In re Advocate Aurora Health Pixel Litigation

Docket number: 22-CV-1253-JPS (E.D. Wisc.)

The Hamilton Lincoln Law Institute represents an objector challenging a proposed settlement where class counsel seeks an outsized percentage of the settlement amount for themselves and which caps class members claims at pennies on the dollar.

The underlying lawsuit mimics a variety of other recent suits against companies that utilized Meta’s tracking pixel that collected and shared user metadata. The suit alleges that healthcare provider Advocate Aurora improperly inferred the location and other sensitive information of its patients without their consent. The parties reached a settlement pursuant to which Advocate Aurora would pay $12,225,000 for a release of the class’s claims.

The settlement fund amounts to less than five dollars per class member even though state statutes provide for $100 or even $1,000 for the claims pled. The settlement also contains a provision that allows the court to order payment to cy pres recipients for any funds not claimed by the class.

Even though the parties settled before any serious litigation began, class counsel seeks over $4 million in fees or 35% of the total fund. Depending on the final claims rate, class counsel’s fee percentage could climb to over 40% of the total fund, well in excess of the legal amount. Compounding the settlement’s issues, the parties have not named any potential cy pres recipients, so class members are unable to protest to whom their residual funds may go.

Objecting on behalf of class member Dr. Theodore M. Wynnychenko, HLLI argued that class counsel’s fee request is grossly disproportionate to both the paltry sums each class member will receive as well as the actual work done on the case and its inherent risk. Moreover, the settlement unreasonably burdens class members’ right to object to the settlement and fee request because class counsel has not provided them with essential information like a breakdown of their fees or the names of potential cy pres recipients. Lastly, HLLI noted there was no reason for the settlement to arbitrarily cap the total amount each class member could receive under the settlement. If there are residual funds, they should go to the injured class members, not unharmed organizations which may pursue causes not supported by claimants.

Prior to the fairness hearing, class counsel voluntarily reduced their fee request by $500,000, purportedly due to the strong claims rate of the settlement increasing administrative costs (an additional half million was deducted from the request to pay for these administrative costs). Due to the high claims rate, only residual funds will be sent to cy pres recipients, and Dr. Wynnychenko agreed with the settling parties that this element of the objection is resolved provided that the parties notice class members concerning the identity of the cy pres recipient.

A fairness hearing occurred on March 8, 2024, and the district court ordered supplemental briefing regarding the scaling of the fee award.

On July 10, 2024, the district court issued its final approval and fee award, reducing the voluntarily-reduced request of $3.25 million further to $2.8 million, or 30% of the net common fund. “The Court also agrees with Wynnychenko that a smaller award appropriately leaves some upward ‘breathing room’ to award greater fees in cases that involve more work for counsel than this one.”

Case Documents