Case: 1:16-cv-08655 Document #: 27 Filed: 03/09/17 Page 1 of 39 PageID #:75

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
N.P. and P.S., individually and on behalf of
all others similarly situated,

Case No. 1:16-cv-8655

Plaintiffs,
Honorable Virginia M. Kendall
v.
STANDARD INNOVATION CORP.,
d/b/a WE-VIBE, a Canadian corporation,
Defendant.
PLAINTIFFS’ MOTION FOR AND MEMORANDUM IN SUPPORT OF
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTS
I.

INTRODUCTION ............................................................................................................. 1

II.

BACKGROUND ................................................................................................................ 2

III.

A.

Nature of the Litigation......................................................................................... 2

B.

History of the Proceedings .................................................................................... 5

TERMS OF THE SETTLEMENT .................................................................................. 6
A.

Class Definition ...................................................................................................... 6

B.

Monetary Relief ..................................................................................................... 7

C.

Additional Relief .................................................................................................... 8

D.
IV.

1.

Prospective Relief ........................................................................................ 8

2.

Payment of Notice and Settlement Administration Expenses ...................... 8

3.

Incentive Award for Class Representatives ................................................. 9

4.

Payment of Attorneys’ Fees and Expenses .................................................. 9

Release of Liability ................................................................................................ 9

THE PROPOSED SETTLEMENT CLASSES SHOULD BE CERTIFIED
FOR SETTLEMENT PURPOSES ................................................................................ 10
A.

Each Settlement Class is Sufficiently Numerous Ascertainable...................... 10

B.

Members of the Settlement Classes Share Common Questions of
Law and Fact that Predominate Over Any Individual Issues ......................... 11
1.

Common Questions Predominate with Respect to the App Class ............ 12

2.

Common Questions Predominate with Respect to the
Purchaser Class........................................................................................ 14

C.

P.S.’s Claims are Typical of those of the Purchaser Class Members’
Claims and N.P.’s Claims are Typical of those of the App Members’
Claims ................................................................................................................... 15

D.

Plaintiffs and Class Counsel Will Adequately Represent the Interests
of Both Settlement Classes .................................................................................. 15
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E.

A Class Action is the Superior Method of Adjudicating this
Controversy .......................................................................................................... 18

V.

PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED CLASS COUNSEL……...18

VI.

THE PROPOSED SETTLEMENT WARRANTS PRELIMINARY
APPROVAL ..................................................................................................................... 20

VII.

A.

The Strength of the Plaintiffs’ Case Compared to the Amount of the
Settlement Offer Favors Preliminary ................................................................ 21

B.

The Potential Length, Complexity, and Expense of Further Litigation
Favor Preliminary Approval. ............................................................................. 26

C.

The Opinion of Competent Counsel Supports Preliminary Approval ........... 26

D.

The Stage of the Proceeding and the Amount of Discovery Completed
Support Preliminary............................................................................................ 27

THE PROPOSED METHOD OF NOTICE SHOULD BE APPROVED .................. 28

VIII. CONCLUSION ................................................................................................................ 30

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TABLE OF AUTHORITIES
United States Supreme Court Cases
Amchem Prods. Inc. v. Windsor,
521 U.S. 591 (1997) .................................................................................................... 10, 18
Amgen Inc. v. Connecticut Ret. Plans and Tr. Funds,
133 S. Ct. 1184 (2013) ...................................................................................................... 12
Eisen v. Carlisle & Jacquelin,
417 U.S. 156 (1974) .......................................................................................................... 28
Gourley v. Google, Inc.,
137 S. Ct. 36 (2016) .......................................................................................................... 25
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .............................................................................................. 10, 11, 12
United States Circuit Court of Appeals Cases
Armstrong v. Bd. of Sch. Directors of City of Milwaukee,
616 F.2d 305 (7th Cir. 1980) ................................................................................. 20, 21, 27
Bell v. PNC Bank, N.A.,
800 F.3d 360 (7th Cir. 2015) ............................................................................................. 11
Eubank v. Pella Corp.,
753 F.3d 718 (7th Cir. 2014) ........................................................................................21-22
Felzen v. Andreas,
134 F.3d 873 (7th Cir. 1998) ............................................................................................. 20
Gomez v. St. Vincent Health, Inc.,
649 F.3d 583 (7th Cir. 2011) .............................................................................................. 16
Isby v. Bayh,
75 F.3d 1191(7th Cir. 1996) ....................................................................................... passim
Keele v. Wexler,
149 F.3d 589 (7th Cir. 1998) ............................................................................................. 15
Lane v. Facebook, Inc.,
696 F.3d 811 (9th Cir. 2012) .............................................................................................. 23
Messner v. Northshore Univ. HealthSystem,
669 F.3d 802 (7th Cir. 2012) ............................................................................................. 12
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Mullins v. Direct Digital, LLC,
795 F.3d 654 (7th Cir. 2015) ....................................................................................... 10, 11
Muro v. Target Corp.,
580 F.3d 485 (7th Cir. 2009) ............................................................................................. 15
Nix v. O’Malley,
160 F.3d 343 (6th Cir. 1998) ............................................................................................. 25
Reliable Money Order, Inc. v. McKnight Sales Co.,
704 F.3d 489 (7th Cir. 2013).............................................................................................. 19
Suchanek v. Sturm Foods, Inc.,
764 F.3d 750 (7th Cir. 2014) ....................................................................................... 12, 14
Synfuel Techs., Inc. v. DHL Express (USA), Inc.,
463 F.3d 652 (7th Cir. 2006) ........................................................................... 20, 21, 26, 27
United States District Court Cases
Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc.,
No. 07 CV 2898, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) ............................... 21, 22, 27
Birchmeier v. Caribbean Cruise Line, Inc.,
302 F.R.D. 240 (N.D. Ill. 2014) ............................................................................. 10, 11, 18
Burrow v. Sybaris Clubs Int’l, Inc.,
No. 13 C 2342, 2015 WL 1887930 (N.D. Ill. Apr. 24, 2015) ............................................ 13
Butler v. Am. Cable & Tel., LLC,
No. 09 CV 5336, 2011 WL 2708399 (N.D. Ill. July 12, 2011) ......................................... 18
Chandler v. Sw. Jeep-Eagle, Inc.,
162 F.R.D. 302 (N.D. Ill. 1995) ......................................................................................... 10
Ferrington v. McAfee, Inc.,
No. 10–CV–01455, 2012 WL 1156399 (N.D. Cal. Apr. 6, 2012) .................................... 22
Forcellati v. Hyland’s, Inc.,
No. CV 12-1983-GHK MRWX, 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) ................ 22
G.M. Sign, Inc. v. Grp. C Commc’ns, Inc.,
No. 08-cv- 4521, 2010 WL 744262 (N.D. Ill. Feb. 25, 2010)........................................... 11

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Gascho v. Global Fitness Holdings, LLC,
No. 2014 WL 1350509 (S.D. Ohio Apr. 4, 2014) ........................................................22-23
Halaburda v. Bauer Publ’g Co.,
No. 12-cv-12831, Dkt. 68 (E.D. Mich. Jan 6. 2015) ......................................................... 24
Harris v. Circuit City Stores, Inc.,
No. 07-cv-2512, 2008 WL 400862 (N.D. Ill. Feb. 7, 2008) .........................................18-19
Harris v. comScore, Inc.,
292 F.R.D. 579 (N.D. Ill 2013) ........................................................................ 13, 14, 17, 19
In re AT & T Mobility Wireless Data Servs. Sales Litig.,
270 F.R.D. 330 (N.D. Ill. 2010) .................................................................................. passim
In re AT & T Mobility Wireless Data Servs. Sales Tax Litig.,
789 F. Supp. 2d 935 (N.D. Ill. 2011) ..................................................................... 21, 26, 27
In re Capital One TCPA Litig.,
80 F. Supp. 3d 781 (N.D. Ill. 2015) ................................................................................... 22
In re Carrier IQ, Inc. Consumer Privacy Litig.,
No. 12-md-02330-EMC, Dkt. 481 .................................................................................... 24
In re Facebook Internet Tracking Litig.,
140 F. Supp. 3d 922 (N.D. Cal. 2015) ............................................................................... 24
In re Facebook Privacy Litig.,
No. 10-cv-02389, Dkt. 69 (N.D. Cal. 2010) ...................................................................... 17
In re Google Buzz Privacy Litig.,
No. C 10-00672 JW, 2011 WL 7460099 (N.D. Cal. June 2, 2011) ................................... 23
In re Google Inc. Cookie Placement Consumer Privacy Litig.,
806 F.3d 125 (3d Cir. 2015) .........................................................................................24-25
In re Netflix Privacy Litig.,
No 5:11-cv-00379 (N.D. Cal. Aug. 12, 2011) ................................................................... 19
In re Northfield Labs., Inc. Sec. Litig.,
No. 06-cv-1493, 2012 WL 366852 (N.D. Ill. Jan. 31, 2012) ...................................... 20, 28
In re Sears, Roebuck & Co. Front-loading Washer Prod. Liab. Litig.,
No. 06 C 7023, 2016 WL 772785 (N.D. Ill. Feb. 29, 2016) ............................................. 28

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In re Southwest Airlines Voucher Litig.,
No. 11-cv-8176, 2013 WL 4510197 (N.D. Ill. Aug. 26, 2013) ......................................... 22
Kessler v. Am. Resorts Int’l, No. 05-cv-5944,
No. 2007 WL 4105204 (N.D. Ill. Nov. 14, 2007) ............................................................. 21
Kinder v. Meredith,
No. 1:14-cv-11284-TLL-CEB, Dkt. 81 (E.D. Mich. May 18, 2016) ...........................23-24
Lauber v. Belford High Sch.,
No. 09-CV-14345, 2012 WL 5822243 (E.D. Mich. Jan. 23, 2012) .............................14-15
Otero v. Dart,
306 F.R.D. 197 (N.D. Ill. 2014) .................................................................................. 16, 18
Quiroz v. Revenue Prod. Mgmt., Inc.,
252 F.R.D. 438 (N.D. Ill. 2008) ........................................................................................ 18
Rojas v. Career Educ. Corp.,
No. 10-cv-5260, Dkt. 55 (N.D. Ill.) ................................................................................... 17
Schulte v. Fifth Third Bank,
805 F. Supp. 2d 560 (N.D. Ill. 2011) ................................................................................. 26
Schulte v. Fifth Third Bank,
No. 09-CV-6655, 2010 WL 8816289 (N.D. Ill. Sept. 10, 2010) ..................................25-26
Subedi v. Merchant, No. 09-cv-4525,
No. 2010 WL 1978693 (N.D. Ill. May 17, 2010) .............................................................. 18
Tait v. BSH Home Appliances Corp.,
No. SACV100711DOCANX, 2015 WL 4537463 (C.D. Cal. July 27, 2015) ................... 23
Rules and Statutes
18 U.S.C.A. § 2520 ................................................................................................................. 22, 24
Fed. R. Civ. P. 23 ................................................................................................................... passim
Miscellaneous Authority
U.S. Chamber Institute for Legal Reform, The New Lawsuit Ecosystem: Trends, Targets
and Players (October 2013) (available at http://www.instituteforlegalreform.com/uploads
/sites/1/The_New_Lawsuit_Ecosystem_pages_web.pdf) ............................................................. 19

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I.

INTRODUCTION

Plaintiffs N.P. and P.S. (“Plaintiffs”) seek preliminary approval of a class action
settlement that, if approved, will resolve claims that Defendant Standard Innovation Corp.
(“Standard Innovation” or “Defendant”) wrongfully collected highly sensitive personal
information about its customers’ usage habits of its “We-Vibe” line of adult sex toys (vibrators).
The proposed settlement agreement (“Settlement Agreement” or “Agreement”)1—reached after
extensive arms’ length negotiations and multiple informal and formal mediation sessions with
the Honorable Morton Denlow (ret.) of JAMS Chicago—is an excellent result for the proposed
classes. It achieves the dual purposes of the suit by providing both significant monetary
compensation and cessation of Defendant’s allegedly invasive information collection practices.
Regarding the monetary component, the Agreement calls for Standard Innovation to
establish two non-reversionary common funds totaling $5,000,000 Canadian dollars (“CAD”), to
be distributed to two settlement classes: an “App Class” and a “Purchaser Class.” The App
Settlement Fund is a $4,000,000 (CAD) (about $3,000,000 US dollars) and the Purchaser
Settlement Fund is a $1,000,000 (CAD) (about $750,000 US dollars). Claiming members of the
App Class are expected to get a pro rata payment of approximately $500 and claiming Purchaser
Class members a pro rata payment of approximately $40, each payment coming in U.S. Dollars.
As far as the prospective relief, it is far reaching in that the Agreement requires Standard
Innovation to destroy data is has collected, alter its privacy policy, and implement certain
protocols to ensure that its privacy practices remain consistent with its disclosures to consumers.
Without question, the instant Settlement compares favorably to the majority of privacy
class action settlements, which often result in, at best, nominal amounts of money being paid
directly to the class, and most often indirect payments through cy pres donations. See infra at
1

A copy of the Settlement Agreement is attached as Exhibit 1.

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Section VI.A. Here, Class Counsel has secured a total of $5 million (CAD) that will result in
substantial payments to App Class members of hundreds of dollars and still meaningful
payments to Purchaser Class members expected to be more than what’s been recovered in most
other privacy settlements. Coupled with the significant prospective relief, the proposed
Agreement goes well beyond the established paradigm when it comes to privacy class action
settlements. Given the substantial recovery made available in the face of the significant risks
attendant with further litigation—including summary judgment, class certification, trial, and
appeal—the instant Settlement is well within the range of approval.
Accordingly, Plaintiffs respectfully request that the Court enter an Order (i) certifying the
proposed Settlement Classes for settlement purposes, (ii) granting preliminarily approval to the
Agreement, and (iii) approving the proposed Notice Plan.
II.

BACKGROUND
A.

Nature of the Litigation

Standard Innovation markets, sells, and supports a line of vibrators under the “We-Vibe”
product label. The We-Vibe’s principle selling point is that users can control the device—e.g., by
adjusting its intensity and vibration patterns—via a smartphone. (See Plaintiff’s First Amended
Class Action Complaint “Compl.” attached as Exhibit 2 at ¶¶ 20, 21.) To access these functions,
customers must download Standard Innovation’s We-Connect application (the “We-Connect” or
“App”), which allows users to “pair” a specific We-Vibe to a smartphone via a Bluetooth
connection. (Id. ¶ 13.) The App also allows different We-Connect users to communicate with
each other. (Id. ¶ 14.) For example, through We-Connect’s “connect lover” feature, users can
send messages, engage in video chats, and remotely control their partner’s We-Vibe device in
real time. (Id.) All of these features are central to the We-Vibe product. (Id. ¶¶ 18, 19.)

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While the We-Vibe device gives users a unique way to intimately communicate and
interact, Plaintiffs allege that Standard Innovation also programmed—without its customers’
knowledge or consent—the We-Connect application to collect a substantial amount of
information about its customers’ usage habits. (Id. ¶ 20.) For example, Plaintiffs claim that
Standard Innovation programmed the application to (i) monitor and record how its customers use
their devices in real time (i.e., by continuously and contemporaneously intercepting and
monitoring electronic communications between a user’s smartphone and the We-Vibe device),
and then (ii) collect and transmit this data to Standard Innovation servers in Canada. (Id. ¶¶ 2, 21,
22.) The information collected allegedly includes: the date and time of each use, the vibration
intensity level selected by the user, the vibration mode or pattern selected by the user and, where
available, the email address of customers who registered with We-Connect. (Id. ¶ 20.) Standard
Innovation also allegedly collected information through We-Connect’s “connect lover” feature
(e.g., data related to the connected We-Vibe, including its temperature and battery life). (Id. ¶
23.) And as noted above, as this information was collected, it was transmitted to Standard
Innovation’s servers in Canada. (Id. ¶ 2.)
Needless to say, the usage information collected by Standard Innovation through WeConnect is extraordinarily intimate and private. That users might consider this information
highly sensitive and threatening to their privacy is a fact that has been recognized (and
anticipated) by Standard Innovation itself: rather than inform customers about its allegedly
intrusive collection practices—which Plaintiffs claim operate without customers’ knowledge or
consent—the We-Connect application assured users that the application was “secure” and could
initiate “a secure connection between . . . smartphones.” (Id. ¶ 14, 23.) Notwithstanding these
representations of security and confidentiality, Standard Innovation collected individual-level

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usage information—often tied to users’ personally identifiable email addresses—and as a result,
Plaintiffs allege Standard Innovation breached its customers’ trust, devalued their purchases
(given that few, if any, consumers would knowingly purchase a vibrator that was subject to
constant surveillance), and violated federal and state law in the process. (Id. ¶¶ 3, 24.)
Plaintiff N.P., representing the proposed App Class, purchased a We-Vibe Rave vibrator
from a local retailer for $130 for her own personal use. (Id. ¶ 25.) Soon after the purchase,
Plaintiff N.P. downloaded We-Connect onto her smartphone and paired it with her We-Vibe. (Id.
¶ 27.) She did so in order to access the We-Vibe’s full array of features and to control her WeVibe wirelessly from her smartphone. (Id.) Since her purchase of the We-Vibe in May 2016,
Plaintiff N.P. has used We-Connect on several occasions. (Id. ¶ 28.) Unbeknownst to Plaintiff
N.P., she claims Defendant programmed We-Connect to secretly intercept, monitor, collect, and
transmit her Usage Information. (Id. ¶ 29.) Accordingly, each and every time Plaintiff N.P. used
We-Connect to control her We-Vibe, Defendant intercepted and collected her personally
identifiable We-Vibe usage information, and transmitted it to its servers in Canada. (Id. ¶ 30.)
Plaintiff N.P. further alleged that Defendant never informed her that it would monitor, collect,
and transmit her usage information and Plaintiff never expressly consented to Defendant doing
so. (Id. ¶¶ 31, 32.) Plaintiff N.P. would never have purchased a We-Vibe had she known that
utilizing its full functionality would allow Defendant to monitor, collect, and transmit her Usage
Information through We-Connect. (Id. ¶ 33.)
Plaintiff P.S., representing the proposed Purchaser Class, bought a We-Vibe 4 Plus
vibrator from a local retailer for $193. (Id. ¶ 34.) The We-Vibe 4 Plus’s product packaging—like
the product packaging of all Defendant’s Bluetooth enabled devices in the We-Vibe line—touted
its App-compatibility and Bluetooth functionality (via We-Connect). (Id. ¶ 35.) As a result of

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those features, the purchase price for each the Bluetooth enabled devices in the We-Vibe product
line (specifically, the We-Vibe® Classic, We-Vibe® 4 Plus, We-Vibe® 4 Plus App Only, Rave by
We-Vibe™ and Nova by We-Vibe™ products), is substantially higher than other comparable
vibrators without those features. (Id.) Unbeknownst to Plaintiff P.S. at the time of his purchase,
Defendant allegedly programmed We-Connect to secretly monitor, collect, and transmit its
users’ Usage Information to We-Vibe’s servers. (Id. ¶ 36.) Plaintiff would not have purchased
the We-Vibe (or would have paid substantially less) had he known that Defendant would
monitor, collect, and transmit Usage Information about users through the We-Connect app
(which users were required to use in order to access the product’s full functionality). (Id. ¶ 37.)
B.

History of the Proceedings.

On September 2, 2016, Plaintiff N.P. filed a putative class action lawsuit against Standard
Innovation. (Dkt. 1.) Plaintiff N.P. then filed an amended complaint on February 27, 2017,
adding, inter alia, Plaintiff P.S. as an additional named plaintiff and proposed representative of
the Purchaser Class and substituting Standard Innovation Corporation as the Defendant. The
amended complaint alleged three (3) causes of action for (i) violation of the Federal Wire Tap
Act, 18 U.S.C. §§ 2510 et seq., (ii) Intrusion Upon Seclusion, and (iii) Unjust Enrichment.
(Compl. ¶¶ 46, 52, 60.)
Early on, the Parties sought a resolution of this matter. (See Declaration of Eve-Lynn
Rapp, attached at Exhibit 3, ¶ 4.) As part of their discussions, the Parties informally exchanged
information related to Defendant’s information collection practices, Defendant’s privacy
policies, the information they disclosed to consumers, the number of class members, available
insurance, and Defendant’s financial resources. (Id.) After the exchange of information, counsel
for the Parties met in person on October 20, 2016 to discuss substantive issues involved in the

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case and possible structures for resolution. (Id. ¶ 5.) Ultimately, the Parties agreed to attempt to
resolve the matter through private mediation with the Honorable Morton Denlow (Ret.) of JAMS
Chicago and that Defendant’s insurer, Liberty International Underwriters (“Liberty”) should be
present for those negotiations. (Id. ¶ 6.) In the weeks that followed, and in hopes of furthering the
negotiations, Plaintiffs also made a policy demand on Liberty. (Id. ¶ 7.)
On November 22, 2016, Plaintiffs’ counsel, Defendant’s counsel, Defendant’s corporate
representatives, and a representative from Liberty, participated in a formal mediation session
with Judge Denlow. (Id. ¶ 8.) At the time of their early meeting and since making their policy
demand, Plaintiffs were clear that Standard Innovation would have to change its data collection
practices and given Defendant’s limited financial resources, if any resolution was to occur at an
early stage, Liberty would have to put up the entirety of Standard Innovation’s $5 million CAD
insurance policy. (Id. ¶ 9.) After several rounds of arms’ length negotiations over the course of a
full day, the Parties were able to reach an agreement as to the principal terms of this Agreement,
which was formalized in a binding Memorandum of Understanding. (Id. ¶ 10.) After that, it took
several additional weeks of discussions and negotiations to hammer out all the details of the
Settlement now before the Court. (Id. ¶ 11.)
III.

TERMS OF THE SETTLEMENT
The terms of the Agreement are set forth in the Settlement Agreement (see Ex. 1), and are

briefly summarized as follows.
A.

Class Definition.

The Settlement Agreement provides for a two Classes, defined as follows:
App Class: All individuals in the United States who downloaded the We-Connect
application and used it to control a We-Vibe Brand Product before September 26,
2016.

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Purchaser Class: All individuals in the United States who purchased a Bluetooth
enabled We-Vibe brand product before September 26, 2016.
The covered devices are detailed in the Settlement. (See Ex. 1, ¶ 1.40 listing the We-Vibe®
Classic, We-Vibe® 4 Plus, We-Vibe® 4 Plus App Only, Rave by We-Vibe™ and Nova by WeVibe™ products as the We-Vibe devices included in the Settlement.) Excluded from the Settlement
Classes are: (a) any judge or magistrate presiding over the Action and the immediate family
members of any such Person(s); (b) the Defendant and any respective parent, subsidiary,
affiliate, successor, predecessor or any entity in which the Defendant or its parents have a
controlling interest, as well as its current or former officers, directors, agents, attorneys, servants,
or employees; (c) the Settlement Administrator; (d) the Mediator; (e) Persons who properly
execute and file a timely request for exclusion from the App Class and/or the Purchaser Class; (f)
and the legal representatives, successors, or assigns of any such excluded Persons.
B.

Monetary Relief.

Standard Innovation has agreed to establish two Settlement Funds with the full $5 million
CAD of its insurance policy. The Purchaser Settlement Fund is a non-reversionary $1 million
CAD fund from which each member of that class who submits a valid claim will receive a pro
rata share of the money remaining in that settlement fund, up to $199.00 (USD), after payment
of all Settlement Administration Expenses, incentive awards to the Class Representatives, and
the Fee Award to Class Counsel. (Id. ¶ 2.1 – 2.2(a).) Similarly, the App Settlement Fund is a
non-reversionary $4 million CAD fund from which each App Class Member who submits a valid
claim will receive a pro rata share of the money remaining in the Settlement Fund, up to $10,000
(USD), after payment of all Settlement Administration Expenses, incentive awards to the Class
Representatives, and the Fee Award to Class Counsel. As explained below, Plaintiffs estimate
that, based on the expected rate of claims, each App Class member who submits a valid claim

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will receive approximately $500 and each Purchaser Class member who submits a valid claim
will receive approximately $40.
C.

Additional Relief.

In addition to the individual relief to the settlement classes provided above, Standard
Innovation has also agreed to provide the following additional relief.
1.

Prospective Relief

Standard Innovation has agreed to delete all of the following data: email addresses
provided as part of the We-Connect application registration process, the time and date of each
use, the vibration intensity level selected by the user, the vibration mode or pattern selected by
the user, the temperature, and the battery life. (Id. ¶ 2.3(g).)
Going forward, for at least three years Defendant will not include a registration process
on the We-Connect application and not collect email addresses through the We-Connect
application (excluding email addresses provided by users specifically to receive the Standard
Innovation newsletter or register their product). (Id. ¶ 2.3(a).) Additionally, Standard Innovation
has already updated its privacy notice about its data collection practices with respect to the WeConnect application and will inform those who have downloaded the App of their data collection
practices. (Id. ¶ 2.3(d)-(e).) Although it will no longer collect personal user information, to the
extent that Defendant collects data in aggregate in non-identifiable form for internal analytics
purposes, Defendant shall (i) provide notice of this data collection practice in the privacy notice,
and (ii) provide application users with a method to opt out of their data being provided to the
third party for such purposes. (Id. ¶ 2.3(c).)
2.

Payment of Notice and Settlement Administration Expenses

Standard Innovation has agreed to pay, proportionally from the respective settlement

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funds, the cost of sending the Notice set forth in the Agreement and any other notice as required
by the Court, as well as all costs of administration of the Agreement. (Id. ¶¶ 2.1, 4.1.)
3.

Incentive Award for Class Representatives

In addition to the relief received as Class Members under the Settlement, and in
recognition of their efforts on behalf of the Settlement Classes, particularly in a case of this sort
that involves highly private and sensitive issues, Standard Innovation has agreed to pay each of
the Plaintiffs, subject to Court approval, an incentive award of $5,000 from each respective
settlement fund. (Id. ¶ 8.3.)
4.

Payment of Attorneys’ Fees and Expenses

Class Counsel will move the Court for an award of reasonable attorneys’ fees and
unreimbursed expenses incurred in the Action relative to each fund. (Id. ¶¶ 8.1, 8.2.) Class
Counsel has agreed, with no consideration from Defendant, to limit their request to one-third of
the Purchaser Settlement Fund and one-third of the App Settlement Fund. (Id. ¶¶ 8.1, 8.2.)
D.

Release of Liability.

In exchange for the relief described above, Standard Innovation, and each of its affiliated
and/or related entities, will receive a full release of all claims arising out of or based on (i) any
actual or alleged collection, use or misuse, disclosure, storage or any other processing of any
personal or other information by the Released Parties, including without limitation the collection,
use or misuse, disclosure, storage or any other processing of any information in connection with
the purchase of a We-Vibe Brand Product or in connection with the We-Connect Application,
(ii) the alleged disclosure, partial disclosure or non-disclosure of any information practices by the
Released Parties with respect to any We-Vibe Brand Product or the We-Connect Application,
whether disclosed, partially disclosed or undisclosed, or (iii) any allegations of deceptive conduct

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with respect to the sale of any We-Vibe Brand Product or the We-Connect Application. (See Id.
¶¶ 1.33-1.35, for complete release language.)
IV.

THE PROPOSED SETTLEMENT CLASSES SHOULD BE CERTIFIED FOR
SETTLEMENT PURPOSES
Before granting preliminary approval, the Court must determine that proposed settlement

classes are each appropriate for certification. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591,
621 (1997); In re AT & T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 340-345
(N.D. Ill. 2010) (citations omitted). To merit certification, the proposed classes must meet the
requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of
representation. See Fed. R. Civ. P. 23(a). Also, because Plaintiffs seek to recover money
damages on behalf of the classes, they must demonstrate that the proposed classes meet Rule
23(b)(3)’s requirements of predominance and superiority. See Fed. R. Civ. P. 23(b); see also
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011); In re AT & T, 270 F.R.D. at 344-45.
Finally, a Rule 23(b)(3) class also must be ascertainable, that is, be defined by objective criteria.
See Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).
As described further below, both proposed classes satisfy each prerequisite and should
therefore be certified.
A.

Each Settlement Class is Sufficiently Numerous and Ascertainable.

Rule 23(a)’s first threshold requirement—numerosity—is satisfied where “the class is so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1); In re AT & T,
270 F.R.D. at 341; Birchmeier v. Caribbean Cruise Line, Inc., 302 F.R.D. 240, 250 (N.D. Ill.
2014) (citation omitted). Although there is no “magic number” at which joinder becomes
impracticable, the numerosity requirement is usually met when the class is comprised of forty or
more persons. See Birchmeier, 302 F.R.D. at 250; Chandler v. Sw. Jeep-Eagle, Inc., 162 F.R.D.

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302, 307 (N.D. Ill. 1995) (citations omitted) (finding proposed classes of 50 and 150 persons
numerous). Here Defendant’s records indicate that approximately 300,000 individuals purchased
a Bluetooth enabled We-Vibe product before September 26, 2016 (and are thus members of the
“Purchaser Class”) and that in excess of 100,000 individuals downloaded the We-Connect
application and used it to control a We-Vibe Brand Product before September 26, 2016 (and are
thus members of the “App Class”). (Ex. 3, Rapp Decl. ¶ 13.) Given the nature of the We-Vibe
and the We-Connect App, a not insignificant number of consumers will be members of both
classes. As such, Rule 23(a)’s numerosity requirement is clearly satisfied.
Additionally, although not an express requirement of Rule 23, it is an implicit
requirement that the certified class be ascertainable. See Mullins, 795 F.3d at 659. To be
“ascertainable,” the class need only be defined by objective criteria. Id. Because membership in
the classes here is based on straightforward objective criteria—purchase of a We-Vibe and/or
downloading of the We-Connect App—the ascertainability requirement is also easily satisfied.
See Birchmeier, 302 F.R.D. at 245; G.M. Sign, Inc. v. Grp. C Commc’ns, Inc., No. 08-cv- 4521,
2010 WL 744262, at *4 (N.D. Ill. Feb. 25, 2010).
B.

Members of the Settlement Classes Share Common Questions of Law and
Fact that Predominate Over Any Individual Issues.

Rule 23(a)(2) instructs that a class may be certified only if there exist “questions of law
or fact common to the class.” As the Supreme Court has noted, “even a single common question
will do.” Dukes, 564 U.S. at 359 (internal quotations and alterations omitted). In class actions
seeking monetary damages, like this one, those common questions must “predominate over any
questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). “The question of
commonality and predominance overlap in ways that make them difficult to analyze separately.”
Bell v. PNC Bank, N.A., 800 F.3d 360, 374 (7th Cir. 2015). Thus, we address them together here.

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A common question is one that is “capable of class-wide resolution” such “that
determining the truth or falsity of the common contention will resolve an issue that is central to
the validity of each claim.” Id. (citing Dukes, 564 U.S. at 350). Those common questions
predominate over any remaining individual questions “if a failure of proof on the common
question[s] would end the case and the whole class will prevail or fail in unison.” Id. at 378
(citing Amgen Inc. v. Connecticut Ret. Plans and Tr. Funds, 133 S. Ct. 1184, 1191 (2013)).
“What matters to class certification . . . [is] the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (quotation
marks omitted). “[T]he critical point is the need for conduct common to members of the class.”
Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (quotation marks omitted)
(finding commonality satisfied where all class members’ claims were derived from the same
conduct—the deceptive marketing and packaging of coffee pods). When “the same conduct or
practice by the same defendant gives rise to the same kind of claims from all class members,”
class treatment is appropriate. Id. Given this inquiry, assessment of commonality and
predominance begins with the elements of the underlying claims for relief. See Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). Here, there is no doubt that
Standard Innovation at all times acted consistently towards the two classes, and this common
conduct gives rise to “the same kind of claims” for both making common questions predominate
over individual ones.
1.

Common Questions Predominate with Respect to the App Class.

With respect to every member of the proposed App Class, all of the factual and legal
questions at issue rely entirely on the design and interaction of the We-Connect application and
We-Vibe product, as well as uniform disclosures about those facts. The factual and legal

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questions at issue include, amongst others, whether: (i) through We-Connect, Standard
Innovation monitored, intercepted, and transmitted the content of electronic communications of
App Class members; (ii) Standard Innovation intentionally used or endeavored to use the
contents of these communications, while knowing or having reason to know that the data was
obtained through the interception of an electronic communication; (iii) App Class members
consented to Standard Innovation’s interception or use of the contents of these electronic
communications; and (iv) Standard Innovation’s conduct intruded upon the seclusion of the App
Class members’ private affairs.
In cases where, as here, a plaintiff asserts Wiretap Act and corresponding state law claims
based on “a single system of recording”—such as a telephone recording or, here, Defendant’s act
of uniformly monitoring its customers’ We-Vibe usage communications—common questions
will invariably predominate. See Burrow v. Sybaris Clubs Int’l, Inc., No. 13 C 2342, 2015 WL
1887930, at *2 (N.D. Ill. Apr. 24, 2015) (certifying Rule 23(b)(3) class based on “romantic
getaway” resort operator’s “single system of [telephone call] recording that allegedly violates
federal and state wiretap laws”); see also Harris v. comScore, Inc., 292 F.R.D. 579, 581 (N.D. Ill
2013) (certifying Rule 23(b)(3) class on Wiretap Act claims based on data miner’s software
“which, if installed on a computer, constantly collects data about the activity on the computer
and sends it back to [the data miner’s] servers.”). Further, and as Judge Leinenweber observed in
Burrow, any consent defense raised by Standard Innovation will also turn on identical
evidence—namely, whether Defendant adequately disclosed its data collection practices through
terms of use of a privacy policy agreed to by customers. 2015 WL 1887930, at *4. At best, then,
a consent defense will only generate additional common questions for each class member,
including whether Standard Innovation’s data collection practices violated the scope of any such

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terms. See comScore, 292 F.R.D. at 585-86 (discussing common questions generated by the
defendant’s “consent” defense under the Wiretap Act and noting that the “scope of the plaintiffs’
consent here is determined by [an] identical process . . . and is therefore common across the
[c]lass[.]”). Common questions therefore predominate with respect to the App Class.
2.

Common Questions Predominate with Respect to the Purchaser Class.

These same considerations are true with respect to the Purchaser Class Members’
claims—all of the factual and legal questions at issues rely entirely on Standard Innovation’s
uniform advertising of the We-Vibe product, including whether: (i) members of the Purchaser
Class conferred a monetary benefit on Standard Innovation when they purchased We-Vibe
products; (ii) Standard Innovation was unjustly enriched by selling products to the Purchaser
Class without informing them that We-Connect app was programmed to secretly monitor,
collect, and transmit usage information about its users without their knowledge or consent; (iii)
the Purchaser class was harmed by Defendant’s failure to adequately disclose such usage
information; and whether (iv) Defendant’s retention of the benefit violates the fundamental
principles of justice, equity, and good conscience.
Because these common questions are based on Standard Innovation’s uniform conduct—
namely, its unlawful retention of a benefit relating to its failure to adequately disclose
information about its information collection practices to the Purchaser Class—they also
predominate. See e.g. Suchanek, 764 F.3d at 756 (noting, in case asserting claims for unjust
enrichment, that “[w]here the same conduct or practice by the same defendant gives rise to the
same kind of claims from all class members, there is a common question” given that “the
plaintiffs’ claims and those of the class they would like to represent all derive from a single
course of conduct”) (internal citations omitted); Lauber v. Belford High Sch., No. 09-CV-14345,

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2012 WL 5822243, at *2 (E.D. Mich. Jan. 23, 2012) (noting, in a case asserting claims for unjust
enrichment, that because “the [Defendant’s] conduct is materially uniform among the purported
victims . . . all are premised on the allegedly sham accreditation and illegitimacy of [defendant] .
. . [defendant’s] standardized conduct is an issue common to all members of the purported
class”).
Accordingly, for each settlement class common questions predominate in satisfaction of
Rule 23(a)(2) and (b)(3).
C.

P.S.’s Claims are Typical of those of the Purchaser Class Members’ Claims
and N.P.’s Claims are Typical of those of the App Members’ Claims

Rule 23(a)’s typicality requirement is satisfied when the named plaintiff’s claims or
defenses “are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The
typicality requirement is closely related to commonality, see Keele v. Wexler, 149 F.3d 589, 595
(7th Cir. 1998) (citation omitted), and is satisfied when the plaintiff’s claims arise from the
defendant’s same practice or course of conduct and are premised on the same legal theory as the
class members’ claims. Id.; see also In re AT & T, 270 F.R.D. at 342. The typicality requirement
is viewed permissively, and is satisfied as long as the plaintiff’s claims have the “same essential
characteristics” as the class’s. Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009).
Here, while the named plaintiffs’ claims need only have the “same essential
characteristics,” see id., to those in the class each represents, N.P. and P.S. bring claims that are
essentially identical to the other members of the App Class and Purchaser Class, respectively.
That is, N.P.’s claims arise out of Defendant’s conduct of intercepting her electronic
communications once she downloaded the We-Connect application and used it to control her
We-Vibe device—an identical position to all members in the App Class. Similarly, P.S.’s claim
arises from Defendant’s failure to disclose its practice of collecting sensitive information from

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users of its Bluetooth-enabled devices—a device that P.S. and every member of the Purchaser
Class would not have purchased (or would have paid less for) had they known the truth.
Because Plaintiffs’ claims and those of the respective classes they seek to represent arise
out of substantively identical conduct, Plaintiffs have shown more than “enough for Rule
23(a)(3) purposes.” In re AT & T, 270 F.R.D. at 342 (citation omitted).
D.

Plaintiffs and Class Counsel Will Adequately Represent the Interests of Both
Settlement Classes

Finally, Rule 23(a) requires adequacy of representation, meaning “the representative
parties will fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4); Otero
v. Dart, 306 F.R.D. 197, 206 (N.D. Ill. 2014). There are two components to the adequacy
inquiry: “(1) the adequacy of the named plaintiffs as representatives of the proposed class’s
myriad members, with their differing and separate interests, and (2) the adequacy of the proposed
class counsel.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011), as modified
(Sept. 22, 2011). First, courts must determine whether the class representatives’ interests in the
outcome of the case coincide with—and lack potential conflicts of interest with—those of the
absent class members. See In re AT & T, 270 F.R.D. at 343. Second, when assessing class
counsel, courts consider their experience litigating similar actions and dedication of time and
resources to the particular case at hand. Id. at 344.
Here, both N.P. and P.S., as proposed Class Representatives, and Edelson PC, as
proposed Class Counsel, will fairly and adequately represent the interests of the proposed
settlement classes. First, N.P.’s interest in redressing Defendant’s conduct towards those who
downloaded the We-Connect application is identical to the interests of all other App Class
members: they all suffered the same alleged injury when Standard Innovation intercepted their
We-Vibe Usage Information and thus, have the exact same claims. Likewise, P.S.’s interest in

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redressing Defendant’s conduct towards those who purchased a Bluetooth-enabled We-Vibe
product is identical to the interest of all other Purchaser Class members, as they all suffered the
same alleged injury when Standard Innovation failed to disclose its practice of secretly
monitoring and collecting their sensitive usage information and was unjustly enriched in the
process.
In addition, Plaintiffs’ Counsel are well-respected members of the legal community, who
have extensive experience in class actions of similar size, scope, and complexity to the instant
action. (Rapp Decl. ¶ 16.) They have regularly engaged in major complex litigation involving
consumer technology issues, have the resources necessary to conduct litigation of this nature,
and have frequently been appointed lead counsel by courts throughout the country. (Id.). Indeed,
Plaintiffs’ counsel have regularly been found to be adequate representatives by courts nationwide
and in this District (including by this Court). See e.g. Rojas v. Career Educ. Corp., No. 10-cv5260, Dkt. 55 at 3 (N.D. Ill.) (Kendall, J.) (finding that “attorneys at [Edelson PC] are competent
and capable of exercising the responsibilities of Class Counsel”); In re Facebook Privacy Litig.,
No. 10-cv-02389, Dkt. 69 (N.D. Cal. 2010) (appointing Edelson PC Class Counsel and noting
that the attorneys at Edelson are “pioneers in the electronic privacy class action field, having
litigated some of the largest consumer class actions in the country on this issue”); comScore, 292
F.R.D. at 581 (appointing Edelson PC Class Counsel in case achieving adversarial certification
in what is believed to be the largest ever privacy class action).
Accordingly, both Plaintiffs and their counsel have and will continue to adequately
represent each Settlement Class, and the final Rule 23(a) requirement is satisfied.

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E.

A class action is the superior method of adjudicating this controversy.

Finally, Rule 23(b)(3) requires that a class action is the superior method of “fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3)(B); Birchmeier, 302 F.R.D. at
255; Subedi v. Merchant, No. 09-cv-4525, 2010 WL 1978693, at *6 (N.D. Ill. May 17, 2010).
Class treatment is particularly well suited for claims resulting from a pattern of standardized
conduct because it enables the court to “determine the legality of [an] alleged practice and
procedure in one proceeding.” Otero, 306 F.R.D. at 207; see also Quiroz v. Revenue Prod.
Mgmt., Inc., 252 F.R.D. 438, 444 (N.D. Ill. 2008) (citations omitted). Moreover, because the
action will now settle, the Court need not consider issues of manageability relating to trial. See
Butler v. Am. Cable & Tel., LLC, No. 09 CV 5336, 2011 WL 2708399, *6 (N.D. Ill. July 12,
2011) (citing Amchem, 521 U.S. at 620 (“Confronted with a request for settlement-only class
certification, a district court need not inquire whether the case, if tried, would present intractable
management problems . . . for the proposal is that there be no trial”)).
Here, a class action is the superior method because it allows the Court to swiftly resolve
claims regarding We-Vibe’s collection and disclosure of its customers’ vibrator Usage
Information in a single proceeding, generating a uniform result that will apply to all similarly
situated persons. By providing swift resolution of common claims in a way that would not be
possible individually, the superiority requirement is satisfied. Because the requirements of Rule
23(a) and 23(b)(3) are satisfied, the proposed Settlement class should be certified for settlement
purposes.
V.

PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED CLASS COUNSEL
When certifying a class, Rule 23 requires that a court appoint counsel who will “fairly

and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B), (2), (4); Harris v.

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Circuit City Stores, Inc., No. 07-cv-2512, 2008 WL 400862, at *11 (N.D. Ill. Feb. 7, 2008)
(citation omitted). In appointing class counsel, the court must consider (1) the work counsel has
done in identifying or investigating potential claims; (2) counsel’s experience in handling class
actions, other complex litigation, and the types of claims asserted in the case; (3) counsel’s
knowledge of the applicable law, and (4) the resources class counsel has committed to
representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i)–(iv); Reliable Money Order, Inc. v.
McKnight Sales Co., 704 F.3d 489, 498 n.7 (7th Cir. 2013).
Here, proposed Class Counsel has extensive experience prosecuting similar class actions
and other complex litigation, and readily satisfies the criteria of Rule 23(g). As explained above,
Edelson PC has been recognized as a pioneer in large digital privacy cases involving complicated
technological issues. See supra, Section IV.D.; see also In re Netflix Privacy Litig., No 5:11-cv00379 (N.D. Cal. Aug. 12, 2011) (appointing Edelson PC interim lead counsel, noting that while
two other firms had impressive resumes and litigation experience, Edelson PC’s “significant and
particularly specialized expertise in electronic privacy litigation and class action renders them
superior to represent the putative class.”); comScore, 292 F.R.D. at 581 (appointing Edelson PC
Class Counsel in case achieving adversarial certification in what is believed to be the largest ever
privacy class action). Edelson PC has also been named a “top national plaintiff’s class action
firm” in the areas of “technology, privacy, and telecommunications” by the U.S. Chamber
Institute for Legal Reform. U.S. Chamber Institute for Legal Reform, The New Lawsuit
Ecosystem: Trends, Targets and Players at 16 (October 2013) (available at
http://www.instituteforlegalreform.com/uploads/sites/1/
The_New_Lawsuit_Ecosystem_pages_web.pdf). Finally, proposed Class Counsel have
devoted—and will continue to devote—a significant amount of time, effort and resources to this

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litigation, beginning with their initial investigation of Plaintiff’s allegations and ending with
significant confirmatory discovery, mediations and settlement discussions. (Rapp. Decl. ¶ 16.)
For these reasons, the Court should appoint Eve-Lynn Rapp and Jay Edelson of Edelson
PC as Class Counsel.
VI.

THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL
Rule 23(e) requires judicial approval of a proposed class action settlement based on a

finding that the agreement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2); Synfuel
Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 652 (7th Cir. 2006). This involves a wellestablished two-step process. Armstrong v. Bd. of Sch. Directors of City of Milwaukee, 616 F.2d
305, 314 (7th Cir. 1980), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th
Cir. 1998); In re Northfield Labs., Inc. Sec. Litig., No. 06-cv-1493, 2012 WL 366852, at *5
(N.D. Ill. Jan. 31, 2012). The first step—preliminary approval—assesses whether the proposed
settlement falls “within the range of possible approval,” see Armstrong, 616 F.2d at 314, “to
ascertain whether there is any reason to notify the class members of the proposed settlement and
to proceed with a fairness hearing.” Id. Once preliminary approval is granted, class members are
notified of the settlement, and the court and parties proceed to the second step—the final fairness
hearing. Id.
Federal courts naturally favor the settlement of class action litigation,” In re AT & T, 270
F.R.D. at 345 (quoting Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (internal quotations
omitted)), and a multi-factor test is be used to determine whether a proposed settlement is fair,
reasonable, and adequate. Synfuel, 463 F.3d at 653 (citing Isby, 75 F.3d at 1199). At preliminary
approval, courts consider the following four factors: (1) the strength of the plaintiff’s case
compared to the amount of the settlement offer; (2) the length, complexity, and expense of

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further litigation; (3) the opinion of competent counsel; and (4) the stage of the proceedings and
amount of discovery completed. See id. (citing Isby, 75 F.3d at 1199).2 Although these factors
are ultimately assessed at the final fairness hearing, a summary version of the analysis takes
place at the preliminary approval stage. Kessler v. Am. Resorts Int’l, No. 05-cv-5944, 2007 WL
4105204, at *5 (N.D. Ill. Nov. 14, 2007) (citing Armstrong, 616 F.2d at 314).3
Here, each factor supports the Settlement Agreement, which this Court should find well
within the range of possible approval.
A.

The Strength of the Plaintiffs’ Case Compared to the Amount of the
Settlement Offer Favors Preliminary Approval.

The most important factor relevant to the fairness of a class action settlement is the first
one listed: the strength of plaintiffs’ case on the merits balanced against the amount offered in the
settlement.” In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935,
958 (N.D. Ill. 2011) (quoting Synfuel, 463 F.3d at 653) (internal quotations omitted). The
strength of a plaintiff’s case can be quantified by examining “the net expected value of continued
litigation to the class” and then estimating “the range of possible outcomes and ascrib[ing] a
probability to each point on the range.” Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., No. 07
CV 2898, 2012 WL 651727, at *2 (N.D. Ill. Feb. 28, 2012) (quoting Synfuel, 463 F.3d at 653)
(internal quotations omitted); see also Eubank v. Pella Corp., 753 F.3d 718 727 (finding that the
district court should “estimate the likely outcome of a trial in order to evaluate the adequacy of
2

One additional factor—the amount of opposition to the settlement—is not typically assessed at
the preliminary approval stage as notice of the proposed settlement has not yet been administered. See In
re AT & T, 270 F.R.D. at 349. Accordingly, it is not considered here.
3
In addition to these factors, the Seventh Circuit has identified several “red flags” that may alert
courts to a problematic settlement, including: (1) the failure to establish the total class recovery, (2) the
reversion of un-awarded attorneys’ fees to the defendant, (3) overly complicated claim forms, and (4)
coupon-based relief. Eubank, 753 F.3d at 723-26. None of these warning signs are present here, as the
Agreement (1) creates two settlement funds, totalling $5 million, (2) with none of that money reverting to
Defendant, and (3) with the completion of a short and simple claim form, (4) Class Members will receive
real cash relief.

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the settlement”). However, “the Seventh Circuit recognizes that a high degree of precision cannot
be expected in these calculations” and “[i]nstead courts are to provide a ballpark valuation of the
class’s claims.” Am. Int’l Grp., Inc., 2012 WL 651727, at *2 (internal quotations omitted). “In
considering the strength of plaintiffs’ case, legal uncertainties at the time of settlement favor
approval.” In re Southwest Airlines Voucher Litig., No. 11-cv-8176, 2013 WL 4510197, at *7
(N.D. Ill. Aug. 26, 2013). Finally, “[b]ecause the essence of settlement is compromise, courts
should not reject a settlement solely because it does not provide a complete victory to the
plaintiffs.” In re AT & T, 270 F.R.D. at 347 (N.D. Ill. 2010) (quoting Isby, 75 F.3d at 1200)
(internal quotations omitted). Indeed, “this is especially true when complete victory would most
surely bankrupt the prospective judgment debtor.” In re Capital One TCPA Litig., 80 F. Supp. 3d
781, 790 (N.D. Ill. 2015). Thus, in terms of tangible monetary relief, the proposed Agreement
warrants approval when viewed in light of the risks of a jury trial and potential appeals.
The first factor, an assessment of both the strength of the Plaintiffs’ case and the amount
offered in settlement, weighs heavily in favor of approval. Sure, complete victory for the
Plaintiffs here would exceed $1 billion, but that would bankrupt most companies and would
wholly uncollectable from Standard Innovation.4 The agreement to settle for the $5,000,000
(CAD) maximum of Defendant’s insurance policy represents the realistic collectable recovery
for the Plaintiffs, even if Plaintiffs succeeded at trial. Based on an estimated 5% claims rate,5

4

For the approximately 100,000 members of the App Class, victory on the Wiretap Act claim
alone would result a total award of $1,000,000,000 USD ($1,355,500,000 CAD based on the current
conversion rate). See 18 U.S.C. § 2520(c)(2)(B) (providing for “statutory damages of whichever is the
greater of $100 a day for each day of violation or $10,000”). Further, because the entirety of each
individual’s average $150 purchase is at issue, Standard Innovation also faces an additional $45,000,000
USD ($60,997,500 CAD) in liability for the approximately 300,000 members of the Purchaser Class.
5
See e.g., Forcellati v. Hyland’s, Inc., No. CV 12-1983-GHK MRWX, 2014 WL 1410264, at *6
(C.D. Cal. Apr. 9, 2014) (quoting Ferrington v. McAfee, Inc., No. 10–CV–01455
2012 WL 1156399, at *4 (N.D. Cal. Apr. 6, 2012)) (recognizing that “[t]he prevailing rule of thumb with
respect to consumer class actions is [a claims rate of] 3-5 percent”); Gascho v. Global Fitness Holdings,

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claiming App Class members are estimated to receive approximately $500 and claiming
Purchaser Class members are estimated $40 (20%-45% of the entire purchase price of their WeVibe product).
This is an exceptional recovery. To start, it is common for class action settlements in the
privacy space to provide no monetary relief to class members at all. For example, a high profile
privacy case against Facebook resolved the claims of tens (if not hundreds) of millions of
Facebook users under both the Electronic Communications Privacy Act (which also provides for
$10,000 in statutory damages) and the Video Protection Privacy Act ($2,500 in statutory
damages), in exchange for the creation of a $9.5 million cy pres-only fund (i.e., pennies per class
member—paid indirectly). See Lane v. Facebook, Inc., 696 F.3d 811, 820-22 (9th Cir. 2012).
Similarly, Google settled the privacy claims of tens (if not hundreds) of millions of Gmail users
under both the Electronic Communications Privacy Act (providing for $10,000 in statutory
damages) and the Stored Communications Act ($1,000 in statutory damages) in exchange for an
$8.5 million cy pres–only fund (again, pennies per class member – paid indirectly). See In re
Google Buzz Privacy Litig., No. C 10-00672 JW, 2011 WL 7460099, at *3-5 (N.D. Cal. June 2,
2011).
Even when compared to the handful of recent settlements reflecting a new trend of class
members receiving substantial cash payments in exchange for resolving privacy claims, this
Agreement excels. See e.g. Kinder v. Meredith, No. 1:14-cv-11284-TLL-CEB, Dkt. 81 (E.D.
Mich. May 18, 2016) (claiming class members resolved their claims under Michigan’s Video
Rental Privacy Act (“VRPA”) for approximately $50, or 1% of the $5,000 in provided statutory
LLC, 2014 WL 1350509, at *30 (S.D. Ohio Apr. 4, 2014) (accepting expert testimony “that response rates
in class actions generally range from one to 12 percent with a median response rate, and a normal
consumer response rate, of approximately five to eight percent”); Tait v. BSH Home Appliances Corp.,
No. SACV100711DOCANX, 2015 WL 4537463, at *8 (C.D. Cal. July 27, 2015) (granting final approval
where “claims rate somewhat about 3% was likely a realistic possibility”).

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damages); Halaburda v. Bauer Publ’g Co., No. 12-cv-12831, Dkt. 68 (E.D. Mich. Jan 6. 2015)
(claiming class members under the VRPA for $75); see also In re Carrier IQ, Inc. Consumer
Privacy Litig., No. 12-md-02330-EMC, Dkt. 481 (granting final approval to Wiretap Act
settlement providing $9 million fund for 30 million class members resulting in approximately
$140 to claimants).
In terms of the strength of the case, Plaintiffs believe they will likely succeed on the
merits. Nevertheless, Standard Innovation’s claimed defenses, including that the Federal Wiretap
Act is inapplicable to its actions and that proposed class members consented to their usage
information being monitored and collected, pose serious risks to the litigation and would be hotly
contested issues every step of the way. This is especially true in light of the fact that N.P.’s claim
under the Federal Wiretap Act is a creative application of the statute, and would require the Court
to apply it to a unique product. Specifically, to prevail under the Wiretap Act, Plaintiff must
prove (i) that Standard Innovation’s acquisition of user data constitutes an “interception,” and (ii)
that the data intercepted constitutes the “contents” of communications. See 18 U.S.C.A. §
2520(a). Both prongs present obstacles.
Of particular concern, Plaintiff will have to successfully argue that We-Vibe’s
“operational instructions”—i.e., the intercepted data, such as a users’ desired vibration intensity
level and desired vibration mode or pattern—is the “content” of users’ communications. To do
so, Plaintiff must show that the information transmitted from her device can be distinguished
from “non-content dialing, routing, addressing, or signaling information”—information used to
route a communication—which courts have determined falls outside the definition of content
itself. See, e.g., In re Facebook Internet Tracking Litig., 140 F. Supp. 3d 922, 935 (N.D. Cal.
2015) (describing “referrer headers” as routing information); but see In re Google Inc. Cookie

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Placement Consumer Privacy Litig., 806 F.3d 125, 139 (3d Cir. 2015), cert. denied sub
nom. Gourley v. Google, Inc., 137 S. Ct. 36, 196 L. Ed. 2d 26 (2016) (holding that some “queried
URLs” which often serve as routing information can “qualify as content”). The scope of this
definition is necessarily uncertain, particularly because its application to We-Vibe’s products
presents unique and novel technical questions. While Plaintiff remains confident she will prevail
because the “federal wiretap statute[] broadly define[s] ‘contents,’” Nix v. O'Malley, 160 F.3d
343, 346 n. 3 (6th Cir. 1998), and the data at issue closely resembles a uniform record locator
(URL), which courts have determined is “content,” certain information associated with a WeVibe users’ desired vibration intensity level and desired mode can also be characterized as
routing information (i.e. IP address and certain header data). Ultimately, however, because there
is no certainty how a jury will parse these technical distinctions at trial, Plaintiff’s victory is far
from guaranteed.
Plaintiffs will also have to contend with We-Vibe’s anticipated defense that its
disclosures—made through a Privacy Policy—sufficiently notified users of its informationcollection practices, and that plaintiffs therefore consented to its actions. While Plaintiffs will
argue that these disclosures were woefully deficient (i.e. Standard Innovation disclosed that
personally-identifiable information is only collected “if [the user] contacts [We-Vibe]” (emphasis
added), We-Vibe’s disclosure that “certain other information” is automatically gathered and
stored, along with the ambiguity of terms such as “personally identifiable information,” injects
significant uncertainty into Plaintiffs’ position.
Considering the significant monetary relief and the strength of Plaintiffs’ case, especially
when compared to historical privacy class actions, the first element of the test favors a finding
that this settlement is “fair, reasonable, and adequate.” See Schulte v. Fifth Third Bank, No. 09-

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CV-6655, 2010 WL 8816289, at *3 (N.D. Ill. Sept. 10, 2010) (recognizing that where a
“settlement appears relatively generous when compared to settlements in analogous
circumstances[, it] is sufficient to satisfy the standard for preliminary approval”) (emphasis in
original). The first—and most important—Synfuel factor therefore strongly supports approving
the settlement.
B.

The Potential Length, Complexity, and Expense of Further Litigation Favor
Preliminary Approval.

Preliminary approval is also favored in cases such as this one, where “[s]ettlement allows
the class to avoid the inherent complexity, time, and cost associated with continued litigation.”
Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 586 (N.D. Ill. 2011). Plaintiffs believe that they
would have prevailed at trial, but they are also certain that any judgment would have been
appealed. Here, should litigation proceed, significant technical discovery will be needed, which
will significantly drive up the cost of the litigation. See In re AT & T Sales Tax Litig., 789 F.
Supp. 2d at 964 (noting that “costs associated with discovery in complex class actions can be
significant”). If anything, “this drawn-out, complex, and costly litigation process . . . would
provide [Settlement] Class Members with either no in-court recovery or some recovery many
years from now . . . .” Id. Further, any such continued litigation will not change the amount of
coverage provided by Defendant’s insurance policy. Because the proposed Agreement offers
immediate monetary relief to the classes, as well as a prompt end to Defendant’s alleged conduct,
while avoiding the need for extensive and drawn-out litigation, preliminary approval is
appropriate.
C.

The Opinion of Competent Counsel Supports Preliminary Approval.

The third factor examines the opinion of competent counsel as to whether a proposed
settlement is fair, reasonable, and adequate. Isby, 75 F.3d at 1200. In assessing the qualifications

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of class counsel under this factor, a court may rely upon affidavits submitted by class counsel as
well as its own observations of class counsel during the litigation. Id.
As noted above, proposed Class Counsel’s law firm has extensive experience litigating
and settling class actions and other complex litigation of similar size and scope. (Rapp Decl. ¶
16.) Based on its experience and for the reasons already explained, Class Counsel believe that
the Agreement is fair, reasonable, adequate and deserving of preliminary approval. (Id. ¶¶ 17,
18.) As Class Counsel believes that the Settlement provides significant relief for individuals who
may otherwise be left without a remedy (Id. ¶ 18), this factor weighs in favor of preliminary
approval as well.
D.

The Stage of the Proceedings and the Amount of Discovery Completed
Support Preliminary Approval.

Finally, the last factor concerns the stage of the proceedings and amount of discovery
completed at the time the settlement is reached. Synfuel, 463 F.3d at 653. This factor is
significant because “it indicates how fully the district court and counsel are able to evaluate the
merits of plaintiffs’ claims.” Am. Int’l. Grp., 2011 WL 3290302, at *8 (citing Armstrong, 616
F.2d at 325). It is well recognized that the court and parties may be equipped with sufficient
information even when no formal discovery has taken place if the parties have engaged in
considerable informal discovery. In re AT & T Sales Tax Litig., 789 F. Supp. 2d at 966; Am. Int’l.
Grp., 2011 WL 3290302, at *8.
Before this Agreement was reached, counsel for the Parties engaged in several months of
informal discovery and arms’ length discussions, including an in person meeting in Chicago on
October 20, 2016. (Rapp. Decl. ¶ 5.) With progress from that meeting, the Parties re-entered
arms’ length discussions, and after completing sufficient discovery, ultimately agreed to attempt
to resolve the matter through private mediation with Judge Denlow. (Id. ¶ 6.) On November 22,

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2016, after a full day of mediation, the Parties were able to reach an agreement as to the principal
terms of the Agreement, after which time Defendant provided Class Counsel confirmatory
information on various issues. (Id. ¶¶ 8, 10.) Ultimately, because the Parties had more than
sufficient information to make knowledgeable decisions about the Settlement throughout the
negotiations, the final factor also shows that the Agreement is “fair, reasonable, and just.”
VII.

THE PROPOSED METHOD OF NOTICE SHOULD BE APPROVED
When a certified class action is settled, due process and Rule 23 require that the court

“direct notice in a reasonable manner to all class members who would be bound by the
proposal.” Fed. R. Civ. P. 23(e)(1); accord In re Sears, Roebuck & Co. Front-loading Washer
Prod. Liab. Litig., No. 06 C 7023, 2016 WL 772785, at *7 (N.D. Ill. Feb. 29, 2016) (requiring
“the best notice that is practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort” when approving a settlement of a
certified class action) (citation and internal quotations omitted); Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 173 (1974) (explaining that “[i]ndividual notice must be sent to all class members
whose names and addresses may be ascertained through reasonable effort”). Similarly, Rule
23(e)(1) calls for notice to be provided in a “reasonable manner to all class members who would
be bound by the proposal.” Fed. R. Civ. P. 23(e)(1); In re Northfield, 2012 WL 366852, at *7.
The notice must contain specific information in plain, easily understood language, including the
nature of the action and the rights of class members. Fed. R. Civ. P. 23(c)(2)(B)(i)–(vii); see In
re AT & T, 270 F.R.D. at 352.
Here, the Agreement contemplates a comprehensive multi-part Notice Plan that ensures
notice will be effectuated to at least 70% of class members, while remaining mindful of We-Vibe
products’ sensitive nature. (See Declaration of Jeanne C. Finegan, attached as Exhibit 4 at ¶ 19.)

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The notices are likewise written in plain, easily understood language, and provide an explanation
of the nature of the action and the rights of class members. (Id. ¶ 24.)
First, Defendant will provide the Settlement Administrator a list of all email addresses in
Defendant’s records that are determined to be associated with potential members of the
Purchaser Class and App Class. (Ex. 1, Agreement ¶ 4.2(a).) Once provided, the Settlement
Administrator will send direct notice via email along with an electronic link to the Settlement
Website, to all settlement class members for whom it has a valid email address. (Id. ¶ (4.2(c);
Settlement Agreement, Ex. C (Email Notice).) Direct Notice will also be accomplished through
the We-Connect Application itself (Id. ¶ (4.2(b); Settlement Agreement, Ex. B (App Notice).)
That is, by the Notice Date, Defendant will include a new entry in the menu of the We-Connect
Application titled “US Class Action Settlement” for App users who Defendant has determined
are accessing the We-Connect Application within the United States. This menu option will be
displayed until the Claims Deadline, and will (i) inform those who select that menu option that
there is a settlement of a class action lawsuit against Defendant, and (ii) provide a brief
description of the case and the settlement and a link to the Settlement Website. (Id.)
Plaintiffs will supplement the direct notice with publication notice by placing a summary
publication notice in leading consumer magazines and on Internet banners. (Id. ¶ (4.2(e), (f);
Settlement Agreement, Ex. E (Publication Notice) and Ex. F (Internet Banner Ad Notice).)
Specifically, in regards to the print publication notice, a one-time half of a page summary
publication notice will be placed in People Magazine and Sports Illustrated. (Id. ¶ 4.2(e).)
Additionally, targeted Internet banner ads will appear on high quality websites such as Google,
YouTube, Facebook, Instagram, and Twitter. (Id. ¶ 4.2(f).) These ads will run for one month and
contain active hyperlinks to the Settlement Website. Moreover, the Agreement also provides for

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Internet Notice (at www.SICclassactionsettlement.com) (Id. ¶ 4.2(d); Settlement Agreement, Ex.
D (Long Form Internet Notice).) The summary notice will also be issued to news outlets and
journalists over PR Newswire’s US1 National distribution.
Finally, pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715, and no later than ten
days after filing the Agreement with the Court, Defendant will cause to be served notice of the
Agreement upon the Attorney General of the United States, the Attorneys General of each state,
and any other required government officials. (Agreement ¶ 4.4(f).)
Because the proposed notice plan effectuates direct notice to all class members identified
by Defendant’s records, reaches other potential class members through publication notice and the
Settlement Website, and fully apprises class members of their rights, it comports with the
requirements of due process and Rule 23 and should be approved.
VIII. CONCLUSION
For the reasons addressed above, Plaintiffs respectfully request that the Court enter an
order, (1) certifying the proposed settlement classes for settlement purposes, (2) naming
Plaintiffs as Class Representatives, (3) appointing Jay Edelson and Eve-Lynn Rapp of Edelson
PC as Class Counsel, (4) granting preliminary approval of the Settlement, (5) approving the
proposed notice plan (6) scheduling a final fairness hearing, and (7) providing such other and
further relief as the Court deems reasonable and just.
For convenience, proposed dates and deadlines leading to a final approval hearing are
provided in the Proposed Order separately submitted to the Court.
Respectfully submitted,
Dated: March 9, 2017

N.P. AND P.S., individually and on behalf of all
others similarly situated,

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By: /s/ Eve-Lynn J. Rapp
One of Plaintiffs’ Attorneys
Jay Edelson
jedelson@edelson.com
Benjamin Thomassen
bthomassen@edelson.com
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, Illinois 60654
Tel: 312.589.6370
Fax: 312.589.6378
Eve-Lynn J. Rapp
erapp@edelson.com
123 Townsend Street, Suite 100
San Francisco, California 94107
Tel: 415.234.5262
Fax: 415.373.9435
Counsel for Plaintiffs and the Putative Classes

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CERTIFICATE OF SERVICE
I, Eve-Lynn J. Rapp an attorney, hereby certify that on March 9, 2017, I served the above
and foregoing Plaintiffs’ and the Classes’ Motion for Preliminary Approval by causing true and
accurate copies of such paper to be filed and transmitted to all counsel of record via the Court’s
CM/ECF electronic filing system.
/s/ Eve-Lynn J. Rapp

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