This is a court authorized notice of a proposed settlement in a class action lawsuit, Bernal, et al. v. Native Wholesale, Inc., No. 2020-CH-04118 (Cir. Ct. Cook Cnty.), pending in the Circuit Court of Cook County, Illinois before the Honorable Judge Caroline Kate Moreland. The Settlement would resolve a lawsuit brought on behalf of persons who allege that Native Wholesale, Inc. (“Defendant”) required its workers to provide a scan of their biometric identifiers (such as hand or facial geometry, fingers, or eyes) for timekeeping purposes without first providing them with legally-required written disclosures and obtaining written consent. If you received this notice, you have been identified as someone who may have been subject to Native Wholesale’s biometric timekeeping practices in Illinois between May 8, 2015 and July 1, 2021 without first signing a written release authorizing the collection of your biometric data. The Court has granted preliminary approval of the Settlement and has conditionally certified the Settlement Class for purposes of settlement only. This notice explains the nature of the class action lawsuit, the terms of the Settlement, and the legal rights and obligations of the Settlement Class Members.

The Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., prohibits private companies from capturing, obtaining, storing, transferring, and/or using the biometric identifiers and/or information, such as fingerprints, hand geometry, facial geometry, or retina scans of another individual for any purpose, including timekeeping, without first providing such individual with certain written disclosures and obtaining written consent. This lawsuit alleges that Defendant violated BIPA by requiring its workers at its facility within the state of Illinois to provide a scan of their face, finger, or other biometric identifiers for timekeeping purposes without first providing the required disclosures or obtaining the required consent. Defendant contests these claims and denies that it violated BIPA.

A class action is a lawsuit in which an individual called a “Class Representative” brings a single lawsuit on behalf of other people who have similar claims. All of these people together are a “Class” or “Class Members.” Once a Class is certified, a class action Settlement finally approved by the Court resolves the issues for all Settlement Class Members, except for those who exclude themselves from the Settlement Class.

To resolve this matter without the expense, delay, and uncertainties of litigation, the Parties have reached a Settlement, which resolves all claims against Defendant and its affiliated entities. The Settlement requires Defendant to pay money to the Settlement Class, as well as pay settlement Administration Expenses, attorneys’ fees and costs to Class Counsel, and Service Awards to the Class Representatives, if approved by the Court. The Settlement is not an admission of wrongdoing by Defendant and does not imply that there has been, or would be, any finding that Defendant violated the law.

The Court has already preliminarily approved the Settlement. Nevertheless, because the settlement of a class action determines the rights of all members of the class, the Court overseeing this lawsuit must give final approval to the Settlement before it can be effective. The Court has conditionally certified the Settlement Class for settlement purposes only, so that members of the Settlement Class can be given this notice and the opportunity to exclude themselves from the Settlement Class, to voice their support or opposition to final approval of the Settlement, and to submit a Claim Form to receive the relief offered by the Settlement. If the Court does not give Final Approval of the Settlement, or if it is terminated by the Parties, the Settlement will be void, and the lawsuit will proceed as if there had been no settlement and no certification of the Settlement Class.

You are a member of the Settlement Class if, at any time between May 8, 2015 and July 1, 2021, you scanned your fingerprint for timekeeping and/or identity verification purposes while working for Native Wholesale, Inc. without first signing a written release authorizing the collection of your biometric data. If you are a member of the Settlement Class, then you may visit here to submit a claim for payment.

(1)    Accept the Settlement.

To accept the Settlement, you must submit a Claim Form by January 30, 2023. You may submit a claim online, or you may obtain a copy of the Claim Form and submit it by email to the Settlement Administrator at info@NativeBIPASettlement.com or by U.S. Mail to the Settlement Administrator at Native Wholesale, Inc. BIPA Settlement, c/o Analytics Consulting LLC, P.O. Box 2002, Chanhassen, MN 55317-2002. If the Settlement is approved and your claim is deemed valid, a check will be mailed to you. Submitting a valid and timely Claim Form is the only way to receive a payment from this Settlement, and is the only thing you need to do to receive a payment.

(2)    Exclude yourself.

You may exclude yourself from the Settlement. If you do so, you will not receive any cash payment, but you will not release any claims you may have against the Released Parties (as that term is defined in the Settlement Agreement) and are free to pursue whatever legal rights you may have by pursuing your own lawsuit against the Released Parties at your own risk and expense. To exclude yourself from the Settlement, you must mail a signed letter to the Settlement Administrator at Native Wholesale, Inc. BIPA Settlement, c/o Analytics Consulting LLC, P.O. Box 2002, Chanhassen, MN 55317-2002, postmarked by December 19, 2022. You may also exclude yourself online by December 19, 2022. The exclusion letter must state that you exclude yourself from this settlement and must include the name and case number of this Litigation, as well as your full name, address, telephone number, and email address, and a statement that you wish to be excluded from the Settlement Agreement.

(3)    Object to the Settlement.

If you wish to object to the Settlement, you must submit your objection in writing to the Clerk of the Court of the Circuit Court of Cook County, Illinois, Richard J. Daley Center, 50 West Washington Street, Room 802, Chicago, Illinois 60602. The objection must be postmarked no later than December 19, 2022. You must also send a copy of your objection to the attorneys for all Parties to the lawsuit, including Class Counsel (David Fish of Fish Potter Bolaños, PC, 111 East Wacker Drive, Suite 2300 Chicago, Illinois 60601), as well as Defendant Native Wholesale’s counsel (J. Hayes Ryan of Gordon Rees Scully Mansukhani LLP, 1 N. Franklin Street, Suite 800, Chicago, IL 60606) postmarked no later than December 19, 2022. Any objection to the proposed Settlement must include your (i) full name, address, telephone number, and email address; (ii) the case name and number of this Litigation; (iii) all grounds for the objection, with factual and legal support for the stated objection, including any supporting materials; (iv) the identification of any other objections you have filed, or have had filed on your behalf, in any other class action cases in the last four years; and (v) your signature. If you hire an attorney in connection with making an objection, that attorney must also file with the court a notice of appearance by the objection deadline of December 19, 2022. If you do hire your own attorney, you will be solely responsible for payment of any fees and expenses the attorney incurs on your behalf. If you exclude yourself from the Settlement, you cannot file an objection.

You may appear at the Final Approval Hearing, which will be held via Zoom (Meeting ID: 952 6244 1199, Password: 541722) on April 4, 2023 at 11:00 a.m., in Courtroom 2302 of the Circuit Court of Cook County, Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois 60602, personally or through counsel to show cause why the proposed Settlement should not be approved as fair, reasonable, and adequate. Participating in the hearing is not necessary; however, persons wishing to be heard orally in opposition to the Final Approval of the Settlement, the request for attorneys’ fees and expenses, and/or the request for Service Awards to the Class Representatives are required to indicate in their written objection their intention to appear at the hearing on their own behalf or through counsel and to identify the names of any witnesses they intend to call to testify at the Final Approval Hearing, as well as any exhibits they intend to introduce at the Final Approval Hearing. The hearing date and time, and whether the hearing will be conducted remotely, is subject to change by the Court, so please check this Settlement Website for updates.

(4)    Do Nothing.

If you do nothing, you will receive no money from the Settlement Fund, but you will still be bound by all orders and judgments of the Court. Unless you exclude yourself from the Settlement, you will not be able to file or continue a lawsuit against Defendant or other Released Parties regarding any of the Released Claims. Submitting a valid and timely Claim Form is the only way to receive a payment from this Settlement.

Cash Payments. Defendant has agreed to create a Settlement Fund for the Class Members, which will be used to pay valid claims, settlement administration expenses, attorneys’ fees, costs and expenses, and Class Representatives’ service awards. All Settlement Class Members are entitled to submit a Claim Form in order to receive a cash payment out of the Settlement Fund of up to $1,000, but the final amount could be less depending upon the number of Claims. If the Settlement is approved, each Settlement Class Member who submits a timely Claim Form that is deemed valid will be entitled to an equal payment paid out of the Settlement Fund. The exact amount of each Class Member’s payment is unknown at this time and depends on unknown factors to be determined, including the total number of valid Claim Forms submitted. The Settlement Administrator will issue a check to each Class Member who submits a valid Claim Form following Final Approval of the Settlement. All checks issued to Settlement Class Members will expire and become void 120 days after they are issued. Additionally, the attorneys who brought this lawsuit (listed below) will ask the Court to award them attorneys’ fees in an amount up to 35% of the Settlement Fund, plus their reasonable costs and expenses, for the substantial time, expense and effort spent investigating the facts, litigating the case and negotiating the Settlement. The Class Representatives also will apply to the Court for a payment of up to $15,000.00 for their time, effort, and service in this matter. Any amounts remaining in the Settlement Fund after payments to Class Members who submit valid claims and payment of administrative costs, Service Awards, and attorney fees and costs shall revert to the Defendants.

Unless you exclude yourself from this Settlement, you will be considered a member of the Settlement Class, which means you give up your right to file or continue a lawsuit against Defendant and the Released Parties relating to the use of employees’ biometric identifiers for timekeeping purposes. Giving up your legal claims is called a release. The precise terms of the release are contained in the Settlement Agreement, which is available on the Settlement Website. Unless you formally exclude yourself from this Settlement, you will release your claims whether or not you submit a Claim Form and receive payment. If you have any questions, you can talk for free to the attorneys identified below who have been appointed by the Court to represent the Settlement Class, or you are welcome to talk to any other lawyer of your choosing at your own expense.

The Parties cannot predict exactly when (or whether) the Court will give Final Approval of the Settlement, so please be patient. However, if the Court finally approves the Settlement, Class Members who submit valid claims will be paid as soon as possible after the court order becomes final, which should occur within approximately 60 days after the Settlement has been finally approved. If there is an appeal of the Settlement, payment may be delayed. Updated information about the case is available here, or you can call the Settlement Administrator at 877-643-8105, or contact Class Counsel at the address provided below.

The Court has already given preliminary approval to the Settlement. A final hearing on the Settlement, called a Final Approval Hearing, will be held to determine the fairness of the Settlement. At the Final Approval Hearing, the Court will also consider whether to make final the certification of the Class for settlement purposes, hear any proper objections and arguments to the Settlement, as well as any requests for an award of attorneys’ fees, costs, and expenses and Class Representative Service Awards that may be sought by Class Counsel. The Court will hold the Final Approval Hearing on April 4, 2023 at 11:00 a.m. via Zoom (Meeting ID: 952 6244 1199, Password: 541722). The hearing date and time, and whether the hearing will be conducted remotely, is subject to change by the Court, so please check this Settlement Website for updates.

If the Settlement is given final approval, the Court will not make any determination as to the merits of the claims against Defendant or its defenses to those claims. Instead, the Settlement’s terms will take effect and the lawsuit will be dismissed on the merits with prejudice. Both sides have agreed to the Settlement in order to achieve an early and certain resolution to the lawsuit, in a manner that provides specific and valuable benefits to the members of the Settlement Class. If the Court does not approve the Settlement, if it approves the Settlement and the approval is reversed on appeal, or if the Settlement does not become final for some other reason, you will not be paid at this time and Class Members will receive no benefits from the Settlement Fund. Plaintiff, Defendant, and all of the Class Members will be in the same position as they were prior to the execution of the Settlement, and the Settlement will have no legal effect, no class will remain certified (conditionally or otherwise), and Plaintiff and Defendant will continue to litigate the lawsuit. There can be no assurance that if the Settlement is not approved, the Settlement Class will recover more than is provided in the Settlement, or indeed, anything at all.

The Court has approved the following attorneys to represent the Settlement Class. They are called “Class Counsel.” You will not be charged for these lawyers. If you want to be represented by your own lawyer instead, you may hire one at your own expense.

David Fish
Mara Baltabols
Fish Potter Bolaños, PC
111 East Wacker Drive, Suite 2300
Chicago, Illinois 60601
312-818-2407
admin@fishlawfirm.com

This Notice is only a summary of the proposed Settlement of this lawsuit. More details are contained in the Settlement Agreement which, along with other documents, can be obtained here. If you have any questions, you can also call the Settlement Administrator at 877-643-8105 or contact Class Counsel at the numbers or email addresses set forth above. In addition to the documents available on the case website, all pleadings and documents filed in court may be reviewed or copied in the Office of the Clerk. Please do not call the Judge or the Clerk of the Court about this case. They will not be able to give you advice on your options.