Foster et al. v. Lower, LLC

You received this notice because you have been identified as a person who previously received a notice from Lower in or around mid-2022 that your PII may have been accessed or exposed during the Data Incident. A group of similarly situated individuals brought a proposed class action lawsuit against Lower in 2022, alleging that Lower was negligent due to its data security practices. Lower denied the allegations and denied that it would be found liable. The parties have now reached a proposed settlement of the lawsuit.

A court authorized this notice because you have a right to know about your rights under the proposed class action Settlement before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and after objections and appeals are resolved, a Settlement Administrator appointed by the Court will make the payments that the Settlement allows, and the pending legal claims against Lower will be released and dismissed.

This package explains the lawsuit, the Settlement, your rights, what benefits are available, who is eligible for them, and how to get them. The cases are Foster et al. v. Lower, LLC, No. 1:22-cv-01581-GLR (D. Md.) and Wolff v. Lower, LLC, No. 1:22-cv-02003-JKB (D. Md.). Judge George Levi Russel, III and Chief Judge James K. Bredar of the United States District Court for the District of Maryland are in charge of these cases, respectively.

This matter is a putative class action (the “Litigation”) arising from a Data Incident whereby a cybercriminal gained unauthorized access to Lower’s data environment between September 2, 2021, and December 16, 2021, resulting in potential access to certain personal identifying information. The lawsuit asserts common law and statutory claims against Lower for alleged negligent data security practices.

Defendant denies any allegation of wrongdoing and denies that Plaintiffs would prevail or be entitled to any relief should this matter proceed to be litigated.

In a class action one or more people called “Class Representatives” sue on behalf of themselves and other people who have similar claims. This group of people is called the “class,” and the people in the class are called “Settlement Class Members” or the “Settlement Class.” One court resolves the issues for all Settlement Class Members, except for people who exclude themselves from the class. The people who sued are called the Plaintiffs. The entity they sued—Lower—is called the Defendant.

The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides agreed to a Settlement. That way, they avoid the costs and risks of a trial, and Settlement Class Members can get benefits or compensation. The Class Representatives and Class Counsel think the Settlement is in the best interest of the Settlement Class.

The Settlement Class is defined as: “All Persons Lower LLC identified as being among those individuals impacted by the Data Incident, including all who were sent a notice of the Data Incident.”

Yes, the following are not included in the Settlement Class: (a) officers, directors, and trustees of the Defendant; (b) all judges and their staff assigned to this case and any members of their immediate families; (c) the mediator; (d) experts retained in this Litigation by the Parties; (e) the Parties’ counsel in this Litigation; and (f) anyone who timely requests to be excluded from the Settlement.

If you are not sure whether you are included in the Settlement Class, you can ask for free help by calling the Settlement Administrator, at 1-833-955-1999 or emailing info@LowerDataIncidentSettlement.com.

Under the Settlement, Lower will establish a non-reversionary settlement fund in the amount of One Million Four Hundred and Twenty-Five Thousand Dollars ($1,425,000.00). These funds will be used to pay for all valid claims made by Settlement Class Members, notice and administration costs, service awards, and attorneys' fees and costs. In no event shall Lower pay more than $1,425,000.00.

Settlement Class Members may file a claim for one or more of the following settlement benefits.

Cash Payment: Settlement Class Members may file a claim to receive a $100.00 Cash Payment. Settlement Class Member may not claim the cash payment in addition to the other following settlement benefits.

Ordinary Losses: Settlement Class Members may also file a claim for reimbursement for ordinary losses of up to $2,500 that are reasonably traceable to the Data Incident. Ordinary losses can include out of pocket expenses related to the Data Incident including bank fees, long distance phone charges, cell phone charges (only if charged by the minute), data charges (only if charged based on the amount of data used), postage, or gasoline for local travel. Additionally, ordinary losses might include fees for credit reports, credit monitoring, or other identity theft insurance products purchased between September 2021 and the date of the close of the Claims Period. Settlement Class Members may also claim lost time, up to 10 hours at $20/hour, for time spent dealing with the Data Incident. Settlement Class Members will be required to provide documentation and affirm under penalty of perjury their belief that the claimed Ordinary Losses are due to the Data Incident.

Extraordinary Losses: Settlement Class Members may also file a claim for reimbursement for extraordinary losses of up to $7,500 for losses that were more likely than not caused by the Data Incident. Such losses must not be already covered by the ordinary losses category, and must be an actual, documented, and unreimbursed monetary loss that occurred during the specified period. Settlement Class Members must also provide evidence that he or she made reasonable efforts to avoid, or seek reimbursement for, the loss, including but not limited to exhaustion of all available credit monitoring insurance and identity theft insurance.

Credit Monitoring: All Settlement Class Members will be offered the opportunity to claim a 2-year membership of 3-bureau credit monitoring with at least $1 million in fraud protection.

If you are a Settlement Class Member and you do not exclude yourself from the Settlement, you will give up your right to sue, continue to sue, or be part of any other lawsuit against Defendant or other released parties concerning the claims released by this Settlement. The Settlement Agreement describes the legal claims that you give up if you remain in the Settlement Class. The entire text of the Settlement Agreement can be viewed here.

You must complete and submit a Claim Form by December 11, 2023. Claim Forms may be submitted online or printed from this website and mailed to the address on the form.

Be sure to read the Claim Form instructions carefully, include all required information, and your signature.

The Settlement Administrator will review your claim to determine the validity and amount of your payment.

The amount of your payment will depend on the approved amount of your claim and the total value of all approved claims.

If you are claiming Ordinary Losses under the Settlement, you must describe the loss, any out-of-pocket expenses, their amount, and when and why you incurred them. If your claim is for expenses related to a credit freeze, credit monitoring, identity theft protection, similar services, or other expenditure, you must also attest that you incurred those losses in response to the Data Incident in this case. Claims for Extraordinary Losses must also be documented, along with unreimbursed monetary losses that were more likely than not caused by the Data Incident.

Your claim must be reasonably documented—you must enclose or upload documentation sufficient to show (a) the amount of unreimbursed loss that you suffered, and (b) why you believe that the loss is reasonably attributable to the Data Incident in the case. Documents for financial expenses may include credit card or bank statements, emails, invoices, receipts, or telephone records, including photographs of the same. Personal statements or declarations are not considered reasonable documentation, but they may be used to provide clarification, context, or support for other documentation.

The Court will hold a hearing on Friday, December 1, 2023, to decide whether to approve the Settlement. Payments will be made after the Settlement is approved and becomes final (meaning there is no appeal from the order approving the Settlement). Updates regarding the Settlement will be posted on this website.

David K. Lietz of Milberg Coleman Bryson Phillips Grossman, PLLC and Raina C. Borrelli of Turke & Strauss LP represent the Settlement Class. These lawyers are called Class Counsel. You will not be charged for their services.

If you want your own lawyer, you may hire one, but you will be responsible for any payment for that lawyer’s services. For example, you can ask your own lawyer to appear in court for you if you want someone other than Class Counsel to speak for you. You may also appear for yourself without a lawyer.

The attorneys representing the Class have not yet received any payment for their legal services or any reimbursement of the costs or out-of-pocket expenses they have incurred. Class Counsel plans to ask the Court to award attorneys’ fees from the Settlement Fund, not to exceed one third of the Settlement Fund (i.e., not more than $475,000). Class Counsel also may petition the Court for up to $10,000 in costs and expenses. Lower has agreed not to object to these requests.

The Settlement Class is represented by four named individuals (the “Class Representatives”). In addition to the benefits that the Class Representatives will receive as members of the Settlement Class—and subject to the approval of the Court—Lower has agreed to pay service awards to collectively not exceed $2,500 to the Settlement Class Representatives for the efforts they have expended on behalf of the Settlement Class.

The Court will determine whether to approve the amount of fees and costs and expenses requested by Class Counsel and the proposed service awards to the Class Representatives. Class Counsel will file an application for fees, expenses, and service awards no later than October 25, 2023. The application will be available on this website or you can request a copy by contacting the Settlement Administrator.

If you are a Settlement Class Member and you do not want the benefits from the Settlement, and you want to keep your right, if any, to sue Defendant on your own about the legal issues in this case, then you must take steps to get out of the Settlement. This is called excluding yourself from—or “opting out” of—the Settlement Class.

You may opt out of the Settlement by November 9, 2023. To opt out, you must send a letter or postcard via U.S. mail to the address below. You must include the following in your letter or postcard:

• The name of this Litigation, or a decipherable approximation (Foster et al. v. Lower, LLC, No. 1:22-cv-01581-GLR (D. Md.);
• Your full name, address, telephone number, and signature.
• The words “Requests for Exclusion” at the top of the document or a statement that you want to opt out of the settlement; and
• If you are filing a request for exclusion on behalf of an incapacitated or deceased Settlement Class Member for whom you are legally authorized to act, you must include your name, address, phone number, signature, and relationship to the Settlement Class Member, as well as that person’s name and address.

You must mail your opt-out request via First-Class postage prepaid U.S. Mail, postmarked no later than November 9, 2023 to:

Lower LLC Settlement Administrator

Attn: Exclusion Request

PO BOX 58220

Philadelphia, PA 19102

If you fail to include the required information, your request will be deemed invalid and you will remain a Settlement Class Members and be bound by the Settlement, including all releases.

No. You must opt out of the Settlement to keep your right to sue Defendant or other released parties for any of the claims resolved by the Settlement.

If you opt out of the Settlement, you will not have any rights as a member of the Settlement Class.  You will not receive a payment as part of the Settlement. You will not be bound by the Settlement, releases, or by any further orders or judgments in this case. You will keep the right, if any, to sue on the claims alleged in the case at your own expense.

In addition, if you opt out of the Settlement you cannot object to this Settlement because the Settlement no longer affects you. If you object to the Settlement and request to exclude yourself, your objection will be voided, and you will be deemed to have excluded yourself.

If you are a Settlement Class Member and you do not opt out of the Settlement, you can object to the Settlement if you do not think it is fair, reasonable, or adequate. You can give reasons why you think the Court should not approve it. You can’t ask the Court to change or order a different settlement; the Court can only approve or deny this Settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object.

You may object to any part of the proposed Settlement in writing. You may also appear at the Fairness Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney.

Your objection must be in writing and must:

• Clearly identify the case name and number (Foster et al. v. Lower, LLC, No. 1:22-cv-01581-GLR (D. Md.));
• Include your full name, address, telephone number, and email address (if any);
• Include the full name, address, telephone number, and email address of your counsel (if you are represented by counsel).
• State whether the objection applies only to you, to a specific subset of the Class, or to the entire Class, and also state with specificity the grounds for the objection.
• Confirm whether you intend to personally appear and/or testify at the Final Approval Hearing and if so, whether you are or will be represented by counsel; and
• Provide your signature and the signature of your duly authorized counsel or other duly authorized representative.

Completed objections must also be submitted via postal mail to the Settlement Administrator at the following address. The objection must be filed with the Settlement Administrator and must be postmarked – no later than November 9, 2023.

Objecting is telling the Court that you don’t like something about the Settlement. You can object to the Settlement only if you are a Settlement Class Member and do not opt out of the Settlement. Opting out of the Settlement is telling the Court that you don’t want to be part of the Settlement. If you opt out of the Settlement, you cannot object to it because it does not affect you.

The Court will hold a Fairness Hearing on December 1, 2023, at 10:00 am at the federal courthouse located at 101 W Lombard Street, Courtroom 7A, Baltimore, MD 21201 before Judge George Levi Russel, III. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate; Class Counsel’s application for attorneys’ fees, costs, and expenses; and whether to approve service awards to the Class Representatives. If there are objections, the Court will consider them. The Court may choose to hear from people who have asked to speak at the hearing. At or after the hearing, the Court will decide whether to approve the Settlement. There is no deadline by which the Court must make its decision.

The Court may reschedule the Fairness Hearing or change any of the deadlines described in this notice. The date of the Fairness Hearing may change without further notice to the Settlement Class Members. Be sure to check this website, for updates. You can also access the case docket via the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.mdd.uscourts.gov.

Class Counsel will file a motion for final approval of the Settlement by December 1, 2023. Objectors, if any, must file any response to Class Counsel’s motion by November 9, 2023.  Responses to any objections and any replies in support of final approval of the Settlement and/or Class Counsel’s application for attorneys’ fees, costs, and expenses, and Service Awards will be filed by November 9, 2023.

No. Class Counsel will answer any questions the Court may have. You may attend at your own expense if you wish. If you send an objection, you do not have to come to the hearing to talk about it. As long as you mailed or filed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.

You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must include a statement in your written objection (see FAQ 20) that you intend to appear at the hearing. Be sure to include your name, address, and signature as well. You cannot speak at the hearing if you opt out or exclude yourself from the Class.

If you are a Settlement Class Member and do nothing, you will not get any money from this Settlement, and you will not be able to sue the Defendant or other released parties for the claims released by the Settlement Agreement.

The notice summarizes the proposed Settlement—more details are in the Settlement Agreement and other case documents available at www.LowerDataIncidentSettlement.com, by accessing the docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.mdd.uscourts.gov/, or by visiting the office of the Clerk of the Court for the United States District Court for the District of Maryland, 101 West Lombard Street, Baltimore, MD 21201 between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.

Visit the Important Docs Page  where you will find more information, including the claim form, a copy of the Settlement Agreement, and answers to questions about the Settlement and other information to help you determine whether you are eligible for a payment.

Contact the Settlement Administrator, at 1-833-955-1999 or by writing to the Settlement Administrator at:

Lower LLC Settlement Administrator

1650 Arch Street, Suite 2210

Philadelphia, PA 19103

PLEASE DO NOT CONTACT THE COURT, THE COURT CLERK’S OFFICE, OR DEFENDANT TO INQUIRE ABOUT THIS SETTLEMENT OR THE CLAIM PROCESS.