The maker of a high-tech Bluetooth-enabled personal intimacy device has reached a $3.7 million settlement with a woman, on behalf of classes of other plaintiffs, who had accused the company of improperly collecting private information in a class action complaint filed last year.
The plaintiff, identified in the lawsuit only as N.P., filed the putative action Sept. 2 in federal court in Chicago against Standard Innovation, of Ottawa, Ontario, Canada, which markets We-Vibe vibrators and the We-Connect smartphone app that allows users to pair a mobile device to a We-Vibe in order to remotely control its customizable settings and features.
N.P. said the $130 We-Vibe Rave she bought in May “cost substantially more than comparable vibrators lacking such features” and that “most, if not all, … customers would not have purchased a We-Vibe in the first place had they known that it would monitor, collect, and transmit their usage information. … including the date and time of each use and the selected vibration settings, and transmit such usage data — along with the user’s personal email address — to its servers in Canada.”
In an amended complaint filed Feb. 27, N.P. added another named plaintiff, identified as P.S., as a representative of the purchaser class. The amended complaint alleged violation of the Federal Wire Tap Act, intrusion upon seclusion and unjust enrichment.
On March 13, U.S. District Judge Virginia M. Kendall granted preliminary approval of the settlement, which was the result of private mediation. Standard Innovation continues to deny all allegations of wrongdoing and liability.
The original complaint proposed four classes: a purchaser class for anyone in the U.S. who bought a Bluetooth-enabled We-Vibe; a surveillance class for anyone who downloaded We-Connect; and Illinois subclasses of both. The settlement redefined the latter as the “app class,” which would include anyone who downloaded the We-Connect application and used it to control a We-Vibe before Sept. 26. The settlement also does not reference Illinois subclasses.
The app class settlement fund is established at $4 million Canadian, the purchases class fund is $1 million Canadian. At current exchange rates, that equates to more than $3.7 million U.S. Purchaser class members whose claims are approved are entitled to a prorated share up to $199 U.S., but the app class prorated share cap is $10,000.
Further, Standard Innovation must not include a registration process or collect email addresses via We-Connect, but can continue to amass email addresses for its newsletter mailing list and product registration purposes, according to the settlement. It also agreed to update its privacy notice to specifically disclose any data collection involved in the We-Connect app, as well as any third parties involved in data collection or analysis, and give users a way to opt out of providing their data to those third parties.
The settlement funds will be used to establish escrow accounts; interest earned is considered part of the generating fund.
Attorneys from the Chicago firm of Edelson P.C. represented the plaintiffs. According to the preliminary settlement agreement, the firm will apply for attorney fees and unreimbursed expenses as the purchaser fee award and app fee award, which Kendall will determine based on a petition. The request would be no more than one-third of each settlement fund. The class representatives would each be paid an incentive award of $5,000.
The settlement is subject to hearings on any objections and a final approval from Kendall.
Standard Innovation is represented by Hunton & Williams LLP, and Tucker Ellis LLP, of Chicago.