Court Recommends Granting Preliminary Approval in $2.35 million Dickey’s Data Breach Settlement

On October 14, Magistrate Judge Rebecca Rutherford issued a report and recommendation that the District Court should grant in full Plaintiffs’ motion to preliminary approve a class action settlement arising out of a data breach at Dickey’s Barbecue Restaurants between April 2019 and October 2020. Magistrate Judge Rutherford’s report concluded that the Plaintiffs and the proposed class all suffered an injury sufficient to confer Article III standing—a point that was discussed at length in supplemental briefing and during the August 8, 2022 oral argument, which was argued by former CSK&D partner, Benjamin Johns.

The Magistrate found that the Plaintiffs alleged a concrete harm attributable to all class members—namely, that Dickey’s payment-card customers did not get the benefit of their bargain with respect to their implied data-security contracts with Dickey’s. The Magistrate further concluded that the Settlement satisfied the elements of Rule 23(a) and (b) in that the class is sufficiently numerous; there are common questions of law and fact among class members; the claims and defenses of the representatives are typical of the claims of the class; and the representative parties and their counsel are adequate to represent the class. The Magistrate Judge additionally found that the proposed class meets the ascertainability requirement in that the class definition—all United States residents who used a payment card to make a purchase at certain Dickey’s locations between April 23, 2019 and October 29, 2020—creates a readily ascertainable class. All a potential class member need do to demonstrate that they are included in the class definition is show that they made a purchase at one of these locations using a payment card.

The Magistrate Judge ultimately concluded the settlement is fair, reasonable and adequate, and overruled all of the objections raised by objecting counsel. The Magistrate Judge also recommended that the Court appoint former CSK&D partner, Benjamin F. Johns, as Co-Lead Class Counsel, and associate Samantha E. Holbrook, as Additional Class Counsel, and appoint the Settling Plaintiffs as class representatives. A copy of the opinion may be found here.

Attorneys for this case:

Samantha E. Holbrook