Five Guys Data Breach Settlement Gets Preliminary Approval

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January 17, 2024

by Brian Eckert

A Virginia federal judge has initially signed off on a $700,000 settlement in a Five Guys class action lawsuit accusing the burger chain of failing to protect the personal data of current and former workers and job applicants. The judge also appointed Milberg’s David K. Lietz as class counsel. A final fairness hearing is scheduled for July 12.

Timeline of Events

Five Guys announced an unauthorized security breach incident to its network servers in December 2022. The incident occurred in September and affected employment-related information submitted to Five Guys.

When disclosing the breach, Five Guys did not specify how many individuals may have been impacted or the types of personally identifiable information that might have been stolen. A law firm representing the company said that the names, Social Security numbers, and driver’s license numbers of more than 37,000 individuals were exposed.

However, neither Five Guys nor the law firm stated how the data breach happened or why notification letters were sent more than three months after the incident was discovered.

The Court finds the settlement is fair, reasonable, and adequate to warrant providing notice of the settlement to the Settlement Class and accordingly it is preliminarily approved.

Several lawsuits were filed in response to the Five Guys data breach, including a Milberg case filed on January 10, 2023. They were consolidated into a single action in U.S. District Court for the Eastern District of Virginia before Judge Claude M. Hilton.

On January 4, 2023, Hilton gave preliminary approval to a class settlement. The proposed $700,000 settlement covers 37,992 class members, including those living in California, and would provide:

  • Out-of-pocket losses and attested time traceable to the data breach
  • Alternative cash payments
  • California statutory payments
  • Credit monitoring and identity theft services

In a court order, Hilton called the proposed settlement “fair, reasonable, and adequate.”

The order also establishes the following schedule in the litigation:

  • February 5: Class notice program commences
  • March 5: Class notice program completion
  • May 6: Opt-out, objection, and claim submission deadline
  • June 21: Final settlement approval deadline
  • July 12: Final fairness hearing

Milberg Senior Partner David K. Lietz, who is representing the class, told Law360 in an email that, “We’re pleased with the judge’s order, and look forward to issuing notice to the class.”

How Class Members Can Exercise Their Rights

According to Bloomberg, class members could be eligible for up to $400 for ordinary out-of-pocket expenses and lost time related to the Five Guys data breach. Members with extraordinary losses could receive up to $6,500 in additional compensation.

The settlement would also reportedly award alternative cash payments of $150 in lieu of other claims; a $100 payment for California class members; and two years of identity theft and credit monitoring services.

Anyone who receives a class notice is automatically eligible to receive a share of the settlement. If a member wishes to be excluded from the settlement class, they must send written notice postmarked by the opt-out deadline (May 6, 2024) to the Claims Administrator at the address and in the manner provided in the notice. 

Class members not submitting an opt-out request will be subject to the final settlement terms. They may object to the settlement by May 6.

The court must still give final approval to the settlement. Those wishing to attend the final fairness hearing may do so at 10:00 a.m. in Courtroom 801 in Alexandria, Virginia.

Milberg Leading the Way in Data Breach Class Actions

David Lietz has filed over 100 data breach class action lawsuits, successfully briefed and argued dozens of motions to dismiss, served as lead counsel on multiple cutting edge data breach cases, been named class counsel in dozens of data breach class actions, and won millions of dollars in compensation for data breach victims.

Since 1965, Milberg—the firm that pioneered federal class action lawsuits—has filed thousands of class actions and recovered more than $50 billion for our clients.