Lone consumer holds up Target data breach settlement

Target store
A single consumer in Texas, backed by an anti-class action lawsuit group, has tied up the $10 million available to consumers affect by Target's 2013 data breach.
Chris O'Meara | AP 2013

It's been about three and a half years since cyber crooks hacked Target's systems, compromising the financial or personal information of some 100 million customers.

Target has paid banks and credit- and debit-card issuers about $110 million for fraud losses, card replacement costs and other damages they endured.

In late 2015, Target agreed to a compensation plan for affected consumers with a pool of $10 million available. But consumers have yet to see a dime because of a sole objection.

One man stands in the way.

Leif Olson, a Texas resident, has been able to block court approval of the plan. He's represented by a group critical of lawyers called the Center for Class Action Fairness.

The group's opposition makes no sense, said attorney Vincent Esades, who represented consumers in a data breach class-action lawsuit against Target. "They're saying there should have been more classes. More lawyers. Their ultimate conclusion is this case should not be going forward as a class action," he said. "I disagree because if it doesn't go forward as a class action, hundreds of thousands of people are not going to get anything."

Only about 226,000 consumers filed for compensation from Target. They had to provide evidence of a loss or, if they lacked documentation, assert they suffered certain kinds of trouble, such as having to dispute fraudulent charges or overdraft fees.

Individual pay-outs are capped at $10,000. But the vast majority of claims are undocumented and would pay only $40.

The Center for Class Action Fairness, which is associated with the Competitive Enterprise Institute, a libertarian thinktank. The center boasts that when it prevails "lawyers get less, class members get more."

Melissa Holyoak, an attorney with the Center, contends consumers did not get a good deal in the Target case. They're in line for just $10 million, while attorney and administration costs hit $13 million.

She said various groups of consumers would get a raw deal. For example, she said there's nothing in the settlement to compensate for damages only incurred in the future.

"If you had some sort of loss that you could identify, you could get money under the settlement. But everyone else got nothing," Holyoak said.

After U.S. District Court Judge Paul Magnuson approved the proposed settlement, the center appealed. In February, the 8th U.S. Circuit Court of Appeals sent the case back to Magnuson for reconsideration.

Attorneys who negotiated the class-action settlement with Target argue it offers something for everyone — specifically, enhanced security and business practices Target agreed to implement to prevent future fiascoes.

But Holyoak said those terms don't specifically benefit injured consumers.

"That is for everyone. the whole world gets the protections that Target is now doing," she said. It doesn't offer any special consideration for these class members."

Class-action objectors are allowed to hold up settlements, but the motives can range from personal gain to calling attention to legitimate shortcomings.

Critics of the Center for Class Action Fairness say it masquerades as a consumer advocate, but really tries to undermine class actions. "It's part of constellation of conservative efforts to shut down class actions, to block people from being able to pursue justice against corporate bad actors or to enforce civil rights legislation in the courts," said Rebecca Buckwalter-Poza, a fellow at the left-leaning Center for American Progress.

But the Holyoak said her organization is about preventing attorneys from siphoning off money that should rightly go to the consumers in a class action settlement.

"We want them to be fair. We're not trying to get rid of class actions," Holyoak said. "We just want to get rid of the bad players in class action. The ones that are only structuring and negotiating selfish settlements."

Judge Magnuson on Wednesday reaffirmed his prior decision. But further reviews and appeals are possible.

That could mean nothing gets resolved and consumers won't get paid before next year, at the earliest, even though Magnuson ruling indicates he doesn't see a better option.

It is "difficult to imagine a settlement that more comprehensively addresses all of the harm suffered," he wrote.

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