The Court authorized this notice because you have a right to know about the proposed Settlement in this class action lawsuit and about all of your options before the Court decides whether to give “final approval” to the Settlement. This notice explains the legal rights and options that you may exercise before the Court decides whether to approve the Settlement.
Judge John R. Padova of the United States District Court for the Eastern District of Pennsylvania is overseeing this case. The case is known as Abdelmessih v. Five Below, Inc., Case No. 2:19-cv-1487. The person who sued is called the Plaintiff. Five Below is called the Defendant.
The lawsuit claims that Five Below was responsible for the Security Incident that occurred, and asserts claims such as: negligence, invasion of privacy, breach of implied contract, negligence per se, breach of fiduciary duty, violation of Florida’s Deceptive and Unfair Trade Practices Act, and breach of confidence. The lawsuit seeks compensation for people who had losses as a result of the Security Incident.
Five Below denies all of Plaintiff’s claims and asserts it did not do anything wrong.
In a class action, one or more people called “Representative Plaintiffs” sue on behalf of all people who have similar claims. All of these people together are the “Settlement Class” or “Settlement Class Members.” In this case, the Representative Plaintiff is Marie Abdelmessih. One court resolves the issues for all Settlement Class Members, except for those who exclude themselves from the Settlement Class.
By agreeing to settle, both sides avoid the cost and risk of a trial, and people who submit valid claims will get compensation. The Representative Plaintiff and her attorneys believe the Settlement is fair, reasonable, and adequate and, thus, in the best interests of the Settlement Class and its members. The Settlement does not mean that Five Below did anything wrong.
You are included in the Settlement if you reside in the United States and used a credit or debit card to make a purchase on fivebelow.com during the Security Incident. If you were affected, you should have received an email or letter notification. Specifically excluded from the Settlement Class are: (a) individuals who are or were during the Security Incident officers or directors of Five Below; and (b) any justice, judge, magistrate judge, or law clerk to whom this case is assigned; (c) the attorneys representing the Parties in the Litigation; (d) any other Person found by a court of competent jurisdiction to be guilty under criminal law of initiating, causing, aiding or abetting the criminal activity occurrence of the Security Incident or who pleads nolo contendere to any such charge, and (e) Settlement Class Members who timely and validly request exclusion from the Settlement Class (for more information about requesting exclusion see questions 13–15).
If you are not sure whether you are included in the Settlement, or have any other questions related
to the Settlement, you may:
Please do not contact the Court with questions.
The Settlement will provide payments to people who submit valid claims for expenses or time incurred as a result of the Security Incident. The dates during which you are eligible to receive reimbursement depend on when your information was potentially affected. Specifically, if you received initial notice of the Security Incident in October 2018, you are entitled to reimbursement for expenses or time incurred between August 14, 2018 and the Claims Deadline, except reimbursement for purchase of a credit report, which must have been purchased after you received notification from Five Below. If you received notice of the Security Incident in February 2019, you are entitled to reimbursement for expenses or time incurred between November 13, 2018 and the Claims Deadline, again except reimbursement for purchase of a credit report, which must have been purchased after you received notification from Five Below. You do not need to identify or recall when you received notice to submit a claim. Your unique identifier will identify this information to the Settlement Administrator. If for some reason you have not received unique identifier login information, but believe you are a Settlement Class Member, please call 1-866-742-4955 to verify your identity and receive further information on how to file a claim.
The Settlement also provides that Defendant provide confirmation that it hired a dedicated IT security employee and, on an annual basis, implement the following data security measures related to the systems at issue in the Litigation: penetration testing, employee training related to data security, and an audit conducted by a Qualified Security Accessor for compliance with the Payment Card Industry Data Security Standard.
Settlement Class Members are eligible to receive reimbursement of up to $250.00 (in total per class
member, subject to an aggregate cap of $112,000.00) for the following categories of out-pocket
Claims are capped in the aggregate at $112,000.00. If the total amount of valid claims exceeds $112,000.00, each approved claim will be reduced on a pro rata basis.
Reasonable documentation must be submitted with your Claim Form showing that the Security Incident resulted in the expense being incurred in order to receive reimbursement for out-of-pocket costs. More details are provided in the Settlement Agreement, which is available at www.fivebelowcardsettlement.com
To get payment from the Settlement, you must complete a Claim Form. Please read the instructions carefully, fill out the Claim Form, provide reasonable documentation (where applicable), and submit it online or mail it postmarked no later than October 9, 2020, to:
Five Below Cardmember Settlement
c/o RG/2 Claims Administration LLC
P.O. Box 59479
Philadelphia, PA 19102-9579
You may submit a claim online or download a copy at www.fivebelowcardsettlement.com or you may request one by mail by calling 1-866-742-4955.
The Claims Administrator will initially decide whether the information provided on a Claim Form is complete and valid. The Claims Administrator may require additional information from any claimant. If the required information is not provided timely, the claim will be considered invalid and will not be paid.
If the claim is complete and the Claims Administrator denies the claim entirely or partially, the claimant will be provided an opportunity to have their claim reviewed by an impartial Claims Referee selected by the parties.
You do not have to do anything to remain in the Settlement, but if you want a payment, you must submit a Claim Form postmarked by October 9, 2020.
If the Settlement becomes final, you will give up your right to sue Five Below for the claims being resolved by this Settlement. The specific claims you are giving up against Five Below are described in paragraphs 1.19, 1.20, 1.27 of the Settlement Agreement. You will be releasing Five Below and all related people or entities as described in Section IV.6 of the Settlement Agreement. The Settlement Agreement is available at www.fivebelowcardsettlement.com.
The Settlement Agreement describes the released claims with specific descriptions, so read it carefully. If you have any questions you can talk to the law firms listed in Question 16 for free or you can, of course, talk to your own lawyer at your own expense.
If you do not want a payment from this Settlement, but you want to keep the right to sue Five Below about issues in this case, then you must take steps to get out of the Settlement Class. This is called excluding yourself from – or is sometimes referred to as “opting out” of – the Settlement Class.
No. If you exclude yourself, you will not be entitled to any benefits of the Settlement. You will also not be bound by any judgment in this case.
No. Unless you exclude yourself, you give up any right to sue Five Below for the claims that this Settlement resolves. You must exclude yourself from the Settlement Class to start your own lawsuit or to be part of any different lawsuit relating to the claims in this case. If you exclude yourself, do not submit a Claim Form to ask for a payment.
To exclude yourself, send a letter that says you want to be excluded from the Settlement in Abdelmessih v. Five Below, Inc., Case No. 2:19-cv-1487. Include your name, address, and signature. You must mail your Exclusion Request postmarked by September 9, 2020, to:
Five Below Cardmember Settlement
c/o RG/2 Claims Administration LLC
P.O. Box 59479
Philadelphia, PA 19102-9579
Yes. The Court appointed the following lawyers as Class Counsel: Patrick A. Barthle II of Morgan & Morgan Complex Litigation Group and Charles E. Schaffer of Levin Sedran & Berman, LLP.
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.
Class Counsel will request the Court’s approval of an award for attorneys’ fees and reasonable costs and expenses of $93,750.00. Class Counsel will also request approval of an incentive award of $1,500.00 for the Representative Plaintiff. Any amount that the Court awards for attorneys’ fees, costs, expenses, and incentive awards will be paid separately by Five Below and will not reduce the amount of payments to Settlement Class Members who submit valid claims.
You can object to the Settlement if you do not like it or some part of it. The Court will consider your views. To do so, you must file a written objection in this case, Abdelmessih v. Five Below, Inc., Case No. 2:19-cv-1487, with the Clerk of the Court at the address below.
Your objection must include all of the following information: (i) your full name, address, telephone number, and e-mail address (if any); (ii) information identifying you as a Settlement Class Member; (iii) a written statement of all grounds for the objection, accompanied by any legal support for the objection that you believe applicable; (iv) the identity of all counsel representing you; (v) a statement whether you and/or your counsel will appear at the Final Fairness Hearing; (vi) your signature and the signature of your duly authorized attorney or other duly authorized representative, if applicable; and (vii) a list, by case name, court, and docket number, of all other cases in which you and/or your counsel has filed an objection to any proposed class action settlement within the last three (3) years.
Your objection must be postmarked no later than September 9, 2020 to:
Clerk of the Court
United States District Court, Eastern District of Pennsylvania
James A. Byrne U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
In addition, you must mail a copy of your objection to Class Counsel and Defense Counsel,
postmarked no later than September 9, 2020:
Morgan & Morgan
201 N Franklin St, 7th Floor
Tampa, FL 33602
Sam A. Camardo
Baker & Hostetler, LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
Objecting is telling the Court that you do not like the Settlement and why you do not think it should be approved. You can object only if you do not exclude yourself from the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
The Court will hold a Fairness Hearing at 10:30 a.m. on November 19, 2020, in Courtroom Room 17-B at the James A. Byrne U.S. Courthouse 601 Market Street, Philadelphia, PA 19106. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check www.fivebelowcardsettlement.com or call 1-866-742-4955.
At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are timely objections, the Court will consider them and will listen to people who have asked to speak at the hearing if such a request has been properly made. The Court will also rule on the request for an award of attorneys’ fees and reasonable costs and expenses, as well as the request for an incentive award for the Representative Plaintiffs. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.
No. Class Counsel will present the Settlement Agreement to the Court. You or your own lawyer are welcome to attend at your expense, but you are not required to do so. If you send an objection, you do not have to come to the Court to talk about it. As long as you filed your written objection on time with the Court and mailed it according to the instructions provided in Question 18, the Court will consider it.
You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must file an objection according to the instructions in Question 18, including all the information required.
Your Objection must be filed with the Clerk of the Court for United States District Court for the Eastern District of Pennsylvania no later than September 9, 2020. In addition, you must mail a copy of your objection to both Class Counsel and Defense Counsel listed in Question 18, postmarked no later than September 9, 2020.
If you do nothing, you will get no benefits from this Settlement. Once the Settlement is granted final approval and the judgment becomes final, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Five Below about the legal issues in this case, ever again.
You must exclude yourself from the Settlement if you want to retain the right to sue Five Below for the claims resolved by this Settlement.
This Notice only provides a summary the proposed Settlement. Complete details about the Settlement can be found in the Settlement Agreement available at www.fivebelowcardsettlement.com.
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