Your financial institution may have issued payment cards identified in one of the alerts (or a similar document) sent out by the card brands (Visa, MasterCard, American Express, Discover, or JCB) related to the Data Breach.

The Court authorized this notice because you have a right to know about your financial institution’s rights under a proposed class action settlement before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and after objections and appeals are resolved, a settlement administrator appointed by the Court will make the cash payments that the Settlement allows.

This package explains the lawsuits, the Settlement, your financial institution’s rights, what benefits are available, who is eligible for them, and how to get them.

The Court in charge of the case is the United States District Court for the Western District of Pennsylvania, and the case is known as First Choice Federal Credit Union v. The Wendy’s Company, Case No. 2:16-cv-00506-NBF-MPK (W.D. Pa.). The financial institutions and associations who sued are called “Plaintiffs,” and the company they sued, Wendy’s, is the “Defendant.”

The lawsuits, referred to collectively as First Choice Federal Credit Union v. The Wendy’s Company, Case No. 2:16-cv-00506-NBF-MPK (W.D. Pa.), allege that Wendy’s is legally responsible for the Data Breach and assert claims for negligence, negligence per se, violation of the Ohio Deceptive Trade Practices Act, as well as for declaratory and injunctive relief. The financial institutions seek to recover damages in the lawsuits for the expense of payment card reissuance, amounts paid to cover fraudulent payment card charges, and other costs allegedly incurred as a result of the Data Breach. Wendy’s denies any wrongdoing.

In a class action, one or more entities called “class representatives” sue on behalf of themselves and other entities with similar claims. All of these entities together are the “class” or “class members.” One court resolves the issues for all class members, except for those who exclude themselves from the settlement class.

The Court has not decided in favor of Plaintiffs or Wendy’s. Instead, both sides, with the assistance of a mediator, agreed to the Settlement. The Settlement is not an admission that Wendy’s did something wrong, but rather a compromise to end the lawsuits. By agreeing to settle, both sides avoid the costs, risks, and uncertainties of a trial and related appeals, while providing benefits to members of the Settlement Class. The Settlement Class Representatives and the attorneys for the Settlement Class think the Settlement is best for all class members.

If your financial institution is a Settlement Class Member and does nothing, it will remain a part of the Settlement Class but will not get any payments from the Settlement. And, unless your financial institution excludes itself, it will not be able to sue Wendy’s or its franchisees about the claims being resolved through this Settlement ever again. See the Settlement for more details about the releases.

Your financial institution is a member of the Settlement Class and affected by the Settlement if:

• It is a financial institution, bank, credit union, or other entity in the United States (including its Territories and the District of Columbia); and
• It issued one or more payment cards (including debit and credit cards) that was identified as having been at risk as a result of the Data Breach in an alert or similar document by Visa, MasterCard, Discover, American Express, or JCB, including without limitation: (i) in an alert in the Visa US-2016-0183-PA series (e.g., US-2016-0183a-PA, US-2016-0183b-PA, US-2016-0183c-PA, US-2016-0183d-PA, US-2016-0183e-PA, US-2016-0183f-PA, US-2016- 0183g-PA, US-2016-0183h-PA, US-2016-0183i-PA, US-2016-0183j-PA, US-2016-0183k-PA, US-2016-0183l-PA, US-2016-0183m-PA, US-2016-0183n-PA, US-2016-0183o-PA, US-2016-0183p-PA, US-2016-0183q-PA, US-2016-0183r-PA); (ii) in an alert in the MasterCard ADC0099-US-16-1 series and ADC001016-US-16 series (e.g., ADC001016-US-16-1, ADC001016-US-16-2, ADC001016-US-16-3, ADC001016-US-16-4, ADC001016-US-16-5, ADC001016-US-16-6, ADC001016-US-16-7, ADC001016-US-16-8, ADC001016-US-16-9, ADC001016-US-16-10, ADC001016-US-16-11, ADC001016-US-16-12, ADC001016-US-16-13, ADC0099-4-US-16-2, ADC0099-US-16-3, ADC0099-US-16-4, ADC0099-US-16-5); (iii) in an alert in the Discover DCAUSA-2016-6670, DCA-USA-2016-5283, and DCA USA-2016-4698 series; (iv) in an alert or similar document by American Express similar to the foregoing Visa and MasterCard alerts; or (v) in an alert or similar document by JCB similar to the foregoing Visa and MasterCard alerts.

Specifically excluded from the Settlement Class is the judge presiding over this matter and any members of her judicial staff, Wendy’s, and persons who timely and validly request exclusion from the Settlement Class.

If your financial institution excludes itself from the Settlement, it is no longer part of the Settlement Class and will no longer be eligible to receive any of the Settlement benefits. This process of excluding your financial institution is also referred to as “opting out” of the Settlement.

If you are still not sure whether your financial institution is included, you can ask for free help.  You can call 1-888-256-6490 or email us at info@wendysfidatabreach.com for more information.  Or you can fill out and return the Claim Form available here, to see if you qualify.

Wendy’s will pay $50 million ($50,000,000) into a Settlement Fund to compensate Settlement Class Members, pay the Costs of Settlement Administration and any taxes on the Settlement Fund and, subject to the Court’s approval, pay the reasonable attorneys’ fees, costs, and expenses of the lawyers who represent the Settlement Class. Service Awards of $7,500 to each of the 15 class representatives that sat for a deposition and $2,500 to the remaining three class representatives will also be paid out of the Settlement Fund, if the Court approves. In addition, Wendy’s has agreed to adopt and/or maintain certain practices related to its data security.

If your financial institution is eligible to participate in the Settlement and does not “opt out” of the Settlement, it may be eligible for benefits under the Settlement. If your financial institution issued any payment cards (including debit and credit cards) that were identified as having been at risk as a result of the Data Breach in an alert (or similar document) by Visa, MasterCard, Discover, American Express, or JCB, it may be eligible for a payment from the $50 million Settlement Fund.

All Settlement Class Members who file a valid claim are eligible to get a cash payment from the Settlement Fund per each payment card (including debit and credit cards) that was identified as having been at risk as a result of the Data Breach in an alert (or similar document) by Visa, MasterCard, Discover, American Express, or JCB. You are not required to submit any documentation or evidence of your financial institution’s losses to receive a payment. The amount of the cash payment will depend on the total number of eligible payment cards submitted by Settlement Class Members, the Costs of Settlement Administration, taxes paid on the Settlement Fund, and the amount of attorneys’ fees, costs, and expenses, and Service Awards approved by the Court. By way of example, if valid claims are submitted for all eligible cards, it is estimated that Settlement Class Members would receive approximately $2.00 per eligible payment card. If, for example, 40% of eligible payment cards are submitted, then Settlement Class Members would receive approximately $4.80 per eligible payment card. These are examples. The per-card amount actually paid may be higher or lower.

To qualify for a payment, you must validly complete and submit a Claim Form, which was included with the Notice.  You may also get a PDF of a Claim Form here or obtain access to an online Claim Form here.  All Settlement Class Members that wish to obtain compensation must complete and submit the Claim Form.  No documentation of losses is required.

To properly complete and timely submit a Claim Form, you should read the instructions carefully, include all information required by the Claim Form, sign it, and either submit the signed Claim Form electronically here by September 30, 2019 or mail it to the Settlement Administrator postmarked no later than September 30, 2019 at the following address:

Wendy’s Financial Institution Data Breach Settlement
c/o Analytics Consulting LLC
P.O. Box 2005
Chanhassen, MN 55317-2005

The Settlement Administrator will review your claim to determine the amount of your financial institution’s payment.

The Court will hold a hearing on November 6, 2019, at 10:00 a.m. to decide whether to approve the Settlement.  If the Court approves the Settlement, there may be appeals.  It is always uncertain whether these appeals can be resolved and resolving them takes time, perhaps more than a year.  Payments to Settlement Class Members will be made after the Settlement is finally approved and any appeals or other required proceedings have been completed as set forth in the Settlement.  You may visit the Settlement Status section of this website for updates on the progress of the Settlement.  Please be patient.

Unless you exclude your financial institution from the Settlement, your financial institution cannot sue, or be part of any other lawsuit against, Wendy’s, its franchisees, or Defendants’ Released Persons (as defined in Settlement) relating to the Data Breach.  The specific claims your financial institution is giving up against Wendy’s and its franchisees are described in the Settlement.  The terms of the release are described in Section IX of the Settlement. Read it carefully. The Settlement is available here.

If you have any questions, you can talk to the law firms listed here for free, or you can, of course, talk to your own lawyer if you have questions about what this means.

If your financial institution wants to keep its rights to sue Wendy’s and its franchisees based on claims this Settlement resolves, your financial institution must take steps to exclude itself from the Settlement Class (see Information available here).

Instructions on how to exclude your financial institution from the Settlement, or “opt out,” are available here.

No. Unless you exclude your financial institution from the Settlement, your financial institution gives up any right to sue Wendy’s and its franchisees (as further detailed in the Settlement) for the claims that this Settlement resolves. If you have a pending lawsuit, speak to your lawyer in that case immediately. Your financial institution must exclude itself from this Settlement to continue its own lawsuit. Remember, the exclusion deadline is May 28, 2019.

No.  If you exclude your financial institution, do not send in a Claim Form asking for a payment.

Yes. The Court appointed to represent your financial institution and other members of the Settlement Class the following law firms: Carlson Lynch Sweet Kilpela & Carpenter, LLP, in Pittsburgh, Pennsylvania; and Scott+Scott Attorneys at Law, LLP, in Colchester, Connecticut. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

In 2016, the Court appointed a legal team of law firms from around the country to represent Plaintiffs. None of the lawyers has yet received any payment for their time or expenses. The lawyers intend to ask the Court to approve an award of 30% of the gross Settlement Fund in attorneys’ fees, including any interest earned thereon, to compensate them for their time and the financial risk that they undertook when they agreed to represent the Plaintiffs on a contingent basis, which means that they would receive a fee only if the lawsuits were successful. In addition, the lawyers intend to ask the Court to reimburse them for all of the expenses they have incurred. Wendy’s has agreed not to object to the lawyers’ motion to the Court to seek a reasonable attorneys’ fee and reimbursement of expenses and these amounts will be paid out of the Settlement Fund.

The Settlement Class is represented by 18 financial institutions from 16 states. In addition to the benefits that the financial institution class representatives will receive as members of the Settlement Class and subject to the approval of the Court, Wendy’s has agreed to pay Service Awards of $7,500 to each of the fifteen Settlement Class Representatives that sat for a deposition and $2,500 to the remaining three Settlement Class Representatives for the efforts that they have expended on behalf of the Settlement Class. The amount of the Service Awards approved by the Court will be paid from the Settlement Fund.

The Court will determine whether to approve the amount of fees and expenses requested by Plaintiffs’ lawyers and the proposed Service Awards to the Settlement Class Representatives at the Final Approval Hearing scheduled for November 6, 2019 at 10:00 a.m. Plaintiffs’ lawyers will file an application for fees, expenses, and Service Awards no later than October 7, 2019. The application will be available here or you can request a copy by contacting the Settlement Administrator.

If your financial institution is a Settlement Class Member, you can object to the Settlement if you do not think it is fair, reasonable, or adequate. You can give reasons why you think the Court should not approve it. The Court will consider your views. If you object to the Settlement and seek to exclude your financial institution, your financial institution will be deemed to have excluded itself.

Instructions on how to object to the Settlement are available here.

Objecting is simply telling the Court that you don’t like something about the Settlement. You can object to the benefits provided by the Settlement or other terms of the Settlement only if your financial institution stays in the Settlement Class. Excluding your financial institution or “opting out” is telling the Court that you don’t want to be included in the Settlement Class. If your financial institution excludes itself, you have no basis to object to the Settlement and related releases because the Settlement no longer affects you.

The Court will hold a Final Approval Hearing at November 6, 2019 at 10:00 a.m., in Courtroom 9C before Magistrate Judge Maureen P. Kelly of the United States District Court for the Western District of Pennsylvania, Joseph F. Weis, Jr. U.S. Courthouse, 700 Grant Street, Pittsburgh, PA 15219. This hearing date and time may be moved. Please refer to the Settlement Status page for notice of any changes.

By no later than October 7, 2019, Class Counsel shall file a motion for final approval of the Settlement and a motion for attorneys’ fees, costs, and expenses and for Service Awards.  Objectors, if any, shall file any response to Class Counsel’s motions no later than October 18, 2019.  By no later than October 25, 2019, responses shall be filed, if any, to any filings by objectors, and any replies in support of final approval of the Settlement and/or Class Counsel’s application for attorneys’ fees, costs, and expenses and for Service Awards shall be filed.

By no later than October 7, 2019, Class Counsel shall file a motion for final approval of the Settlement and a motion for attorneys’ fees, costs, and expenses and for Service Awards. Objectors, if any, shall file any response to Class Counsel’s motions no later than October 18, 2019. By no later than October 25, 2019, responses shall be filed, if any, to any filings by objectors, and any replies in support of final approval of the Settlement and/or Class Counsel’s application for attorneys’ fees, costs, and expenses and for Service Awards shall be filed. At the Final Approval Hearing, the Court will consider, among other things, whether the Settlement is fair, reasonable,
and adequate; how much Plaintiffs’ lawyers will receive as attorneys’ fees and expenses; and whether to approve Service Awards to the Settlement Class Representatives. If there are objections, the Court will consider them. The Court will listen to people at the hearing who file in advance a timely notice of their intention to appear (see instructions here ).  At or after the Final Approval Hearing, the Court will decide whether to approve the Settlement.  There is no deadline by which the Court must make its decision.

No.  Class Counsel will answer questions the Court may have.  You are welcome, however, to come at your own expense.  If you submit an objection, you do not have to come to the Court to talk about it.  As long as you submitted your objection timely and in accordance with the requirements for objecting set out of the Settlement (see instructions here), the Court will consider it.  You may also pay your own lawyer to attend, but it is not necessary.

If your financial institution is a Settlement Class Member and does nothing, it will remain a part of the Settlement Class but will not get any payments from the Settlement. And, unless your financial institution excludes itself, it will not be able to sue Wendy’s or its franchisees about the claims being resolved through this Settlement ever again. See the Settlement for more details about the releases.

The Class Notice summarizes the Settlement. More details are in the Settlement itself. You can get a copy of the Settlement here or from the Settlement Administrator by calling toll-free 1-888-256-6490.