Dr. David Muransky et al. v. The Cheesecake Factory, Inc.

The purpose of the Notice is to inform you that a proposed Settlement has been reached in the class action lawsuit entitled Dr. David Muransky et al. v. The Cheesecake Factory, Inc., Case No. 19STCV43875. Because your rights will be affected by this Settlement, it is extremely important that you read the Notice carefully. The Notice summarizes the Settlement and your rights under it.

To view a copy of the Notice, click here.

If you received an email or postcard describing this Settlement, it is because records of Cheesecake Factory or a credit or debit card company indicate that you may be a member of the Settlement Class in this action. You are a member of the Settlement Class if a Cheesecake Factory owned, operated, or branded restaurant store located in the United States provided a point-of-sale receipt for an EMV credit card or debit card transaction to you that contained the first six and last four digits of the card, for a period of time commencing at select stores on November 10, 2016, and ending by no later than February 4, 2017.

If you did not receive an email or postcard describing this Settlement, you may have still submitted a version of the Claim Form called a "Publication Claim Form". The Claims Administrator will check the written information you provide on the Publication Claim Form against transaction data of Cheesecake Factory or data of credit or debit card companies. If the information does not match, you will not be a Settlement Class Member and are not entitled to any relief.

In a class action, one or more people called "Class Representatives" (here, Plaintiffs Dr. David S. Muransky, Adriana Tibbetts, Darryl Tibbetts, and Kristy Zhang) sue on behalf of people who allegedly have similar claims. This group is called a "class" and the persons included are called "class members." One court resolves the issues for all of the Settlement Class Members, except for those who exclude themselves from the class.

Here, Plaintiffs alleges that Cheesecake Factory willfully violated FACTA by printing point-of-sale receipts for EMV credit card and debit card transactions at its Cheesecake Factory restaurants that displayed the first six and last four digits of the credit or debit card number for a period of time commencing at select stores on November 10, 2016, and ending by no later than February 4, 2017. Cheesecake Factory denies these allegations and denies any wrongdoing. The Court has conditionally certified a class action for settlement purposes only. The Honorable David S. Cunningham is the judge in charge of the lawsuit.

The Court did not decide in favor of Plaintiffs or Cheesecake Factory. Instead, both sides agreed to this Settlement. That way, they avoid the risk and cost of a trial, and the Settlement Class Members will receive compensation. Plaintiffs and Class Counsel think the Settlement is best for all Settlement Class Members.

The Court has certified this case as a class action for settlement purposes only. The Settlement Class is defined as:

The cardholders who hold the 1,000,000 unique credit or debit card numbers, whose EMV debit or credit card was used to make a purchase at a payment terminal at a Cheesecake owned, operated, or branded restaurant that was programmed to print the first six and last four EMV card numbers on customer transaction receipts, for a period of time commencing at select stores on November 10, 2016, and ending by no later than February 4, 2017. Any transactions involving Cakepay, Branded Pre-Pay, or Mall-branded cards will be excluded as those transactions did not print the first six and last four EMV card numbers on customer transaction receipts.

A person whose credit card transaction does not match Cheesecake Factory's records or the records of credit and debit card companies showing the EMV credit or debit card transactions that occurred and which would have printed the first six and last four EMV card numbers on a customer transaction receipt at a Cheesecake Factory owned, operated, or branded restaurant for a period of time commencing at select stores on November 10, 2016, and ending by no later than February 4, 2017, is not a Settlement Class Member.

Notwithstanding the foregoing, the Settlement Class specifically excludes the following persons: the district judge and magistrate judge who originally presided over this case, the judges of the United States Court of Appeals for the Second Circuit, Eleventh Circuit, and the Ninth Circuit or any trial or appellate court in the district where this court is located, and the trial court and appellate court judges of the California state court presiding over this Settlement, and all of their spouses and minor children.

It is important to note that only some Cheesecake Factory locations printed such receipts. Therefore, just because you were provided with a receipt for a credit or debit card transaction at a Cheesecake Factory restaurant between November 10, 2016, and February 4, 2017, it does not necessarily mean that you are a Settlement Class Member. If you are still not sure whether you are included, you can visit other sections of this website, you may write to the Claims Administrator at Cheesecake FACTA Claims Administrator, P.O. Box 6659, Portland, OR 97228-6659, or you may call the toll-free Settlement hotline, 1-888-510-9743, for more information.

The Court has appointed lawyers from the law firms of Scott D. Owens, P.A., Keogh Law, Ltd., Bret Lusskin, P.A., Kazerounian Law Group, Hyde & Swigart, and Iaconis Fusco, LLP as Class Counsel to represent you and the other persons in the Settlement Class. You will not be personally charged by these lawyers.

Class Counsel will ask the Court to approve payment of up to one third of the $4,750,000 Settlement Fund, which is $1,583,333, to them for attorneys’ fees and reasonable expenses. Class Counsel also will ask the Court to approve payment of up to $20,000 in the aggregate to Plaintiffs Dr. David S. Muransky, Adriana Tibbetts, Darryl Tibbetts and Kristy Zhang for their service as Class Representatives. The Court may award less than these amounts.

Settlement Fund. Cheesecake Factory and GK Software paid $4,750,000 into a fund (the “Settlement Fund”), which will cover all amounts related to the Settlement, including (1) payments to Settlement Class Members who submit timely and valid Claim Forms; (2) an award of attorneys’ fees to Class Counsel, in an amount not to exceed $1,583,333, which is one third of the Settlement Fund; (3) Class Counsel’s reasonable expenses; (4) an Incentive Payment to Plaintiffs, as approved by the Court; and (5) the costs of notice and administration of the Settlement. In no event will the Settlement Fund exceed $4,750,000.

Payments. All Settlement Class Members were eligible to submit a Claim Form and receive a payment.

No Portion of the Settlement Fund Will Return to Cheesecake Factory or GK Software. All money in the Settlement Fund beyond the funds the Court authorizes to be paid for the costs of notice and administration of the settlement, attorneys’ fees and expenses to Class Counsel, and any incentive awards to Plaintiffs will be divided and paid pro rata to the Settlement Class Members who submitted valid and timely Claim Forms. All unclaimed funds shall be paid via a Second Distribution to those Settlement Class Members who cashed their checks. Only after a Second Distribution or if a Second Distribution is not feasible, will unclaimed funds be paid, as a cy pres award on behalf of the Class, to the Electronic Frontier Foundation. No portion of the Settlement Fund will return to Cheesecake Factory or GK Software.

Your share of the Settlement Fund will depend on the number of valid Claim Forms that Settlement Class Members submit. Each Settlement Class Member who submits a valid Settlement Claim Form will be entitled to receive compensation that will be distributed on a pro rata basis. The final payment amount will depend on the total number of valid and timely claims submitted by Settlement Class Members, which Class Counsel estimates is $56 to $28 based on a 5%–10% claim rate.

Unless you excluded yourself from the Settlement, you are part of the Settlement Class and will be bound by the Release of claims in the Settlement. This means that if the Settlement is approved, you cannot pursue or continue to pursue any Released Claim against Cheesecake Factory, GK Software, or any other Cheesecake Factory Releasee or GK Software Releasee, whether on your own or as part of any other lawsuit, as explained in the Settlement Agreement. It also means that all of the Court’s orders will apply to you and legally bind you. Unless you exclude yourself from the Settlement, you will agree to release Cheesecake Factory, GK Software, and any other Cheesecake Factory Releasee or GK Software Releasee, as defined in the Settlement Agreement, from any and all claims that were or could be asserted in the litigation and all claims that relate to or arise from printing too much information on any receipts from a Cheesecake Factory owned, operated, or branded restaurant during the Settlement Class period.

In summary, the Release includes, without limitation, all claims that arise, could arise, were asserted, or could have been asserted based on printing too much information on any receipts from a Cheesecake Factory restaurant, including, but not limited to, claims under FACTA, the Fair Credit Reporting Act, any other statute or the common law, or regarding identity theft or the risk of identity theft, or any form of relief.

If you have any questions about the Release or what it means, you can speak to Class Counsel, listed in FAQ 6, for free, or you can, at your own expense, talk to your own lawyer. The Release does not apply to persons in the Settlement Class who timely exclude themselves (see FAQ 13).

To receive a payment, you had to submit a Claim Form or, if you did not have a Claim ID and PIN, a Publication Claim Form by March 31, 2022.

As described in FAQ 19, the Court held a Fairness Hearing on September 9, 2022, and decided to grant final approval of the Settlement. The Court found that the Settlement is fair, reasonable, and adequate. However, the final approval order the Court entered may be subject to appeal. If there are any such appeals, resolving them takes time. Payments to Settlement Class Members will only be made after the time for any appeals expires.

Payments to Class Members made in the form of a check will expire and become void 120 days after they are issued. For good cause shown by the Class Member involved, however, the Settlement Administrator may reissue a check for up to an additional 120-day period following the original 120-day period.

If you wanted to keep the right to pursue or continue to pursue any Released Claim against Cheesecake Factory, GK Software, or any Cheesecake Factory Releasee or GK Software Releasee, as defined in the Settlement Agreement, then you had to take steps to get out of the Settlement Class. This is called excluding yourself from, or opting out of, the Settlement Class.

To have excluded yourself from the Settlement, you had to send an exclusion request to the Claims Administrator. To be valid, a member of the Settlement Class who wished to be excluded from the Settlement Class had to mail a written notice of exclusion to the Claims Administrator, postmarked no later than March 31, 2022.

No. If you did not exclude yourself, you give up any right to pursue (or continue to pursue) any Released Claims against Cheesecake Factory, GK Software, or any Cheesecake Factory Releasee or GK Software Releasee.

No. If you asked to be excluded, you were not able to submit a Claim Form for a Settlement payment and you were not able to object to the Settlement.

If you are in the Settlement Class, you could have objected to the Settlement or any part of the Settlement that you think the Court should reject, and the Court will consider your views. If you did not provide a written objection, you were deemed to have waived any objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the Settlement or the award of any attorneys’ fees and expenses or Incentive Payments.

To be valid, the objection had to have been received by the Opt-Out and Objection Deadline of March 31, 2022.

Objecting was telling the Court that you opposed something about the Settlement. You could have objected only if you stayed in the Settlement Class. Excluding yourself means that you did not want to be part of the Settlement Class. If you excluded yourself, you had no basis to object because the case no longer affects you.

If you did nothing, you will not receive any monetary award, but you have given up your rights to pursue or continue to pursue Released Claims against Cheesecake Factory, GK Software, or any other Cheesecake Factory Releasee or GK Software Releasee. For information relating to what rights you are giving up, see FAQ 10.

The Court held a Fairness Hearing on September 9, 2022, at 8:30 a.m. at Spring Street Courthouse in the Superior Court of the State of California for the County of Los Angeles, to hear any objections and to consider whether to give final approval to the Settlement. The Court heard objections at the hearing only from those who timely objected to the Settlement. The Court also decided how much to pay to Class Counsel and Plaintiff.

No. Class Counsel answered any questions the Court had.

You could have asked the Court for permission to speak at the Final Approval Hearing, but only in connection with an objection that you timely submitted to the Court according to the procedure set forth in FAQ 16 above.

If you received an email from noreply@epiqpay.com, it is because you were determined to be eligible for a payment in a class action settlement. By default, individuals eligible for payments will receive a prepayment notification email a few days before they receive an email containing a link to claim their payment. This is normal. If you claim a payment, you will also receive one or more follow up emails from our payment partner, Tremendous, confirming where in the process your payment is. If you do not immediately claim your payment, you may also receive one or more reminder emails.

EpiqPay is the official digital payment platform for Epiq Class Action and Claims Solutions. EpiqPay offers individuals who are eligible to receive payments in mass actions an easy, convenient, fast, and secure way to claim their payments. General information about EpiqPay is available at https://www.epiqglobal.com/en-us/technologies/epiq-pay.

Claiming your EpiqPay payment is simple and easy. All EpiqPay payment and reminder emails contain a ‘Claim Payment’ link. As long as you click the ‘Claim Payment’ link before the payment expiry date listed in your email, the link will take you to a payment dashboard where you can choose your preferred method of payment. Then click your preferred payment method. Depending on the method of payment you choose, you may be asked to confirm your selection or provide one or two pieces of information so your payment can be processed. After that, you will receive a small number of interim notifications from our payment partner rewards@tremendous.com letting you know your payment is ‘in process’, and eventually you will receive a link to your payment card, if you chose that as your option. Contact information for our payment partner is available on these notifications, in case you experience any issues using you card.

Emails regarding digital payments for this matter commenced on November 30, 2022, and digital payments will be available to claim through December 14, 2022. During that window, Epiq digital payment emails were or will be sent from noreply@Epiqpay.com, so please review your inbox for messages from that email address. Due to variability in individual recipient email account SPAM and junk security settings, users are encouraged to review their junk and SPAM folders in case the digital payment emails went to those locations.

Claimants without a valid email address or claimants who did not make a payment election will automatically receive a check in the mail sent to the address on file.

This website and the Notice are only a summary of the proposed Settlement. You can get a complete copy of the Settlement Agreement and other case-related documents by visiting the Important Documents page. You can also write to Cheesecake FACTA Claims Administrator, P.O. Box 6659, Portland, OR 97228-6659, or call the toll-free Settlement Hotline, 1-888-510-9743. You can also call Class Counsel with any questions at 866-726-1092.

Do not call or write to the Court, the Clerk of the Court, Cheesecake Factory, Inc., GK Software USA, Inc., or Counsel for Cheesecake Factory, Inc. or GK Software about the Settlement. Also, telephone representatives who answer calls made to the toll-free number are not authorized to change the terms of the Settlement.