McClaine v. DX Enterprises, Inc.

Filing 57

PRELIMINARY APPROVAL ORDER. Final Approval Hearing set for 4/15/2025 at 10:00 AM in the East St. Louis Courthouse before Judge David W. Dugan. Signed by Judge David W. Dugan on 1/7/2025. (dmw2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HEATHER MCCLAINE,
Plaintiff,
vs.
DX ENTERPRISES, INC.,
Defendant.

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Case No. 23-cv-1168-DWD

PRELIMINARY APPROVAL ORDER
DUGAN, District Judge:
This matter having come before the Court on Plaintiff’s Unopposed Motion for
Preliminary Approval of Class Action Settlement (“the Motion”) (Doc. 56), the Court
having reviewed and considered the Motion, the Class Action Settlement Agreement
(“Settlement” or “Settlement Agreement”) (Doc. 56-1), including all attachments to the
Settlement Agreement, and the Court being fully advised in the premises, IT IS HEREBY
ORDERED:
1.

Capitalized terms used in this Order are defined in the Parties’ Settlement

Agreement.
2.

The Settlement is preliminarily approved as fair, reasonable, and adequate.

The Settlement Agreement was negotiated at arm’s-length between counsel for the
Parties who are experienced in class action litigation.
3.

For settlement purposes only, the Court finds that the requirements for a

class action under Federal Rule of Civil Procedure 23 are preliminarily satisfied,

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including numerosity, commonality and predominance, adequacy, and appropriateness
of class treatment.
4.

For settlement purposes only, the Court preliminarily certifies the

following Settlement Class and Subclass:
Settlement Class:
All persons who had their biometrics collected and/or biometric
information and/or data collected, captured, received converted, stored,
obtained, shared, taken, used, disclosed or disseminated by Defendant in
Illinois between February 27, 2018 to the date of preliminary approval
without first executing a written release. Excluded from the Settlement
Class are: (1) any Judge or Magistrate presiding over this Action and
members of their families; (2) the Defendant, Defendant’s subsidiaries,
parent companies, successors, predecessors, and any entity in which the
Defendant or its parents have a controlling interest; (3) persons who
properly execute and file a timely request for exclusion from the Settlement
Class; and (4) the legal representatives, successors or assigns of any such
excluded person.
Defendant estimates there are 586 Settlement Class Members.
Settlement Subclass:
The Settlement Subclass will be defined to consist of only those members of
the Settlement Class who were hired by DX Enterprises, Inc. more than one
time during the period of February 27, 2018 to the date of preliminary
approval and who had their biometrics collected and/or biometric
information and/or data collected, captured, received, converted, stored,
obtained, shared, taken, used, disclosed, or disseminated by Defendant in
Illinois without first executing a written release.
Defendant estimates that there are 86 Subclass Members.
5.

The Parties agree that certification of the Settlement Class is a conditional

certification for settlement purposes only, and that Defendant retains its right to object to

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certification of this Action, or any other class action, under any applicable rule, statute,
law, or provision.
6.

For settlement purposes only, the Court appoints Heather McClaine as the

Settlement Class Representative.
7.

For settlement purposes only, the Court appoints the following attorney as

Settlement Class Counsel:
The Garfinkel Group, LLC
Max P. Barack
[e-mail]
701 N. Milwaukee Avenue
The CIVITAS
Chicago, Illinois 60642
Telephone: [phone]
8.

The Court approves the Notice of Class Action Settlement (“Notice”)

attached as Exhibit 1 to the Settlement Agreement and orders distribution of the Notice
to Settlement Class Members as described in the Settlement Agreement. The Notice and
the methods of distribution satisfy due process, the requirements of Federal Rule of Civil
Procedure 23, and constitute the best notice practicable under the circumstances.
9.

The Court appoints Simpluris as the Settlement Administrator to perform

all duties described in the Settlement Agreement or ordered by this Court.
10.

Any Settlement Class Member may request to be excluded from the

Settlement by submitting a written request for exclusion to the Settlement Administrator
as described in the Notice within 30 days from the date of initial Notice distribution.

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11.

Any Settlement Class Member who excludes himself or herself from the

Settlement will not be entitled to any recovery under the Settlement and will not be bound
by the Settlement or have any right to object, appeal, or comment on it.
12.

Any Settlement Class Member who does not request to be excluded from

the Settlement may object to the Settlement by submitting a written statement to the
Settlement Administrator as described in the Notice within 30 days from the date of initial
Notice distribution.
13.

Settlement Class Counsel shall file a motion for final approval of the

settlement and for attorneys’ fees, litigation costs, settlement administration costs, and
the Class Representative’s Incentive Award (“Fee Petition”) at least seven days prior to
the Final Approval Hearing.
14.

The Court schedules a Final Approval Hearing for April 15, 2025, at 10:00

a.m., which will be conducted in person, at the United States District Court for the
Southern District of Illinois, East St. Louis, Illinois, to consider, among other things, (1)
whether to finally approve the Settlement; (2) whether to approve Settlement Class
Counsel’s request for attorney fees and litigation costs; (3) whether to approve the Class
Representative’s request for an Incentive Award; and (4) whether to approve the
Settlement Administrator’s costs.
15.

The Final Approval Hearing may be postponed, adjourned, transferred, or

continued by order of the Court without further notice to Settlement Class Members. At
or following the Final Approval Hearing, the Court may enter a judgment approving the

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Settlement and entering a Final Approval Order in accordance with the Settlement that
adjudicates the rights of all Settlement Class Members.
16.

For clarity, the deadlines set forth above and in the Settlement Agreement

are anticipated to be as follows:
A. Class List to Administrator: January 21, 2025;
B. Notice distributed by: February 4, 2025;
C. Exclusion deadline: March 6, 2025;
D. Objection deadline: March 6, 2025;
E. Fee Petition filing: April 8, 2025;
F. Final Approval Motion filing: April 8, 2025; and
G. Final Approval Hearing: April 15, 2025, at 10:00 a.m.
SO ORDERED.
Dated: January 7, 2025

_____________________________
DAVID W. DUGAN
United States District Judge

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