By Evan Schuman
October 4, 2007
A U.S. District Court judge says the idea puts too much of the burden on
When U.S. District Court Judge William G. Young told lawyers Sept. 27
that he had serious concerns about the proposed TJX settlement, he also
took issue with the part that would allow for consumers to turn the
vouchers into cash by selling them.
In a courtroom exchange, TJX attorney Harvey J. Wolkoff argued that
there is an easy way for a consumer to turn the vouchers into cash.
"These vouchers are fully transferable, so that someone can take a $30
voucher and sell it on eBayI've never done it myselfand get $25,"
Replied Young: "Too hard for me, Mr. Wolkoff. Too hard for me. These are
consumers. People know how to cash checks. Saying, 'Go to eBay and
negotiate it' won't cut it."
As was already reported, the judge told the lawyers that he wanted to
know about the true costs of the vouchers to TJX. But Young elaborated
on his explanation.
"I assume that this voucher has a value, a genuine value. That is, if
you come and you give your $30 voucher to TJX, they'll take $30 off
something they have on sale and if it's on sale, you can get another $30
off and you walk out with it," the judge said. "But that's not a $30
cost to TJX because they're selling things at a profit, as is their
Regardless of the cost, Young was clear that he wasn't happy with the
vouchers. "I'm very troubled by the vouchers, even if they are legal. I
really don't like the vouchers the way they stand now," he said. "One
imagines that there are a number of people out there who have been
discommoded and, however TJX would wish it, they're not too happy with
To make sure that he had the plaintiff attorneys' attention, Young
hinted that he wanted to tie the true value of the vouchers to legal
fees he was prepared to approve. The current settlement has set aside
about $6.5 million for the fees for plaintiff attorneys.
"I will approve a [lawyers' fee] settlement that is commensurate and
does not exceed an appropriate proportion of the actual money that is
either transferred to consumers, actually transferred to consumers, or
the value of the cost of insurance, insurance which is transferred to
consumers," Young said. "But I'm not just awarding this and not knowing
what consumers in terms of actual money have gotten out of this."
Assuming that Young's position will be similar to other jurists
overseeing similar matters, retailers might want to take notice of this
comment. He wants every customer whose data was breached to be
individually contacted about the settlement.
"While I'm perfectly fine with having ads in consumer magazines and the
like, I had thought that TJX knows exactly which cards have been
compromised and has information as to the consumer whose name is on that
card," Young said. "I want those consumers, every single one of them, I
want them to be mailed the notices having to do with the settlement."
Another detail that emerged from the hearing was that Young concluded
that he doesn't have the authority to approve any deal of this kind in
total because some of the consumers suing TJX are based in Canada. "The
way you have resolved this is to seek a really greater than a nationwide
class, though what I decide could only bind a nationwide class. The
courts of Canada will have to decide whatever they decide," he said.
Young did have an optimistic comment. He interpreted the lack of
monetary consumer damages as an indication that the U.S. retail card
system is working well.
"When I look at this settlement agreement -- and I have reviewed it
carefully -- one of the institutional things that I'm struck with is how
well the credit card system works in the United States. That is to say
from the consumer's point of view, I'm not in any way diminishing the
discomfort and inconvenience and uncertainty that has been visited,
apparently, on lots of consumers, but no one has lost big money here
because the banks pick up the actual damages. And that's interesting and
I think informative."
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