procedural 

due process rights and enables the Court to fulfill its role as guardian of Class interests. With this 

motion, Plaintiff requests that the Court take the first step – granting preliminary approval of the 

Settlement Agreement, approving the proposed Class Notice and ordering its distribution. 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 12 of 37 PageID #:2077
8 

Plaintiff respectfully proposes that the Court issue an order setting the following schedule 

(“Preliminary Approval Order”):

1. Class List Dates: Defendant will provide the Settlement Administrator 

with the Class Member information in its possession within seven days of 

entry of the Preliminary Approval Order (the “Class List”). Defendant and 

Class Counsel will work together collaboratively to obtain Class List 

information from the relevant staffing companies, of which there are 17, 

and the staffing companies will provide that information either to Defendant 

or directly to the Settlement Administrator. The Class List shall include: last 

known name, address, telephone number, e-mail address (where available), 

and Social Security number for each Settlement Class member to the extent 

available. The Settlement Administrator will update the Class List using the 

U.S. Postal Service’s database of verifiable mailing addresses and the 

National Change-of-Address database.

2. Notice Dates: Within 14 days of receipt of the complete Class List, 

individual Notice shall be sent via US Mail and email (substantially in the 

form of Exhibit A to the Settlement Agreement). For all mailings returned 

as undeliverable, the Settlement Administrator shall perform a reverse lookup to find updated addresses and will cause the Notice mailing to be remailed to those members of the Settlement Class. 

3. Deadline for Opt-Outs/Objections: Each opt-out and/or objection must 

be submitted/postmarked or filed with the Court within 45 days of the date 

the Notice is mailed.

4. Submission of Papers in Support of Attorneys’ Fees and Expenses: 

Must be filed no later than seven days prior to the date of the Final 

Approval Hearing. 

5. Submission of Papers in Support of Final Approval of Settlement: 

Must be filed no later than seven days prior to the date of the Final 

Approval Hearing. 

6. Final Approval Hearing: Will occur approximately 90 days after entry 

of the Preliminary Approval Order, or such other date as ordered by the 

Court. 

Once this Court has ruled on the motion for preliminary approval, the deadlines for 

providing Notice, opting out of the Settlement, and submitting objections to the proposed 

Settlement will begin to run. The schedule set forth below, which is subject to the timing of actions 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 13 of 37 PageID #:2078
9

to be taken by the Parties and the Court in this case, provides the Court with an approximate 

timeline of the various steps in the settlement approval process under the Settlement.

THE COURT SHOULD PROVISIONALLY CERTIFY THE 

SETTLEMENT CLASS UNDER RULE 23

“Before addressing the substantive provisions of the Settlement Agreement, the Court must 

first determine whether the proposed class can be certified” for settlement purposes. Kaufman v. 

American Express Travel Related Servs. Co., Inc., 264 F.R.D. 438, 441-42 (N.D. Ill. 2009)

(citation omitted). Class certification is an exercise of judicial discretion, and “[t]he fact that the 

parties have reached a settlement is a relevant consideration in the class-certification analysis.” 

Zolkos v. Scriptfleet, Inc., No. 12 Civ. 8230, 2014 WL 7011819, at *1 (N.D. Ill. Dec. 12, 2014), 

citing Smith v. Sprint Commc’ns Co., 387 F.3d 612, 614 (7th Cir. 2004); see also Amchem Prods., 

Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“[c]onfronted with a request for settlement-only class 

Event Timing

1. Motion for Preliminary Approval Filed

2. Counsel to Provide Class List information in 

its possession to Settlement Administrator

Within 7 Days After Preliminary Approval

3. Settlement Administrator to Issue Class 

Notice

Within 14 Days After receipt of the complete 

Class List

4. Deadline for Submitting Opting Out or 

Objecting to Settlement

45 Days After the Issuance of Class Notice by 

the Settlement Administrator

5. Final Approval Hearing Approximately 90 Days After Preliminary 

Approval

6. Effective Date The day of Final Judgment, unless the

settlement is approved over objection, in which 

case the Effective Date will be the first 

business day after the last day of the period for 

appeal of the Final Judgment, or if an appeal 

has been filed, the date on which the appeal is 

final

7. Defendant to Fund the Settlement Payment 

Amount

$3,491,100.00 within 14 days of the entry of 

the Preliminary Approval Order and receipt of 

Settlement Administrator instructions and a 

Form W-9 for the Settlement Administrator

8. Settlement Administrator to Distribute 

Funds to Class Members

Within 14 Days After Effective Date

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 14 of 37 PageID #:2079
10 

certification, a district court need not inquire whether the case, if tried, would present intractable 

management problems, see Fed. R. Civ. P. 23(b)(3)(D), for the proposal is that there be no trial”). 

For settlement purposes only, the Parties have agreed that the Court should make 

preliminary findings and enter an Order granting provisional certification of the Settlement Class 

and appoint Plaintiff and her counsel to represent the Class. “The validity of use of a temporary 

settlement class is not usually questioned.” Newberg, §11.22. The Manual for Complex Litigation 

explains the benefits of settlement classes: 

Settlement classes – cases certified as class actions solely for settlement – can 

provide significant benefits to class members and enable the Defendant to achieve 

final resolution of multiple suits. Settlement classes also permit Defendant to settle 

while preserving the right to contest the propriety and scope of the class allegations 

if the settlement is not approved[.]...An early settlement produces certainty for the 

plaintiffs and Defendant and greatly reduces litigation expenses. 

Manual for Complex Litigation (Fourth) § 21.612. 

When presented with a request to preliminarily approve a proposed class settlement, a 

court’s evaluation may be more relaxed than when considering entry of a final order binding all 

class members to the settlement’s terms. Nevertheless, the Court must still determine whether 

the proposed Settlement Class satisfies the requirements of Rule 23. As demonstrated below, no 

reason exists to refrain from provisionally certifying, for settlement purposes, the proposed 

Settlement Class. 

Rule 23(a)(1). The first requirement asks whether the proposed class is so numerous that 

joinder is impracticable. Although the rule provides no firm number, courts have held that 

numerosity can be satisfied where more than 40 putative class members exist. See, e.g., Kurgan 

v. Chiro One Wellness Ctrs. LLC, No. 10 Civ. 1899, 2014 WL 642092, at *5 (N.D. Ill. Feb. 19, 

2014). Here, 3,879 of Defendant’s current and former direct employees and staffed workers 

comprise the putative Rule 23 class. Accordingly, Rule 23(a)(1)’s numerosity requirement is 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 15 of 37 PageID #:2080
11 

met.

Rule 23(a)(2). The next question is whether there are questions of law or fact common 

to the class. “Commonality requires that there be at least one question of law or fact common to 

the class.” Barragan v. Evanger’s Dog & Cat Food Co., 259 F.R.D. 330, 334 (N.D. Ill. 2009), 

quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A common question may be 

shown where claims of individual members are based on the common application of a statute or 

where class members are aggrieved by the same or similar conduct. Kurgan, 2014 WL 642092 

at *6. 

In this case, all members of the proposed Class share a common statutory BIPA claim 

arising out of standardized conduct: the alleged collection, storage, use, and dissemination of 

Settlement Class Members’ biometric data without consent. Proving a BIPA violation would 

require the resolution of some of the same factual and legal issues, including: (1) whether the 

information taken from Settlement Class Members constituted biometric identifiers or biometric 

information as defined by BIPA; (2) whether such information was taken without the consent 

required under BIPA; (3) whether Defendant had a BIPA-compliant, publicly-available, written 

policy addressing retention, storage, and destruction of biometric identifiers and information; 

(4) whether such conduct violated BIPA; and (5) whether Defendant’s biometric timekeeping 

devices are subject to and/or could comply with the requirements of BIPA. 

Rule 23(a)(3). A “‘plaintiff’s claim is typical if it arises from the same event or practice 

or course of conduct that gives rise to the same legal theory.’” Rosario, 963 F. 2d at 1018, 

quoting De La Fuente v. Stokely-VanCamp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Rule 23(a)’s 

typicality requirement should be “liberally construed.” Saltzman v. Pella Corp., 257 F.R.D. 471, 

479 (N.D. Ill. 2009). So long as “the representative party’s claim arises from the same course of 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 16 of 37 PageID #:2081
12 

conduct that gives rise to the claims of other class members and all of the claims are based on 

the same legal theory,” typicality is satisfied. Id. (citation omitted); see also Owner-Operator 

Indep. Drivers Ass’n v. Allied Van Lines, Inc., 231 F.R.D. 280, 282 (N.D. Ill. 2005) (typicality 

is a “low hurdle” requiring “neither complete coextensivity nor even substantial identity of 

claims”). Rule 23(a)(3) “‘primarily directs the district court to focus on whether the named 

representatives’ claims have the same essential characteristics as the claims of the class at 

large.’” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009), quoting De La Fuente, 713 

F.2d at 232. 

Plaintiff’s claims are typical of the claims of other Class Members because they arise 

from the same course of action by Defendant which applies to all Settlement Class Members: 

Defendant’s alleged failure to properly inform Plaintiff and others similarly situated in writing 

of the specific purpose and length of time for which their biometric data was collected, stored, 

disseminated, and used; the alleged failure to provide a publicly available retention schedule and 

guidelines for permanently destroying Plaintiff’s and other similarly-situated individuals’ 

biometric data; and the alleged failure to obtain written consent prior to collecting, storing, using, 

and disseminating Plaintiff’s and Settlement Class Members’ biometric data. While there may 

be minute factual differences between claims of the Plaintiff and those of other putative class 

members, their claims are nevertheless based on the same legal theory. Moreno v. Napolitano, 

No. 11 Civ. 5452, 2014 WL 4911938, at *9 (N.D. Ill. Sept. 30, 2014) (“[S]imilarity of legal 

theory may control even in the face of differences of fact”) (internal quotations omitted). Thus, 

Plaintiff’s claims are clearly typical of those of the claims of other Class Members.

Rule 23(a)(4). The requirement that “the representative parties . . . fairly and adequately 

protect the interests of the class . . . serves to uncover conflicts of interest between the named 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 17 of 37 PageID #:2082
13

parties and the class they seek to represent.” Amchem Prods., 521 U.S. at 625. This requirement 

“tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as 

guideposts for determining . . . whether the named plaintiff’s claim and the class claims are so 

interrelated that the interests of the class members will be fairly and adequately protected in 

their absence.” Id. at 626 n.20. Because of the unique nature of the class action device, “[t]he 

adequacy-of-representation requirement ‘is composed of two parts: the adequacy of the named 

plaintiff’s counsel, and the adequacy of representation provided in protecting the different, 

separate, and distinct interest of the class members.’” In re AT&T Mobility Wireless Data Servs. 

Sales Litig., 270 F.R.D. 330, 343 (N.D. Ill. 2010), quoting Retired Chicago Police Assoc. v. City 

of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (further internal quotations and citation omitted).

“A class representative must . . . be part of the class and possess the same interest and 

suffer the same injury as the class members.” In re AT&T Mobility Wireless Servs., 270 F.R.D. 

at 343 (internal quotations and citation omitted). “This requires the district court to ensure that 

there is no inconsistency between the named parties and the class[,] . . . [because a] class is not 

fairly and adequately represented if class members have antagonistic or conflicting claims.” Id. 

(internal quotations and citations omitted).

The proposed Class Representative, Dawn Meegan, worked at one of Defendant’s facilities

during the class period, and her claims are based on the same alleged BIPA violations as the rest 

of the proposed Class. She has shown her commitment to vigorously prosecuting the Action by 

assisting Plaintiff’s counsel in preparing the Complaint and maintaining contact with Class 

Counsel. Ms. Meegan answered written discovery and sat for a deposition. The proposed Class 

Representative has also provided invaluable information and otherwise assisted Class Counsel in 

understanding Plaintiff’s claims and Defendant’s defenses. Wilkins, 2015 WL 1234738 at *12

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 18 of 37 PageID #:2083
14 

(adequacy of representation satisfied where Plaintiff demonstrated she was sufficiently interested 

in the outcome of the case because she sat for her deposition and responded to written discovery). 

This qualifies Plaintiff as a “conscientious representative plaintiff” and satisfies the adequacy of 

representation requirement. Robles v. Corporate Receivables, Inc., 220 F.R.D. 306, 314 (N.D. Ill. 

2004). 

The Class Representative does not have any interests antagonistic to the Class. Rather, she 

has the same interests and has suffered the same damages for Defendant’s alleged BIPA violations 

as the proposed class members. Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 Civ. 5755, 

2000 WL 1774091, at *5-6 (N.D. Ill. Dec. 1, 2000) (no antagonistic interest where plaintiff alleged 

same violation and remedy as the rest of the class). Likewise, Class Counsel have fairly and 

adequately protected the interests of the Class. Plaintiff’s attorneys are highly experienced and 

have successfully acted as representative counsel in numerous complex class actions, in federal 

and state courts in the Northern District of Illinois and throughout the United States, including 

several successfully resolved and active class actions on behalf of other individuals aggrieved 

under BIPA with virtually identical claims. See Exhibit 3, Decl. of Haley R. Jenkins (“Jenkins 

Decl.”), Attachment A (Stephan Zouras, LLP Firm Resume). “Plaintiffs’ [C]ounsel have invested 

substantial time and resources in this case by investigating the underlying facts, researching the 

applicable law, and negotiating a detailed settlement.” In re AT&T Mobility Data Servs., 270 

F.R.D. at 344 (citation omitted).

Class Counsel invested time and resources, including investigating possible claims and 

defenses to this case before the Settlement was reached. Indeed, the exchange of information 

leading to settlement, and Class Counsel’s independent investigation, as well as arm’s-length 

negotiations with Defendant, demonstrate Class Counsel’s pursuit of the interests of the class and 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 19 of 37 PageID #:2084
15 

their determination to avoid even an appearance of collusion with Defendant. See McCue v. MB 

Financial, Inc., No. 15 Civ. 0988, 2015 WL 1020348, at *2 (N.D. Ill. Mar. 6, 2015), citing

McKinnie v. JP Morgan Chase Bank, N.A., 678 F. Supp. 2d 806, 813 (E.D. Wis. 2009). In short, 

Named Plaintiff and her counsel have demonstrated that they “are fully capable of litigating this 

case.” In re Chocolate Confectionary Antitrust Litig., 289 F.R.D. 200, 218 (M.D. Pa. 2012). 

Accordingly, the adequacy requirement is satisfied. 

Rule 23(b)(3). Once Rule 23(a) is satisfied, Rule 23(b)(3) requires the Court to find that 

“questions of law or fact common to class members predominate over any questions affecting 

only individual members, and that a class action is superior to other available methods for fairly 

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Predominance is 

satisfied “when there exists generalized evidence that proves or disproves an element on a 

simultaneous, class-wide basis...Such proof obviates the need to examine each class member’s 

individual position.” Golon v. Ohio Savs. Bank, No. 98-cv-7430, 1999 WL 965593, at *4 (N.D. 

Ill. Oct. 15, 1999). When assessing predominance and superiority, the court may consider that 

the class will be certified for settlement purposes only and that a showing of manageability at 

trial is not required. See Amchem, 521 U.S. at 620. 

Here, there are numerous common questions of law and fact that predominate over any 

questions that may affect individual Class Members so as to render a class settlement appropriate. 

The common questions resulting from Defendant’s alleged conduct predominate over any 

individual issues that may exist and can be answered on a class-wide basis based on common 

evidence maintained by Defendant. Plaintiff and putative Class Members allege that they were 

uniformly required, as a condition of employment, to scan their fingers into the biometric 

timekeeping devices. The question of whether Defendant violated BIPA and of the right of 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 20 of 37 PageID #:2085
16

Plaintiff to statutory damages can, for provisional certification purposes, be determined for the 

entire Class in a single adjudication, without considering individualized issues. See Kurgan, 2014 

WL 642092 at *9 (“Where, as here, the focus is on the liability-imposing conduct of the defendant 

that is identical for all putative plaintiffs, the predominance element is satisfied.”). Accordingly, 

the predominance prong of Rule 23(b)(3) is satisfied for purposes of settlement class provisional 

certification.

Rule 23(b)(3) lists four factors that the Court should consider in taking into account 

whether a class action is superior to other methods of adjudicating this action: (a) the class

members’ interests in individually controlling the prosecution or defense of separate actions; (b) 

the extent and nature of any litigation concerning the controversy already commenced by or 

against class members; (c) the desirability or undesirability of concentrating the litigation of the 

claims in the particular forum; and (d) the likely difficulties in managing a class action. Fed. R. 

Civ. P. 23 (b)(3)(A)-(D).

An assessment of the Rule 23(b)(3) “superiority” factors shows that a class action is the 

preferred procedure in this case. The superiority requirement is satisfied when “a class action 

would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as 

to persons similarly situated, without sacrificing procedural fairness or bringing about other 

undesirable results.” Driver v. AppleIllinois, 265 F.R.D. 293, 304 (N.D. Ill. 2010), quoting

Amchem, 521 U.S. at 615. 

This case is particularly well suited for class treatment because the claims of Plaintiff and 

the proposed Settlement Class Members involve identical alleged violations of a state statute for 

the alleged unauthorized collection, storage, use, and dissemination of Class Members’ biometric 

data while allegedly failing to comply with BIPA. Absent a class action, most members of the 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 21 of 37 PageID #:2086
17

Settlement Class would find the cost of litigating their claims – each of which is statutorily limited 

to $1,000 per negligent violation of BIPA and $5,000 per reckless violation of BIPA – to be 

prohibitive. It is thus unlikely that individuals would invest the time and expense necessary to seek 

relief through individual litigation. Moreover, because the Action will now settle, the Court need 

not be concerned with issues of manageability relating to trial. When “confronted with a request 

for settlement only class certification, a district court need not inquire whether the case, if tried, 

would present intractable management problems . . . for the proposal is that there be no trial.” 

Amchem, 521 U.S. at 620. Nor should the Court “judge the legal and factual questions” regarding 

certification of the proposed Settlement Class by the same criteria as a proposed class being 

adversely certified. See GMAC Mortgage Corp. of PA v. Stapleton, 236 Ill. App. 3d 486, 493 (Ill. 

App. 1st Dist. 1992). 

A class action is the superior method of resolving large-scale claims if it will “achieve 

economies of time, effort, and expense, and promote . . . uniformity of decision as to persons 

similarly situated, without sacrificing procedural fairness or bringing about other undesirable 

results.” Amchem, 521 U.S. at 615. In sum, because the requirements of Rule 23(a) and Rule 

23(b)(3) are satisfied, and thus Rule 23 certification of the proposed Settlement Class for purposes 

of settlement is appropriate.

PRELIMINARY APPROVAL OF THE SETTLEMENT IS WARRANTED

“Federal courts naturally favor the settlement of class action litigation.” Isby v. Bayh, 75 

F.3d 1191, 1196 (7th Cir. 1996) (internal citations omitted); see also Uhl v. Thoroughbred Tech.

& Telecomms., Inc., 309 F.3d 978, 986 (7th Cir. 2002) (“Federal courts favor settlement, so the 

district court’s inquiry into the settlement structure is limited to whether the settlement is lawful, 

fair, reasonable and adequate.”) (citing Isby, 75 F.3d at 1198-99); Newberg § 11.41 (“The 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 22 of 37 PageID #:2087
18

compromise of complex litigation is encouraged by the courts and favored by public policy.”). “In 

reviewing a proposed settlement the court should consider the judgment of counsel and the 

presence of good faith bargaining.” Patterson v. Stovall, 528 F.2d 108, 114 (7th Cir. 1976), 

overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). Courts usually 

refuse to substitute their business judgment for that of counsel, absent fraud or overreaching. Id.

A “presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached 

in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” 

Am. Int’l Grp., 2012 WL 651727, at *10 (internal citation and quotation marks omitted).

The dismissal or compromise of any class action requires the Court’s approval. Fed. R. 

Civ. P. 23(e). The decision to approve a proposed settlement is committed to the Court’s sound 

discretion. See, e.g., Moore v. Nat’l Ass’n of Sec. Dealers, Inc., 762 F.2d 1093, 1106 (D.C. Cir. 

1985) (“Rule 23 places the determination [to approve a proposed settlement] within the sound 

discretion of the trial judge who can be sensitive to the dynamics of the situation”). The approval 

of any proposed class action settlement is typically exercised in the two-step process of 

“preliminary” and “final” approval. Manual for Complex Litigation (Third), § 30.41, at 236 

(1995). Although the legal standards for preliminary and final approval overlap, preliminary 

approval requires only a threshold finding that the settlement could be approved as fair and 

adequate after notice to the class.

At the preliminary approval stage, the Court’s task is merely to “determine whether the 

proposed settlement is within the range of possible approval.” Armstrong v. Bd. of Sch. Dirs. of 

Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980) (internal citation and quotation marks omitted) 

(noting that at the final fairness hearing, the court will “adduce all information necessary to enable 

[it] intelligently to rule on whether the proposed settlement is fair, reasonable, and adequate”), 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 23 of 37 PageID #:2088
19

overruled on other grounds by Felzen, 134 F.3d; see also Newberg § 11.25 (noting that “[i]f the 

preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness . 

. . and appears to fall within the range of possible approval,” the court should permit notice of the 

settlement to be sent to class members) (citations omitted). “The purpose of the initial hearing is 

to ascertain whether there is any reason to notify the class members of the proposed settlement and 

proceed with a fairness hearing.” Cook v. McCarron, 92 C 7042, 1997 WL 47448, at *7 (N.D. Ill. 

Jan. 30, 1997), citing Armstrong, 616 F.2d at 314. Once the settlement is found to be “within the 

range of possible approval” at the initial fairness hearing, the final approval hearing is scheduled 

and notice is provided to the class. Id.

Courts in this district perform a “summary version” of the final fairness inquiry at the 

preliminary approval stage. See, e.g., In re AT&T, 270 F.R.D. at 346, quoting Kessler v. Am. 

Resorts Int’l’s Holiday Network, Ltd., Nos. 05 cv 5944, 07 cv 2439, 2007 WL 4105204, at *5 

(N.D. Ill. Nov. 14, 2007). In considering whether to grant preliminary approval of a proposed 

settlement agreement, the Court utilizes a “threshold inquiry” intended merely to realize 

conspicuous defects. See In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 330, 337-38 (N.D. 

Ohio 2001). Thus, preliminary approval is warranted:

If the preliminary evaluation of the proposed settlement does not disclose grounds 

to doubt its fairness or other obvious deficiencies, such as unduly preferential 

treatment of class representatives or of segments of the class, or excessive 

compensation for attorneys, and appears to fall within the range of possible 

approval . . . [.]

Manual for Complex Litigation § 30.41 at 265 (3d ed. 2000). Unless the Court’s initial examination 

“discloses[s] grounds to doubt its fairness or other obvious deficiencies,” the Court should order 

that notice of a formal fairness hearing be given to class members under Rule 23(e). Id.; Gautreaux 

v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982); In re Traffic Exec. Ass’n-E. R.R., 627 F.2d 631, 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 24 of 37 PageID #:2089
20

634 (2d Cir. 1980) (a court need only find that there is “probable cause to submit the [settlement] 

proposal to class members and hold a full-scale hearing as to its fairness”) (internal quotation 

omitted). After preliminary approval, the second step of the approval process is the final 

determination, following a hearing at which time any objections by class members may be 

considered. The Court then determines whether the settlement is fair, reasonable and adequate 

from the standpoint of the class. Newberg § 11.41.

The Terms of the Settlement Are Fair and Reasonable and Warrant 

Preliminary Approval.

The Settlement represents a fair and reasonable resolution of the Litigation and is worthy 

of notice to and consideration by the Settlement Class Members. It will provide significant 

financial relief to Settlement Class Members as compensation for their Released Claims, will 

ensure that Defendant’s biometric timekeeping practices comply with BIPA, which will benefit 

both Settlement Class Members and future employees, and will relieve the Parties of the burden, 

uncertainty, and risk of continued litigation. 

A court generally will preliminarily approve a proposed class settlement if it is “fair, 

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1)(C); Synfuel Techs., Inc. v. DHL Express (USA), 

Inc., 463 F.3d 646, 652 (7th Cir. 2006). Although the Court’s task on a motion for preliminary 

approval is merely to perform an “initial evaluation,” Newberg § 11.25, to determine whether the 

settlement falls within the range of possible final approval, or “the range of reasonableness,” id. at 

§ 11.26, it is useful to consider the criteria on which the Court will ultimately judge the settlement. 

In making these determinations, courts consider five factors: (1) the strength of the 

plaintiffs’ case compared to the terms of the proposed settlement; (2) the likely complexity, length 

and expense of continued litigation; (3) the amount of opposition to settlement among affected 

parties; (4) the opinion of competent counsel; and (5) the stage of the proceedings and the amount 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 25 of 37 PageID #:2090
21 

of discovery completed. Synfuel, 463 F.3d at 653; Isby, 75 F.3d at 1199. Further, a court must view 

the settlement in its entirety, rather than focus on an individual component. Id. Finally, a strong 

presumption of fairness exists when the settlement is the result of extensive arm’s-length 

negotiations. Hispanics United of DuPage Cty. v. Vill. of Addison, Ill., 988 F. Supp. 1130, 1150 

(N.D. Ill. 1997). All of these factors weigh in favor of approval of the Settlement Agreement and 

preliminary approval. 

i. The Settlement Amount Is Substantial Given the Strengths of 

Plaintiff’s Claims and Attendant Risks (First Factor).

Defendant has agreed to settle this case for $3,491,100.00 for a class of 3,879 employees. 

Exhibit 1, ¶¶ 5, 36, 43(a). The settlement amount, therefore, represents significant value for these 

Class Members – a gross amount of $900.00 per Settlement Class Member, less pro rata reductions 

for Class Counsel’s Fee Award, Service Award to the Class Representative and Administrative 

Expenses, or approximately $570. 

In evaluating the strength of the plaintiffs’ case on the merits as compared to the amount 

of the proposed settlement, courts refrain from reaching conclusions on issues which have not been 

fully litigated. Patterson, 528 F.2d at 114 (collecting cases). Courts “have been admonished to 

refrain from resolving the merits of the controversy of making a precise determination of the 

parties’ respective legal rights.” EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 

1985). Because “[t]he essence of settlement is compromise,” Id., courts should not reject a 

settlement “solely because it does not provide a complete victory to the plaintiffs.” Isby, 75 F.3d 

at 1200; see also Armstrong, 616 F.2d at 315 (noting that “the essence of a settlement is 

compromise[,] an abandonment of the usual total-win versus total-loss philosophy of litigation in 

favor of a solution somewhere between the two extremes”). Parties to a settlement benefit by 

immediately resolving the litigation and receiving “some measure of vindication for [their] 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 26 of 37 PageID #:2091
22

position[s] while foregoing the opportunity to achieve an unmitigated victory. Thus, the parties to 

a settlement will not be heard to complain that the relief afforded is substantially less than what 

they would have received from a successful resolution after trial.” Hiram Walker, 768 F.2d at 889

(internal citations omitted).

The outcome of this Action is far from certain. In addition to any defenses on the merits 

Defendant would raise, Plaintiff would also otherwise be required to prevail on a class certification 

motion, which is highly contested and for which success is certainly not guaranteed. See Schulte 

v. Fifth Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill. 2011) (“Settlement allows the class to 

avoid the inherent risk, complexity, time and cost associated with continued litigation”) (internal 

citations omitted). “If the Court approves the [Settlement], the present lawsuit will come to an end 

and [Settlement Class Members] will realize both immediate and future benefits as a result.” Id.

Approval would allow Plaintiff and the Settlement Class Members to receive meaningful and 

significant payments now, instead of years from now or never. Id. at 582.

While Plaintiff believes she would likely prevail on her claims, she is also aware that 

Defendant has expressed a firm denial of her material allegations and the intent to pursue a number 

of substantial legal and factual defenses, including but not limited to whether BIPA is 

unconstitutional, whether Plaintiff asserted an intentional or reckless BIPA violation sufficient to 

confer statutory damages, whether Plaintiff’s or Class Members’ claims are barred by the statute 

of limitations, and whether the devices at issue collect biometric identifiers and/or information, as 

defined by BIPA. If successful, these defenses could result in Plaintiff and the proposed Settlement 

Class Members receiving no payment whatsoever. This risk is readily apparent, given the number 

of other legal and factual issues that have gone untested to date without controlling legal authority. 

Taking these realities into account and recognizing the risks involved in any litigation, the 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 27 of 37 PageID #:2092
23

monetary relief available to each Settlement Class Member in the Settlement represents a truly 

excellent result for the Settlement Class. 

Here, the Settlement provides far more than “a fraction of the potential recovery.” Though 

not providing a maximum value that conceivably might be awarded at trial at a later date, assuming 

Plaintiff overcame Defendant’s anticipated summary judgment motion and objections to class 

certification, the Settlement provides substantial monetary benefits now, without the time, 

difficulties, expense, and uncertainty of further litigation and without the years of delay any appeal 

might cause. See Mars Steel Corp. v. Continental Ill. Nat’l Bank & Trust, 834 F.2d 677, 682 (7th 

Cir. 1987) (a settlement is fair “if it gives [plaintiffs] the expected value of their claim if it went to 

trial, net the costs of trial”); Hiram Walker, 768 F.2d at 891 (settlement approved where “there 

[was] no showing that the amounts received by the beneficiaries were totally inadequate”). 

“District courts enjoy broad supervisory powers over the administration of class-action 

settlements to allocate the proceeds among the claiming class members . . . equitably.” In re "Agent 

Orange" Product Liability Litigation, 818 F.2d 179, 181 (2d Cir. 1987) (internal quotes and 

citation omitted). The allocation of a settlement fund among competing claimants is one of the 

court’s traditional equitable functions. Curtiss-Wright Corporation v. Helfand, 687 F.2d 171, 174 

(7th Cir. 1982). In exercising its equitable power, a court has the discretion to favor those class 

members who have relatively stronger legal claims. See Equity Funding Corp. of America 

Securities Litigation, 603 F.2d 1353, 1366-67 (9th Cir. 1979) (upholding a plan of allocation in 

which those class members with stronger claims received more than those with weaker claims).

In determining the allocation method, the Parties considered, among other things, the 

uncertainty in the law surrounding BIPA. Accordingly, each Settlement Class Member will receive 

the gross amount of $900.00, less pro rata reductions for Class Counsel’s Fee Award, a Service 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 28 of 37 PageID #:2093
24 

Award to the Class Representative and Administrative Expenses, or approximately $570. Exhibit 

1, ¶ 44. Settlement Class Members will not have to submit a claim form or otherwise “opt-in” to 

the Class to receive a settlement payment. Id. ¶ 45. Checks to the Settlement Class Members shall 

remain valid and negotiable for 180 days from the date of their issuance, and thereafter shall 

become void if not cashed within that time period. Id. ¶¶ 46, 51(d). Within 75 days of issuance of 

settlement checks, the Claims Administrator shall provide a list of any settlement checks that are 

not cashed/negotiated within 60 days of issuance to Counsel for the Parties. Id. Within 10 days 

thereafter, the Settlement Administrator shall attempt to confirm or obtain valid mailing addresses, 

including by telephone, and send a reminder post-card to affected Class Members. Id. At the 

conclusion of the 180-day period, the Settlement Administrator shall provide a list of any 

settlement checks that are not then cashed/negotiated to Counsel for the Parties. Id. Within 10 days 

of the expiration of the 180-day period, the Settlement Administrator shall transfer such uncashed 

funds to Illinois Legal Aid Online as a cy pres. Id. The Settlement Administrator will include 

language on all settlement checks stating that such checks are void 180 days following the date 

such checks are originally issued. Id. 

The proposed Settlement thus ensures that the Class Members will receive significant 

monetary relief and receive a settlement amount that is reasonable and consistent with the 

established facts as applied to the governing law. Weighing the benefits of the Settlement against 

the available evidence and the risks associated with proceeding in the Action, the settlement 

amount is reasonable. This factor therefore weighs in favor of preliminary approval. 

ii. Litigation Through Trial Would Be Complex, Costly, and Long 

(Second Factor).

By reaching a favorable settlement prior to dispositive motions or trial, Plaintiff seeks to 

avoid significant expense and delay, and instead ensure recovery for the class. “[A]n integral part 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 29 of 37 PageID #:2094
25

of the strength of a case on the merits is a consideration of the various risks and costs that 

accompany continuation of the litigation.” Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 309 

(7th Cir. 1985). Although Class Counsel believes Plaintiff’s case is strong, it is subject to 

considerable risks and costs if the case is not settled, as discussed above.

Continued litigation carries with it a decrease in the time value of money, for “[t]o most 

people, a dollar today is worth a great deal more than a dollar ten years from now.” Reynolds v.

Beneficial Nat’l Bank, 288 F.3d 277, 284 (7th Cir. 2002); see also Fitzsimmons, 778 F.2d at 309 

n.3; Seiden v. Nicholson, 72 F.R.D. 201, 208 (N.D. Ill. 1976) (“If this case had been litigated to 

conclusion, all that is certain is that plaintiffs would have spent a large amount of time, money and 

effort.”). 

Here, further litigation would certainly result in fully briefed motions for summary 

judgment on liability, as well as other issues, and the risk, time, and expense associated with a 

complex trial, or trials, for damages. Any judgment would likely be appealed, further extending 

the Action. These costs of further litigation are considerable in terms of both time and money but 

would not reduce the risks that the Litigation holds for the Class. See Isby, 75 F.3d at 1199. The 

proposed Settlement, on the other hand, provides immediate benefits for all Class Members. Under 

these circumstances, the benefits of a guaranteed recovery today as opposed to an uncertain result 

in the future, are readily apparent. As one court noted, “[t]he bird in the hand is to be preferred to 

the flock in the bush and a poor settlement to a good litigation.” Rubenstein v. Republic Nat’l Life 

Ins. Co., 74 F.R.D. 337, 347 (N.D. Tex. 1976). This factor therefore weighs in favor of preliminary 

approval. 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 30 of 37 PageID #:2095
26

iii. The Reaction of the Class Has Been Positive (Third Factor).

Because the Parties have not yet sent the Class Notice, it is premature to fully assess this 

factor. In re AT&T, 270 F.R.D. at 349. However, Plaintiff supports the Settlement, as does Class 

Counsel. The Court should more fully analyze this factor after notice issues and Class Members 

are given the opportunity to object.

iv. Competent Class Counsel Endorse this Agreement (Fourth Factor).

Courts are “entitled to rely heavily on the opinion of competent counsel.” Gautreaux, 690 

F.2d at 634, quoting Armstrong, 616 F.2d at 325); see also Isby, 75 F.3d at 1200. Further, there is 

no indication that the proposed Settlement Agreement is the result of collusion. See Id.

Class Counsel are competent and experienced in class actions, particularly complex class 

actions of this kind, and are intimately familiar with the strengths and weaknesses of the claims 

and defenses. See Jenkins Decl. ¶¶ 7, 14. Using that litigation experience and their intimate 

knowledge of the facts of the case and the legal issues facing the Class Members, Class Counsel 

were capable of making, and did make, well informed judgments about the value of the claims, 

the time, costs and expense of protracted litigation, discovery, and appeals, and the adequacy of 

the Settlement reached. Id. ¶ 14. This factor therefore weighs in favor of preliminary approval.

v. Discovery Has Advanced Far Enough to Allow the Parties to Resolve 

the Case Responsibly (Fifth Factor).

This complex class action was resolved less than three years after it was initiated. This 

period involved research, analysis, investigation, formal discovery, the informal exchange of 

information, and extensive negotiations culminating in a full-day mediation with Hon. Morton 

Denlow (Ret.) of JAMS. See Jenkins Decl. ¶¶ 7, 14. The stage of litigation has advanced to a state 

that Class Counsel could fairly and fully evaluate the value of the Settlement. Id. Given the 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 31 of 37 PageID #:2096
27

significant amount of time and resources spent by the Parties in discovery and advancing the 

Action, this factor favors preliminary approval. The factors all weigh in favor of issuing 

preliminary approval of the settlement. In the event that a substantial number of objectors come 

forward with meritorious objections, the Court may reevaluate its determination at the Final 

Approval Hearing.

The Settlement Was the Result of Arm’s-Length Negotiations, Without Any 

Hint of Collusion.

There is plainly no collusion or fraud with respect to this proposed Settlement, which was 

reached after intense negotiation over the course of several weeks. As a distinguished commentator 

on class actions has noted:

There is usually an initial presumption of fairness when a proposed class settlement, 

which was negotiated at arm’s length by counsel for the class, is presented for court 

approval.

Newberg §11.41 at 11-88; see also City P’ship Co. v. Atl. Acquisition Ltd. P’ship, 100 F.3d 1041, 

1043 (1st Cir. 1996). In this case, as explained above, the terms of the Settlement were reached 

during extensive arm’s-length negotiations by experienced counsel after thorough investigation, 

discovery, analysis, and motion practice. Therefore, this Court should find that an initial 

presumption of fairness exists to support preliminary approval of the Settlement.

In sum, the Settlement, on its face, is fair, reasonable, and adequate, and not the product of 

collusion. See Isby, 75 F.3d at 1198, 1200. In addition, “the proposed settlement is ‘within the 

range of possible approval’” and should be submitted to the Class Members for their consideration. 

Armstrong, 616 F.2d at 314. The Court should grant preliminary approval.

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 32 of 37 PageID #:2097
28 

THE PROPOSED CLASS NOTICE SHOULD BE APPROVED.

The content of the proposed Class Notice, which is attached to the Settlement Agreement 

as Exhibit A, fully complies with due process and Federal Rule of Civil Procedure 23. Pursuant to 

Rule 23(c)(2)(B), notice must provide: 

[T]he best notice practicable under the circumstances, including individual notice 

to all members who can be identified through reasonable effort. 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). 

Fed. R. Civ. P. 23(c)(2)(B). The detailed information in the proposed Class Notice far exceeds this 

bare minimum and fully complies with the requirements of Rule 23(c)(2)(B). 

The Settlement Agreement provides that Class Notice will be mailed by the Settlement 

Administrator to the last known mailing and email address of each Class Member within 14 days 

of receipt of the complete Class List. Exhibit 1, ¶ 50(b). For all mailings returned as undeliverable, 

the Settlement Administrator shall perform a reverse look-up to find updated addresses and will 

cause the Notice mailing to be re-mailed to those members of the Settlement Class. Id. The 

proposed Class Notice contains information about how to exclude oneself from or object to the 

Settlement. See Exhibit A to the Settlement Agreement. Class Members will have up to and 

including 45 days from the date the Notice is mailed and emailed to exclude themselves from the 

Settlement. Exhibit 1, ¶¶ 27, 59(a). The Class Notice further explains that, after the Settlement 

Agreement receives Final Approval and after any appeals, Class Members will receive a settlement 

check and will have waived their BIPA claims and related causes of action. See Exhibit A to the 

Settlement Agreement. 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 33 of 37 PageID #:2098
29

PRELIMINARY APPROVAL OF PLAINTIFF’S COUNSEL’S 

REASONABLE FEES AND COSTS IS APPROPRIATE

In the Seventh Circuit, the favored approach to awarding reasonable attorneys’ fees in class 

litigation is as a percentage of the common fund. See Matter of Cont’l Ill. Secs. Litig., 962 F.2d 

566, 572-74 (7th Cir. 1992), later proceeding, 985 F.2d 867 (7th Cir. 1993). To determine what 

percentage of the fund should be awarded, the court looks to the market price for legal services, 

which has traditionally ranged from 33.3% to 40% in comparable litigation. See Teamsters Local 

Union No. 604 v. Inter-Rail Transp., Inc., No. 02 Civ. 1109, 2004 WL 768658, at *1 (S.D. Ill. 

Mar. 19, 2004). 

Although there are two ways to compensate attorneys for successful prosecution of 

statutory claims—the lodestar method and the percentage of the fund method (see Florin v. 

Nationsbank of Ga., N.A., 24 F.3d 560, 565-66 (7th Cir. 1994))—the trend in this Circuit is to use 

the percentage of the fund method in common fund cases like this one. Castillo v. Noodles & Co., 

No. 16-CV-03036, 2016 WL 7451626, at *5 (N.D. Ill. Dec. 23, 2016) (“Courts routinely hold that 

one-third of a common fund is an appropriate attorneys’ fees award in class action settlement, 

including wage and hour settlements.”); see also Campbell v. Advantage Sales & Mktg. LLC, No. 

09 Civ. 1430, 2012 WL 1424417, at *2 (S.D. Ind. Apr. 24, 2012) (approving award totaling onethird of the maximum settlement payment plus costs in FLSA settlement). In fact, the Seventh 

Circuit has cast doubt on the continued relevance of the lodestar method. See Redman v. 

RadioShack Corp., 763 F.3d 622, 633 (7th Cir. 2014) (rejecting justification for attorneys’ fees 

based on “amount of time that class counsel reported putting in on the case,” and stating “the 

reasonableness of a fee cannot be assessed in isolation from what it buys”).3 Further, the Supreme 

3 The trend in other circuits is to use the percentage of the fund method as well. See Wal-Mart 

Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005) (“the trend in this circuit is toward 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 34 of 37 PageID #:2099
30 

Court has recognized that a percentage fee award is properly granted from the value of the total 

benefit that class counsel has created, and therefore necessarily includes the pool of money made 

available for class members. Boeing Co. v. VanGemert, 444 U.S. 472, 479-480 (1980) (“a litigant 

or lawyer who recovers a common fund for the benefit of persons other than himself or his client 

is entitled to a reasonable attorney’s fee from the fund as a whole”). 

Accordingly, Plaintiffs’ counsel requests that the Court grant preliminary approval of a Fee 

Award of $1,162,536.30, inclusive of all past and anticipated future attorneys’ fees, which 

represents 33.3% of the Settlement Fund, plus an additional amount for expenses not to exceed 

$15,000.00. 

CONCLUSION

While the Parties believe the Settlement merits Final Approval, the Court need not make 

that determination at this time. The Court is being asked only to permit notice of the terms of the 

Settlement to be sent to the Class and to schedule a hearing, under Federal Rule of Civil Procedure 

23(e), to consider any views expressed by Class Members of the fairness of the Settlement, the 

benefits to be received by Class Members, and Class Counsel’s request for a Fee Award. See 5 

James Wm. Moore, Moore’s Federal Practice ¶ 23.80[1], at 23-36 (3d ed. 2001). For the reasons 

set forth above, Plaintiff respectfully requests that the Court grant this Unopposed Motion for 

Preliminary Approval of Class Action Settlement and enter the Proposed Order, attached as 

Exhibit 4. 

Date: August 5, 2022 Respectfully Submitted, 

/s/ Haley R. Jenkins 

the percentage method”); see also In re Cendant Corp. PRIDES Litig., 243 F.3d 722, 732 (3d Cir. 

2001) (“[t]he percentage-of-recovery method is generally favored in cases involving a common 

fund”), citing In re Prudential, 148 F.3d 283, 333 (3d Cir. 1998) (internal quotation marks 

omitted). 

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 35 of 37 PageID #:2100
31

James B. Zouras

Haley R. Jenkins 

STEPHAN ZOURAS, LLP

100 N. Riverside Plaza

Suite 2150

Chicago, Illinois 60606

312.233.1550

312.233.1560 f

jzouras@stephanzouras.com

hjenkins@stephanzouras.com

ATTORNEYS FOR PLAINTIFF 

AND THE PUTATIVE CLASS

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 36 of 37 PageID #:2101
32 

CERTIFICATE OF SERVICE

I, the attorney, hereby certify that on August 5, 2022, I filed the attached with the Clerk of 

the Court using the ECF system, which will send such filing to all attorneys of record. 

/s/ Haley R. Jenkins

Case: 1:20-cv-00465 Document #: 99 Filed: 08/05/22 Page 37 of 37 PageID #:2102