When is the opt out deadline
The opt out deadline is June 4, 2021 at 5:00 p.m. EST.
Do I have to do anything to be included in the class action?
You do not have to do anything to be included. However, if you want to bring an action on your own against SiriusXM for damages arising from the same subject matter as this action, then you must opt out within 60 days. Otherwise you will be bound by the terms and conditions of the settlement. To opt out please refer to the documents section of this website and fill out the opt out PDF form and send it to us at firstname.lastname@example.org within 60 days of receiving Notice of the proposed settlement.
Why do I not get any direct compensation?
The law which governs class actions in Ontario provides for cy pres distributions when the settlement is too low for any practical monetary distribution. Sirius XM has over 3 million subscribers in Canada. The best that we felt we could achieve after consultation with experts and analyzing the facts in this case was to help facilitate the system that will increase transparency and consumer protection in regard to privacy.
If I want to pursue an individual action on my own do I have to opt out?
Yes, if you want to pursue an action on your own, either in small claims court or otherwise, you are required to opt out; otherwise you will be presumed to be in and bound by the settlement.
Will I receive any monetary compensation?
No, the settlement only provides for a cy pres distribution to the benefit of the class members; in particular, the $50,000 to be paid by SiriusXM to the Automobile Protection Association (“APA”) will help the APA to conduct research and make recommendations for best practices in the industry in regard to privacy, and to work with industry professionals to design a teaching module for future dealership owners, which will be available through the APA. Sirius XM will provide funds toward this work, and the lawyers on this file have also agreed to work on this project on a pro bono (no charge) basis for up to 40 hours per year for the next three years.
Why did you achieve such a low settlement?
We determined that there are obstacles getting the class action certified by the court. A similar and arguably stronger class action to this one one had failed in the US and on appeal. SiriusXM in Canada also provided disclosure which did not support our case in regard to the collection and use of personal information that would normally be required to advance the action.
Why was it weaker than the case in the US that failed?
The case in the US alleged that Sirius XM in California had collected the Plaintiffs and putative class members’ driver’s license information and VIN’s along with contact information including name, phone number, and address. In Canada, the disclosure we received in regard to the Representative Plaintiff only had personal information that was already in the public domain, in particular name, address, phone number and type of vehicle. It also included the satellite radio model number.
What was the problem with carrying on and trying to get the action certified as a class action?
In all, we consulted with a number of experts to try to see if we could argue that gathering enough personal information would amount to a privacy breach. That would ultimately be a novel argument. Courts have generally held in Ontario that the Plaintiff is required to show that there was a breach of private information that is not simply personal information in the public domain and that there is also harm, as in damages. That meant it was risky to proceed with the action.
Then why did you bring it in the first place?
We spoke to dozens of customers of Sirius XM who had simply bought cars which came equipped with the hardware for satellite radio and then found that upon leaving the lot, a free trial had been activated. The customers then reported that Sirius XM began calling them and mailing information to them. They said they had not consented to the free trial or to the contact by Sirius XM and did not even know how serious XM got their contact information.
Would this not be enough to get the action certified?
What steps were taken?
We issued an initial Notice of Action and and then a Statement of Claim, and we then amended the Statement of Claim to include the specific dealership and manufacturer of the Plaintiff, along with narrowing the number of Defendants and causes of action. Sirius XM then brought a motion known as a “sequencing motion” to schedule a motion for summary judgment, which would end the action in their favor if they succeeded. After our response to the sequencing motion, Sirius XM and the Plaintiff entered into settlement discussions.
Was the action worthwhile?
We believe that it was worthwhile in that one of the objectives of class proceedings is behavior modification, and Sirius XM has taken a step toward making consumer retail transactions in the auto industry more transparent. In the course of prosecuting the action, a privacy class action against Uber in Alberta failed, and a privacy class action against Facebook in Ontario failed; and we decided to settle in a manner which would prompt the auto industry to protect the privacy of customers in the future.
Were you happy with the settlement?
Simply put. No. The disclosure we received ultimately did not support the view that SiriusXM was behaving any differently from multiple other companies that access dealership management records (“DMS”) at car dealerships and Customer Relationship Management systems (“CRM”) at car manufacturers. This is frankly an endemic problem at the dealership and manufacturer level but the experts we consulted felt that Sirius XM was on the lower end of the types of privacy breaches (if any) that were prevalent for other auto companies. Our experts compared Sirius XM to many other companies that operate in a similar way, using CRM and DMS data.
Why are the lawyers making a fee request and who pays?
Sirius XM will pay whatever (if any) legal fees that the lawyers may receive if approved by the Case Management Judge. The fees are unopposed by the Defendants up to $100,000. The expenses (disbursements) are unopposed up to $75,000. The lawyers are requesting $5,000 in honoraria for the proposed Representative Plaintiffs but the Court will decide if and what they receive. The cy pres distribution of $50,000 is to be paid by Sirius XM and is proposed to go to the Automobile Protection Association, which has a long history of protecting consumers in the auto industry, and again that is subject to Court approval.
If I want to bring an action against Sirius XM on my own, can I?
Yes, you can. You need to fill out the opt out form within 60 days of receiving Notice of the proposed settlement from Sirius XM, which is being sent by Sirius XM to you by email and which is also on this website in the documents section. If you do not opt out, then you will be bound by the terms and conditions of the proposed settlement agreement if it is approved by the Court. You received Notice of this action as the Court approval hearing is on June 18th, 2021 at 10:00 a.m. EST. You are entitled to attend the hearing via Zoom. Please check back on a later date in order to obtain the link which will be posted on this website when it is available from the Court.