[BreachExchange] Lone consumer holds up Target data breach settlement

Audrey McNeil audrey at riskbasedsecurity.com
Fri May 19 15:06:00 EDT 2017


It's been about three and a half years since cyber crooks hacked Target's
systems, compromising the financial or personal information of some 100
million customers.

Target has paid banks and credit- and debit-card issuers about $110 million
for fraud losses, card replacement costs and other damages they endured.

In late 2015, Target agreed to a compensation plan for affected consumers
with a pool of $10 million available. But consumers have yet to see a dime
because of a sole objection.

One man stands in the way.

Leif Olson, a Texas resident, has been able to block court approval of the
plan. He's represented by a group critical of lawyers called the Center for
Class Action Fairness.

The group's opposition makes no sense, said attorney Vincent Esades, who
represented consumers in a data breach class-action lawsuit against Target.
"They're saying there should have been more classes. More lawyers. Their
ultimate conclusion is this case should not be going forward as a class
action," he said. "I disagree because if it doesn't go forward as a class
action, hundreds of thousands of people are not going to get anything."

Only about 226,000 consumers filed for compensation from Target. They had
to provide evidence of a loss or, if they lacked documentation, assert they
suffered certain kinds of trouble, such as having to dispute fraudulent
charges or overdraft fees.

Individual pay-outs are capped at $10,000. But the vast majority of claims
are undocumented and would pay only $40.

The Center for Class Action Fairness, which is associated with the
Competitive Enterprise Institute, a libertarian thinktank. The center
boasts that when it prevails "lawyers get less, class members get more."

Melissa Holyoak, an attorney with the Center, contends consumers did not
get a good deal in the Target case. They're in line for just $10 million,
while attorney and administration costs hit $13 million.

She said various groups of consumers would get a raw deal. For example, she
said there's nothing in the settlement to compensate for damages only
incurred in the future.

"If you had some sort of loss that you could identify, you could get money
under the settlement. But everyone else got nothing," Holyoak said.

After U.S. District Court Judge Paul Magnuson approved the proposed
settlement, the center appealed. In February, the 8th U.S. Circuit Court of
Appeals sent the case back to Magnuson for reconsideration.

Attorneys who negotiated the class-action settlement with Target argue it
offers something for everyone — specifically, enhanced security and
business practices Target agreed to implement to prevent future fiascoes.

But Holyoak said those terms don't specifically benefit injured consumers.

"That is for everyone. the whole world gets the protections that Target is
now doing," she said. It doesn't offer any special consideration for these
class members."

Class-action objectors are allowed to hold up settlements, but the motives
can range from personal gain to calling attention to legitimate

Critics of the Center for Class Action Fairness say it masquerades as a
consumer advocate, but really tries to undermine class actions. "It's part
of constellation of conservative efforts to shut down class actions, to
block people from being able to pursue justice against corporate bad actors
or to enforce civil rights legislation in the courts," said Rebecca
Buckwalter-Poza, a fellow at the left-leaning Center for American Progress.

But the Holyoak said her organization is about preventing attorneys from
siphoning off money that should rightly go to the consumers in a class
action settlement.

"We want them to be fair. We're not trying to get rid of class actions,"
Holyoak said. "We just want to get rid of the bad players in class action.
The ones that are only structuring and negotiating selfish settlements."

Judge Magnuson on Wednesday reaffirmed his prior decision. But further
reviews and appeals are possible.

That could mean nothing gets resolved and consumers won't get paid before
next year, at the earliest, even though Magnuson ruling indicates he
doesn't see a better option.

It is "difficult to imagine a settlement that more comprehensively
addresses all of the harm suffered," he wrote.
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