In a conference call on Monday (Dec. 7) organized by MasterCard, credit unions and other financial institutions were encouraged to reject data breach settlement offers from Home Depot, arguing that the offers are too vague.
In a blog post from the Credit Union National Association that described that conference call, Joseph Guglielmo, lead counsel for financial institutions in the case, was quoted as making the key presentation.
“Until Home Depot discloses all of the facts relating to its agreement with MasterCard, we recommend that financial institutions reject any settlement that requires them to release their claims in court and does not offer a significant reimbursement for their losses, beyond what they’re already entitled to,” Guglielmo was quoted as saying.
Indeed, counsel pointed to the Target settlement as proof that waiting will often get credit unions a much better deal. “The settlement agreement announced last week in the litigation over Target’s data breach was a settlement agreement that was reached with financial institutions that did not opt in to the original ADC program,” Gugliemlo said. “That settlement, we believe, established that financial institutions do not need to accept the first offer they receive from these card brands.”
And when Gugliemlo wasn’t complaining about the vagueness of Home Depot offer letters, he was expressing a lack of happiness with the specifics that were offered. “In fact, one credit union was promised operational reimbursement dollars of only $1.18 per qualified account, likely falling far short of operational losses caused by the breach,” the blog post said.
In reality, these discussions are true negotiations. The goal of neither is—well, to be precise, the goal of neither should be—to be fully compensated for losses caused by the defendant. That’s what you’re supposed to do when you go to trial.
This is a settlement offer. It’s Home Depot saying “Hey, we think we have an excellent shot of winning this case. We can prove that your losses were incurred on your own. You can roll the dice and take a chance with a jury or you can end it right here and save yourself a ton of time, headaches and legal fees. I’ll give you 50 cents on the dollar, in cash, right now. But you have to agree to end this right now.”
That’s why this is a true negotiation. There is no metric, no spreadsheet, that can reveal how much you should settle for. And if I may be cynical, the fact that it’s one of those legal fee recipients who is arguing “Extend this as long as you can. I have mouths at home to feed” is perhaps not the most convincing voice.