8th Circ. Asked to Disregard Objector of Target Settlement

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Plaintiffs in the multidistrict litigation against Target Corp. over the infamous 2013 data breach are asking the Eighth Circuit Court to ignore claims made by an objector in the settlement.

The objector to the settlement claims that the deal creates “intraclass conflict” and left almost the entire Class without compensation, but the plaintiffs say the objector’s argument ignores the facts.

Objector Leif A. Olson filed his formal objection against the settlement Target and the plaintiffs reached in March 2015. Olson’s objection claimed that the classes in the Target Data Breach class action lawsuit included all consumers who had their data compromised during the holiday season of 2013. However, only the customers who received actual damages in the form of incurred costs or unreimbursed expenses were entitled to compensation.

Olson claims that about 99 percent of the Class Members are left out of the deal under the current classification, and this creates a subclass that is effectively unrepresented and uncertified. He took his objections to the appeals court after the district court refused to consider his challenge.

Class Members in the lawsuit object to Olson’s claims, calling his allegations unwarranted and explained that the settlement does include significant benefits to all eligible Class Members. Under the Target settlement, customers with documented losses could recover up to $10,000 in damages, while those who had undocumented losses could recover up to $40, the plaintiffs say.

The plaintiffs also assert that Target’s promise to put enhanced security measures in place would benefit all Target consumers, even those who suffered no losses, such as Olson. The plaintiffs claim that the court’s approval of a settlement that allocated funds to individuals who did not suffer tangible losses is “unquestionably a proper exercise of discretion.”

“Appellant Olson has not identified any conflicts among class members that would require the creation of subclasses or separate representation. There are none,” the plaintiffs state. “Subclasses are not necessary just because class members receive different amounts from a settlement.”

Olson’s main argument centers around the fact that he did not suffer any of the losses listed on the Claim Form as part of the settlement and therefore was ineligible to submit a claim. He states that if he ever did suffer losses, any future claim against Target would be automatically waived. This, he say, would create an alternative subclass.

Olson also objected to the $6.75 million award for attorneys’ fees.

Olson filed his initial objection to the settlement in July 2015 and participated in a fairness hearing on Nov. 10 last year. However, a week after Olson’s appearance, the judge issued final approval of the Target Data Breach settlement. Olson claims that the judge refused to consider his arguments because preliminary approval had already been granted. Olson then stated he would appeal the decision, and the plaintiffs requested that the judge make him pay an appeal bond in the amount of $49,000 that was to cover the costs of delaying the settlement, and the judge granted the plaintiffs’ request.

In his appeal, Olson told the judge that the Minnesota court improperly denied his request to reconsider his intraclass conflict argument and improperly applied the appeal bond “Because it thought Olson was a ‘professional objector,” Olson says. He also claims that the judge said Olson would be liable for the costs of others who appealed, though he had no relationship to the other appellants.

The plaintiffs countered Olson’s appeal claiming that the bond was fairly applied and reflected the necessary amount to cover the costs of the claims administrator as the appeal is considered. They also said that the attorney’s fees were fair as they represented 29 percent of the total settlement, saying “The fee request is not excessive; rather it is reasonable in light of the complexities and vagaries of this case.”

The plaintiffs are represented by Heins Mills & Olson PLC, Nichols Kaster PLLP, Morgan & Morgan Complex Litigation Group PA, Girard Gibbs LLP, Milberg LLP, Chestnut Cambronne PA and Steuve Siegel Hanson LLP, among others.

The Target Data Breach Class Action Lawsuit Appeal is Leif A. Olson v. Target Corp. et al., Case No. 15-3912, in the U.S. Court of Appeals for the Eighth Circuit.

UPDATE: On Feb. 1, 2017, the Eighth Circuit Court of appeals reversed the class certification and directed the district court to make a new ruling and explain its findings. According to the settlement website, claims will not be paid until class certification is resolved. This could take several more months. Please keep checking Top Class Actions for updates. We are following the case and will let our viewers know as soon as the class certification decision is made!