Kostka v Dickeys Barbecue Restaurants

Settlement Class Members may select one of three forms of relief: (1) expense reimbursement; (2) cash payment; or (3) credit services.

Settlement Class Members who select the expense reimbursement will be eligible to receive reimbursement for out-of-pocket losses incurred in connection with the breach, up to a maximum amount of $5,000, upon submission of a Claim Form with supporting documentation to show proof of expenses.

Settlement Class Members who select the cash option will be eligible to receive a cash payment, estimated in the amount of $100 for California Class Members and $50 for non-California Class Members. The difference in payment amounts accounts for enhanced statutory damages potentially available to California Class Members under the California Consumer Privacy Act. Residency will be determined by the Class Member’s primary residence during the time of the Security Incident.

Settlement Class Members who select the credit services option will receive a 24-month plan providing (i) three-bureau credit monitoring; (ii) identity restoration services that provide professional fraud resolution assistance to Settlement Class Members who experience identity theft or fraud, helping them with identity recovery and restoration; and (iii) $1,000,000 of identity theft insurance coverage. Credit services are valid to be activated within twelve months from the mailing or emailing of the activation code.

Each Settlement Class Members is only entitled to make one claim, regardless of how many debit or credit cards they used at Dickey’s during the Period of the Security Incident and regardless of how many times they used the card at Dickey’s. Settlement Class Members are not entitled to more than one form of recovery.

Any information that you provide as part of this Settlement—including your name, email address, mailing address, or any other contact information—will not be used by Dickey’s or any third party for any marketing purpose, or for any other reason that is unrelated to the administration of this Settlement.

For a period of three years from the time the applicable business practice change is initiated, Dickey’s will employ the following business practice changes related to information security to safeguard customers’ payment card information: (a) protect remote access credentials to franchisee servers behind Multi-Factor Authentication; (b) update firewall rules at Dickey’s locations to restrict unpermitted access; (c) mandate that its franchised restaurants migrate to an EMV point of sale system; (d) provide annual security awareness training for its employees; (e) maintain a reasonable Written Information Security Program updated from time to time and distributed as part of its security awareness training; (f) maintain and review a process to conduct risk-based monitoring of security events on Dickey’s network and assess appropriate remediation of security events; (g) implement and maintain an identity access management solution to appropriately mange users of its internal applications; (h) maintain a process to keep up-to-date operating system security patches on all company owned and managed workstations and servers; and (i) implement enhanced password protection for all user passwords.

To receive a cash payment and/or credit monitoring, you must complete and submit the appropriate Claim Form. Claim Forms are available here or you may have one mailed to you by calling 800-658-3921. Read the instructions carefully, fill out the Claim Form, and submit it online by April 22, 2023, or print it out and mail it postmarked no later than April 22, 2023 to:

Kostka v. Dickey’s Barbecue Restaurants, Inc.
Notice and Claims Administrator
P.O. Box 5736
Portland, OR 97228-5736

If you submit a complete, valid, and timely Claim Form, the Notice and Claims Administrator will send your cash payment or credit monitoring activation code to you after the Court grants final approval of the Settlement and any appeals have been exhausted. Please be patient as this process may take some time. Neither Dickey’s, the Notice and Claims Administrator, nor Class Counsel has control over how long it may take to receive your cash payment. The Notice and Claims Administrator may require additional information from any claimant if the original claim submission is deficient.

Settlement Class Members may elect to receive credit monitoring services instead of monetary compensation. You must select this option on your Claim Form in lieu of any cash compensation option. The Credit Services will consist of a 24-month plan providing: (i) three-bureau credit monitoring, (ii) identity restoration services that provide professional fraud resolution assistance to Settlement Class Members who experience identity theft or fraud, helping them with identity recovery and restoration, and (iii) $1,000,000 of identity theft insurance coverage. Dickey’s will email you an activation code to start the period of your Credit Services. Credit Services are valid to be activated within twelve months from the mailing or emailing of the activation code.

Unless you exclude yourself from the Settlement, you cannot sue Dickey’s for the Security Incident resolved by this Settlement. The Settlement Agreement provides

“Upon the date the Judgment becomes Final, each Settlement Class Member, including Representative Plaintiffs, shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims against all Released Persons. Further, upon the date the Judgment becomes Final, and to the fullest extent permitted by law, each Settlement Class Member, including Representative Plaintiffs, shall, either directly, indirectly, representatively, as a member of or on behalf of the general public or in any capacity, be permanently barred and enjoined from commencing, prosecuting, or participating in any recovery in any action in this or any other forum (other than participation in the settlement as provided herein) in which any of the Released Claims is asserted.”

If you have any questions, you can contact the law firms listed in FAQ 8 for free or you can consult your own lawyer at your own expense if you have questions about what the release means.

If you do not want to receive compensation or credit monitoring from this Settlement and you want to keep the right to sue Dickey’s on your own and at your own expense regarding the Security Incident, 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. If you opt out of the Settlement Class, you will not be bound by any judgment in this case. You must exclude yourself from the Settlement Class to pursue any other lawsuit against Dickey’s for the claims arising in this case. IF YOU EXCLUDE YOURSELF FROM THE SETTLEMENT, YOU WILL NOT BE ENTITLED TO RECEIVE MONETARY COMPENSATION FROM THE SETTLEMENT.

To exclude yourself, you must send a letter by U.S. Mail saying you wish to do so. Your “Request for Exclusion” must include:

• The name of this lawsuit (Kostka, et al. v. Dickey’s Barbecue Restaurants, Inc., et. al., No. 3:20-cv-3424-K (N.D. Tex.))
• Your name and address;
• A statement requesting exclusion from the Class; and
• Your signature

You must mail your Exclusion Request postmarked by April 22, 2023, to:

Kostka v. Dickey’s Barbecue Restaurants, Inc.
Notice and Claims Administrator
P.O. Box 5736
Portland, OR 97228-5736

Yes. The Court appointed the following lawyers as “Co-Lead Class Counsel:” Ben Barnow, Benjamin F. Johns and John Yanchunis. 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.

Co-Lead Class Counsel will ask the Court to award up to one third of the Settlement Fund for attorneys’ fees, plus reimbursement of litigation costs, and the cost of the third-party Notice and Claims Administrator’s services. The attorneys’ fees will compensate Class Counsel for their role in obtaining both the monetary relief and improvements in Dickey’s data security practices. Class Counsel will also ask the Court to approve a $1,500 service award for each of the Representative Plaintiffs for their efforts in litigating this case on behalf of the Settlement Class. Any amount that the Court awards for these collective items will be paid directly by Dickey’s out of the Settlement Fund.

You can object to the Settlement if you do not like it or some part of it and think that it should not be approved. The Court will consider your views. To do so, you must submit your written objection to the Clerk of Court, counsel for Dickey’s, and the Notice and Claims Administrator at the addresses below.

Your objection must include the following:

• The name of the lawsuit (Kostka, et al. v. Dickey’s Barbecue Restaurants, Inc., et. al., No. 3:20-cv-3424-K (N.D. Tx.))
• Your full name, address, telephone number, email address (if any), and signature;
• Information confirming that you are a member of the Settlement Class (for example, proof of a credit or debit card purchase at an impacted Dickey’s location during the Period of the Security Incident);
• A written statement of all grounds for the objection, accompanied by any legal support for the objection you believe applicable;
• The names and addresses of all lawyers representing you in connection with the objection (if any);
• A statement as to whether you and/or your lawyer intend to appear at the Fairness Hearing; and
• Your signature and the signature of your attorney (along with documentation setting forth such representation).

You may (but are not required to) include copies of any documents you wish to submit in support of your position, and any legal support for your objection that you believe is applicable.

You must mail the objection to the Court, Dickey’s counsel, and the Settlement Administrator at the following addresses, and it must be postmarked no later than April 22, 2023:

Objecting is telling the Court you do not like the Settlement and why you think it, or parts of it, should not be approved. You can object only if you do not exclude yourself from the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

The Judge presiding over this matter, the Hon. Ed Kinkeade, will hold a Fairness Hearing at 9:30 a.m. on June 6, 2023, at the United States District Court for the Northern District of Texas, located at 1100 Commerce Street, Dallas, Texas 75242, Courtroom 1627. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check this website or call 800-658-3921 for any updates about the hearing. At the hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider how much Co-Lead Class Counsel will receive in attorneys’ fees and expense reimbursement, payment for settlement administration costs, and the request for service awards for the Representative Plaintiffs. If there are timely objections, the Court will consider them. The Court may listen to people who have asked to speak at the hearing (see FAQ 10). After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

No. Co-Lead Class Counsel will answer any questions the Court may have. You or your own lawyer are welcome to attend at your expense. If you send an objection, you do not have to come to the Court to talk about it. As long as you submitted your written objection on time and mailed it according to the instructions provided in FAQ 10, the Court will consider it.

If you want to speak at the Fairness Hearing, you must file an objection according to the instructions in FAQ 10.

If you do nothing, you will get no compensation from this Settlement and, if the Settlement is approved 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 Dickey’s concerning the Security Incident.

This website and the Notice summarize the proposed Settlement. More details are in a Settlement Agreement, which is available here. You may also send questions to info@DickeysClassAction.com. You can also get a Claim Form here, or by calling the toll-free number, 1-800-658-3921.