FACTUAL BACKGROUND AND RECITALS. 1.1 On March 31, 2021, Plaintiffs filed a putative class action complaint in the Circu▇▇ ▇ourt of Cook County, Illinois, ▇▇▇tioned Veiga, et al. v. Respondus, Inc., No. 2021-CH-01544 (the Lawsuit), seeking damages and injunctive relief against Defendant for alleged violations of Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA), based on Defendant allegedly collecting biometric identifiers and/or biometric information (collectively, biometric data) through the use of Defendants Respondus Monitor application without complying with BIPAs requirements.1 The other Plaintiffs also filed related lawsuits against various clients of Respondus. 1.2 On May 14, 2021, Defendant removed the Lawsuit to federal court. 1.3 On June 4, 2021, Defendant filed a motion to compel individual arbitration and to stay all proceedings in the Lawsuit, seeking to enforce an arbitration provision in its Terms of Use. 1.4 On March 23, 2022, the Court denied Defendants motion to compel individual arbitration and to stay all proceedings. 1.5 On April 6, 2022, Defendant filed its answer to the class action complaint. 1.6 On April 22, 2022, Defendant filed a motion for reconsideration, requesting that the Court reconsider its rulings on certain issues or, in the alternative, certify two issues for interlocutory appeal. 1.7 On April 22, 2022, Defendant filed a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit of the Courts denial of its motion to compel ind▇▇▇▇▇▇▇ ▇▇▇▇tration of ▇▇▇▇▇▇ ▇▇▇▇▇s claims, and the parties filed opening and response briefs in that appeal. 1.8 On August 15, 2022, the Court denied Defendants motion for reconsideration and request for certification of two issues for ▇▇▇▇▇locutory appe▇▇. ▇ ▇▇iga, along with ▇▇▇▇▇▇▇▇▇ v. Respondus, Inc., et al., No. 1:20-▇▇-▇▇692 (N.D. Ill.) and Hinds v. Respondus, Inc., No. 2020C▇▇▇▇14, Circuit Court of Cook County, Illinois, are collectively referred to herein as the Litigation. Plaintiffs ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇ filed BIPA lawsuits against certain of Respondus customers, which also are resolved by this Settlement. Those lawsuits are referred to a▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇, respectively. 1.9 On May 19 and June 28, 2022, the Parties and Respondus insurers participated in medi▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with mediator ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of the Circuit Mediation Office for the U.S. Court of Appeals for the Seventh Circuit. While these initial mediation sessions did not result in a settlement of the Lawsuit, over the following several months, the Parties continued arms length negotiations of the terms of a class action settl▇▇▇▇▇ ▇▇▇▇ the involvement of Ms. ▇▇▇▇▇▇▇ until a term sheet was finalized and executed, with Respondus insurers approval, on January 25, 2023. 1.10 The Parties have agreed to settle the Litigation according to the terms and conditions set forth herein with the understanding that the outcome of any litigation is uncertain and that achieving a final result through litigation would require substantial additional time, expense, and risk. 1.11 The Parties have further agreed that approval of the Settlement shall be sought in the Circuit Court of DuPage County, Illinois. The Parties agree that seeking approval of the Settlement in the Circuit Court of DuPage County, Illinois is appropriate here to avoid any questions as to jurisdiction over all of the Released Claims. Furthermore, the majority of the lawsuits filed by the Plaintiffs against Respondus clients are pending in various state courts in Illinois. 1.12 Respondus contends that Respondus and Respondus Monitor users, including Settlement Class Members, agreed to arbitrate any claims between them as set forth in Respondus Terms of Use. Respondus consents to proceed in this Court solely for the purposes of settlement. In the event that the Settlement Agreement is not approved or does not become final, or is terminated consistent with the provisions herein, the Litigation will return to the status quo ante as if no Settlement Agreement had been negotiated or entered. 1.13 Respondus denied and continues to deny all charges of wrongdoing or liability of any kind whatsoever that Plaintiffs or Settlement Class Members have asserted in the Litigation or may assert in the future. Respondus believes that it is not liable and that it has meritorious defenses to the claims alleged in the Litigation, including but not limited to the reasons that it never collected or possessed biometric identifiers or biometric information, as defined by BIPA; that its use of face templates did not ever identity an individual, but only served to ensure that the same person who began taking an exam continued taking it throughout the exam session; that the face templates only existed in transient memory and were never saved to a permanent storage device; and that the face template software and usage only occurred on private Amazon Web Services servers in Virginia, and therefore was not subject to BIPA. Although Respondus believes that it ultimately would prevail on the merits, Respondus desires to settle the Litigation and thus avoid the expense, risk, exposure, inconvenience, and distraction of the Litigation as well as any action or proceeding relating to, including insurance coverage litigation that one of Respondus insurers filed against it and litigation filed against Respondus customers. Neither this Settlement Agreement, nor any negotiation or act performed or document created in relation to the Settlement Agreement or negotiation or discussion thereof is, or may be deemed to be, or may be used as, an admission that Respondus collected, captured, received, or otherwise obtained or disclosed Biometric Identifiers or Biometric Information, as defined under the Illinois Biometric Information Privacy Act (BIPA) or any similar federal, state, or local statute, doctrine, or law. The Plaintiffs disagree with the factual predicate or legal relevance of Respondus assertions but have agreed to the Settlement. 1.14 Following the Parties litigation and arms-length negotiations with the assistance of an experienced mediator, the Parties now seek to enter into this Settlement Agreement. Plaintiffs and Class Counsel have conducted an investigation into the facts and the law regarding the Lawsuit and have concluded that a settlement according to the terms set forth below is fair, reasonable, and adequate, and in the best interests of Plaintiffs and the Settlement Class, recognizing: (1) the existence of complex and contested issues of law and fact; (2) the risks inherent in litigation; (3) the likelihood that future proceedings will be unduly protracted and expensive if the Litigation is not settled by voluntary agreement; and (4) the magnitude of the benefits derived from the contemplated settlement in light of both the maximum potential and likely range of recovery to be obtained through further litigation and the expense thereof, as well as the potential of no recovery whatsoever. 1.15 Considering the cost, risks and uncertainties of continued litigation and all factors bearing on the merits of settlement, the Parties are satisfied that the terms and conditions of this Settlement Agreement are fair, reasonable, adequate, and in their respective best interests. 1.16 In consideration of the covenants, agreements, and releases set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed by and among the undersigned that the Litigation be settled and compromised, and that the Releasing Parties release the Released Parties of the Released Claims, without costs as to the Released Parties, Plaintiffs, Class Counsel, or the Settlement Class, except as explicitly provided for in this Settlement Agreement, subject to the approval of the Court, on the following terms and conditions.
Appears in 1 contract
Sources: Class Action Settlement Agreement
FACTUAL BACKGROUND AND RECITALS. 1.1 On March 31November 17, 20212020, Plaintiffs K.F.C., a minor by and through her guardian ▇▇▇▇ ▇▇▇▇▇, through Class Counsel filed a putative class action complaint in the Circu▇▇ ▇ourt of Cook County, Illinois, ▇▇▇tioned Veiga, et al. v. Respondus, Inc., No. 2021-CH-01544 (the Lawsuit), Illinois state court seeking damages and injunctive relief against Defendant for alleged violations of Illinois Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA“BIPA”), based on Defendant allegedly collecting possessing, collecting, and disclosing biometric identifiers and/or biometric information (collectively, biometric data“biometric data”) through the use of Defendants Respondus Monitor application Defendant’s Snapchat application’s “Lenses” and “Filters” features without complying with BIPAs requirements.1 The other Plaintiffs also filed related lawsuits against various clients of RespondusBIPA’s requirements.
1.2 On May 14January 6, 2021, Defendant removed the Lawsuit matter to federal court.
1.3 On June 4February 12, 2021, Defendant filed a motion to compel individual arbitration and to stay all proceedings in the Lawsuit, seeking to enforce an arbitration provision in its Terms of UseService.
1.4 On March 23June 10, 20222021, the Court denied Defendants court granted Defendant’s motion to compel individual arbitration and to stay all proceedingsdismissed the case.
1.5 On April January 6, 2022, Class Counsel, representing individual claimants, began filing a series of individual arbitrations before ADR Services, Inc. (the “Arbitrations”) seeking damages C:\Users\mp017415\Documents\Snap -- Class Action Settlement Agreement and Release 8.4.22 (BH).docx and injunctive relief against Defendant filed its answer to for alleged violations of BIPA, based on Defendant allegedly possessing, collecting, and disclosing biometric data through the class action complaintuse of Defendant’s Snapchat application’s “Lenses” and “Filters” features without complying with BIPA’s requirements.
1.6 On April 22, In January through June 2022, Defendant filed a motion for reconsideration, requesting that the Court reconsider its rulings on certain issues or, substantial discovery and other work was completed in the alternativeArbitrations, certify two issues including: researching, striking, and ranking individual arbitrators; holding initial case management conferences; setting arbitration hearing dates and pre-hearing deadlines; executing protective orders; serving and responding to interrogatories, requests for interlocutory appealadmission, and document requests; exchanging independent source code review expert witness information; and review by claimants’ independent source code review expert witness of Snapchat source code.
1.7 On April 22June 29, 20222022 and in the days thereafter, Defendant filed a Notice with the assistance of Appeal to the United States Court of Appeals for the Seventh Circuit of the Courts denial of its motion to compel ind▇▇▇. ▇▇▇▇ ▇. West (▇▇▇tration .), the Parties engaged in a full-day arm’s-length mediation and subsequent discussions and reached a tentative agreement to a class settlement subject to negotiation and execution of ▇▇▇▇▇▇ ▇▇▇▇▇s claimsthis Settlement Agreement and Court approval, and hereby wish to resolve on a classwide basis all matters pertaining to, arising from, or associated with the parties filed opening instant litigation pending before this Court (the “Action”), including all claims alleged in the Arbitrations and response briefs in all other BIPA claims Plaintiffs and the Settlement Class Members have or may have had against Defendant and any Released Parties, as that appealterm is defined herein (collectively, the “Litigation”).
1.8 On August 15, 2022, the Court denied Defendants motion for reconsideration and request for certification of two issues for ▇▇▇▇▇locutory appe▇▇. ▇ ▇▇iga, along with ▇▇▇▇▇▇▇▇▇ v. Respondus, Inc., et al., No. 1:20-▇▇-▇▇692 (N.D. Ill.) and Hinds v. Respondus, Inc., No. 2020C▇▇▇▇14, Circuit Court of Cook County, Illinois, are collectively referred to herein as the Litigation. Plaintiffs ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇ filed BIPA lawsuits against certain of Respondus customers, which also are resolved by this Settlement. Those lawsuits are referred to a▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇, respectively.
1.9 On May 19 and June 28, 2022, the Parties and Respondus insurers participated in medi▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with mediator ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of the Circuit Mediation Office for the U.S. Court of Appeals for the Seventh Circuit. While these initial mediation sessions did not result in a settlement of the Lawsuit, over the following several months, the Parties continued arms length negotiations of the terms of a class action settl▇▇▇▇▇ ▇▇▇▇ the involvement of Ms. ▇▇▇▇▇▇▇ until a term sheet was finalized and executed, with Respondus insurers approval, on January 25, 2023.
1.10 The Parties have agreed to settle the Litigation according to the terms and conditions set forth herein with the understanding that the outcome of any litigation is uncertain and that achieving a final result through litigation would require substantial additional time, expense, and risk.
1.11 The Parties have further agreed that approval of the Settlement shall be sought in the Circuit Court of DuPage County, Illinois. The Parties agree that seeking approval of the Settlement in the Circuit Court of DuPage County, Illinois is appropriate here to avoid any questions as to jurisdiction over all of the Released Claims. Furthermore, the majority of the lawsuits filed by the Plaintiffs against Respondus clients are pending in various state courts in Illinois.
1.12 Respondus contends that Respondus 1.9 Snap and Respondus Monitor Snapchat users, including Settlement Class Members, agreed to arbitrate any claims between them as set forth in Respondus Snap’s Terms of UseService. Respondus Snap consents to proceed in this Court solely for the purposes of settlement. In the event that the Settlement Agreement is not approved or does not become final, or is terminated consistent with the provisions herein, the Litigation will return to the status quo ante as if no Settlement Agreement had been negotiated or enteredentered into and all claims will proceed in arbitration, not court.
1.13 Respondus denied and continues to deny 1.10 Defendant denies all charges of wrongdoing or liability of any kind whatsoever that asserted by Plaintiffs or Settlement Class Members have asserted in the Litigation or may assert in the futureLitigation. Respondus believes Despite Defendant’s belief that it is not liable for the allegations in the Litigation and that it has meritorious despite Defendant’s viable defenses to the claims alleged in the Litigationthose allegations, including but not limited to the reasons that it never collected or possessed biometric identifiers or biometric information, as defined by BIPA; that its use of face templates did not ever identity an individual, but only served to ensure that the same person who began taking an exam continued taking it throughout the exam session; that the face templates only existed in transient memory and were never saved to a permanent storage device; and that the face template software and usage only occurred on private Amazon Web Services servers in Virginia, and therefore was not subject to BIPA. Although Respondus believes that it ultimately would prevail on the merits, Respondus Defendant desires to settle the Litigation Litigation, and thus avoid the expense, risk, exposure, inconvenience, expense and distraction burden of the Litigation as well as continued litigation of any action or proceeding relating to, including insurance coverage litigation that one of Respondus insurers filed against it to the matters being fully settled and litigation filed against Respondus customersfinally put to rest in this Settlement Agreement. Neither this Settlement Agreement, nor any negotiation or act performed or document created in relation to the Settlement Agreement or negotiation or discussion thereof is, or may be deemed to be, or may be used as, an admission that Respondus collected, captured, receivedof, or otherwise obtained evidence of, any wrongdoing or disclosed Biometric Identifiers or Biometric Information, as defined under the Illinois Biometric Information Privacy Act (BIPA) or any similar federal, state, or local statute, doctrine, or law. The Plaintiffs disagree with the factual predicate or legal relevance of Respondus assertions but have agreed to the Settlementliability.
1.14 1.11 Following the Parties litigation Parties’ litigation, discovery, and armsarm’s-length negotiations with the assistance of an experienced mediatorexperienced, retired Judge, the Parties now seek to enter into this Settlement Agreement. Plaintiffs and Class Counsel have conducted an investigation into the facts and the law regarding the Lawsuit Litigation and have concluded that a settlement according to the terms set forth below is fair, reasonable, and adequate, and in the best interests of Plaintiffs and the Settlement Class, recognizing: (1) the existence of complex and contested issues of law and fact, and genuine issues of fact based on the Parties’ respective experts’ review of Snapchat’s source code; (2) the existence of an arbitration agreement between Snap and its users, the enforcement of which has been upheld by state and federal courts; (3) the risks inherent in litigation; (34) the likelihood that future proceedings will be unduly protracted and expensive if the Litigation proceeding is not settled by voluntary agreement; and (45) the magnitude of the benefits derived from the contemplated settlement in light of both the maximum potential and likely range of recovery to be obtained through further litigation and the expense thereof, as well as the potential of no recovery whatsoever.
1.15 1.12 Considering the cost, risks and uncertainties of continued litigation and all factors bearing on the merits of settlement, the Parties are satisfied that the terms and conditions of this Settlement Agreement are fair, reasonable, adequate, and in their respective best interests.
1.16 1.13 In consideration of the covenants, agreements, and releases set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed by and among the undersigned that the Litigation be settled and compromised, and that the Releasing Parties release the Released Parties of the Released Claims, without costs as to the Released Parties, Plaintiffs, Class Counsel, or the Settlement Class, except as explicitly provided for in this Settlement Agreement, subject to the approval of the Court, on the following terms and conditions.
Appears in 1 contract
Sources: Class Action Settlement Agreement