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In Re: Trans Union Corp. Privacy Litigation

March 14, 2011

IN RE: TRANS UNION CORP. PRIVACY LITIGATION,MDL


The opinion of the court was delivered by: Judge Robert W. Gettleman

THIS DOCUMENT RELATES TO ALL ACTIONS

MEMORANDUM OPINION AND ORDER

"In every big transaction . . . there is a magic moment during which a man has surrendered a treasure, and during which the man who is due to receive it has not yet done so. An alert lawyer will make that moment his own, possessing the treasure for a magic microsecond, taking a little of it, passing it on." Kurt Vonnegut, Jr., God Bless You, Mr. Rosewater: or, Pearls Before Swine (1965).

Some of the lawyers in the instant MDL action make Vonnegut, and his protagonist, look altruistic. After negotiating a generous settlement for a class of more than 190 million people (everyone who had a credit rating with Trans Union from 1987 to 2008), these lawyers have directed their efforts to grabbing for themselves as much of the settlement fund as possible.*fn1

One of these lawyers, Dawn Wheelahan, was exceptionally fortunate to press an appeal of this court's award to her of $2.7 million, which resulted in an additional $1.425 million award by the court of appeals. See In re Trans Union Corp. Privacy Litigation, Appeal of Dawn Adams Wheelahan, 629 F.3d 741 (7th Cir. 2011). In the most recent act of chutzpah, "Texas Counsel,"*fn2 who had litigated the case with Wheelahan, sought (unsuccessfully) an additional award of $835,577, despite the court of appeals' explicit holding that class lawyers other than Wheelahan "are not entitled to additional fees." Id. at 748.

The subject of this opinion involves a clever maneuver by several groups of lawyers who were not involved in negotiating the original settlement to grab even more fees for themselves and, indirectly, reduce the amount of the cash fund available to class members. The settlement mechanism was explained in the Order Granting Final Approval of the Settlement and Final Judgment, and the Stipulation of Settlement.*fn3 To summarize, the settlement included the creation by Trans Union of a $75 million cash fund and more than $30 million of in-kind relief made available to a settlement class defined as "[a]ll consumers who had an open credit account or an open line of credit from a credit grantor located in the United States at any time during the period January 1, 1987, to May 28, 2008."

The cash fund was to be used to pay class plaintiffs' attorneys' fees, payments to named plaintiffs, and costs of administering the settlement, and to reimburse Trans Union for payment of individual claims (referred to in the settlement as post-settlement claims or claimants, or "PSCs")*fn4 made by class members whose credit information Trans Union allegedly improperly disclosed. Any money remaining in the settlement fund after fees, costs, payments to named plaintiffs, and reimbursement to Trans Union for resolving PSCs was to be divided among those class members who had registered for a possible cash disbursement under the terms of the settlement agreement (the "Registered Claimants").

The settlement notice thus described the various options for benefits available to class members:

C File an individual lawsuit against Defendant(s) for claims related to target marketing and prescreening: You can also sign up for six months of credit monitoring.

C Sign up for six months of credit monitoring services: You can also register to receive a possible cash payment in the event of a cash distribution or file an individual lawsuit against the Defendants.

C Sign up for nine months of enhanced credit monitoring services: You will not receive any further benefits, including a cash payment, and you will not be able to file an individual lawsuit against the Defendants.

C Register to receive a possible cash payment: You can also sign up for six months of credit monitoring; however if you receive a cash payment, you cannot file an individual lawsuit against the Defendants.

C Do Nothing: You won't get any benefits. You will keep your right to sue the Defendants individually (see the detailed notice and Settlement Agreement for more information).

The time to sign up for benefits through the claims administrator ("Administrative Claims") expired on September 24, 2008. The settlement agreement extended the statute of limitations for any PSCs (including individual lawsuits or claims) to September 16, 2010, two years ...


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