IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

MARTIN KUSINSKI, JAMES BRYSKI, and FELIPE BERNAL individually and on behalf of all others similarly situated, Plaintiffs, v. ADP, LLC, a Delaware limited liability company, Defendant.

No. 2017-CH-12364 (consolidated with 2018-CH-07139 and 2019-CH-01612) Hon. David B. Atkins

PLAINTIFFS’ MOTION AND MEMORANDUM OF LAW FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ................................................................................................................ 3

A. BIPA and the Underlying Claims ......................................................................... 3

B. Litigation History and the Work Performed for the Settlement Class ............ 4

C. The Settlement Secures Excellent Relief for the Settlement Class .................. 11 III. THE REQUESTED ATTORNEYS’ FEES AND INCENTIVE AWARD ARE

REASONABLE AND SHOULD BE APPROVED ....................................................... 11

A. Percentage-of-the-Recovery Should be Used to Determine Fees Here ........... 12

B. 35% Is a Reasonable Fee Award ........................................................................ 14

1. This case presented serious obstacles to recovery, and Class Counsel litigated the case mindful of the possibility that the Class might recover nothing ............................................................................................................ 16

2. Class Counsel achieved an exceptional result for the Class ......................... 18

C. The Court Need Not Undertake a Lodestar Crosscheck ................................. 21

IV. THE COURT SHOULD APPROVE THE REQUESTED INCENTIVE AWARD .. 23 V. CONCLUSION ............................................................................................................... 23

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TABLE OF AUTHORITIES United States Supreme Court Cases: Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .......................................................................................................... 12 Frank v. Gaos, 139 S. Ct. 1041 (2019) ....................................................................................................... 19 Hall v. Cole, 412 U.S. 1 (1973) .............................................................................................................. 21 United States Circuit Court of Appeals Cases: Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019) ............................................................................................. 18 In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017) ............................................................................................. 19 Silverman v. Motorola Sols., Inc., 739 F.3d 956 (7th Cir. 2013) ............................................................................................. 16 United States District Court Cases: Adkins v. Facebook, Inc., No. 18-cv-05982-WHA (N.D. Cal. Nov. 15, 2020) .......................................................... 19 Heard v. Becton, Dickinson & Co., No. 19 C 4158, 2020 WL 887460 (N.D. Ill. Feb. 24, 2020) ............................................. 17 In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD, 2018 WL 2197546 (N.D. Cal. May 14, 2018) ............................ 18 In re Google LLC Street View Elec. Commc’ns Litig., No. 10-md-02184-CRB, 2020 WL 1288377 (N.D. Cal. Mar. 18, 2020) .......................... 19 Lopez-McNear v. Superior Health Linens LLC, 19-cv-2390 (N.D. Ill.) ........................................................................................................ 10 Mansfield, Jr. v. Air Line Pilots Ass’n, Int’l, No. 06-cv-6869 (N.D. Ill. Dec. 14, 2009) ......................................................................... 15 Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279 (N.D. Ill. 2019) ................................................................................. 17

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Perlin v. Time Inc., 237 F. Supp. 3d 623 (E.D. Mich. 2017) ............................................................................ 18 Spano v. Boeing Co., No. 06-cv-743-NJR-DGW, 2016 WL 3791123, 2016 WL 3791123 (S.D. Ill. Mar. 31,

2016) .................................................................................................................................. 23 Thome v. NOVAtime Tech., Inc., No. 19-cv-6256 (N.D. Ill.) ................................................................................................. 20 State Supreme Court Cases: Brundidge v. Glendale Fed. Bank F.S.B., 168 Ill. 2d 235 (1995) ................................................................................................. passim Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186 ................................................................................................................... 7 State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d 533 (1992) .......................................................................................................... 5 Wendling v. S. Ill. Hosp. Servs., 242 Ill. 2d 261 (2011) ........................................................................................................ 12 State Appellate Court Cases: GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill. App. 3d 486 (1st Dist. 1992) ................................................................................ 23 Langendorf v. Irving Trust Co., 244 Ill. App. 3d 70 (1st Dist. 1992) ................................................................................... 21 Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645 ............................................................................................... 7-8 McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398 ................................................................................................... 7 Rosenbach v. Six Flags Ent. Corp., 2017 IL App (2d) 170317 ........................................................................................... passim Ryan v. City of Chicago, 274 Ill. App. 3d 913 (1st Dist. 1995) .......................................................................... passim

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Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 ................................................................................................... 6 Shaun Fauley, Sabon, Inc. v. Metro. Life Ins. Co., 2016 IL App (2d) 150236 ............................................................................................ 21, 22 State Trial Court Cases: Barnes v. Aryzta, 2017-CH-11312 ............................................................................................................. 4, 15 Bernal v. Rockit Ranch, 2017-CH-12364 .......................................................................................................... passim Bruhn v. New Albertson’s, 2018-CH-01737 ................................................................................................................... 8 Cameron v. Polar Tech Indus., Inc., 2019-CH-000013 (Cir. Ct. DeKalb Cty. Aug. 23, 2019) .................................................. 17 Carroll v. Crème de la Crème, 2017-CH-01624 ........................................................................................................... 14, 19 Collier, et. al. v. Pete’s Fresh Market 2526 Corp., et. al., 2019-CH-05125 ................................................................................................................. 14 Doporcyk v. Roundy’s Supermarkets, 2017-CH-08092 ................................................................................................................... 4 Fluker v. Glanbia Performance Nutrition, Inc., 2017-CH-12993 ..................................................................................................... 14, 15, 20 George v. Schulte Hosp. Grp., Inc., et al., 2018-CH-04413 ................................................................................................................. 15 Goings v. AEP NVH OPCO, LLC d/b/a Applied Acoustics, et al., 2017-CH-14954 (Cir. Ct. Cook. Cty.) ............................................................................... 20 Gutierrez v. Senior Lifestyle Corp., 2017-CH-11314 ................................................................................................................. 10 Henderson, Bernal, and Zepeda v. ADP LLC, 2019-CH-01612 ................................................................................................................... 9 Hoormann v. Smithkline Beecham, No. 04-L-715, 2007 WL 1591510 (Cir. Ct. Madison Co. May 17, 2007) ........................ 16

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Lloyd v. Xanitos, 2018-CH-15351 ................................................................................................................. 15 Marshall v. Lifetime Fitness, 2017-CH-14262 ................................................................................................................ 20 Mazurkiewicz v. Mid-City Nissan, Inc., 2018-CH-09798 ................................................................................................................. 10 McGee v. LSC Commc’ns, No. 2017-CH-12818 ...................................................................................................... 2, 15 Muniz v. Workwell Techs., Inc., 2019-CH-04061 (Cir. Ct. Cook Cty.) ................................................................................ 20 Parker v. Sears, Roebuck & Co, No. 04-L-716, 2008 WL 8772260 (Cir. Ct. Madison Co. Jan. 15, 2008) ......................... 16 Prelipceanu v. Jumio Corp., 2018-CH-15883 ............................................................................................................. 2, 20 Robertson v. Hostmark Hosp. Grp., et al., 2018-CH-05194 ................................................................................................................... 8 Sekura v. Krishna Schaumburg Tan, Inc., 2016-CH-04945 ................................................................................................................... 6 Sekura v. L.A. Tan Enters., 2015-CH-16694 .......................................................................................................... passim Sparks v. AT&T Corp., No. 01-L-1668, 2002 WL 34503097 (Cir. Ct. Madison Cty. Nov. 04, 2002) ................... 16 Svagdis v. Alro Steel Corp., 2017-CH-12566 ................................................................................................................. 14 Taylor v. Sunrise Senior Living Mgmt., Inc., 2017-CH-15152 ........................................................................................................... 14, 15 Walton v. Roosevelt, 2019-CH-04176 ................................................................................................................... 7 Willis, et al. v. iHeartMedia, Inc., 2016-CH-02455 ................................................................................................................. 15

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Zepeda v. Kimpton Hotel & Rest., 2018-CH-02140 ................................................................................................................. 14 Zhirovetskiy v. Zayo Group, LLC, 2017-CH-09323 ................................................................................................................. 15 Rules and Statutory Provisions: 740 ILCS 14 ............................................................................................................................ passim Other Authorities: David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, 64 ALA. L. REV. 335 (2012) .............................................................................................. 22 HB 5103 ........................................................................................................................................... 7 Herbert M. Kritzer, RISKS, REPUTATIONS, AND REWARDS 39–40 (2004) .......................................................... 22 NEWBERG ON CLASS ACTIONS § 15.83 (5th ed.) ................................................................................................................. 15 NEWBERG ON CLASS ACTIONS § 15:65 (5th ed.) ................................................................................................................. 22 SB 3053 ........................................................................................................................................... 7 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303 (2006) ...................................................................................... 3, 23

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I. INTRODUCTION

This Court is familiar with the now-common class action under the Illinois Biometric

Information Privacy Act (“BIPA”), where an employee sues an employer for being forced to

clock in and out of work using her biometric identifier—most often, a fingerprint or handprint—

without the employer complying with BIPA. Class Counsel have prosecuted, and continue to

prosecute, several such cases. But during their investigation and discovery into Illinois

employers’ use of biometric time clocks, Class Counsel discovered that ADP—one of the largest

providers of biometric-based timeclocks used to track employee time—had itself been collecting

Illinois workers’ biometric data without complying with BIPA’s informed consent requirements.

See generally 740 ILCS 14/15. Class Counsel brought this novel BIPA suit against ADP, seeking

to represent a class of all individuals in Illinois from whom ADP had taken biometric data

through its timeclocks.

In June 2018, when Class Counsel took this case on, things were not looking good for

BIPA plaintiffs in this nascent area of law. The Second District had ruled—in an opinion binding

on this Court—that plaintiffs needed to allege actual harm in order to be “aggrieved” and state a

claim to BIPA’s statutory damages. See Rosenbach v. Six Flags Entm’t Corp., 2017 IL App (2d)

170317 (“Rosenbach I”). And even where the law was developing quickly (if unfavorably) in

cases brought by employees against employers, there was no law at all about a timeclock

vendor’s liability to a class under BIPA for its own violations of the statute. Since then,

timeclock vendors have secured both wins and losses on the question of their own liability,

including this Court’s grant—before consolidation of these cases—of ADP’s motion to dismiss

without prejudice on Plaintiff Felipe Bernal’s claims. Nor were these the only risks: throughout

the case’s pendency, industry and corporate interest groups spent incredible sums in their push to

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amend or repeal BIPA outright in Springfield to strip the class of BIPA’s protections, which

Class Counsel continually organized opposition to fend off.

Despite these risks, Class Counsel aggressively pursued ADP for years. They completed

hundreds of pages of briefing, secured relevant discovery, and—over the course of two years of

litigation—gradually cornered ADP until it had no choice but to come to the table to discuss

settlement. Even this process was a challenge, with the Parties mediating over four separate days

with an experienced mediator, Honorable Wayne R. Andersen (Ret.). But that work proved

fruitful: ADP has agreed to pay a record-breaking $25,000,000.000 non-reversionary fund to this

Class, the largest ever produced in a BIPA timeclock vendor case by several orders of

magnitude. The Settlement Fund will be distributed pro rata to Class Members, after fees and

costs, with no money going back to ADP.1

Class Counsel now request that they be compensated for taking on an untested case like

this and obtaining the extraordinary outcome they did. Counsel request 35% of the Settlement

Fund, or $8,750,000.00. This is in line with historical common fund fee awards, and in fact less

as a percentage than that commonly awarded in BIPA cases. See, e.g., Sekura v. L.A. Tan

Enters., Inc., 2015-CH-16694 (Cir. Ct. Cook Cty. Dec. 1, 2016) (awarding 40% of fund);

Prelipceanu v. Jumio Corp., 2018-CH-15883 (Cir. Ct. Cook Cty. July 21, 2020) (awarding 40%

of fund); McGee v. LSC Commc’ns, Inc., 2017-CH-12818 (Cir. Ct. Cook Cty. Nov. 11, 2019)

(Atkins, J.) (awarding 40% of fund). An award of 35% reasonably and fairly reflects the

outstanding result produced here in the face of the considerable risk this case presented. See

Ryan v. City of Chicago, 274 Ill. App. 3d 913, 924 (1st Dist. 1995).

1 Unless otherwise specified, all capitalized terms are defined in the Stipulation of Class Action Settlement (the “Agreement” or “Settlement”), which is attached hereto as Exhibit 1.

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Plaintiffs also request reasonable incentive awards of $7,500.00. Incentive awards in

class action settlements frequently exceed $10,000.00. See Theodore Eisenberg & Geoffrey P.

Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303,

1308 (2006) (finding that “[t]he average award per class representative was $15,992”); e.g.,

Ryan, 274 Ill. App. 3d at 917 (noting approval of $10,000 incentive award to two plaintiffs).

These class representatives similarly stepped forward to represent this Class, accepting the

significant possibility that their efforts would return nothing. The incentive awards should be

approved as well.

II. BACKGROUND

A brief summary of Class Counsel’s investigation, the underlying facts, and the law lend

some context to the instant Motion and demonstrate the reasonableness of the requested fees,

costs, and incentive award.

A. BIPA and the Underlying Claims.

BIPA is landmark privacy law in Illinois, and one of the country’s only meaningful

regulations on the collection and use of biometric data. Recognizing the “very serious need” to

protect Illinois citizens’ biometric data—which includes retina scans, fingerprints, voiceprints,

and scans of hand or face geometry—the Illinois Legislature unanimously passed BIPA in 2008

to provide individuals recourse when companies failed to appropriately handle their biometric

data in accordance with the statute. (See Compl. ¶ 15; 740 ILCS 14/5.) BIPA makes it unlawful

for any private entity to “collect, capture, purchase, receive through trade, or otherwise obtain a

person’s or a customer’s biometric identifier or biometric information, unless it first:”

(1) informs the subject . . . in writing that a biometric identifier or biometric information is being collected or stored;

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(2) informs the subject . . . in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information[.]

740 ILCS 14/15(b). BIPA also establishes standards for how companies must handle Illinois

consumers’ biometric identifiers and biometric information. For example, BIPA requires

companies to develop and comply with a written policy establishing a retention schedule and

guidelines for permanently destroying biometric information. 740 ILCS 14/15(a). To enforce the

statute, BIPA provides a civil private right of action and allows for the recovery of statutory

damages in the amount of $1,000 for negligent violations—or $5,000 for willful violations—plus

costs and reasonable attorneys’ fees to any person “aggrieved by a violation” of the statute. See

740 ILCS 14/20.

B. Litigation History and the Work Performed for the Settlement Class.

While BIPA became law in 2008, cases seeking to enforce it did not begin in earnest until

years later. Beginning in 2017, employees began filing BIPA cases against employers who had

used biometric timeclocks to collect employees’ biometric data without complying with the

law’s requirements. Class Counsel represented the plaintiffs in a number of these earliest-filed

cases. See, e.g., Doporcyk v. Roundy’s Supermarkets, 2017-CH-08092 (Cir. Ct. Cook Cty. Jun. 9,

2017); Barnes v. Aryzta, 2017-CH-11312 (Cir. Ct. Cook Cty. Aug. 17, 2017); Bernal v. Rockit

Ranch, 2017-CH-12364 (Cir. Ct. Cook Cty. Sept. 12, 2017). In litigating these early BIPA cases,

Class Counsel’s investigation revealed that the vendors of these timeclocks themselves—not just

the employers—were collecting employee biometric data and violating BIPA in some

circumstances. Indeed, ADP was the vendor at issue in at least two of the early cases, including

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Barnes and Bernal. Class Counsel named ADP2 as a respondent-in-discovery in the Barnes

matter in August 2017, served discovery requests on it in October 2017, and secured responses to

that discovery in May 2018.

Meanwhile, courts began deciding the many questions of first impression posed by BIPA

cases. The most important unresolved question was who an “aggrieved” person—as used in

BIPA’s damages provision—was. See 740 ILCS 14/20. BIPA defendants argued that a person

was “aggrieved” only if they had suffered some consequential harm in addition to violation of

their privacy rights under the statute, an interpretation that would deprive nearly all BIPA

plaintiffs of the $1,000 or $5,000 liquidated damages provided by BIPA. That argument found

purchase before the Second District in Rosenbach I, 2017 IL App (2d) 170317, just months

before this case was filed. There, the Court held that a plaintiff must identify “actual injury,

adverse effect, or harm [beyond violation of their rights] in order for the person to be

‘aggrieved.’” Id. at ¶ 20. BIPA’s informed consent rules are largely designed to prevent actual

injury, not redress it, so few BIPA plaintiffs could survive the Rosenbach I holding. The case

was binding on all circuit courts in Illinois. State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d

533, 539 (1992) (“A decision of the appellate court, though not binding on other appellate

districts, is binding on the circuit courts throughout the State.”).

It was into this foreboding environment that Class Counsel filed a BIPA case that not

only relied on overturning the Second District’s Rosenbach I opinion, but also was a type of

BIPA case that had never been filed before: against the timeclock vendor directly. Class Counsel

filed an action in June 2018 against ADP, representing Plaintiffs Maurice Henderson and

Chiquita Alston, seeking redress for ADP’s violations of BIPA on behalf of a statewide class of

2 Counsel had named Automated Data Processing, Inc., a related entity.

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individuals (the “Henderson action”). That case was assigned to Judge Mullen. In July 2018,

Plaintiff Bernal amended his complaint to similarly name ADP (the “Bernal action”). The two

cases proceeded separately for nearly a year of litigation.

ADP filed its motion to dismiss in the Henderson action on September 7, 2018, relying

predictably on the argument that Plaintiffs were not “aggrieved” under the then-binding

Rosenbach I opinion. Just a few weeks later, Class Counsel succeeded in securing countervailing

First District authority in Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, a

case originally before this Court. The First District unequivocally disagreed with the Second

District, finding “the trial court was initially correct and that, pursuant to both the plain language

of the statute itself and its legislative history and purpose, the Act does not require a harm in

addition to a violation of the Act in order to file suit.” Id. at ¶ 84.3 Meanwhile, the Illinois

Supreme Court had accepted review of Rosenbach I, and both the Henderson and Bernal cases

were stayed to await an answer on this pivotal question.

But courts were not the only battleground where the rights of BIPA plaintiffs were being

decided. Facebook and other technology giants had undertaken a major push to amend the law in

Springfield, during which Class Counsel Edelson PC became deeply involved with an on-the-

ground presence in the legislature around the clock for months, meeting with and organizing

consumer rights groups, civil rights groups, unions, and other stakeholders to successfully

oppose the attempt to eviscerate BIPA rights. But the attack from industry on BIPA continued in

subsequent sessions, including, notably, in the 2018 session when these cases were filed: a

3 This Court had, prior to the Second District’s Rosenbach I decision, held that “aggrieved” referred to violation of rights under the statute, and not some additional harm. See Sekura v. Krishna Schaumburg Tan, Inc., 2016-CH-04945 (Cir. Ct. Cook Cty. Feb. 9, 2017). In light of Rosenbach I, the Court was required to overturn itself, which set the matter for appellate review in which the Court’s original holding was vindicated.

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coalition led by the Chamber of Commerce—and supported by a number of Illinois employer

groups—succeeded in persuading legislators to introduce bills in both chambers of the

legislature, with both a Democratic and Republican sponsor, that would have made Rosenbach I

the law of the land. See SB 3053, HB 5103. Among others, timeclock vendors were behind this

bill; Kronos Incorporated (another timeclock vendor and a business partner of ADP) appeared in

meetings with representatives to encourage legislators to canonize the Rosenbach I reasoning.

Again, Class Counsel led efforts of unions, consumer rights organizations, and the ACLU to

persuade sponsors that the rights provided by BIPA were too important to be taken away at the

behest of industry. The bill, as a result of that work, did not make it to the legislative floor.4

Back on the judicial front, the Illinois Supreme Court finally put the “aggrieved”

argument to rest in January 2019, agreeing with Sekura that “an individual need not allege some

actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to

qualify as an ‘aggrieved’ person and be entitled to seek liquidated damages and injunctive relief

pursuant to the Act.” Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186, ¶¶ 23, 40

(“Rosenbach II”).5 But that far from ended the novel arguments that ADP could raise here as a

4 In addition to their advocacy on the judicial and legislative fronts, Class Counsel have taken an active role in organizing and establishing working relationships with members of the plaintiffs’ bar who are prosecuting BIPA litigation, efforts which have succeeded in identifying and developing underlying legal theories, strategies and responses to the various defenses being asserted, which has enabled Class Counsel to maximize outcomes for BIPA plaintiffs. In furtherance of this goal, Class Counsel monitor hundreds of BIPA filings in state and federal court. 5 Class Counsel have also fought—and consistently won—other courtroom battles on BIPA defenses of first impression, all of which could have been raised by ADP to eliminate or severely curtail the scope of the class, including that BIPA claims are not preempted by the Worker’s Compensation Act, McDonald v. Symphony Bronzeville Park, LLC, 2020 IL App (1st) 192398, that BIPA claims are not subject to preemption under the Labor Management Relations Act (“LMRA”), e.g., Walton v. Roosevelt, 2019-CH-04176 (Cir. Ct. Cook Cty. May 5, 2020), that BIPA claims are not subject to arbitration as “wage and hour” claims, Liu v. Four Seasons Hotel,

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timeclock vendor, rather than a mine-run employer case. It moved to dismiss the Henderson

action in March 2019 on numerous different grounds, arguing that (1) ADP could not have

violated BIPA’s provisions governing collection, 740 ILCS 14/15(b), because Section 15(b)

applied only to the employer in the employment context due to definition of “written release,”

and could not apply to a timeclock vendor as a “third party technology provider” because ADP

did not “collect” the data but merely “possessed” it, (2) that ADP had not violated BIPA’s

provisions requiring a public retention policy, 740 ILCS 14/15(a), because ADP had belatedly

created such a policy, (3) that Plaintiffs had not alleged a violation of BIPA’s prohibition against

profiting from biometric data, 740 ILCS 14/15(c), and (4) seeking to dismiss all of Plaintiffs’

common-law claims. ADP also moved to dismiss the Bernal action on similar grounds in March

2019, though also took aim at Bernal’s allegation that ADP’s “technology” collected the

biometric data as too vague to establish that ADP itself collected the data.

Class Counsel in the Henderson action filed a response brief on April 29, 2019, and ADP

timely filed its reply brief on May 20, 2019. After a clerks’ status, Judge Mullen set the matter

for oral argument on August 12, 2019—the next available date—though the Court ultimately

continued the hearing on its own motion to August 27, 2019. Class Counsel in the Bernal action

also briefed ADP’s motion to dismiss, and the matter was fully briefed on July 10, 2019.

This Court ultimately ruled on the papers in Bernal just a few days before the Henderson

motion was to be heard, granting ADP’s motion to dismiss without prejudice. The Court’s

Ltd., 2019 IL App (1st) 182645, the constitutionality of BIPA, Bruhn v. New Albertson’s, 2018-CH-01737 (Cir. Ct. Cook Cty. Jan. 30, 2020), the inapplicability of BIPA’s “HIPAA exemption” to employees, e.g., Bruhn, 2018-CH-01737 (Cir. Ct. Cook Cty. July 2, 2019), and the first decision in which a court held that the statute of limitations under BIPA is five years, rather than one or two. Robertson v. Hostmark Hosp. Grp., et al., 2018-CH-05194 (Cir. Ct. Cook Cty. July 31, 2019).

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holding on Section 15(b) was limited to finding that Bernal did not allege sufficient facts to find

ADP in fact collected his biometric data, “beyond the fact that Defendant supplied [Bernal’s

employer] with the technology.” (Aug. 23, 2019 Order at 3.) The Court expressed skepticism,

however, that timeclock vendors could in fact be held liable under BIPA, finding “compelling”

ADP’s argument that the definition of “written release” expressly included employers to the

implicit exclusion of vendors, and that BIPA required a “direct relationship” with the subject of

collection. (Id. at 2.) The Court also rejected Bernal’s Section 15(a) claim, finding that he had

failed to allege that ADP in fact lacked a retention policy, but again suggested that ADP may

have rendered the issue moot by adopting a policy. (Id. at 4.) The Court granted Bernal leave to

amend.

The day before this Court’s order, on August 22, 2019, Bernal’s counsel had moved to

consolidate the Bernal and Henderson actions, as well as a number of others that named ADP in

addition to an employer in a BIPA case. The motion to consolidate was fully briefed before

Judge Jacobius, who consolidated the three actions that named only ADP as a defendant and

sought to represent a statewide class of individuals against ADP: Henderson, Bernal, and Zepeda

v. ADP LLC, 2019-CH-01612 (in the last, the plaintiffs were also represented by Bernal’s

counsel). Counsel in the Henderson action moved to appoint interim lead counsel, which was

fully briefed. On November 19, 2019, this Court appointed Edelson PC, James B. Zouras of

Stephan Zouras LLP, and McGuire Law, P.C. as interim co-lead counsel.

In order to streamline the action, the Parties agreed that a consolidated complaint should

be filed. Plaintiffs Kusinski, Bryski, and Bernal filed a Consolidated Amended Complaint on

February 4, 2020. Amid the COVID-19 pandemic, and while most matters were stayed or

suspended, Class Counsel nevertheless sought to advance the case by both issuing discovery and

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promptly briefing ADP’s motion to dismiss. Class Counsel issued written discovery requests to

ADP on February 28, 2020. ADP moved to dismiss the complaint on April 14, 2020, and

Plaintiffs filed their response brief on May 18, 2020.

While the briefing on the motion to dismiss was pending here, Class Counsel were

pursuing discovery from ADP in actions between employers and employees where ADP was a

third party—that is, where employers had used ADP’s timeclocks, and ADP therefore had

relevant discovery in the actions. In addition to obtaining the first discovery responses from ADP

in the beginning of 2018 in the Barnes case, Class Counsel issued discovery requests to ADP as

a third party in a number of other employee-employer cases and pressed ADP extensively until it

made productions. See, e.g., Gutierrez v. Senior Lifestyle Corp., 2017-CH-11314 (Cir. Ct. Cook

Cty.) (ADP was respondent-in-discovery, made two productions in November 2019 and March

2020); Lopez-McNear v. Superior Health Linens LLC, 19-cv-2390 (N.D. Ill.) (subpoena issued to

ADP, received production in March 2020); Mazurkiewicz v. Mid-City Nissan, Inc., 2018-CH-

09798 (Cir. Ct. Cook Cty.) (subpoena issued to ADP, ADP responded in March 2020).

During this period, the Parties began to explore settlement and agreed that a formal

mediation would be productive. In addition to relevant discovery that Class Counsel had already

received, the Parties exchanged informal discovery in advance of the mediation about the

estimated size of the putative Settlement Class and the claims to be resolved, including full

mediation briefs. On June 10, 2020, the Parties engaged in a formal mediation with an

experienced BIPA mediator, Judge Wayne Andersen (Ret.) of JAMS in Chicago.6 That

mediation was not successful, but the Parties agreed that progress could still be made on future

6 Due to the COVID-19 pandemic, the mediation sessions were conducted remotely via videoconference.

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mediation dates. The Parties again engaged in a formal mediation with Judge Andersen on June

16, 2020. An agreement was again not reached. The Parties mediated for a third time on June 23,

2020 with Judge Andersen, and ultimately reached an agreement in principle. The Parties then

mediated for a final time with Judge Andersen on June 29, 2020 to complete negotiations, which

continued into the next day. Finally, the Parties agreed to the Settlement now before the Court.

C. The Settlement’s Excellent Relief for the Settlement Class.

As detailed in Plaintiffs’ motion for preliminary approval, the relief to the Class is an

outstanding result. The Settlement creates a non-reversionary fund of $25 million, which will be

split pro rata between approved claimants after Court-approved fees and costs. Even if a

relatively high 20% of Class Members submit a claim, payments are expected to be $250 for

each valid claimant.

Finally, aside from the monetary relief, the Settlement creates significant non-monetary

benefits. ADP has agreed to publicize on its website ADP’s written policy establishing a

retention schedule and guidelines for permanently destroying biometric identifiers and

information and has agreed to comply with its written retention schedule and guidelines. ADP

has further agreed to notify its Illinois clients using ADP’s finger-scan or hand-scan timeclocks

of their obligation to (a) notify the subjects of collection in writing that biometric identifiers or

biometric information are being collected, stored, and used by the employer and/or ADP, (b)

notify the subjects of collection in writing of the purposes and length of term that biometric

identifiers or biometric information are being collected, stored, and used, and (c) obtain a written

release to the collection, storage, and use.

III. THE REQUESTED ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARDS ARE REASONABLE AND SHOULD BE APPROVED.

Class Counsel took this case on a contingent basis, at a time when there was no judicial

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authority whatsoever on the Class’s ability to succeed against ADP as a timeclock vendor, strong

countervailing authority against BIPA plaintiffs generally, and serious legislative efforts to strip

plaintiffs of BIPA rights. In the face of those headwinds, Class Counsel have secured a

$25,000,000 cash settlement. Counsel respectfully request compensation of 35% of the

Settlement Fund to reflect the extraordinary result they produced here, which is in line with fee

awards in BIPA cases and Illinois courts more broadly.

A. Percentage-of-the-Recovery Should be Used to Determine Fees Here. Illinois has adopted the “common fund doctrine” for the payment of attorneys’ fees in

class action cases. Wendling v. S. Ill. Hosp. Servs., 242 Ill. 2d 261, 265 (2011). “The doctrine

provides that a litigant or a lawyer who recovers a common fund for the benefit of persons other

than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.” Id.

(internal quotations omitted). The basis of the doctrine is the equitable principle that “successful

litigants would be unjustly enriched if their attorneys were not compensated from the common

fund created for the litigants’ benefit.” Brundidge v. Glendale Fed. Bank F.S.B., 168 Ill. 2d 235,

238 (1995). Consequently, “[b]y awarding fees payable from the common fund created for the

benefit of the entire class, the court spreads the costs of litigation proportionately among those

who will benefit from the fund.” Id. (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478

(1980)).

The Illinois Supreme Court last considered how fees should be awarded in a common

fund case in Brundidge. See 168 Ill. 2d at 243–44. There are two methods: percentage-of-the-

recovery or lodestar. Under the percentage-of-the-recovery approach, as the name suggests, a

reasonable attorneys’ fee is awarded “based upon a percentage of the amount recovered on

behalf of the plaintiff class.” Id. at 238. Under the lodestar approach, on the other hand, a fee

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award is determined by taking the reasonable value of the services rendered (based on the hours

devoted to the matter by class counsel), and increasing that amount by “a weighted multiplier

representing the significance of other pertinent considerations,” such as the contingent nature of

the litigation, its complexity, and the benefit conferred upon class members. Id. at 239–40.

The Brundidge court was asked to determine whether Illinois courts should exclusively

follow the lodestar method and declined to do so. Id. at 238. The Court found that the lodestar

method was the “object of increasing criticism,” and that both federal and state courts across the

country had begun to move away from the lodestar method as needlessly laborious and

unpredictable, and had moved toward adopting the percentage-of-the-recovery method. Id. at

241–43. That trend was present in Illinois as well: Brundidge was preceded, that same year, by a

First District opinion that was even harsher in its criticism of the lodestar method, decrying it as

“increas[ing] the workload of an already overtaxed judicial system, . . . creat[ing] a sense of

mathematical precision that is unwarranted in terms of the realities of the practice of law, . . .

le[ading] to abuses such as lawyers billing excessive hours, . . . not provid[ing] the trial court

with enough flexibility to reward or deter lawyers so that desirable objectives will be fostered, . .

. . [and being] confusing and unpredictable in its administration.” Ryan, 274 Ill. App. 3d at 923

(summarizing findings of a Third Circuit task force appointed to compare the respective merits

of the percentage-of-the-recovery and lodestar methods). In this case, the percentage-of-the-

recovery method is the most appropriate way to evaluate fees. Percentage-of-the-recovery not

only avoids some of the abuses and arbitrariness of the lodestar method, but also it “eliminates

the need for additional major litigation and further taxing of scarce judicial resources which

occur[] . . . as a result of plaintiffs’ request for attorneys’ fees.” Ryan, 274 Ill. App. 3d at 924.

In fact, percentage-of-the-recovery has been used to determine a reasonable fee award in

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every BIPA class action settlement in Cook County where the defendant—as here—created a

monetary common fund. See, e.g., Sekura, 2015-CH-16694 (Cir. Ct. Cook Cty., Ill. Dec. 1,

2016); Zepeda v. Kimpton Hotel & Rest. Grp., 2018-CH-02140 (Cir. Ct. Cook Cty. Dec. 5,

2018); Taylor v. Sunrise Senior Living Mgmt., Inc., 2017-CH-15152 (Cir. Ct. Cook Cty. Feb. 14,

2019); Svagdis v. Alro Steel Corp., 2017-CH-12566 (Cir. Ct. Cook Cty. Jan. 14, 2019); Fluker v.

Glanbia Performance Nutrition, Inc., 2017-CH-12993 (Cir. Ct. Cook Cty. Aug. 25, 2020);

Collier v. Pete’s Fresh Market 2526 Corp., et. al., 2019-CH-05125 (Cir. Ct. Cook Cty. Dec. 8,

2020). In contrast, to Class Counsel’s knowledge, the lodestar approach hasn’t once been used to

evaluate fees in these cases where the Class received money.7 More broadly, of the nearly eighty

final approval decisions of Illinois circuit courts indexed on Westlaw, it appears that the lodestar

method has never been used in a final class action approval with a non-reversionary fund after

Brundidge. (See Table of Decisions, attached hereto as Exhibit 2.) Consequently, this Court

should have no hesitation in applying the percentage-of-the-recovery method here. See Ryan, 274

Ill. App. 3d at 925.

B. 35% Is a Reasonable Fee Award. The 35% fee request falls comfortably within the range of typical fee awards in Illinois.

Under Illinois law, “an attorney is entitled to an award from the fund for the reasonable value of

his or her services.” Ryan, 274 Ill. App. 3d at 922. Courts in Cook County have commonly

awarded higher percentages of the fund than the 35% requested here, including in many BIPA

cases. See, e.g., Sekura, 2015-CH-16694 (in BIPA case, awarding 40% of fund); Zepeda, 2018-

CH-02140 (in BIPA case, awarding 40% of fund); Svagdis, 2017-CH-12566 (same);

7 The one exception is Carroll v. Crème de la Crème, 2017-CH-01624 (Cir. Ct. Cook Cty. June 6, 2018), which produced no monetary recovery for the class and instead provided credit monitoring.

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Zhirovetskiy v. Zayo Group, LLC, 2017-CH-09323 (Cir. Ct. Cook Cty. Apr. 8, 2019) (same);

McGee, 2017-CH-12818 (Cir. Ct. Cook Cty. Aug. 7, 2019) (same); Willis, et al. v. iHeartMedia,

Inc., 2016-CH-02455 (Cir. Ct. Cook Cty. June 24 and Aug. 11, 2016) (awarding 40% of

common fund); see also NEWBERG ON CLASS ACTIONS § 15:83 (5th ed.) (noting that, generally,

“50% of the fund is the upper limit on a reasonable fee award from any common fund”). A

request for 35% of the fund is comfortably in line with other BIPA cases. See Taylor, 2017-CH-

15152 (in BIPA case, awarding 35% of gross payments to class members in fees); Lloyd v.

Xanitos, 2018-CH-15351 (Cir. Ct. Cook Cty. Ill., July 25, 2019) (same); Fluker, 2017-CH-12993

(same); Barnes, 2017-CH-11312 (Cir. Ct. Cook Cty. Nov. 13, 2020) (same); George, et. al. v.

Schulte Hosp. Grp., Inc., 2019-CH-04413 (Cir. Ct. Cook Cty. Dec. 16, 2019) (same).

In addition to falling within the range of typical fee awards, the 35% requested here is

further justified—as explained below—in light of both (1) the considerable risk Class Counsel

undertook in pursuing this litigation on a contingency basis, when every matter under BIPA was

a question of first impression, and (2) the excellent relief Class Counsel ultimately obtained for

the Settlement Class. See Ryan, 274 Ill. App. 3d at 924 (affirming district court’s attorney fee

award due to the “extreme contingency risk” of pursuing the litigation, and the “hard cash

benefit” obtained); cf. Mansfield, Jr. v. Air Line Pilots Ass’n, Int’l, No. 06-cv-6869, dkt. 373 at

7–9 (N.D. Ill. Dec. 14, 2009) (approving 35% of a $44 million common fund and finding 35%

consistent with awards in cases similarly involving a “significant risk” that Class would not

prevail). Critically, the Settlement Fund here is made up of $25 million in non-reversionary cash,

not a claims-made “fund” that may or may not actually be distributed to the class. This means

that, when compared against the Class’s actual recovery, Class Counsel’s request for 35% of that

fund is in fact far less than what numerous finally-approved settlements have ultimately

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awarded—and when far larger fees were requested. See, e.g., Hoormann v. Smithkline Beecham,

No. 04-L-715, 2007 WL 1591510 (Cir. Ct. Madison Cty. May 17, 2007) (awarding nearly $17

million in fees where $63.8 million was set aside to provide reimbursement of out-of-pocket

expenses to claimants who could prove them; $300,000 in cash to other claimants); see Parker v.

Sears, Roebuck & Co, No. 04-L-716, 2008 WL 8772260 (Cir. Ct. Madison Cty. Jan. 15, 2008)

(awarding $17 million in fees in settlement providing free installations to fix faulty stove

brackets to claimants who requested them, or reimbursement of up to $100 in expenses, or a $50

gift card); Sparks v. AT&T Corp., No. 01-L-1668, 2002 WL 34503097 (Cir. Ct. Madison Cty.

Nov. 04, 2002) (awarding $84 million in fees on claims-made settlement of up to $300 million

and $50 million to cy pres). Class Counsel’s choice to request a flat fee of an easily-ascertainable

fund ensures that what is asked for is in fact what they would get: 35% of the cash relief to the

Class.

1. This case presented serious obstacles to recovery, and Class Counsel litigated the case mindful of the possibility that the Class might recover nothing.

Class Counsel took this case on a contingency basis, and for that reason, faced a

substantial risk of recovering nothing. The requested fee, accordingly, appropriately reflects that

risk. See Ryan, 274 Ill. App. at 924. Indeed, even compared to typical contingent fee litigation,

the risks posed in this case were significant: BIPA cases are filled with matters of first

impression, and in cases concerning timeclock vendors, there was no law at all when this case

was filed. See Silverman v. Motorola Sols., Inc., 739 F.3d 956, 958 (7th Cir. 2013) (“Contingent

fees compensate lawyers for the risk of nonpayment. The greater the risk of walking away

empty-handed, the higher the award must be to attract competent and energetic counsel.”).

Aware of these risks but confident in the case’s merits, Class Counsel forged ahead, fronting

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costs and expenses and incurring the opportunity cost of other work despite the considerable risk

of non-recovery.

These consolidated actions were filed against ADP in, effectively, June 2018.8 At that

time, not only was there little binding interpretation of any of BIPA’s provisions, but then-

binding appellate authority held that Plaintiffs and the class should lose outright; they were likely

not “aggrieved” persons under the Second District’s interpretation of BIPA’s damages provision.

See Rosenbach I, 2017 IL App (2d) 170317. While this tide later reversed, Class Counsel took

this case knowing that it was far larger and more complex than most BIPA cases—and

accordingly would require even more resources—and did so on the substantial bet that they

would prevail against existing appellate authority.

Nor was “aggrieved” the only hurdle. When Class Counsel filed their respective cases, no

suits had yet been brought against timeclock vendors like ADP, and no opinions yet existed on

ADP’s argument that it was not subject to BIPA. ADP moved to dismiss in both the Henderson

action (before these matters were consolidated) and in the Bernal action, with this Court ruling

against Plaintiff Bernal and granting ADP’s motion, expressing skepticism that vendors could be

liable at all. (See August 23, 2019 Order.) Some courts have joined that position to some degree,

depending on how the claims are pleaded. Cameron v. Polar Tech Indus., Inc., 2019-CH-000013

(Cir. Ct. DeKalb Cty. Aug. 23, 2019); Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279, 285–86

(N.D. Ill. 2019); Heard v. Becton, Dickinson & Co., No. 19 C 4158, 2020 WL 887460, at *4

(N.D. Ill. Feb. 24, 2020). ADP’s motion to dismiss the consolidated complaint, as Plaintiffs re-

pleaded these claims, has not yet been ruled on by this Court. Again, while Class Counsel were

and are confident in the merits of the case, it is relevant to the analysis that courts—and perhaps even

8 As discussed above, Plaintiff Bernal filed an action against his employer in 2017 and added ADP as a defendant in July 2018.

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this Court—might not have agreed. The result produced here in the face of those risks is even more

remarkable.

Even beyond the issues above, questions remain in BIPA cases: ADP, like nearly every

other BIPA defendant, was expected to argue that it hadn’t collected “fingerprints” or

“handprints” regulated by the statute at all. The question of what data ADP actually collected and

whether it constitutes “biometric identifiers,” or “biometric information” as defined in the

statute, 740 ILCS 14/10, is the subject of dispute in existing BIPA cases and hasn’t yet been

resolved by the courts. Cf. In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD,

2018 WL 2197546, at *2–3 (N.D. Cal. May 14, 2018) (denying motion for summary judgment

on whether facial scans were biometric data regulated by BIPA). Class certification remains

unanswered, as does the Class’s ability to actually recover—post-trial—what would be massive

damages against ADP. See, e.g., Golan v. FreeEats.com, Inc., 930 F.3d 950 (8th Cir. 2019)

(statutory award in TCPA class action of $1.6 billion reduced to $32 million). Furthermore, the

attempts to gut BIPA in the legislature have been relentless, and it is not unprecedented for

legislation to be amended while a class action is pending in a way that threatens the Class’s

entire recovery. See Perlin v. Time Inc., 237 F. Supp. 3d 623, 629–30 (E.D. Mich. 2017).

Losses on any of these fronts would decimate the Class’s—and Class Counsel’s—ability

to get paid. In that light, the many risks Class Counsel have faced combine to further support a

finding that the requested attorneys’ fees and expenses here are reasonable. See Ryan, 274 Ill.

App. 3d at 924.

2. Class Counsel achieved an exceptional result for the Class.

When viewed in light of the foregoing risks and this Court’s previous ruling, what Class

Counsel were able to produce here is extraordinary. This Settlement is the largest BIPA

settlement in the employment context by an enormous margin. Claiming Class Members will

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split this $25 million fund, after fees and expenses, evenly—with no reversion going back to

ADP. Class Counsel expects that, even with a relatively high 20% claims rate, claimants will get

a check in the mail for at least $250.

Class Counsel secured this exceptional result by aggressively pursuing ADP and, when it

came time to negotiate, insisting on a strong settlement that would ensure that real monetary

relief went to the class members. Far too often, settlements in privacy cases like this go to cy

pres or produce only injunctive relief. See, e.g., In re Google Referrer Header Privacy Litig., 869

F.3d 737, 740 (9th Cir. 2017), vacated on other grounds by Frank v. Gaos, 139 S. Ct. 1041

(2019) (approving 25% award of attorneys’ fees on cy pres-only fund with not a penny to class

members); In re Google LLC Street View Elec. Commc’ns Litig., No. 10-md-02184-CRB, 2020

WL 1288377, at *11–14 (N.D. Cal. Mar. 18, 2020) (approving, over objections of class members

and state attorney general, a settlement providing only cy pres relief for violations of Electronic

Communications Privacy Act); Adkins v. Facebook, Inc., No. 18-cv-05982-WHA, dkt. 314 (N.D.

Cal. Nov. 15, 2020) (preliminary approval of settlement for injunctive relief only in class action

arising out of Facebook data breach). That’s been the case in BIPA, too. Carroll, 2017-CH-

01624 (approving BIPA settlement for free credit monitoring to class members, but no cash

relief). Class Counsel here, even in the context of a challenging case against ADP, would accept

nothing less than a strong, non-reversionary, cash deal. Recognizing that creating a meaningful

fund was the only way to settle the case, ADP agreed to those terms.

In the BIPA context specifically, extracting monetary relief from a timeclock vendor on

this scale is unprecedented. Prior settlements in the employment context have released the

timeclock vendor alongside the release to the employer, with no separate payment or promise of

injunctive relief—much less produced millions in monetary relief. And at the time this

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Settlement was reached, the only other settlement with a timeclock vendor was Muniz v.

Workwell Technologies, Inc., which was simply a much smaller Class and allowed employers to

join. See 2019-CH-04061 (Cir. Ct. Cook Cty.) (timeclock provider paid substantially entire

insurance policy of $900,000, and employers were permitted to join the Settlement for $1,000

per class member).9 Indeed, even when compared to BIPA settlements which have achieved final

approval, this Settlement favorably compares. See Marshall v. Lifetime Fitness, Inc., 2017-CH-

14262 (Cir. Ct. Cook Cty.) (in case against employer, paying claimants $270 in addition to credit

monitoring); Sekura, 2015-CH-16694 (in case against tanning salon, claimants split $1.5 million

fund for a total of approximately $150 per claimant); Prelipceanu, 2018-CH-15883 (in case

against facial recognition provider, claimants split $7,000,000 fund for approximately $260

each). But critically, in addition to providing a significant sum of money from ADP, the

Settlement leaves in place any claims that the Class might have against their employers.

Plaintiffs have been successful in BIPA cases in obtaining substantial settlements for the

employer liability alone. See, e.g., Fluker, 2017-CH-12993 (settlement of $1,300 per class

member for employer liability only); Goings v. AEP NVH OPCO, LLC d/b/a Applied Acoustics,

et al., 2017-CH-14954 (Cir. Ct. Cook. Cty.) (settlement of $1,200 per class member for

employer liability only). Producing this level of monetary relief for the class, in a case of this

size, is an exceptional outcome.

Additionally, the non-monetary benefits created by a class action settlement are properly

considered for purposes of determining fees. See Hall v. Cole, 412 U.S. 1, 5 n.7 (1973) (noting

9 In a BIPA class action against another timeclock vendor, one of Class Counsel’s firms recently obtained preliminary approval of a $4.1 million settlement for a class of approximately 62,000, along with the assignment of rights to a substantial insurance policy. Thome v. NOVAtime Tech., Inc., No. 19-cv-6256, dkt. 76 (N.D. Ill.).

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that the common fund doctrine “must logically extend, not only to litigation that confers a

monetary benefit on others, but also litigation ‘which corrects or prevents an abuse which would

be prejudicial to the rights and interests’ of those others”). The prospective relief here—that

ADP will maintain a retention policy and notify employers of the BIPA obligation to get consent

for ADP—benefits the Settlement Class by ensuring the privacy interests recognized by the

legislature in passing BIPA will be protected. Thus, awarding Class Counsel a 35% share of the

common fund “equitably compensates counsel for the time, effort, and risks associated with

representing the plaintiff class.” Brundidge, 168 Ill. 2d at 244.

C. The Court Need Not Undertake a Lodestar Crosscheck.

It is settled law in Illinois that the Court need not perform a “crosscheck” of the

percentage of the fund requested against Class Counsel’s lodestar. Shaun Fauley, Sabon, Inc. v.

Metro. Life Ins. Co., 2016 IL App (2d) 150236, ¶ 59. The reason for this is simple: it

reintroduces the same problems that the Illinois Supreme Court decided to avoid by giving courts

the ability to choose percentage-of-the-fund. Brundidge, 168 Ill. 2d at 242–43 (discussing

concerns about lodestar method). Here, the Court would be required to review the hours of

numerous attorneys across three firms, as well as perform the imprecise work of calculating an

appropriate “risk multiplier” in this extraordinarily risky case. See Langendorf v. Irving Trust

Co., 244 Ill. App. 3d 70, 80 (1st Dist. 1992), abrogated on other grounds by 168 Ill. 2d 235.

Moreover, Class Counsel performed a great deal of work creating the result here outside of this

case. Class Counsel Edelson PC dedicated thousands of hours in the legislature in its multi-year

defense of BIPA against the efforts of industry to overturn it, with several of its attorneys

stationed in Springfield for months. Class Counsel also produced this Settlement by hemming

ADP in through other actions in which counsel sought discovery from ADP as a third party,

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which gave Class Counsel more faith in the claims and, one suspects, ADP more pause about

continuing. While Class Counsel can report this time (and request the appropriate risk multiplier

for it), it demonstrates the needless imprecision in the lodestar assessment—exactly why courts

have abandoned the method.

The percentage-of-the-recovery method is superior because it ensures that the incentives

of Class Counsel and the Class are aligned—as evidenced by the outcome here. 5 NEWBERG ON

CLASS ACTIONS § 15:65 (5th ed.) (“Under the percentage method, counsel have an interest in

generating as large a recovery for the class as possible, as their fee increases with the class’s

take. By contrast, when class counsel’s fee is set by an hourly rate, the lawyers have an incentive

to run up as many hours as possible in the litigation so as to ensure a hefty fee, even if the

additional hours are not serving the clients’ interests in any way.”). A review of available final

approval orders suggests that Illinois courts rarely undertake lodestar crosschecks. (See Ex. 2.)

Nor, empirical evidence demonstrates, would the Class have put a lodestar crosscheck into their

agreements if they had gone into the market to find an attorney for their many individual

claims—they would have, as Class Counsel request here, agreed to a flat contingency fee in a

case like this. See Herbert M. Kritzer, RISKS, REPUTATIONS, AND REWARDS 39–40 (2004) (in

large empirical study of contingency fee agreements, finding no client agreed to a crosscheck);

David L. Schwartz, The Rise of Contingent Fee Representation in Patent Litigation, 64 ALA. L.

REV. 335, 360 (2012) (in study of sophisticated entity’s retention of counsel on contingent basis

in patent dispute litigation, no evidence of lodestar crosscheck). The Court should decline a

crosscheck here, as binding appellate authority expressly allows. Shaun Fauley, Sabon, Inc, 2016

IL App (2d) 150236, ¶ 59. Should the Court desire to perform a lodestar crosscheck, Class

Counsel will readily submit their hours for in camera review.

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IV. THE COURT SHOULD APPROVE THE REQUESTED INCENTIVE AWARDS.

The Settlement Agreement also provides for incentive awards of $7,500 each to Plaintiffs

Kusinski, Bernal, and Bryski for serving as class representatives, who prosecuted this action in

their own names despite the risk of retaliation by future employers. Incentive awards are

appropriate in class actions because a representative’s efforts benefit the absent class and

encourage the filing of beneficial litigation. GMAC Mortg. Corp. of Pa. v. Stapleton, 236 Ill.

App. 3d 486, 497 (1st Dist. 1992).

The willingness of Plaintiffs Kusinski, Bernal, and Bryski was critical to the success of

the case. Their willingness to commit time and effort to this representative litigation produced an

immense benefit to the Class that fully justifies the requested incentive awards. As a monetary

matter, the requested awards are eminently reasonable: each is but a fraction of the amounts

often awarded in comparable class settlements in Illinois and elsewhere. See Theodore Eisenberg

& Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs: An Empirical Study, 53

UCLA L. Rev. 1303 (2006) (finding that “[t]he average award per class representative was

$15,992”); Ryan, 274 Ill. App. 3d at 917 (noting that the trial court had awarded $10,000

incentive awards to each of two plaintiffs); Spano v. Boeing Co., No. 06-cv-743-NJR-DGW,

2016 WL 3791123, at *4 (S.D. Ill. Mar. 31, 2016) (approving incentive awards of $25,000 and

$10,000 for class representatives). Accordingly, a $7,500 incentive award is reasonable to

compensate each Plaintiff for their time and willingness to step up in this case.

V. CONCLUSION

For the foregoing reasons, Plaintiffs Martin Kusinski, James Bryski and Felipe Bernal

respectfully request that this Court enter an order (1) granting Class Counsel’s request for an

award of attorneys’ fees and expenses in the amount of $8,750,000.00, (2) awarding each

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Plaintiff a $7,500 incentive award; and (3) providing such other and further relief as the Court

deems reasonable and just.

Dated: January 4, 2021 Respectfully submitted,

MARTIN KUSINSKI, JAMES BRYSKI, AND FELIPE BERNAL, individually and on behalf of a class of similarly situated individuals,

By: /s/J. Eli Wade-Scott One of Plaintiffs’ attorneys

Jay Edelson jedelson@edelson.com J. Eli Wade-Scott ewadescott@edelson.com EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Firm ID: 62075

James B. Zouras jzouras@stephanzouas.com Ryan F. Stephan rstephan@stephanzouras.com STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, Illinois 60606 Tel: 312.233.1550 Fax: 312.233.1560 Firm ID: 43734 Myles McGuire mmcguire@mcgpc.com Evan M. Meyers emeyers@mcgpc.com MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Fl. Chicago, Illinois 60601 Tel: 312.893.7002 Fax: 312.275.7895 Firm ID: 56618

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CERTIFICATE OF SERVICE

I, J. Eli Wade-Scott, an attorney, hereby certify that I served the above and foregoing Plaintiffs’ Motion and Memorandum of Law for Attorneys’ Fees, Expenses, and Incentive Award , by transmitting such document via the Court’s electronic filing system to all counsel of record.

/s/J. Eli Wade-Scott

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Exhibit 1 FILED

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

MARTIN KUSINSKI, JAMES BRYSKI, and FELIPE BERNAL, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

ADP, LLC, a Delaware limited liability company,

Defendant.

No. 2017-CH-12364 (consolidated with 2018-CH-07139 and 2019-CH-01612)

Hon. David B. Atkins

STIPULATION OF CLASS ACTION SETTLEMENT

This Stipulation of Class Action Settlement is entered into by and among Plaintiffs

Martin Kusinski, James Bryski, and Felipe Bernal (“Plaintiffs”), for themselves individually and

on behalf of the Settlement Class, and Defendant ADP, LLC (“ADP” or “Defendant”) (Plaintiffs

and ADP are referred to collectively as the “Parties”). This Settlement Agreement is intended by

the Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims upon

and subject to the terms and conditions hereof, and subject to the approval of the Court.

RECITALS

A. On September 12, 2017, Plaintiff Bernal filed a putative class action against his

former employer, seeking damages and an injunction under the Illinois Biometric Information

Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”). The claims related to the alleged unauthorized

collection, storage, and use of Plaintiff’s biometric data through the use of finger-scan

timeclocks used by his employer for timekeeping purposes, which were provided to his employer

by ADP. The action was assigned case number 2017-CH-12364 and assigned to Judge David

Atkins’s calendar (the “Bernal action”).

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B. On June 5, 2018, Maurice Henderson and Chiquita Alston filed a putative class

against ADP, seeking damages and an injunction against ADP for violating BIPA by allegedly

collecting and possessing biometric data through the finger-scan and hand-scan timeclocks

deployed at ADP’s clients’ sites (the putative class’s employers) without complying with BIPA’s

requirements. That action was assigned case number 2018-CH-07139, and assigned to Judge

Michael Mullen’s calendar (the “Henderson action”).

C. On July 26, 2018, Plaintiff Bernal amended his complaint to similarly name ADP

and similarly seek to represent a statewide class of individuals against ADP.

D. On September 7, 2018, ADP filed a motion to dismiss in the Henderson action.

ADP then filed a motion to stay on October 30, 2018 pending the Illinois Supreme Court’s ruling

in Rosenbach v. Six Flags Entm’t Co., 2019 IL 123186. The Court granted the motion to stay on

November 13, 2018.

E. The Illinois Supreme Court decided Rosenbach on January 25, 2019. ADP re-

filed a motion to dismiss in the Henderson action on March 21, 2019. The motion was fully

briefed on May 20, 2019 and set for hearing to take place in August 2019 before Judge Mullen.

ADP also filed a motion to dismiss in the Bernal case, which was fully briefed on July 10, 2019.

Judge Atkins granted ADP’s motion to dismiss in the Bernal action in its entirety on August 23,

2019, and granted Bernal leave to file an amended complaint.

F. Meanwhile, Bernal’s counsel moved to consolidate the Bernal and Henderson

actions, among others, on August 22, 2019. The motion was fully briefed and three cases—

Bernal, Henderson, and Zepeda v. ADP, LLC (another putative statewide action against ADP,

filed by Bernal’s counsel)—were consolidated before Judge Atkins.

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G. Following consolidation, the Court, on November 19, 2019, appointed Edelson

PC, James B. Zouras of Stephan Zouras LLP, and McGuire Law, P.C. as interim class counsel.

H. With the actions consolidated, the above-named Plaintiffs filed a consolidated

complaint on February 4, 2020. Amid the COVID-19 pandemic and while most matters were

stayed or suspended, the Parties nevertheless sought to move the case forward by briefing ADP’s

motion to dismiss. ADP moved to dismiss the complaint on April 14, 2020. Plaintiffs filed their

response brief on May 18, 2020.

I. During this period, the Parties began to explore settlement and agreed that a

formal mediation would be productive. The Parties exchanged informal discovery in advance of

the mediation about the estimated size of the putative settlement class and the claims to be

resolved, in addition to the fact that Plaintiffs’ counsel had received relevant discovery in other

cases involving ADP. On June 10, 2020, the Parties engaged in a formal mediation with an

experienced BIPA mediator, Judge Wayne Andersen (Ret.) of JAMS in Chicago.1 That

mediation was not successful, but the Parties agreed that progress could still be made on future

mediation dates. The Parties again engaged in a formal mediation with Judge Andersen on June

16, 2020. An agreement was again not reached. The Parties mediated for a third time on June 23,

2020 with Judge Andersen, and ultimately reached an agreement in principle. The Parties then

mediated for a final time with Judge Andersen on June 29, 2020 to complete negotiations on the

full settlement document.

J. Plaintiffs and Class Counsel conducted a comprehensive examination of the law

and facts relating to the allegations in the Action and Defendant’s potential defenses. Plaintiffs

believe that the claims asserted in the Action have merit, that they would have ultimately

1 Due to COVID-19, the mediation sessions were conducted via videoconference.

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succeeded in obtaining adversarial certification of the proposed Settlement Class, and that they

would have prevailed on the merits at summary judgment or at trial. However, Plaintiffs and

Class Counsel recognize that Defendant has raised factual and legal defenses in the Action that

presented a significant risk that Plaintiffs would not prevail and/or that a class would not be

certified for trial. Class Counsel have also taken into account the uncertain outcome and risks of

any litigation, especially in complex actions, as well as the difficulty and delay inherent in such

litigation. Plaintiffs and Class Counsel believe that this Agreement presents an exceptional result

for the Settlement Class, and one that will be provided to the Settlement Class without delay.

Plaintiffs and Class Counsel are satisfied that the terms and conditions of this Agreement are fair,

reasonable, adequate, and based on good faith negotiations, and in the best interests of Plaintiffs

and the Settlement Class. Therefore, Plaintiffs believe that it is desirable that the Released

Claims be fully and finally compromised, settled, and resolved with prejudice, and forever barred

pursuant to the terms and conditions set forth in this Settlement Agreement.

K. Defendant denies the material allegations in the Action, as well as all allegations

of wrongdoing and liability, including that it is subject to or violated BIPA, and believes that it

would have prevailed on the merits and that a class would not be certified for trial. Nevertheless,

Defendant has similarly concluded that this settlement is desirable to avoid the time, risk, and

expense of defending protracted litigation, and to avoid the risk posed by the Settlement Class’s

claims for liquidated damages under BIPA. ADP thus desires to resolve finally and completely

the pending and potential claims of Plaintiffs and the Settlement Class.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among

Plaintiffs, the Settlement Class, and ADP that, subject to the approval of the Court after a hearing

as provided for in this Settlement Agreement, and in consideration of the benefits flowing to the

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Parties from the Settlement set forth herein, the Released Claims shall be fully and finally

compromised, settled, and released, and the Action shall be dismissed with prejudice, upon and

subject to the terms and conditions set forth in this Settlement Agreement.

AGREEMENT

1. DEFINITIONS

As used herein, in addition to any definitions set forth elsewhere in this Settlement

Agreement, the following terms shall have the meanings set forth below:

1.1 “Action” means the case captioned Kusinski, et al. v. ADP, LLC, 2017-CH-12364

(consolidated with 2018-CH-07139 and 2019-CH-01612) (Cir. Ct. Cook Cty.).

1.2 “ADP” or “Defendant” means ADP, LLC, a Delaware limited liability

corporation.

1.3 “Agreement” or “Settlement Agreement” means this Stipulation of Class

Action Settlement and the attached Exhibits.

1.4 “Approved Claim” means a Claim Form submitted by a Settlement Class

Member that is (a) timely and submitted in accordance with the directions on the Claim Form

and the terms of this Agreement, (b) is fully completed and physically signed or electronically

signed by the Settlement Class Member, and (c) satisfies the conditions of eligibility for a

Settlement Payment as set forth in this Agreement.

1.5 “Claims Deadline” means the date by which all Claim Forms must be

postmarked or submitted on the Settlement Website to be considered timely, and shall be set as a

date no later than sixty-three (63) days following the Notice Date, subject to Court approval. The

Claims Deadline shall be clearly set forth in the Preliminary Approval Order, as well as in the

Notice and the Claim Form.

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1.6 “Claim Form” means the document substantially in the form attached hereto as

Exhibit A, as approved by the Court. The Claim Form, which shall be completed by Settlement

Class Members who wish to file a claim for a Settlement Payment, shall be available in paper

and electronic format. The Claim Form will require claiming Settlement Class Members to

provide the following information: (i) full name, (ii) current U.S. Mail address, (iii) current

contact telephone number and email address, (iv) name of their employer, and (iv) a statement

that he or she scanned their finger or hand on an ADP-branded finger-scan or hand-scan

timeclock in the state of Illinois between June 5, 2013 and the date of the Preliminary Approval

Order. The Claim Form will not require notarization, but will require affirmation that the

information supplied is true and correct.

1.7 “Class Counsel” means attorneys Jay Edelson of Edelson PC, James B. Zouras of

Stephan Zouras LLP, and Myles McGuire of McGuire Law PC.

1.8 “Class Representatives” means the named Plaintiffs in the Action, Martin

Kusinski, James Bryski, and Felipe Bernal.

1.9 “Court” means the Circuit Court of Cook County, Illinois, the Honorable David

B. Atkins presiding, or any judge who shall succeed him as the Judge assigned to the Action.

1.10 “Defendant’s Counsel” or “ADP’s Counsel” means attorneys Ross Bricker,

David Layden, and Precious Jacobs of Jenner & Block LLP.

1.11 “Effective Date” means one business day following the later of: (i) the date upon

which the time expires for filing or noticing any appeal of the Final Approval Order; (ii) if there

is an appeal or appeals, other than an appeal or appeals solely with respect to the Fee Award, the

date of completion, in a manner that finally affirms and leaves in place the Final Approval Order

without any material modification, of all proceedings arising out of the appeal(s) (including, but

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not limited to, the expiration of all deadlines for motions for reconsideration or petitions for

review and/or certiorari, all proceedings ordered on remand, and all proceedings arising out of

any subsequent appeal(s) following decisions on remand); or (iii) the date of final dismissal of

any appeal or the final dismissal of any proceeding on appeal with respect to the Final Approval

Order.

1.12 “Escrow Account” means the separate, interest-bearing escrow account to be

established by the Settlement Administrator under terms acceptable to Class Counsel and

Defendant at a depository institution insured by the Federal Deposit Insurance Corporation. The

money in the Escrow Account shall be invested in the following types of accounts and/or

instruments and no other: (a) demand deposit accounts and/or (b) time deposit accounts and

certificates of deposit, in either case with maturities of forty-five (45) days or less. Any interest

earned on the Escrow Account shall inure to the benefit of the Settlement Class as part of the

Settlement Payment, if practicable. The Settlement Administrator shall be responsible for all tax

filings with respect to the Escrow Account.

1.13 “Fee Award” means the amount of attorneys’ fees and reimbursement of costs

awarded to Class Counsel by the Court to be paid out of the Settlement Fund.

1.14 “Final Approval Hearing” means the hearing before the Court where Plaintiffs

will request that the Final Approval Order be entered by the Court finally approving the

Settlement as fair, reasonable, adequate, and made in good faith, and approving the Fee Award

and the Incentive Award to the Class Representatives. If required by orders of the Court, the

Final Approval Hearing may be held by telephone or videoconference.

1.15 “Final Approval Order” means the final approval order to be entered by the

Court approving the settlement of the Action in accordance with this Settlement Agreement after

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the Final Approval Hearing, and dismissing the Action with prejudice. A proposed version of the

Final Approval Order shall be submitted to the Court in the form attached hereto as Exhibit B.

1.16 “Incentive Award” means the proposed amount of seven thousand five hundred

dollars ($7,500.00) to be paid to each of the Class Representatives in return for the services they

provided to the Settlement Class and to be approved at the Final Approval Hearing.

1.17 “Notice” means the notice of the proposed Settlement and Final Approval

Hearing approved by the Court, which is to be disseminated to the Settlement Class substantially

in the manner set forth in this Settlement Agreement, fulfills the requirements of Due Process

and 735 ILCS 5/2-801 et seq., and is substantially in the form of Exhibits C, D, E, and F attached

hereto.

1.18 “Notice Date” means the date by which the Notice is disseminated to the

Settlement Class, which shall be a date no later than twenty-eight (28) days after entry of the

Preliminary Approval Order.

1.19 “Objection/Exclusion Deadline” means the date by which a written objection to

the Settlement Agreement or a request for exclusion from the Settlement Class submitted by a

person within the Settlement Class must be filed with the Court and/or postmarked or e-mailed

(for exclusion requests), which shall be designated as a date approximately forty-two (42) days

after the Notice Date, as approved by the Court. The Objection/Exclusion Deadline will be set

forth in the Notice and on the Settlement Website.

1.20 “Plaintiffs” means Martin Kusinski, James Bryski, and Felipe Bernal.

1.21 “Preliminary Approval Order” means the Court’s order preliminarily approving

the Agreement, preliminarily certifying the Settlement Class for settlement purposes, and

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approving the form and manner of the Notice. A proposed version of the Preliminary Approval

Order shall be submitted to the Court in the form attached hereto as Exhibit G.

1.22 “Released Claims” means any and all actual, potential, filed, unfiled, known or

unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims,

demands, liabilities, rights, causes of action, damages, punitive, exemplary or multiplied

damages, expenses, costs, attorneys’ fees and/or obligations, whether in law or in equity, accrued

or unaccrued, direct, individual or representative, of every nature and description whatsoever,

whether based on the Illinois Biometric Information Privacy Act or other federal, state, local,

statutory or common law or any other law, against the Released Parties, or any of them, arising

out of or relating to actual or alleged facts, transactions, events, matters, occurrences, acts,

disclosures, statements, representations, omissions or failures to act regarding the collection,

capture, storage, use, profit