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Column: Elon Musk is suing to stop the government from enforcing labor laws. The Supreme Court might agree with him

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Column: Elon Musk is suing to stop the government from enforcing labor laws. The Supreme Court might agree with him

Few business leaders have taken to heart more than Elon Musk the old lawyer’s saw that if you don’t have the facts or the law on your side at trial, pound the table.

Musk has truculently flouted regulatory standards of all varieties as the guiding spirit of companies such as Twitter, Tesla and SpaceX — keeping factories open despite pandemic shutdown orders, allegedly committing securities fraud by issuing misleading tweets about his investment plans and ignoring government safety recommendations for self-driving automotive technologies.

As I’ve reported, Musk has gotten his way with regulators and municipal officials “through bluster and intimidation.”

This is an effort by a group of lawyers who are foes of the administrative state and the New Deal-era legislation that created the NLRB and the SEC to essentially end enforcement of those statutes.

— Catherine Fisk, UC Berkeley

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Now he’s trying what may be his most audacious flip-off to regulators yet:

Faced with an accusation by the National Labor Relations Board that SpaceX improperly fired nine employees in 2022, among other illegal acts, the company, which is controlled by Musk, filed a lawsuit in federal court in Texas to declare the NLRB’s action — indeed, the board itself — unconstitutional.

There’s more to it than that, however. The SpaceX lawsuit takes direct aim at the very enforcement structure of the NLRB, through which appointed administrative law judges weigh unfair labor practice charges laid against employers and recommend penalties to be imposed by the board itself.

The company’s argument is that because the judges are largely immune from being fired other than “for good cause,” their role in enforcement deprives accused parties of their constitutional right to trial by jury.

It also asserts that the board’s power to act as judge and jury in employment cases and the members’ immunity from being removed by the president violates the separation of powers principle in the Constitution. In sum, SpaceX claims that it’s being held “subject to unlawful proceedings before an unconstitutionally structured agency.”

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More such claims are in the offing from businesses facing regulatory scrutiny. According to a transcript obtained by Bloomberg, grocery chain Trader Joe’s made the same argument at a Jan. 16 NLRB hearing on charges that it engaged in illegal union-busting by retaliating against unionization advocates among its workers.

What are these companies up to? The SpaceX claims are unusual, but they’re not unique in recent regulatory litigation. Similar claims have been brought against the Securities and Exchange Commission and the Consumer Financial Protection Bureau.

“This is an effort by a group of lawyers who are foes of the administrative state and the New Deal-era legislation that created the NLRB and the SEC to essentially end enforcement of those statutes,” says Catherine Fisk, an employment and labor law authority at UC Berkeley law school.

Unable to challenge the laws themselves — they’ve been upheld by Supreme Court decisions dating back to the 1930s — or the regulations directly, Fisk told me, “they’re arguing that the administrative structure is in some part unconstitutional.”

Before delving into the details of the SpaceX lawsuit, let’s examine the NLRB’s enforcement case. The agency says SpaceX illegally fired the nine workers for circulating an open letter complaining about Musk’s “repeated conduct of issuing inappropriate, disparaging, sexually charged comments on Twitter,” which he owns. The silence of SpaceX management about Musk’s conduct, the letter said, allowed a “culture of sexism, harassment and discrimination” to “pervade … the workplace.”

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The NLRB filed a formal complaint against SpaceX on Jan. 3, encompassing not only the firings but charges that it illegally interrogated workers and conducted illegal surveillance of their activities. The agency scheduled a hearing on the charges before an administrative law judge for March 5 in Los Angeles.

The very next day, SpaceX filed its lawsuit.

By some measures, SpaceX’s response to the NLRB charges might be interpreted as overkill. Even if it’s found to have committed all the violations, the consequences are meager. The NLRB can’t levy monetary fines.

It can order back pay and reinstatement for workers who have been wrongly discharged, but those wouldn’t make much of a dent in the finances of a company that was reported to have brought in $8 billion in revenue last year from government and commercial contracts.

Moreover, SpaceX hasn’t yet come before an administrative law judge over the NLRB charges, much less having them voted on by the full board. Its lawsuit, then, looks like a shot across the NLRB’s bow. The company asks the trial judge in Texas to block the NLRB’s case against it, declare that the NLRB’s structure is unconstitutional, and permanently prohibit the agency from pursuing unfair labor practice charges via administrative law judges.

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That points to the conclusion that this case, and others like it, aim to exploit the veer to the right seen throughout the federal judiciary generally and the Supreme Court in particular.

This variety of attack on regulations went out of fashion in the 1930s, Fisk observes. The Supreme Court, which had overturned a sheaf of New Deal initiatives as well as state minimum wage laws, turned back to the middle in the face of rising public disdain and the court-packing scheme of Franklin Roosevelt.

FDR ultimately abandoned his proposal, but after 1936 the court ceased ruling against the New Deal — upholding the National Labor Relations Act, which created the NLRB, in 1937.

“For 85 years, those arguments weren’t made,” Fisk says, “because lawyers knew that they would get nowhere with them — they might even get sanctioned. The Supreme Court signaled that it was up to Congress to design regulatory structures.”

But today’s Supreme Court isn’t your great-grandfather’s Supreme Court. “The Supreme Court has given lawyers reason to think that they might be able to invalidate part or all of these statutes as being unconstitutional.”

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As recently as last week, a majority of justices appeared ready to overturn or at least pare back the so-called Chevron doctrine, the nearly 40-year-old principle that courts should defer to agencies’ interpretations of their governing laws as long as those interpretations aren’t plainly unreasonable.

Overturning the doctrine, as industry litigants urged the court to do during oral arguments Jan. 17, could sap regulatory agencies’ ability to base their rule-making on expert advice.

Although Congress could theoretically overcome any regulatory problems created by an adverse court ruling by amending the laws in question, that’s not a good bet given the profound dysfunction reigning these days on Capitol Hill. The industries will have achieved their goals for years into the future.

That brings us to Musk’s litigation strategy. SpaceX filed its lawsuit against the NLRB not in Southern California, where the company is headquartered, or Washington, D.C., where the NLRB maintains its main office, but in federal court in Brownsville, Texas, a judicial outpost on the Mexican border. This reflects the practice of filing anti-government lawsuits in remote federal courtrooms in Texas, where plaintiffs have a good chance of drawing a right-wing judge.

On the face of it, that tactic may have failed in this case, because the Brownsville court has two judges, one of whom was appointed by Donald Trump and the other by Barack Obama, and the SpaceX case was assigned to Rolando Olvera, who was Obama’s appointee.

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SpaceX, however, is playing a longer game. Any appeal from the Texas federal court would go to the extremely conservative U.S. 5th Circuit Court of Appeals, which I’ve described in the past as “the hackiest of hack-ridden federal courts.”

The New Orleans-based appellate court upheld Texas’ malevolent SB 8 antiabortion law in 2022, for example, after which the Supreme Court allowed the law to go into effect.

Last year it partially endorsed a ruling by federal Judge Matthew Kacsmaryk of Texas narrowing access to the abortion drug mifepristone. Kacsmaryk’s ruling was based on a tendentious and long-abandoned reading of an antique 1873 law, but that was enough for the issue to come before the Supreme Court, which has the case on its docket this year.

More to the point, the 5th Circuit has implicitly endorsed the practice of challenging regulations by taking aim at the constitutionality of regulatory agencies. It did so in a case targeting the Consumer Financial Protection Bureau brought by the payday lending industry, which has long been in the CFPB’s crosshairs.

A 5th Circuit panel composed of three Trump-appointed judges ruled the bureau’s funding mechanism unconstitutional; the government appealed that ruling to the Supreme Court, which heard oral arguments on Oct. 3 but hasn’t yet ruled.

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The most important 5th Circuit case from the standpoint of SpaceX and Trader Joe’s, and any other businesses that chose to follow in their wake, is Jarkesy vs. SEC.

That case was brought by a hedge fund operator who was hit with $1 million in fines and penalties for fraud by the Securities and Exchange Commission in 2013. The 5th Circuit ruled against the SEC in 2022, finding that it was an unconstitutional breach of Jarkesy’s right to trial by jury for an administrative judge at the SEC to have ruled on Jarkesy’s crime and imposed the penalties, even though they were later approved by the commission itself.

The government appealed to the Supreme Court, which heard oral arguments on Nov. 30 but hasn’t issued a decision. SpaceX’s position draws closely from the 5th Circuit’s ruling in Jarkesy, which is cited no fewer than 13 times in SpaceX’s 25-page lawsuit.

The NLRB has called foul on SpaceX’s choice of venue, calling the company’s rationale for filing in Brownsville “less than paper thin.” The allegedly unlawful conduct of SpaceX took place entirely at the company’s headquarters in the Southern California enclave of Hawthorne, and nothing actually happened in Texas. The government has asked Olvera to transfer the case to federal court in Los Angeles, but he hasn’t yet ruled.

Put it all together, and the SpaceX lawsuit bears watching.

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As I’ve written before, conservative federal judges, many of them appointed by Trump, have the power to move the country to the far right for decades to come, eroding reproductive health care, eviscerating gun control laws and making life more difficult for ordinary Americans depending on the federal government to protect their rights. Elon Musk, pursuing his own personal interests, is urging them to keep at it.

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California’s gas prices push Uber and Lyft drivers off the road

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California’s gas prices push Uber and Lyft drivers off the road

The highest gas prices in the country are making it tougher for some gig drivers to make a living.

Gas prices have shot up amid the war in the Middle East. On average, California gas prices are the most expensive in the United States, according to data from the American Automobile Assn. The average price of regular gas in California is almost $6. The national average is a little above $4.

While Uber and Lyft drivers have concocted clever ways to cut gas consumption, they say that without some relief they will be forced to leave the ride-hailing business.

John Mejia was already struggling to make money as a part-time Lyft driver when soaring gas prices made his side hustle even harder.

“Unfortunately, it’s the economics of paying less to drivers and gas prices,” he said. “It actually is pulling people out of the business.”

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Guests at The Westin St. Francis hotel get into an Uber.

(Jess Lynn Goss / For The Times)

Gig work offers drivers the freedom to work for themselves and more flexibility, but being independent contractors also means they must shoulder unexpected costs.

Ride-sharing companies say they’re trying to help, but drivers say the gas relief comes with caveats. For now, drivers say they’re being pickier about what rides they accept, cutting hours and are looking at other ways to make money.

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Mejia, who started driving for Lyft more than a decade ago, said in his early days, he would sometimes make $400 in three hours. Now it takes 12 hours to rake in $200.

The San Francisco Bay Area consultant is an active member of the California Gig Workers Union, so he knows he isn’t alone. California has more than 800,000 gig rideshare drivers, according to the group, which is affiliated with the Service Employees International Union.

On social media sites such as Reddit and Facebook, gig workers have posted about how the higher gas prices are eating into their earnings. Among the tricks they are suggesting: reducing the number of times the ignition is turned on or off, avoiding traffic, working in specific neighborhoods and at times with high demand and switching to electric vehicles.

Gig drivers usually have only seconds to decide whether to accept a ride on the app, but they have become more strategic about which rides and deliveries they accept.

That means they are more likely to sit back in their cars and wait for higher fares for quick pick-up and drop-off.

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“I highly recommend the ‘decline and recline’ strategy, rejecting unprofitable rides until a better one appears,” wrote Sergio Avedian, a driver, in the popular blog the Rideshare Guy.

Pedestrians cross the street in front of a Lyft and Uber driver.

Pedestrians cross the street in front of a Lyft and Uber driver on Wednesday. High gas prices have made it hard for gig drivers to make a living, cutting into their profits.

(Jess Lynn Goss / For The Times)

Uber, Lyft and other companies have unveiled several ways to help drivers save on gas.

Uber said drivers can get up to 15% cash back through May 26 with the Uber Pro card, a business debit Mastercard for drivers and couriers. Based on a worker’s tier, they can get up to $1 off per gallon of gas through Upside — an app that offers cash rewards — and up to 21 cents off per gallon of gas with Shell Fuel Rewards. The company also offers incentives for drivers who want to switch to electric vehicles.

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“We know the price of gas is top of mind for many rideshare and delivery drivers across the country right now,” Uber said in a blog post about its gas savings efforts.

Lyft also said it’s expanding gas relief through May 26 because the company knows that the extra cost “hits hardest for drivers who depend on driving for their income.”

The company is offering more cash back, depending on the driver’s tier, for drivers who use a Lyft Direct business debit card to pay for gas at eligible gas stations. They can get an additional 14 cents per gallon off through Upside.

Drivers say the fine print on the offers dictates which card they use and where they fill up gas, making it difficult for them to save money.

“If I do the math, it’s ridiculous,” Mejia said. “They’re offering us nothing.”

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Uber declined to comment, but pointed to its blog post about the gas relief efforts. Lyft also referenced the blog post and said “the gas savings were structured through rewards to maximize stackable opportunities.”

Guests at The Westin St. Francis hotel get into an Uber.

Guests at The Westin St. Francis hotel get into an Uber.

(Jess Lynn Goss / For The Times)

Gig workers have struggled with rising gas prices in the past.

In 2022, Lyft and Uber temporarily added a surcharge to their fares amid record-high gas prices following Russia’s invasion of Ukraine. This year, Uber is adding a fuel charge to its fares in Australia for roughly two months to offset the high cost of gas for drivers. Lyft said it hasn’t added a fuel charge in the U.S. or elsewhere.

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Margarita Penalosa, who drives full time for Uber and Lyft in Los Angeles, started as a rideshare driver in 2017. Back then, gas was cheaper. She would easily hit her goal of making $300 in eight hours. Now she’s making just $250 after working as much as 14 hours.

Gas prices, she said, used to be less than $3 per gallon. Now some gas stations are charging more than $8 per gallon.

“Take out the gas. Take out the mileage from my car and maintenance. How much [do] I really make? Probably I get $11 for an hour,” she said.

Jonathan Tipton Meyers wants to spend fewer hours as a rideshare driver.

He already juggles multiple gigs even while driving for Uber and Lyft in Los Angeles. He’s a mobile notary and loan signing agent, a writer and performer.

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Driving is “a very challenging, full-time job,” he said. “It’s very taxing and, of course, wages were just continually decreasing.”

A man stands for a portrait in a white button up shirt

John Mejia, a longtime Lyft and Uber driver, poses for a portrait before attending a meeting about unionizing gig drivers.

(Jess Lynn Goss / For The Times)

Even if oil continues to flow through the Strait of Hormuz, which Iran reopened Friday, it could take a while for gas prices to come down to earth, said Mark Zandi, the chief economist at Moody’s Analytics.

“There’s an old adage that prices rise like a rocket and fall like a feather,” he said. “I think that’ll apply.”

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In the meantime, it will be survival of the fittest drivers. If enough of them decide to leave the apps, the ride-hailing companies could be forced to raise fares further to attract some back.

“Those who approach rideshare driving strategically, tracking expenses, choosing trips carefully, and optimizing efficiency are far more likely to weather periods of high gas prices,” wrote Avedian in the Rideshare Guy blog. “For everyone else, a spike at the pump can quickly turn rideshare driving from a side hustle into a money-losing venture.”

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‘We’ve lost our way’: Clifton’s operator gives up on downtown Los Angeles

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‘We’ve lost our way’: Clifton’s operator gives up on downtown Los Angeles

The proprietor of Los Angeles’ legendary Clifton’s has given up on reopening the shuttered venue.

It’s just too difficult to do business in downtown’s historic core, he says.

Andrew Meieran bought Clifton’s on Broadway in 2010 and poured more than $14 million into repairs, renovations and upgrades, adding additional bar and restaurant spaces in the four-story building. In 2018, he found that demand for cafeteria food was too low to be profitable, and he pivoted to a nightclub and lounge concept called Clifton’s Republic, featuring multiple dining and drinking venues. Meieran has tried elaborate themed environments, such as a tiki bar and forest playgrounds, and renting out the location for big events to spark more interest.

It was never easy, but during and since the pandemic, the neighborhood has grown increasingly unsafe as downtown has emptied of office workers and visitors.

Storefronts are gated up due to vandalism in the historic district in downtown Los Angeles on Tuesday.

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(Eric Thayer / Los Angeles Times)

The alley behind Clifton's Cafeteria in the downtown historic district Tuesday.

The alley behind Clifton’s Cafeteria in the downtown historic district Tuesday.

(Eric Thayer / Los Angeles Times)

Vandalism has been rampant, with graffiti appearing on the historic structure almost daily. Vandals would use acid or diamond glass cutters to deface the windows, often cracking the glass. It would cost Meieran more than $30,000 each time to replace the windows. Insurance companies either stopped offering policies that covered vandalism or raised premiums by as much as 600%, he said.

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There has been continuous crime in the area, he said, including multiple assaults on people in front of his building. He last shut the venue last year, hoping things would improve and he could come back with a business that could work. Now he has given up. Someone else may take over the space or even the name of the historic spot, but he is done trying.

“We’ve lost our way,” Meieran said. “I want to get up on the tops of the skyscrapers and yell that people need to pay attention to this.”

The disenchantment of a business leader who used to be one of downtown L.A.’s biggest backers shines a spotlight on the stubborn safety concerns, rising costs and thinner foot traffic that have made it increasingly difficult for even iconic businesses to survive.

The once-popular institution dates back to 1935, when it was a Depression-era cafeteria and kitschy oasis that sold as many as 15,000 meals a day when Broadway was the city’s entertainment hub.

It served traditional cafeteria food such as pot roast, mashed potatoes and Jell-O in a woodsy grotto among fake redwood trees and a stone-wrapped waterfall reminiscent of Brookdale Lodge in Northern California.

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It’s not the only once-prominent destination that has failed to find a way to flourish in today’s market. Cole’s, one of L.A.’s most famous restaurants and often credited with inventing the French dip sandwich, closed last month after a 118-year run.

“The bigger problem for us and the rest of the industry is the high cost of doing business,” said Cedd Moses, who used to operate Cole’s and has backed many other bars and restaurants in historic buildings downtown for decades. “That’s what is killing independent restaurants in this city.”

Outside of Clifton's Cafeteria.

Outside of Clifton’s Cafeteria.

(Eric Thayer / Los Angeles Times)

Clifton's Republic owner Andrew Meieran stands next to a boat on the top floor of the historic restaurant in 2024.

Clifton’s Republic owner Andrew Meieran stands next to a boat on the top floor of the historic restaurant in 2024.

(Wally Skalij / Los Angeles Times)

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Clifton’s opened and closed repeatedly during the pandemic and, more recently, after a burst pipe caused extensive damage. Meieran opened it for special events such as last Halloween, but it has otherwise been closed.

Police are woefully understaffed and hampered by public policy, said Blair Besten, president of downtown’s Historic Core Business Improvement District, a nonprofit that arranges graffiti removal, trash pickup and safety patrols in the area.

Businesses and residents in the area would like to see a bigger police presence, but there have been protests against that by people who are not from downtown, she said.

“People are starting to see the fruits of the defunding movement,” she said. “It has not led us to a better place as a city.”

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The Los Angeles Police Department is making progress downtown, Captain Kelly Muniz said, with violent crime down more than 10% from last year.

“While we’re working very hard to solve crime, to prevent crime, there are still elements such as trash, open-air drug use, homelessness and graffiti,” she said. “We’re swinging in the right direction.”

Retailers have been opting out of downtown L.A., said real estate broker Derrick Moore of CBRE, who helps arrange commercial property leases. Brands have headed to more vibrant nearby neighborhoods such as Echo Park and Silver Lake.

“A lot of operators are just electing to skip over downtown,” he said. “They’re leasing spaces elsewhere, where they feel they have a greater chance at higher sales.”

A man walks past a pile of trash left on the street in the historic district.

A man walks past a pile of trash left on the street in the historic district.

(Eric Thayer / Los Angeles Times)

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While some businesses are struggling, many downtown residents say their perceptions of safety are improving and that the area is regaining some vibrancy.

“A lot of people live here. I think people forget that,” Besten said. “We’re all surviving. It’s just hard for all the businesses to survive.”

A green shoot for the Historic Core is Art Night on the first Thursday of every month, when 50 or 60 locations, including permanent art galleries and pop-up galleries in unused storefronts, display art to map-toting visitors who come for the occasion.

They often end up in Spring Street bars, which more typically thrive on weekend nights but are still a draw to downtown.

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“I think nightlife will thrive downtown, since bars attract people that don’t mind a little grittier atmosphere,” said Moses. “Our sales are hitting new records at our bars downtown, fortunately, but our costs have risen dramatically.”

A closed sign for Clifton's Cafeteria.

A closed sign for Clifton’s Cafeteria.

(Eric Thayer / Los Angeles Times)

Clifton’s former backer, Meieran, says he doesn’t think things are going to bounce back enough to warrant more massive investment. He has sold the building, and the owner is looking for a new tenant to occupy Clifton’s space. He still controls the Clifton’s name.

While there is still a chance he could let someone else use the name Clifton’s, Meieran is done for now — too many bad memories.

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“There was a guy who was terrorizing the front of Clifton’s because he decided he wanted to live in the vestibule in front, and he didn’t want us to operate there,” Meieran said. “He would threaten to kill anybody who came through.”

He doesn’t believe official statistics that show crime and homelessness are way down in the area, and he doesn’t want to restart a business when criminals can so easily erase his hard work.

“What business that’s already on thin margins can survive that?” he said.

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If you shop at Trader Joe’s, it may owe you $100

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If you shop at Trader Joe’s, it may owe you 0

Trader Joe’s customers might soon get a payout from the popular grocery chain.

The Monrovia-based company agreed to a $7.4-million settlement in a class action lawsuit that claimed customers were left vulnerable to identity theft.

Customers who purchased items with a credit or debit card from March to July in 2019 might be eligible for a payment as part of the settlement.

The plaintiff alleged that some receipts printed in 2019 included 10-digit credit or debit card numbers —double what’s allowed under the Fair and Accurate Credit Transactions Act.

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Trader Joe’s “vigorously denies any and all liability or wrongdoing whatsoever,” the grocery chain said in the settlement website. The grocery chain decided to settle to avoid a long and costly litigation process.

The payout will go toward paying impacted customers as well as attorney fees and other expenses.

About $2.6 million will go toward attorney fees, and the plaintiff will receive a $10,000 incentive payment, according to the settlement. The remaining funds will be distributed evenly among customers who submit valid claims.

It’s unclear how much money each customer would get, but the payout could be about $102, according to the settlement notice.

To receive the payout, customers must have received a receipt displaying the first six and last four digits of the card number.

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Some customers identified as part of the settlement class have been notified and received a class ID number to file a claim.

Customers have from now until June 6 to file a claim online or by phone.

A customer not identified in the settlement can still submit a claim by entering the first six and last four digits of the card used, along with the date it was used at Trader Joe’s.

Brian Keim, the plaintiff who brought the case, used his debit card at stores in Florida in 2019. He said some stores printed transaction receipts that included the first six and last four digits of customers’ card numbers.

The receipts did not include other personal information, such as the middle digits of the users’ cards, the cards’ expiration dates, or the users’ addresses. No customer has reported identity theft as a result of the receipts since the lawsuit was filed, the grocer said.

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However, identity theft doesn’t require submitting a claim for payment.

The settlement was agreed upon by both the grocer and the plaintiff, but still has to be approved by a court. A hearing is set in August.

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