Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 1 of 49 PageID# 49481

IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIAALEXANDRIA DIVISIONIN RE: CAPITAL ONE CONSUMERDATA SECURITY BREACH LITIGATION)))MDL No. 1:19md2915 (AJT/JFA)This Document Relates to the Consumer Cases
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTIONFOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTSFACTUAL BACKGROUND ......................................................................................................... 2A.

The Terms Of The Proposed Settlement ............................................................................. 2
1.

The Settlement Class....................................................................................................... 2

2.

The Settlement Fund ....................................................................................................... 33.

Proposed Injunctive Relief—Business Practice Changes ............................................... 44.

Notice And Claims Program ........................................................................................... 4

5.

Attorneys’ Fees And Expenses And Service Awards ..................................................... 66.

Releases........................................................................................................................... 6

ARGUMENT .................................................................................................................................. 6
I.

ARTICLE III STANDING. .................................................................................................... 6

II.

THE COURT SHOULD FINALLY APPROVE THE SETTLEMENT. ............................... 8A.

The Class Was Adequately Represented. ........................................................................... 9

B.

The Proposed Settlement Was Negotiated At Arm’s Length. ............................................ 9C.

The Relief Is Fair, Reasonable, And Adequate................................................................. 101.

The Costs, Risk, And Delay Of Trial And Appeal ....................................................... 112.

The Method Of Distributing Relief Is Effective. .......................................................... 11

3.

The Terms Relating To Attorneys’ Fees Are Reasonable. ........................................... 13

4.

Any Agreement Required To Be Identified Under Rule 23(e)(3). ............................... 13

D.

The Proposed Settlement Treats Class Members Equitably. ............................................ 13

E.

The Limited Opposition To The Settlement Supports Approval. ..................................... 14

III.

THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS. .......... 14A.

The Rule 23(a) Requirements Are Satisfied. .................................................................... 14

B.

The Requirements Of Rule 23(b)(3) Are Satisfied. .......................................................... 16

IV.

NOTICE TO THE SETTLEMENT CLASS COMPLIED WITH DUEPROCESS AND RULE 23. .............................................................................................. 17

V.

THE COURT SHOULD APPROVE THE REQUESTED ATTORNEYS’ FEES,
EXPENSES, AND SERVICE AWARDS. ....................................................................... 18
A.

Attorneys’ Fees And Expenses. ........................................................................................ 18

B.

Service Awards. ................................................................................................................ 19

VI.

RESPONSES TO OBJECTIONS. .................................................................................... 20

A.

Objection To Adequacy Of Settlement Class Representatives And Class Counsel. ........ 21iCase 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 3 of 49 PageID# 49483

B.

Objections To Attorneys’ Fees And Service Awards. ...................................................... 24C.

Other Miscellaneous Objections. ...................................................................................... 36

CONCLUSION ............................................................................................................................. 39ii

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TABLE OF AUTHORITIES
Cases
1031 Exch. Services, Inc. I.R.S. 1031 Tax Deferred Exch. Litig., 3:09-CV-00054,
2012 WL 5430841 (D.S.C. Nov. 7, 2012) ................................................................................ 30
Abubaker v. Dominion Dental USA, Inc.,
No. 1:19-cv-01050, 2021 WL 6750844 (E.D. Va. Nov. 19, 2021) .............................. 14, 15, 17
Am. Civ. Liberties Union v. Mote,
423 F.3d 438 (4th Cir. 2005) ...................................................................................................... 7
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ...................................................................................................... 16, 22, 23
Apple Computer, Inc. v. Superior Court,
126 Cal. App. 4th 1253, 24 Cal. Rptr. 3d 818 (2005) ............................................................... 26
Berry v. Schulman,
807 F.3d 600 (4th Cir. 2015) ........................................................................................ 19, 34, 35
Boeing Co. v. Van Gemert,
444 U.S. 472 (1980) .................................................................................................................. 25
Broussard v. Meineke Disc. Muffler Shops, Inc.,
155 F.3d 331 (4th Cir. 1998) .................................................................................................... 15
Brown v. Transurban USA, Inc.,
318 F.R.D. 560 (E.D. Va. 2016) ..................................................................................... 9, 16, 19
Casey v. Merck & Co.,
283 Va. 411 (2012) ................................................................................................................... 26
Central Railroad & Banking Co. v. Pettus,
113 U.S. 116 (1885) .................................................................................................................. 34
City of Burlington v. Dague,
505 U.S. 557 (1992) .................................................................................................................. 27
Cook v. Niedert,
142 F.3d 1004 (7th Cir. 1998) .................................................................................................. 19
Deiter v. Microsoft Corp.,
436 F.3d 461 (4th Cir. 2006) .................................................................................................... 15
Denton v. Browntown Valley Assocs., Inc.,
294 Va. 76, 803 S.E.2d 490 (2017)........................................................................................... 27
Ealy v. Pinkerton Gov’t Servs.,
514 Fed. App’x 299 (4th Cir. 2013) ......................................................................................... 16
Frank v. Gaos,
139 S. Ct. 1041 (2019) ................................................................................................................ 6iii

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Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149 (4th Cir. 2000) ...................................................................................................... 7
Gray v. Hearst Commc’ns, Inc.,444 Fed. App’x 698 (4th Cir. 2011) ......................................................................................... 16
Hatzey v. Divurgent, LLC, 2:18CV191,
2018 WL 5624300 (E.D. Va. Oct. 9, 2018) .............................................................................. 31
Hutton v. Nat’l Bd. of Examiners in Optometry, Inc.,
No. 1:16-cv-03025, 2019 WL 3183651 (D. Md. July 15, 2019) .............................................. 14
Hutton v. Nat’l Bd. Of Exam’rs in Optometry, Inc.,
892 F.3d 613 (4th Cir. 2018) ...................................................................................................... 6
In re: Allura Fiber Cement Siding Litig., 2:19-mn-02886-DCN,
2021 WL 2043531 (D.S.C. May 21, 2021)............................................................................... 31
In re Anthem, Inc. Data Breach Litig.,
327 F.R.D. 299 (N.D. Cal. 2018) ....................................................................................... passim
In re Celebrex (Celecoxib) Antitrust Litig., 2:14-CV-00361,
2018 WL 2382091 (E.D. Va. Apr. 18, 2018) ........................................................................... 31
In re Cendant Corp. PRIDES Litig.,
243 F.3d 722 (3d Cir. 2001)................................................................................................ 31, 32
In re Compact Disc Minimum Advertised Price Antitrust Litig.,
No. MDL 1361, 2003 WL 22417252 n.3 (D. Me. Oct. 7, 2003) .............................................. 29
In re Deepwater Horizon,
739 F.3d 790 (5th Cir. 2014) ...................................................................................................... 7
In re Dry Max Pampers Litig.,
724 F.3d 713 (6th Cir. 2013) .................................................................................................... 35
In re Equifax Inc. Customer Data Security Breach Litig.,
No. 1:17-md-2800-TWT, 2020 WL 256132 (N.D. Ga. March 17, 2020) ......................... passim
In re Initial Pub. Offering Sec. Litig.,
721 F. Supp. 2d 210 (S.D.N.Y. 2010)....................................................................................... 29
In re Jiffy Lube Sec. Litig.,
927 F.2d 155 (4th Cir. 1991) ................................................................................................ 9, 14
In re Marriott Int’l, Inc., Customer Data Sec. Breach Litig.,
341 F.R.D. 128 (D. Md. 2022) .................................................................................................. 14
In re MetLife Demutualization Litig.,
689 F. Supp. 2d 297 (E.D.N.Y. 2010) ...................................................................................... 29
In re NASDAQ Mkt.-Makers Antitrust Litig.,
187 F.R.D. 465 (S.D.N.Y. 1998) ........................................................................................ 31, 32
In re NeuStar, Inc. Sec. Litig.,
No. 1:14–CV–885(JCC/TRJ), 2015 WL 5674798 (E.D. Va. Sept. 23, 2015) .......................... 10iv

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In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294 (3d Cir. 2005), as amended................................................................................. 30
In re Star Sci., Inc. Sec. Litig., 3:13-CV-00183-JAG,
2015 WL 13821326 (E.D. Va. June 26, 2015) ......................................................................... 31
In re Target Corp. Customer Data Sec. Breach Litig.,
892 F.3d 968 (8th Cir. 2018) ........................................................................................ 21, 23, 24
In re Target Corp. Customer Data Sec. Breach Litig.,2017 WL 2178306 (D. Minn. May 17, 2017) ........................................................................... 24
In re The Mills Corp. Sec. Litig.,
265 F.R.D. 246 (E.D. Va. 2009) ........................................................................................ passim
In re TikTok, Inc., Consumer Privacy Litig., No. 20 C,
4699, 2022 WL 2982782 (N.D. Ill. July 28, 2022) ................................................................... 21
In re Titanium Dioxide Antitrust Litig., 10-CV-00318(RDB),2013 WL 6577029 (D. Md. Dec. 13, 2013) .............................................................................. 31
In re Volkswagen “Clean Diesel” Litig.,
94 Va. Cir. 189 (2016) .............................................................................................................. 26
In re Wal-Mart Wage & Hour Emp. Pracs. Litig.,
MDL No. 1735, No. 06-CV-00225, 2010 WL 786513 (D. Nev. Mar. 8, 2010)....................... 29
In re Yahoo! Inc. Customer Data Sec. Breach Litig.,
No. 16-MD-02752-LHK, 2020 WL 4212811 (N.D. Cal. July 22, 2020) ................................. 38
In re: Lumber Liquidators Chinese-Manufactured Flooring Prod. Mktg., Sales Practices &Prod. Liab. Litig.,
952 F.3d 471 (4th Cir. 2020) ...................................................................................................... 9In re: The Home Depot, Inc., Customer Data Sec. Breach Litig.,
No. 1:14-md-02583, 2016 WL 6902351 (N.D. Ga. 2016) ....................................................... 22
Jeffreys v. Commc’ns Workers of Am., AFL–CIO,
212 F.R.D. 320 (E.D. Va. 2003) ............................................................................................... 14
Johnson v. NPAS Solutions, LLC,
2022 WL 3083717 (11th Cir. Aug. 3, 2022)............................................................................. 35
L-3 Commc’ns Corp. v. Serco, Inc.,673 Fed. App’x 284 (4th Cir. 2016) ........................................................................................... 7
Linney v. Cellular Alaska P’ship,
151 F.3d 1234 (9th Cir. 1998) .................................................................................................. 36
Johnson v. NPAS Sols. LLC,
975 F.3d 1244 (11th Cir. 2020) ................................................................................................ 34
Manuel v. Wells Fargo Bank, Nat’l Ass’n,
No. 3:14CV238 (DJN), 2016 WL 1070819 (E.D. Va. 2016) ................................................... 19
Marshall v. Nat’l Football League,
787 F.3d 502 (8th Cir. 2015) ...................................................................................................... 7v

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Moore v. Nat’l Wildlife Fed’n,No. 10884, 1987 WL 488717 (Va. Cir. Ct. Sept. 11, 1987) ..................................................... 26
Muhammad v. Nat’l City Mortg., Inc.,
No. 2:07-0423, 2008 WL 5377783 (S.D.W Va. Dec. 19, 2008) .............................................. 31
Mullins v. Richlands Nat. Bank,
241 Va. 447, 403 S.E.2d 334 (1991)......................................................................................... 27
Nelson v. Mead Johnson & Johnson Co.,
484 Fed. App’x 429 (11th Cir. 2012) ....................................................................................... 10
Oritz v. Fibreboard Corp.,
527 U.S. 815 (1999) .................................................................................................................. 22
Petrovic v. Amoco Oil Co.,
200 F.3d 1140 (8th Cir. 1999) .................................................................................................. 24
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) .................................................................................................................. 18
Prof’l Firefighters Ass’n of Omaha, Local 385 v. Zalewski,
678 F.3d 640 (8th Cir. 2012) .................................................................................................... 23
Rodriguez v. Disner,
688 F.3d 645 (9th Cir. 2012) .................................................................................................... 25
Sanchez v. Lasership, Inc., 1:12-cv-246 (GBL-TRJ),
2014 WL 12780145 (E.D. Va. Aug. 8, 2014) ........................................................................... 31
Seaman v. Duke Univ., 1:15-CV-462,
2019 WL 4674758 (M.D.N.C. Sept. 25, 2019)......................................................................... 31
Skeen v. Indian Acres Club etc. Inc.,
27 Va. Cir. 167 (1992) .............................................................................................................. 26
Skochin v. Genworth Fin., Inc.,
2020 WL 6532833 (E.D. Va. 2020) .............................................................................. 36, 37, 38
Smith v. Krispy Kreme Doughnut Corp., No.,
1:05cv00187, 2007 WL 119157 (M.D.N.C. Jan. 10, 2007) ..................................................... 31
Soutter v. Equifax Info. Servs., LLC,
307 F.R.D 183 (E.D. Va. 2015) ................................................................................................ 16
Spann v. J.C. Penney Corp.,
211 F. Supp. 3d 1244 (C.D. Cal. 2016) .................................................................................... 21
Sprague v. Ticonic Nat’l Bank,
307 U.S. 161 (1939) .................................................................................................................. 25
Stillmock v. Weis Markets, Inc.,
385 Fed. App’x 267 (4th Cir. 2010) ......................................................................................... 16
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ................................................................................................................ 7viCase 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 8 of 49 PageID# 49488

Trustees v. Greenough,105 U.S. 527 (1882) ............................................................................................................ 34, 35
W. Square, L.L.C. v. Commc’n Techs., Inc.,
274 Va. 425, 649 S.E.2d 698 (2007)......................................................................................... 27
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .................................................................................................................. 15
Rules
Fed. R. Civ. P. 23 ................................................................................................................... passim
Other Authorities
An Empirical Study of Class Action Settlements and Their Fee Awards,
7 J. Empirical Legal Stud. 811 (2010) ...................................................................................... 29
Federal Practice and Procedure § 1779 (3d ed. 2005) ................................................................ 17vii

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Following more than two years of intense and challenging litigation, and correspondingly
hard-fought settlement negotiations, the Parties1 agreed to resolve consumer claims arising fromthe Data Breach announced by Capital One in July 2019. On February 7, 2022, the Court granted
Plaintiffs’ Motion for Preliminary Approval and to Direct Notice. Doc. 2220. In its order, the Court
found that the Settlement terms negotiated by the Parties are fair, reasonable, and adequate under
Rule 23(e), and that the Class Representatives and Class Counsel have adequately represented theClass. Id. Accordingly, the Court held that it would likely be able to certify the proposed Settlement
Class under Rule 23(b)(3) and directed the Parties to issue notice to putative class members. Id.
Pursuant to the Court’s direction, the Claims Administrator appointed by the Court implemented
a robust notice program, and the claims process is ongoing.
After completion of the ordered class notice, the Settlement has received an
overwhelmingly positive response from the Settlement Class. Hundreds of thousands of classmembers have filed claims, and Class Counsel expects that every Class Member submitting avalid, Out-Of-Pocket Loss claim will be completely (or nearly completely) reimbursed for losses
the Class Members believe are fairly traceable to the Data Breach. Conversely, only 4 Class
Members submitted substantive objections—or just .000004% of the class. This handful ofobjections should be considered and overruled.
The Settlement is a tremendous result for the Settlement Class, securing valuable benefits
tailored to the facts of the case developed during full discovery, through a $190 million Settlement
Fund that is one of the largest created in any MDL data breach litigation. The Settlement is fair,

1

The parties to the Settlement are the consumer Settlement Class Representatives, on behalf of the
proposed Settlement Class, and Defendants Capital One Financial Corporation, Capital One Bank
(USA) N.A., and Capital One, N.A. (collectively, “Capital One”). Capitalized terms used in thismemorandum have the same meaning as in the Settlement Agreement and the proposed Consumer
Settlement Benefits Plan.
1

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reasonable, and adequate and meets the requirements of Rule 23(e). Plaintiffs therefore move forfinal approval of the Settlement, and request that the Court grant their motion for attorneys’ fees,
expenses, and service awards. See Docs. 2230, 2231.
In support of the motion, Plaintiffs submit the following exhibits: the Declaration of
Cameron R. Azari, Esq. on Implementation and Adequacy of Notice Plan (“Azari Decl.”) (Ex. 1),
the Declaration of Stuart E. Madnick, a renowned expert in cybersecurity (“Madnick Decl.”) (Ex.
2), the Declaration of David F. Reign in Support of Plaintiffs’ Motion for Final Approval of Class
Action Settlement (“Reign Decl.”) (Ex. 3), Class Counsel Karen Hanson Riebel’s Supplemental
Declaration in Support of Motion for Attorneys’ Fees, Costs, Expenses and Service Awards(“Class Counsel Supp. Decl.”) (Ex. 4), and a proposed final approval order and judgment (Ex. 5).
Because Plaintiffs “front-loaded” their Motion to Direct Notice as guided by the Committee Notes
to Rule 23(e), this memorandum will refer back to the exhibits to that motion. See Docs. 2218,
2219.
FACTUAL BACKGROUND
The factual background of the case, the procedural history, and history of negotiations wereextensively set forth in the Motion for Preliminary Approval and to Direct Notice and are notrepeated here. Doc. 2219 at 2-9. A summary of the material terms of the Settlement is set forth
below.
A.

THE TERMS OF THE PROPOSED SETTLEMENT
1.

The Settlement Class

The proposed Settlement Class is defined as follows:
The approximately 98 million U.S. residents identified by Capital One whose
information was compromised in the Data Breach that Capital One announced on
July 29, 2019, as reflected in the Class List.

2

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Excluded from the Settlement Class are (i) Capital One, any entity in which Capital One has acontrolling interest, and Capital One’s officers, directors, legal representatives, Successors,
Subsidiaries, and assigns; (ii) any judge, justice, or judicial officer presiding over the Action andthe members of their immediate families and judicial staff; and (iii) any individual who timely andvalidly opted out of the Settlement Class. Doc. 2219-1, § 2.39.
2.

The Settlement Fund

Capital One will pay $190 million into a Settlement Fund for class benefits, notice andadministration costs, fees, expenses, and service awards to the Settlement Class Representatives.
Id. § 3. No proceeds will revert to Capital One. Id. The specific benefits available to Settlement
Class Members are detailed in the proposed Consumer Settlement Benefits Plan (Doc. 2219-2),
and include:•

Reimbursement for up to $25,000 in “Out-of-Pocket Losses”, which are verifiable
unreimbursed costs or expenditures that a Settlement Class Member actually
incurred and believes are fairly traceable to the Data Breach.

•

Compensation for “Lost Time”, which is time spent remedying fraud, identity theft,or other misuse of a Settlement Class Member’s personal information that the
Settlement Class Member believes is fairly traceable to the Data Breach and timespent taking preventative measures to avoid such losses. Lost Time will be paid atthe “Reimbursement Rate,” which shall be the greater of $25 per hour, or, if theSettlement Class Member took time off work, at the Settlement Class Member’s
documented hourly wage.

•

At least three years of Identity Defense Services provided by Pango.

•

Further, Pango will make available to all Settlement Class Members, even those
who do not enroll in Identity Defense Services or do not submit a claim, access tofraud resolution and identity restoration support (“Restoration Services”) for atleast three years.

Doc. 2219-2; 2219-8. If valid claims exceed the Net Settlement Fund, payments for Out-of-Pocket
Losses and Lost Time will be reduced on a pro rata basis. Doc. 2219-2. If the Net Settlement Fundis not exhausted by valid claims, remaining funds will be used first to purchase up to 2 years of3

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additional Identity Defense Services and Restoration Services, and second to increase paymentsfor valid claims on a pro rata basis. Id. No funds will revert to Capital One.
3.

Proposed Injunctive Relief—Business Practice Changes

Capital One has also agreed to entry of a consent order requiring at least two years ofBusiness Practice Changes and commitments to improve its cybersecurity through theimplementation of a Cyber Event Action Plan. Doc. 2219-1 at 46-49; Doc. 2219-4 ¶ 39. Professor
Madnick has reviewed information relating to Capital One’s implementation of the Business
Practice Changes and believes these improvements will reduce the likelihood of the repetition of
the events that led to the Data Breach and will proactively detect and prevent other types of
intrusion events and vulnerabilities. Madnick Decl. ¶ 21.
4.

Notice And Claims Program

The Court appointed Epiq Class Action & Claims Solutions, Inc. and its affiliate Hilsoft
Notifications (together “Epiq”) as Settlement Administrator to provide notice to class members
and to process claims. The success of the notice and administration process to date is detailed in
the Azari Decl., attached as Ex. 1.
The approved Notice Plan consisted of (1) an individual notice campaign to Settlement
Class Members involving emails when email addresses were reasonably available and direct mailpostcards when a physical address was available but a valid email address was not; and (2) a media
plan employing internet advertising, sponsored internet search listings linking searchers to theSettlement Website, and media monitoring for news stories about the Settlement. Azari Decl. ¶¶9-31.
Epiq implemented the Notice Plan as follows: Capital One sent Epiq data files containing
records and contact information for 97,988,220 Settlement Class Members (“Class List”). Id. ¶ 9.
Epiq applied industry-best-practices processes to reduce duplicates and look up missing email
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addresses. Id. Epiq sent 122,521,798 Email Notices to 90,084,485 of the Settlement Class
Members (because some records contained more than one valid email address). Id. ¶¶ 10, 13. In
addition, Epiq sent 5,158,236 direct mail Postcard Notices to Settlement Class Members with anassociated physical address for whom a valid email address was not available. Id. ¶¶ 10, 18. After
Capital One identified a technical error that caused incorrect contact information for a very small
percentage of records in the Class List (0.28%) and transmitted 274,357 corrected records, Epiq
performed the same de-dupe and look-up processes on these corrected records and sent out 174,817
Additional Email Notices and 97,174 Additional Postcard Notices. Id. ¶¶ 11, 12. Epiq followed up
on undelivered email and postcard notices with additional attempts. Id. ¶¶ 16, 21. Epiq has also
mailed 46,726 Claim Forms to all persons who have requested one by phone or by mail. Id. ¶ 22.
All told, as of August 24, 2022, the individual notice efforts reached approximately 96% of theidentified Settlement Class. Id. ¶¶ 8, 23.
The individual notice efforts were accompanied by the Media Plan, which used internet
advertising on Google Display Network and social media (Facebook, Instagram, and Twitter), andwhich has resulted in 123,493,930 “Delivered Impressions.” Id. ¶¶ 24-28. The Settlement was
widely covered by the news media such that Epiq has identified more than 165 news stories about
it. Id. ¶ 29, Att. 9. Epiq established a dedicated website in English and Spanish and sponsoredsearch listings on Google, Yahoo! and Bing to facilitate searchers locating it. Id. ¶¶ 30-32. The
Settlement Website includes detailed information about the Settlement, including important
documents and FAQs. Id. Epiq also established a toll-free telephone number, including an
automated system available 24-hours per day, 7 days per week, and an option to speak to a live
operator during normal business hours. Id. ¶ 33. As of August 24, 2022, there have been 1,648,597
unique visitor sessions displaying 7,263,148 website pages on the Settlement Website, and5

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197,094 calls to the toll-free number, including 32,330 handled by live service agents. Id. ¶¶ 32,
33. Epiq further established a post office box for correspondence by mail. Id. ¶ 34.
Settlement Class Members can file an online Claim on the website or mail a paper Claim
Form. Id. ¶ 38. The email notices included an embedded link to the Settlement Website, whererecipients can easily file an online Claim. Id. ¶ 15.
5.

Attorneys’ Fees And Expenses And Service Awards

Class Counsel have applied separately for a fee of 33.3% of the Settlement Fund, or$63,270,000, and reimbursement of litigation expenses of $2,345,821.98. See generally Docs.
2230, 2231, Class Counsel Supp. Decl., Ex. 4. Class Counsel have also requested service awards
of $5,000 each for the eight Settlement Class Representatives and the nine other MDL Plaintiffs
who were deposed by Capital One. Id. Capital One takes no position on these requests.
6.

Releases

The Settlement Class will release Capital One and Amazon from claims that were or could
have been asserted in this case. The releases are detailed in the Settlement Agreement. Doc. 22191 § 14.
ARGUMENTI.

ARTICLE III STANDING.
This Court must assure itself of the Plaintiffs’ “standing under Article III,” which “extends

to court approval of proposed class action settlements.” Frank v. Gaos, 139 S. Ct. 1041, 1046
(2019) (per curiam). As set forth in the Court’s order granting preliminary approval of theSettlement, to have standing to sue in federal court a plaintiff must have “‘(1) suffered an injuryin-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.’” Doc. 2220 at 4-5 (quoting Hutton v. Nat’l Bd.
Of Exam’rs in Optometry, Inc., 892 F.3d 613, 619 (4th Cir. 2018) (citation omitted)).
6

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The Court should reaffirm its prior conclusion that it has subject matter jurisdiction toapprove the Settlement. See Doc. 2220. The Court concluded it had subject matter jurisdiction toapprove the Settlement because, among other reasons, each Plaintiff and Settlement Class Member
is a party to an alleged contract under which Capital One agreed to provide safeguards for theirpersonal information, which Capital One allegedly breached, resulting in the theft of their personal
information. Doc. 2220 at 5-6 (citing L-3 Commc’ns Corp. v. Serco, Inc., 673 Fed. App’x 284, 289(4th Cir. 2016) (the existence of an express or implied contract, and the asserted breach thereof,
provides the plaintiff standing to sue)); Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 154 (4th Cir. 2000) (“[T]here is scant need for courts to pause over the
standing inquiry” for a breach of contract claim, because it is “readily” apparent that “a party to abreached contract bears the kind of claim that he may press in court.”).2 Indeed, the Settlement
Class is defined to include only individuals whose information was compromised in the Data
Breach and who were allegedly parties to Capital One’s contracts creating enforceable data
security commitments that were violated. See Doc. 971 ¶¶ 96, 212-227; Doc. 1261 at 2-3 & n.4,
25-27 & nn.18-20; Doc. 1649 at 3-5; Doc. 879 at 41-42, 46-47. Thus, all Settlement Class Members
have Article III standing.3 The Court should conclude it has subject matter jurisdiction to approve2

Although Capital One disputes the merits of Plaintiffs’ claims for breach of express and implied
contract, a challenge to the merits does not impact the Court’s subject matter jurisdiction. See, e.g.,
Am. Civ. Liberties Union v. Mote, 423 F.3d 438, 441 n.1 (4th Cir. 2005). Moreover, because
approval of a settlement agreement is “not a substantive adjudication of the underlying causes ofaction,” Marshall v. Nat’l Football League, 787 F.3d 502, 511 n.4 (8th Cir. 2015), the Court neednot definitively determine whether Plaintiffs and the Settlement Class Members have in factproven their claims. As the Fifth Circuit observed, “it would make no practical sense for a court torequire evidence of a party’s claims when the parties themselves seek settlement under Rule23(e).” See In re Deepwater Horizon, 739 F.3d 790, 807 (5th Cir. 2014). Requiring class members“to prove their claims prior to settlement under Rule 23(e) would eliminate class settlement
because there would be no need to settle a claim that was already proven.” Id.
3

Prior to reaching the Settlement now before the Court, the Parties argued extensively about the
impact of TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), on Plaintiffs’ Article III standing.
7

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the Settlement and enter final judgment thereon.
II.

THE COURT SHOULD FINALLY APPROVE THE SETTLEMENT.
The Court previously determined that the proposed Settlement meets the requirements ofRule 23(e) such that notice should issue. Doc. 2220 ¶ 2. The Court should now finally determinethat the Settlement is fair, reasonable, and adequate and should be approved in a class judgment.
In determining whether a settlement is fair, reasonable, and adequate, the Court must consider
whether:(A) the class representatives and class counsel have adequately represented the class;(B) the proposal was negotiated at arm’s length;(C) the relief provided for the class is adequate, taking into account:(i) the costs, risks, and delay of trial and appeal;(ii) the effectiveness of any proposed method of distributing relief to the class,including the method of processing class-member claims;(iii) the terms of any proposed award of attorney’s fees, including timing of
payment; and(iv) any agreement required to be identified under Rule 23(e)(3); and(D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2).
Further, the Court’s Rule 23(e) obligations are addressed with a “two-level analysis.” In re
The Mills Corp. Sec. Litig., 265 F.R.D. 246, 254 (E.D. Va. 2009). To determine whether asettlement is fair, the Court considers the four factors set forth by the Fourth Circuit in Jiffy Lube:“(1) the posture of the case at the time settlement was proposed; (2) the extent of discovery that
had been conducted; (3) the circumstances surrounding the negotiations; and (4) the experience ofRamirez did not address standing in the context of a class action settlement, let alone one that wasreached prior to any ruling on class certification or summary judgment. Even if Ramirez requires
Settlement Class Members to have standing, that requirement is satisfied here.
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counsel.” In re Jiffy Lube Sec. Litig., 927 F.2d 155, 159 (4th Cir. 1991). To determine whether asettlement is adequate, the courts also look to: “(1) the relative strength of the plaintiffs’ case on
the merits, (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely
to encounter if the case goes to trial, (3) the anticipated duration and expense of additional
litigation, (4) the solvency of the defendants and the likelihood of recovery on a litigated judgment,and (5) the degree of opposition to the settlement.” Id.
Evaluation under these factors confirms that the Settlement is fair, reasonable, andadequate.
A.

THE CLASS WAS ADEQUATELY REPRESENTED.

“[T]he adequacy requirement is met when: (1) the named plaintiff does not have interests
antagonistic to those of the class; and (2) plaintiff’s attorneys are qualified, experienced, andgenerally able to conduct the litigation.” Brown v. Transurban USA, Inc., 318 F.R.D. 560, 567(E.D. Va. 2016) (citation omitted). Here, the Settlement Class Representatives have the sameinterests as all other Settlement Class Members as they are asserting the same claims and share thesame injuries. Further, the Court has already recognized Class Counsel’s experience andqualifications in appointing them to lead this litigation and the record shows Class Counsel worked
diligently to litigate and ultimately bring this case to resolution. Doc. 2219-4 ¶¶ 3-31; see also In
re: Lumber Liquidators Chinese-Manufactured Flooring Prod. Mktg., Sales Practices & Prod.
Liab. Litig., 952 F.3d 471, 485 (4th Cir. 2020) (finding counsel’s experience in complex civil
litigation supported fairness of settlement).
B.

THE PROPOSED SETTLEMENT WAS NEGOTIATED AT ARM’S LENGTH.

The Court can conclude this Settlement was negotiated at arm’s length, without collusion,
based on the terms of the Settlement itself; the Parties’ vigorous pursuit of fact and expert
discovery and briefing and argument of numerous legal issues; the length and difficulty of the9Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 18 of 49 PageID# 49498

negotiations; and the involvement of two experienced mediators, including Judge Brinkema acrossseveral mediation sessions. See In re NeuStar, Inc. Sec. Litig., No. 1:14–CV–885(JCC/TRJ), 2015
WL 5674798, at *10 (E.D. Va. Sept. 23, 2015) (adversarial encounters support a finding of arms’length negotiations).
C.

THE RELIEF IS FAIR, REASONABLE, AND ADEQUATE.

The relief offered to Class Members in the proposed Settlement addresses the types ofrepercussions and injuries arising from the Data Breach, and is more than adequate under thefactors outlined in Rule 23(e)(2)(C). Settlement Class Members are entitled to benefits that are
tailored to the relief sought through the litigation: recovery of up to $25,000 in Out-of-Pocket
Losses; payment for Lost Time spent dealing with the Data Breach; at least three years of Identity
Defense Services to help detect and remediate potential identity theft and fraud; and at least three
years of Restoration Services including access to U.S.-based specialists in fraud resolution andidentity restoration available to all Settlement Class Members without making a claim. Capital
One’s agreed Business Practice Changes are likewise an important benefit flowing to Settlement
Class Members, whose sensitive personal information may still reside at Capital One.
Class Counsel, a group with extraordinary experience in leading major data breach classactions, strongly believe that the relief is fair, reasonable, and adequate. Doc. 2219-4 ¶¶ 3-10. The
Court may rely upon such experienced counsel’s judgment. See, e.g., Nelson v. Mead Johnson &Johnson Co., 484 Fed. App’x 429, 434 (11th Cir. 2012) (“Absent fraud, collusion, or the like, thedistrict court should be hesitant to substitute its own judgment for that of counsel.”) (quotation
omitted).
That the relief is fair, reasonable, and adequate is further confirmed by considering the four
specific factors enumerated in Rule 23(e)(2).

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1.

The Costs, Risk, And Delay Of Trial And Appeal

Plaintiffs faced significant risks and costs should they have continued to litigate the case.
First, there was a risk that Plaintiffs’ claims would not have survived, or survived in full, on aclass-wide basis after a ruling on the fully briefed and argued motion for class certification,
motions for summary judgment, Daubert motions on damages methodologies and other issues,and challenges to the existence of a tort duty under Virginia law, among other motions. Second, if
Plaintiffs had prevailed on their pending motion for class certification and successfully defeatedDefendants’ pending motions thus proceeding to trial, Plaintiffs still would have faced significant
risk, cost, and delay including likely interlocutory and post-judgment appeals.
In contrast to the risk, cost, and delay posed by the pending motions and possible appeals
and trial, the proposed Settlement provides certain, substantial, and immediate relief to the
proposed Settlement Class. It ensures that Settlement Class Members with valid claims for Outof-Pocket Losses or Lost Time will receive guaranteed compensation now and provides Settlement
Class Members with access to Identity Defense Services and Restoration Services, benefits that
may not have been available at trial. It also requires injunctive relief that will help protect Class
Member data from potential subsequent exposure.
The substantial costs, risk, and delay of a trial and appeal support a finding that the
proposed Settlement is adequate.
2.

The Method Of Distributing Relief Is Effective.

The proposed distribution process will be efficient and effective. The available relief wasdetailed clearly in the Notice, which lays out clearly the benefits to which Settlement Class
Members are entitled, including benefits provided regardless of whether a Settlement Class
Member files a claim. The three categories of relief will be distributed as follows:11Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 20 of 49 PageID# 49500

First, Settlement Class Members have made claims and may continue to make claims until
September 30, 2022, online via the Settlement Website or by mail for reimbursement for Out-ofPocket Losses that the Settlement Class Members believe are fairly traceable to the Data Breach.
Settlement Class Members need only submit a claim form on the website or by mail accompanied
by reasonable documentation showing the claimed expenses to establish Out-of-Pocket Losses, ora self-certification of their Lost Time. See Doc. 2219-2 ¶ 8. If a claim is rejected for any reason,
there is also a consumer-friendly appeals process whereby claimants will have the opportunity tocure any deficiencies in their submissions or request an automatic appeal if the Settlement
Administrator determines a claim is deficient in whole or part. Id. ¶ 9.
Second, Settlement Class Members will be entitled to at least three years of Identity
Defense Services provided by Pango. Settlement Class Members need only visit the Settlement
Website and sign-up via an online form in order to claim this benefit. And even if a Settlement
Class Member does not initially claim Identity Defense Services, they can later enroll directly with
Pango during the period of the service.
Third, for at least three years all Settlement Class Members will be entitled to utilize
Restoration Services offered through Pango, regardless of whether they submit a claim for losses
or enroll in Identity Defense Services. This coverage is a separate benefit and permits all
Settlement Class Members to have access to U.S.-based fraud resolution specialists who can assist
with important tasks such as placing fraud alerts with the credit bureaus, disputing inaccurate
information on credit reports, scheduling calls with creditors and other service providers, andworking with law enforcement and government agencies to dispute any fraudulent transactions or
credit applications.

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Because Settlement Class Members may make claims through a simple online form or by
mail—and have the benefit of additional services for which they need take no action, including the
Restoration Services detailed above as well as the business practices Capital One has agreed to—the method of distributing the relief is both efficient and effective, and the proposed Settlement isadequate under this factor.
3.

The Terms Relating To Attorneys’ Fees Are Reasonable.

Class Counsel has requested a fee from the $190 million common fund based on the widely
accepted “percentage of the fund” approach. Doc. 2231. After robust notice directed at theapproximately 98 million putative class members, only 3 objections relating to attorneys’ fees are
before the Court, as discussed in Section VI below. Importantly, the Settlement Agreement is notconditioned upon the Court’s approval of the fee award or the requested service awards. Doc.
2219-1, §§ 18.3, 19.3. This factor supports approval of the proposed Settlement.
4.

Any Agreement Required To Be Identified Under Rule 23(e)(3).

The Parties previously submitted to the Court, in camera, the specific terms of theprovision allowing Capital One to terminate the Settlement if more than a certain number of Class
Members excluded themselves from the Settlement Class. These provisions have not been
triggered, and thus do not affect the adequacy of the relief obtained here.
D.

THE PROPOSED SETTLEMENT TREATS CLASS MEMBERS EQUITABLY.

The Settlement Class Members are treated equitably because they all have similar claims
arising from the same data breach, and they all are treated the same under the Settlement. Fed. R.
Civ. P. 23(e)(2)(D). All Settlement Class Members are eligible to claim the various benefits
provided by the Settlement if they meet the requirements, including compensation for Out-ofPocket Losses, compensation for time spent responding to the breach, and free Identity Defense

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Services and Restoration Services. Moreover, all Settlement Class Members—even those who do
not submit claims—benefit from Capital One’s Business Practice Commitments.
E.

THE LIMITED OPPOSITION TO THE SETTLEMENT SUPPORTS APPROVAL.

In assessing adequacy, the Court should consider the degree of opposition to theSettlement. Jiffy Lube, 927 F.2d at 158-59. After a far-reaching extensive direct notice andpublication notice campaign, only four Settlement Class Members submitted substantive
obections, which are addressed in Section VI below. This limited opposition supports approval.
III.

THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS.
Settlement classes are routinely certified in consumer data breach cases.4 There is nothingunique about this case that would counsel otherwise. This Court already found when it
preliminarily approved the Settlement that it likely would certify the Settlement Class. As
demonstrated below, that decision should be made final.
A.

THE RULE 23(a) REQUIREMENTS ARE SATISFIED.

Numerosity: The proposed Settlement Class consists of approximately 98 million U.S.
residents, indisputably rendering individual joinder impracticable. See Jeffreys v. Commc’ns
Workers of Am., AFL–CIO, 212 F.R.D. 320, 322 (E.D. Va. 2003) (noting that “where the classnumbers twenty-five or more, joinder is generally presumed to be impracticable”).
Commonality: “Commonality requires the plaintiff to demonstrate that the class members

4See, e.g., Abubaker v. Dominion Dental USA, Inc., No. 1:19-cv-01050, 2021 WL 6750844 (E.D.
Va. Nov. 19, 2021) (Brinkema, J.); Hutton v. Nat’l Bd. of Examiners in Optometry, Inc., No. 1:16cv-03025, 2019 WL 3183651 (D. Md. July 15, 2019); In re Equifax Inc. Customer Data Security
Breach Litig., No. 1:17-md-2800-TWT, 2020 WL 256132 (N.D. Ga. March 17, 2020), aff’d in
relevant part 999 F.3d 1247 (11th Cir. 2021), cert. denied sub nom. Huang v. Spector, 142 S. Ct.
431 (2021), and cert. denied sub nom. Watkins v. Spector, 142 S. Ct. 765 (2022); In re Anthem,Inc. Data Breach Litig., 327 F.R.D. 299 (N.D. Cal. 2018); In re Marriott Int’l, Inc., Customer Data
Sec. Breach Litig., 341 F.R.D. 128, 172-74 (D. Md. 2022) (certifying certain statewide classes;
Rule 23(f) appeal granted).
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have suffered the same injury,” such that “all their claims can productively be litigated at once.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-350 (2011) (internal quotations and citations
omitted). This requires that the determination of the common question “will resolve an issue thatis central to the validity of each one of the claims in one stroke.” Id. at 350. “Even a single common
question will do.” Id. at 359 (internal quotations omitted). All Settlement Class Members suffered
the same injury from the same conduct—exposure of their personal data in the Data Breach—andare asserting the same legal claims. Accordingly, common questions of law and fact abound. See,e.g., Dominion, 2021 WL 6750844 at *3; Equifax, 2020 WL 256132, at *11-12; Anthem, 327
F.R.D. at 307-09.
Typicality: Typicality under Rule 23(a)(3) requires an inquiry into the “representative
parties’ ability to represent a class . . . .” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir.
2006). “The premise of the typicality requirement is simply stated: as goes the claim of the named
plaintiff, so go the claims of the class.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d
331, 340 (4th Cir. 1998) (internal quotations and citations omitted). In other words, the “plaintiff’s
claim cannot be so different from the claims of absent class members that their claims will not be
advanced by plaintiff’s proof of his own individual claim.” Deiter, 436 F.3d at 466-67. Thisrequirement is readily satisfied in data breach cases. The Settlement Class Representatives’ claims
are typical of other Settlement Class Members’ because they arise from the same Data Breach andinvolve the same overarching legal theories, including the theories that Capital One breached its
contracts with Settlement Class Representatives and Class Members and failed in its common-law
duty to protect their personal information. See, e.g., Dominion, 2021 WL 6750844, at *3; Equifax,
2020 WL 256132, at *12.
Adequacy of Representation: “The adequacy inquiry . . . serves to uncover conflicts of15

Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 24 of 49 PageID# 49504

interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 625 (1997). As noted above, the Settlement Class Representatives do nothave any interests antagonistic to other Settlement Class Members and have retained lawyers who
the Court has already recognized are abundantly qualified and experienced, thus satisfying theadequacy requirement. Doc. 2219-4 ¶¶ 3-9, 50.
B.

THE REQUIREMENTS OF RULE 23(b)(3) ARE SATISFIED.

Rule 23(b)(3) requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members,” and that class treatment is“superior to other available methods for fairly and efficiently adjudicating the controversy.” Onepart of the superiority analysis—manageability—is irrelevant for purposes of certifying asettlement class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997); Brown, 318 F.R.D.
at 569.
Predominance: The predominance requirement “tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623. “If the‘qualitatively overarching issue’ in the litigation is common, a class may be certified
notwithstanding the need to resolve individualized issues.” Soutter v. Equifax Info. Servs., LLC,
307 F.R.D 183, 214 (E.D. Va. 2015) (citing Ealy v. Pinkerton Gov’t Servs., 514 Fed. App’x 299,
305 (4th Cir. 2013)). Common liability issues often predominate where class members “all assert
injury from the same action.” Gray v. Hearst Commc’ns, Inc., 444 Fed. App’x 698, 701-02 (4thCir. 2011); see also Stillmock v. Weis Markets, Inc., 385 Fed. App’x 267, 273 (4th Cir. 2010)(finding common issues predominated where class members were exposed to “the identical risk ofidentity theft in the identical manner by the repeated identical conduct of the same defendant.”).
Here, as in other data breach cases, common questions predominate because all claims ariseout of a common course of conduct by Capital One and the only significant individual issues
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involve damages, which rarely present predominance problems. See, e.g., Dominion, 2021 WL
6750844, at *3; Equifax, 2020 WL 256132, at *13; Anthem, 327 F.R.D. at 311-15. The focus on a
defendant’s security measures in a data breach class action “is the precise type of predominantquestion that makes class-wide adjudication worthwhile.” Anthem, 327 F.R.D. at 312. Further, theCourt previously found that Virginia law applies across all common law claims, e.g., Plaintiffs’
claims for breach of contract (Doc. 879 at 9) and Plaintiffs’ tort and quasi-contract claims (Doc.
1293), such that any “variations in state law will not predominate over the common questions.”
Equifax, 2020 WL 256132, at *13.
Superiority: “[T]he purpose of the superiority requirement is to assure that the class actionis the most efficient and effective means of resolving the controversy . . . .” 7AA Charles Wright,
Arthur Miller & Mary Kay Kane, Federal Practice and Procedure § 1779 (3d ed. 2005). Litigating
the same claims of 98 million Americans through individual litigation would obviously be
inefficient. The superiority requirement thus is satisfied. See Equifax, 2020 WL 256132, at *14;
Anthem, 327 F.R.D. at 315-16.
IV.

NOTICE TO THE SETTLEMENT CLASS COMPLIED WITH DUE PROCESSAND RULE 23.
The Court previously approved the Notice Plan proposed in this case and found it satisfied

all requirements of due process and Rule 23. Doc. 2220 at 6-7. The Notice Plan has beensuccessfully implemented and reached approximately 96 percent of the Settlement Class by theindividual notice efforts alone. Azari Decl. ¶¶ 8-23, 40. Targeted internet advertising and extensive
news coverage enhanced public awareness of the Settlement. Azari Decl. ¶¶ 24-29, 40.
By having reached approximately 96 percent of the identified Settlement Class Members,
the Notice Plan as implemented easily meets the requirements of Rule 23 and due process. See,e.g., Federal Judicial Center, “Judges’ Class Action Notice and Claims Process Checklist and Plain
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Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 26 of 49 PageID# 49506

Language Guide” (2010) (recognizing the effectiveness of notice that reaches between 70 and 95
percent of the class). Thus, the Court should find that the Class received the best notice practicable
under the circumstances in compliance with Rule 23 and the Due Process Clause. See, e.g., Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).
V.

THE COURT SHOULD APPROVE THE REQUESTED ATTORNEYS’ FEES,
EXPENSES, AND SERVICE AWARDS.
A.

ATTORNEYS’ FEES AND EXPENSES.

As demonstrated by Plaintiffs’ Motion for an Award of Attorneys’ Fees, Costs andExpenses and for Class Representative Service Awards (Docs. 2230, 2231) (hereinafter, “Motion
for Fees”), the requested attorneys’ fees, costs, and expenses are reasonable and should beapproved. Class Counsel request a fee award of 33.3% of the $190,000,000 Settlement Fund they
secured for the Settlement Class, or $63,270,000, as well as reimbursement of reasonable litigation
costs and expenses of $2,345,821.98. As the Court is aware, and as the Motion for Fees andaccompanying declaration of Class Counsel demonstrate, the effort of Class Counsel to achieve
the result here was exceptional. See Doc. 2231 (memorandum in support of motion for fees).
As of May 31, 2022, Class Counsel had devoted 64,739.3 hours to prosecuting this case,resulting in a total lodestar of $37,640,583.50. Doc. 2231-1 ¶¶ 30, 34-41. Based on that lodestar
amount, the requested fee reflected a multiplier of 1.68. Id. ¶ 41.
As was necessary and expected, however, additional effort has been expended by ClassCounsel since the filing of the Motion for Fees. Specifically, as of August 24, 2022, Class Counsel
has devoted 65,409 hours to prosecuting this case, resulting in a total lodestar of $38,163,226,
reflecting an additional 669.7 hours and $522,642.50 lodestar since the filing of the Motion forFees. See Class Counsel Supp. Decl., Ex. 4, ¶¶ 3-4. Based on that lodestar amount, the requested
fee reflects a multiplier of 1.66. Additionally, and as reflected in Class Counsel’s Supplemental

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Declaration, Class Counsel incurred an additional $20,305.87 in reasonable litigation expenses,
bringing their total requested expenses through August 24, 2022 to $2,345,821.98. Id. ¶ 5.
B.

SERVICE AWARDS.

Plaintiffs have requested a $5,000 service award (“Service Awards”) for each of the eight
Settlement Class Representatives and the nine other MDL Plaintiffs who were deposed by Capital
One. Service awards “are intended to compensate class representatives for work done on behalf ofthe class, to make up for financial or reputational risk undertaken in bringing the action, and,sometimes, to recognize their willingness to act as a private attorney general.” Berry v. Schulman,
807 F.3d 600, 613 (4th Cir. 2015) (internal quotation omitted). In that case, the Fourth Circuit
stated that such awards are “fairly typical in class action cases” and upheld $5,000 service awards
as within the district court’s discretion “because the Class Representatives acted for the benefit of
the class.” Id. (citation omitted).
Courts in this district routinely grant service awards of the requested amount. See Brown,
318 F.R.D. at 578-79 (citing Cappetta v. GC Servs. LP, No. 3:08-cv-288(JRS) (E.D. Va. Apr. 27,
2011); Henderson v. Verifications Inc., No. 3:11-cv-514 (E.D. Va. Mar. 13, 2013); Pitt v. Kmart
Corp., No. 3:11-cv-697 (E.D. Va. May 24, 2013); Conley v. First Tennessee Bank, No. 1:10-cv1247 (E.D. Va. Aug. 18, 2011) (each of the foregoing cases awarded a $5,000 service award to
one or more named plaintiffs); Ryals, Jr. v. HireRight Solutions, Inc., No. 3:09-cv-625 (E.D. Va.
Dec. 22, 2011) (awarding a $10,000 service award to each class representative)). Among thefactors to be considered in determining the reasonableness of a service award are “the actions theplaintiff has taken to protect the interests of the class, the degree to which the class has benefited
from those actions, and the amount of time and effort the plaintiff expended in pursuing thelitigation.” Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 3:14CV238 (DJN), 2016 WL 1070819,
at *6 (E.D. Va. 2016) (quoting Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)).
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Here, the eight Settlement Class Representatives and the nine other MDL Plaintiffs who
were deposed by Capital One have fulfilled their duties to the class, making the requested Service
Awards appropriate. See Doc. 2231-1 ¶ 44. Specifically, the Plaintiffs made themselves available
to Class Counsel to assist with the investigation into their claims. Id. The Plaintiffs responded to
discovery requests propounded by Defendants, including numerous interrogatories and document
requests or to extensive Fact Sheets, and had full day depositions taken. Id. The eight Settlement
Class Representatives also considered and approved the terms of the proposed Settlement as in thebest interests of the Class after extensive review and discussion with Co-Lead Counsel. Id. The
Court should therefore award Plaintiffs the reasonable and typical Service Awards in the amountof $5,000 each.
VI.

RESPONSES TO OBJECTIONS.
From among the 98 million putative Settlement Class Members, only seven filed purported“objections” to the Settlement. Putative class members Rosemary Burnham McDaniel (Doc. 2237)
and Greg Zoccali (Doc. 2240) have opted-out, and are therefore not part of the Settlement Classand have no standing to object. The filing from Raymond John (Doc. 2239, filed under seal becauseof personal identifiers on documents), contains no discernable substantive objection to theSettlement.5 As set forth below, the Court should overrule the objections of the remaining four
objectors: Steven Helfand (Doc. 2238), Constance Pentz (Doc. 2241), Paul Higgitt (Doc. 2242),
and Daniel Komen (Doc. 2243).

5

Even were the Court to consider the content of those filings, the “objections” should be overruled.
McDaniel believes that opting out should not be required, but that is an objection to a Federal Rule,not the Settlement. And both McDaniel and Zoccali believe that class actions benefit lawyers too
much, but offer no substantive complaint regarding the Settlement before the Court.
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A.

OBJECTION TO ADEQUACY OF SETTLEMENT CLASS REPRESENTATIVES AND
CLASS COUNSEL.

The Court should reject Objector Helfand’s claim that a fundamental conflict of interest
exists among three groups: “class members who have accrued damages, those still accruing
damages, and those facing the prospect of future damage accrual.” This objection has already been
explicitly rejected by multiple courts in analogous cases, and it can be rejected here.
As a preliminary matter, the Court should consider that Helfand “has a history of improper
conduct in class action litigation.” Equifax, 2020 WL 256132, at *42;6 see also Spann v. J.C.
Penney Corp., 211 F. Supp. 3d 1244, 1260 n.11 (C.D. Cal. 2016) (recognizing that Helfand is a“known serial objector”). Plaintiffs ask the Court to take this background information into accountwhen considering the weight of Helfand’s arguments. See Equifax, 2020 WL 256132, at *41 (“Thefact that the objections are asserted by a serial or ‘professional’ objector, however, may be relevant
in determining the weight to accord the objection.”); In re TikTok, Inc., Consumer Privacy Litig.,
No. 20 C 4699, 2022 WL 2982782, at *11 (N.D. Ill. July 28, 2022) (similar); Manual for Complex
Litig. (Fourth) § 21.643 (“Some objections, however, are made for improper purposes . . . . A
challenge for the judge is to distinguish between meritorious objections and those advanced for
improper purposes.”).
On the merits, Helfand’s argument—that there is a fundamental conflict between
individuals who have already experienced or are experiencing money damages resulting from theData Breach and individuals who face future exposure to damages—is without merit and has been
repeatedly overruled in factually similar cases and should be rejected here. See, e.g., In re Target

In Equifax, Chief Judge Thomas Thrash, in characterizing Helfand as a serial objector, noted that
he was disbarred as a California lawyer after misleading a court about his objections to a settlement“and other acts of moral turpitude.” 2020 WL 256132, at *42.
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Corp. Customer Data Sec. Breach Litig., 892 F.3d 968, 974-76 (8th Cir. 2018); Equifax, 2020 WL
256132, at *20-22; In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 309-11 (N.D. Cal.
2018); In re: The Home Depot, Inc., Customer Data Sec. Breach Litig., No. 1:14-md-02583, 2016
WL 6902351, at *4 (N.D. Ga. 2016) (rejecting all objections, including objection that separate
counsel was necessary to represent allegedly conflicting subclasses) (Doc. 237 at 39-40(objection); Doc. 245 at 21-23 (reply in support of final approval)). In fact, Helfand’s “adequacy”
objection is almost entirely cut and pasted from his identical objection to the Morgan Stanley data
breach settlement, which was rejected by the Southern District of New York earlier this month.
See In re Morgan Stanley Data Sec. Litig., No. 1:20-cv-05914-PAE (S.D.N.Y.) (Doc. 98 (Helfand
objection), and Doc. 156 (August 5, 2022, Final Order and Judgment overruling Helfand
objection)).
As in Morgan Stanley, Helfand argues that those who incur future harm will be unfairly
time-barred by expiration of the Claims Period but fails to acknowledge that the Settlement
provides benefits for these individuals in the form of Pango’s Identity Defense Services andRestoration Services. Indeed, as explained in the Declaration of Gerald Thompson on Behalf of
Proposed Provider of Identity Defense Services and Restoration Services, Pango’s Identity
Defense Service has a $1 million insurance policy to protect enrolled Settlement Class Members
from future harm they may experience. Doc. 2219-8, ¶ 4. All Settlement Class Members were
subject to the same event—the Data Breach—and the settlement relief compensates and protects
them all equally. Furthermore, any Settlement Class Members who were unhappy with the relief
made available under the Settlement had the option to opt out and pursue their own claims against
Capital One related to the Data Breach.
Helfand’s reliance on Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) and Oritz

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v. Fibreboard Corp., 527 U.S. 815 (1999), is misplaced. Unlike in this case, Amchem and Ortiz
were massive personal-injury “class action[s] prompted by the elephantine mass of asbestos cases”
that “defie[d] customary judicial administration.” Prof’l Firefighters Ass’n of Omaha, Local 385
v. Zalewski, 678 F.3d 640, 646-48 (8th Cir. 2012). In those cases, adequacy was not sufficiently
protected within a single class because claimants who suffered diverse medical conditions as aresult of asbestos exposure wanted to maximize the immediate payout, whereas healthy claimants
had a strong countervailing interest in preserving funds in case they became ill in the future. These
vast differences between groups of claimants required “caution [because] individual stakes arehigh and disparities among class members great.” 521 U.S. at 625. Those concerns are simply notpresent in this consumer case where all Settlement Class Members allege the same injury from thecompromise of their personal information. See Equifax, 2020 WL 256132, at *21.
Moreover, there is no conflict between the two groups Helfand imagines, as there was inAmchem, because of the nature of the harm caused by the Breach. Those who have already sufferedlosses stand just as likely to continue to suffer future losses by the misuse of their information as
those who have not suffered any money losses to date. Thus, unlike in Amchem, everyone has anincentive to protect all Settlement Class Members against future harms. As the Eighth Circuit
explained when confronted with identical objections in another data breach settlement:“Accordingly, the interests of the two subclasses here are more congruent than disparate, and there
is no fundamental conflict requiring separate representation.” Target, 892 F.3d at 976; see also
Anthem, 327 F.R.D. at 309. The Settlement provides both compensation for current losses andprotection against future losses, including identity theft insurance—all of which benefit all
Settlement Class Members. Helfand’s objection—that this fact pattern is akin to Amchem and Ortiz

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Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 32 of 49 PageID# 49512

because some class members have presently incurred out-of-pocket costs while others have not—was thoroughly analyzed and rejected in Target:
The Amchem and Ortiz global classes failed the adequacy test because thesettlements in those cases disadvantaged one group of plaintiffs to the benefit ofanother. There is no evidence that the settlement here is similarly weighted in favorof one group to the detriment of another. Rather, the settlement accounts for all
injuries suffered. Plaintiffs who can demonstrate damages, whether throughunreimbursed charges on their payment cards, time spent resolving issues with their
payment cards, or the purchase of credit-monitoring or identity-theft protection, arereimbursed for their actual losses, up to $10,000. Plaintiffs who have nodemonstrable injury receive the benefit of Target’s institutional reforms that will
better protect consumers’ information in the future, and will also receive a pro-rata
share of any remaining settlement fund. It is a red herring to insist, as [Objector]
does, that the no-injury Plaintiffs’ interests are contrary to those of thedemonstrable-injury Plaintiffs. All Plaintiffs are fully compensated for theirinjuries.
In re Target Corp. Customer Data Sec. Breach Litig., 2017 WL 2178306, at *5 (D. Minn. May
17, 2017), aff’d, 892 F.3d at 973-76 (8th Cir. 2018); see generally id. at *2-9. Further, “the interestsof the various plaintiffs do not have to be identical to the interests of every class member; it isenough that they share common objectives and legal or factual positions.” Id. at *6 (quoting
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1148 (8th Cir. 1999). As in Target, the Class
Representatives are adequate here because they seek essentially the same things as all Class
Members: compensation for whatever monetary damages they suffered, protection against further
damage, and reassurance that their information will be safer in Capital One’s hands going forward.
As it has been in numerous other courts, this objection should be overruled.
B.

OBJECTIONS TO ATTORNEYS’ FEES AND SERVICE AWARDS.

Three of the submitted objections relate, at least in part, to the requested attorneys’ fees—
those of Objectors Helfand, Higgitt, and Pentz (Docs. 2238, 2241, 2242). The Court should
overrule each of them.

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1.

Objection That the Requested Fee Is Improper Under Virginia Law.

Helfand argues that Virginia law governs the calculation of fees in this case and that
Virginia law somehow requires a different methodology than that set out in the Motion for Fees.
Doc. 2238 at 8. He is wrong on both counts. The entitlement to, and the computation of, fees inthis case is governed by federal, not state, law. “Federal courts award attorneys’ fees under thecommon fund doctrine as a matter of federal common law, based on ‘the historic equity
jurisdiction of the federal courts.’” Rodriguez v. Disner, 688 F.3d 645, 653 (9th Cir. 2012)(emphasis added) (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164 (1939)).
In Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980), the Supreme Court recognizedthat “a lawyer who recovers a common fund for the benefit of persons other than himself or his
client is entitled to reasonable attorney’s fees from the fund as a whole.” “The common fundexception to the American Rule is grounded in equitable powers of the courts under the doctrinesof quantum meruit and unjust enrichment.” Manual for Complex Litig. (Fourth) § 14.121(emphasis added). As the Court explained in Boeing:
The common-fund doctrine reflects the traditional practice in courtsof equity, and it stands as a well-recognized exception to the generalprinciple that requires every litigant to bear his own attorney’s fees.
The doctrine rests on the perception that persons who obtain thebenefit of a lawsuit without contributing to its cost are unjustly
enriched at the successful litigant’s expense. Jurisdiction over thefund involved in the litigation allows a court to prevent this inequity
by assessing attorney’s fees against the entire fund, thus spreading
fees proportionately among those benefited by the suit.
444 U.S. at 478 (cleaned up). Thus, the determination of fees “lies within the Court’s discretion.”
In re The Mills, 265 F.R.D. at 260. That discretion is “guided by the historic equity jurisdiction of
the federal courts.” Rodriguez, 688 F.3d at 657 (cleaned up) (quoting Sprague, 307 U.S. at 164).
And “districts within this Circuit, and the vast majority of courts in other jurisdictions consistently

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apply a percentage of the fund method for calculating attorneys’ fees in common fund cases.” In
re The Mills, 265 F.R.D. at 260; MCL § 14.121 at 187 (“After a period of experimentation withthe lodestar method . . . the vast majority of courts of appeals now permit or direct district courts
to use the percentage-fee method in common-fund cases.”). Helfand’s major premise then—that
the analysis here is governed by Virginia law—is simply incorrect.
Even if Virginia state law, and not federal law, governed the Court’s fee inquiry, the result
would be the same. Class actions in Virginia are non-existent, and so is their attendant caselaw.
“Virginia jurisprudence does not recognize class actions . . . .” Casey v. Merck & Co., 283 Va.
411, 418 (2012) (quoted by In re Volkswagen “Clean Diesel” Litig., 94 Va. Cir. 189 (2016)). Thatis because “Virginia has no class action statute or rule similar to Rule 23 of the Federal Rules ofCivil Procedure.” Moore v. Nat’l Wildlife Fed’n, No. 10884, 1987 WL 488717, at *1 (Va. Cir. Ct.
Sept. 11, 1987); Skeen v. Indian Acres Club etc. Inc., 27 Va. Cir. 167 (1992) (“Given the nature ofthis action and the manner in which it was brought, as well as the unmistakably
clear law of Virginia with regard to class action suits, the relief sought by Skeen on behalf of allproperty owners in the subdivision is clearly unavailable.”). It is not surprising, then, that Virginia
courts have developed no discernible, much less definitive, caselaw on the proper methodology
for calculating attorney’s fees consequent upon the creation of a common fund for the benefit of aclass. Accordingly, even if Virginia law governed, the lack of state court jurisprudence on thequestion would, in any event, devolve the inquiry back to federal jurisprudence. Cf. Apple
Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253, 1264 n.4, 24 Cal. Rptr. 3d 818 (2005)(“California courts may look to federal authority for guidance on matters involving class action
procedures.”).
It is also not surprising that the cases upon which Helfand appears to rely are clearly26

Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 35 of 49 PageID# 49515

inapposite. See, e.g., Mullins v. Richlands Nat. Bank, 241 Va. 447, 447, 403 S.E.2d 334, 334 (1991)(individual action regarding contract interpretation); W. Square, L.L.C. v. Commc’n Techs., Inc.,
274 Va. 425, 430, 649 S.E.2d 698, 700 (2007) (same); Denton v. Browntown Valley Assocs., Inc.,
294 Va. 76, 88, 803 S.E.2d 490, 497 (2017) (same); City of Burlington v. Dague, 505 U.S. 557,
557 (1992) (individual action regarding federal fee-shifting statute). And these cases cannot becited for the propositions that Helfand appears to attribute to them—e.g., that “No multiplier canbe awarded” and “Percentage of award is not allowed under Virginia law.” Doc. 2238 at 10. Those
cases do not—and could not in the class action common fund context—so hold.
Helfand’s factual attacks are equally off base. For example, he speculates that the lodestaris “grossly inflated and unsupported,” that Class Counsel provided “[n]o explanation as to why
and what steps were taken to avoid duplication and when,” and “have not meaningfully explained
any steps taken to avoid duplication of efforts and waste avoidance.” Doc. 2238 at 10-11. This issimply false. Class Counsel’s declaration in support of the Motion for Fees detailed the numerous
steps taken to achieve efficiency in the litigation of this case, including: (1) capping the hourly rateof attorneys conducting first-level document review at the lawyer’s regular hourly rate or $377,
whichever was lower, regardless of the experience of the reviewer; (2) implementing a rigorous
timekeeping process from the outset of the case in which inadequate or incomplete time entries, ortime that was not performed at the direction of Co-Lead Counsel, or reports that did not meet thebilling protocol, were eliminated or returned for correction; and (3) engaging in a rigorous timeentry and expense review process prior to submission of the Motion for Fees to assure that all
submitted time was non-duplicative and performed at the direction of Plaintiffs’ Co-Lead Counsel,
with time and expenses that were excessive or not consistent with the billing protocol being
disallowed and not included in the submission, ultimately resulting in approximately 5,000 hours

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being eliminated from consideration. Doc. 2231-1 ¶¶ 35-40.
Helfand’s unsupported statement that “motion practice is exceedingly thin relative to a caseof this magnitude” (Doc. 2238 at 10), likewise demonstrates his reckless disregard of the record.
Dozens of discovery motions were filed in this case, in addition to the motion for class certification,
Daubert motions, and numerous dispositive motions.
Helfand’s speculation that the work here was somehow derivative of “Morgan & Morgan’scase against Morgan Stanley” and thus the “[w]ork performed was redundant and duplicative” (id.
at 10-11), is also facially incorrect. As an initial matter, the “Morgan Stanley” case was filed on
July 29, 2020. See Tillman et al. v. Morgan Stanley Smith Barney, LLC, No. 1:20-cv-05914, Doc.
1 (S.D.N.Y.). The cases against Capital One began being filed a year earlier, in July 2019. See,e.g., Baird v. Capital One Fin. Corp., et al., No. 1:19-cv-00979, Doc. 1 (E.D. Va.). Helfand does
not explain how Class Counsel’s work in this case could be “redundant and duplicative” of a casethat was not filed until a year later. Moreover, plaintiffs in the Morgan Stanley data breach case
did not file a motion for class certification nor litigate dispositive motions, as was the case here—
again undermining any possibility of duplication. Finally, and most pertinently, the cases arecompletely factually dissimilar. The Capital One Data Breach concerned infiltration of Capital
One’s AWS cloud environment, whereas in Morgan Stanley, “Plaintiffs allege[d] . . . Morgan
Stanley failed to properly dispose of retired IT Assets . . . . This unencrypted equipment was thenre-sold, without being properly wiped of data, to unauthorized third parties.” In re Morgan Stanley
Data Security Incident, No. 1:20-cv-05914-AT, Doc. 81-1 at 6 (S.D.N.Y.). The factual
dissimilarity again undermines any potential redundancy or duplication of efforts.
Finally, Helfand speculates—again without any support—that the document review
undertaken here was “surely cumulative,” “[n]ot each one had to be reviewed,” and included28

Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 37 of 49 PageID# 49517“review of millions of documents that were useless facilitating class claims.” Doc. 2238 at 10-11.
Yet, Helfand fails to explain how Plaintiffs would be able to determine what documents were
important and necessary to their claims absent actually reviewing them. And, as noted above, ClassCounsel put numerous procedures in place to ensure efficiency in the prosecution of this case,including capping document review rates and closely reviewing and auditing time entries.
Accordingly, Helfand’s objection fails on both the facts and the law and should beoverruled.
2.

Objection That the Requested Percentage Fee Is Too High.

Objector Pentz7 argues Class Counsel should receive no more than the average percentage
fee in “megafund” recoveries of $190 million, which according to Pentz is between 16.9% and17.9%. Doc. 2241 at 1-2. Pentz bases this objection on nonbinding authority and, principally, ona law review article: Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements andTheir Fee Awards, 7 J. Empirical Legal Stud. 811 (2010). She also makes several mistaken factual
assertions.
As an initial matter, Pentz does not cite a single Fourth Circuit case adopting the analysis
7

Pentz is the mother of John J. Pentz. See Reign Decl., Ex. 3, ¶¶ 7-8. Like Helfand, Mr. Pentz has
been criticized by courts as a serial objector. See, e.g., In re Initial Pub. Offering Sec. Litig., 721
F. Supp. 2d 210, 214-15 (S.D.N.Y. 2010) (calling Pentz a “serial” objector, finding “evidence ofbad faith or vexatious conduct” by Pentz and other attorneys for objectors, and requiring Pentz topost an appeal bond), appeal denied, No. 21 MC 92, 2010 WL 2605233 (S.D.N.Y. June 28, 2010),
and enforced, No. 21 MC 92, 2010 WL 5186791 (S.D.N.Y. July 20, 2010); In re Wal-Mart Wage
& Hour Emp. Pracs. Litig., MDL No. 1735, No. 06-CV-00225, 2010 WL 786513, at *1-2 (D. Nev.
Mar. 8, 2010) (noting, in requiring that Pentz post an appeal bond, that Pentz has “a documented
history of filing notices of appeal from orders approving other class action settlements, andthereafter dismissing said appeals when [he and his clients] were compensated by the settling classor counsel for the settling class”); In re MetLife Demutualization Litig., 689 F. Supp. 2d 297, 35051 (E.D.N.Y. 2010) (characterizing Pentz’s objections as “meritless”); In re Compact Disc
Minimum Advertised Price Antitrust Litig., No. MDL 1361, 2003 WL 22417252, at *2 n.3 (D. Me.
Oct. 7, 2003) (requiring an appeal bond, calling Pentz a “repeat objector,” and characterizing his
objection as “groundless” and potentially frivolous).
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she seeks; that is, reduction of the applicable percentage of the common fund in so called“megafund” cases, those involving a common fund of more $100 million. This lack of binding
authority is not coincidental—Plaintiffs’ research likewise has revealed no case in which the
Fourth Circuit has discussed, much less has adopted, this methodology. Much to the contrary,
district courts within the Fourth Circuit have criticized this analysis—sometimes also referred toas the “declining percentage approach”—remarking, for example, that one study underlying thistheory “shows that the average lodestar multiplier in those cases was 4.5, substantially higher than
the applicable multiplier in this case,” and that “basing an objection completely on a comparisonof the size of the fund and percentage of the award in other cases discounts the specifics of eachcase—namely the amount of work done and the difficulty in that specific case of reaching afavorable result.” In re The Mills, 265 F.R.D. at 261-62. Other circuits likewise rightly eschew rote
application of such an approach. See, e.g., In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 302-03(3d Cir. 2005), as amended (Feb. 25, 2005) (“[T]here is no rule that a district court must apply adeclining percentage reduction in every settlement involving a sizable fund. Put simply, thedeclining percentage concept does not trump the fact-intensive Prudential/Gunter analysis. We
have generally cautioned against overly formulaic approaches in assessing and determining theamounts and reasonableness of attorneys’ fees.”).
Contrary to Pentz’s suggestion that 17.9% of the common fund should be the maximum
available here, “the Honorable Liam O’Grady surveyed common fund fee awards in the Fourth
Circuit and elsewhere and found percentage awards that ranged from 18% to 30%, inclusive ofmega -fund recoveries that reached into the nine figure range.” In re LandAmerica 1031 Exch.
Services, Inc. I.R.S. 1031 Tax Deferred Exch. Litig., 3:09-CV-00054, 2012 WL 5430841, at *4(D.S.C. Nov. 7, 2012) (citing In re The Mills, 265 F.R.D. at 264). And, as thoroughly demonstrated

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in the Motion for Fees, the requested 33.3% is supported by numerous decisions from within the
Fourth Circuit.8
As explained by the Court in In re The Mills, the true concern illuminating the megafund
cases is that of a windfall to counsel as shown by inordinate lodestar multipliers. However, as
noted above, that is not the case here. Rather, the requested fee award of 33.3% of the Settlement
Fund would result in a current multiplier of only 1.66, with much work remaining to finalize andadminister the Settlement. Notably, as identified by the Third Circuit in In re Cendant Corp.
PRIDES Litig., 243 F.3d 722 (3d Cir. 2001), lodestar multipliers of 1.35 to 2.99 are common incases with funds in excess of $100 million, with the majority of those being 2.0 or above. Id. at
737-738, 742; see also, e.g., In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 489(S.D.N.Y. 1998) (noting, in a megafund case, that “multipliers of between 3 and 4.5 have become

8See, e.g., In re Celebrex (Celecoxib) Antitrust Litig., 2:14-CV-00361, 2018 WL 2382091, at *5(E.D. Va. Apr. 18, 2018) (noting that “[f]ee awards of one-third of the settlement amount arecommonly awarded in cases analogous to this one,” and awarding fees of “one-third of
the . . . settlement”); Hatzey v. Divurgent, LLC, 2:18-CV-191, 2018 WL 5624300, at *5 (E.D. Va.
Oct. 9, 2018), report and recommendation adopted sub nom. Hatzey v. Divurgent, LLC,
2:18CV191, 2018 WL 5621967 (E.D. Va. Oct. 30, 2018) (approving fee request of one-third ofsettlement fund); In re Star Sci., Inc. Sec. Litig., 3:13-CV-00183-JAG, 2015 WL 13821326, *1(E.D. Va. June 26, 2015) (Gibney, J.) (awarding fees of 33.33% of settlement fund); Sanchez v.
Lasership, Inc., 1:12-cv-246 (GBL-TRJ), 2014 WL 12780145, at *1–2 (E.D. Va. Aug. 8, 2014)(Lee, J.) (awarding attorneys’ fees of “one-third of the common settlement fund”); see also In re:
Allura Fiber Cement Siding Litig., 2:19-mn-02886-DCN, 2021 WL 2043531, at *4 (D.S.C. May
21, 2021) (“Courts in the Fourth Circuit have held that attorneys’ fees in the amount of 1/3 of thesettlement fund are reasonable.”); Seaman v. Duke Univ., 1:15-CV-462, 2019 WL 4674758, at *3(M.D.N.C. Sept. 25, 2019) (“Contingent fees of one-third are common in this circuit in cases ofsimilar complexity.”); In re Titanium Dioxide Antitrust Litig., No. 10-CV-00318(RDB), 2013 WL
6577029, at *1 (D. Md. Dec. 13, 2013) (“Class Counsel is hereby awarded thirty-three and onethird percent (33 1/3 %) in reasonable attorneys’ fees from the $163.5 million in Settlement
Funds.”); Muhammad v. Nat’l City Mortg., Inc., No. 2:07-0423, 2008 WL 5377783, at *6 (S.D.W
Va. Dec. 19, 2008) (“[T]he requested award of one-third of the common fund, plus costs, isreasonable under the circumstances of this case.”); Smith v. Krispy Kreme Doughnut Corp., No.
1:05cv00187, 2007 WL 119157, at *2 (M.D.N.C. Jan. 10, 2007) (“In this jurisdiction, contingent
fees of one-third . . . are common.”).
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common”).
Ultimately, then, the touchtone of the analysis must be the specifics of the case before the
Court. As noted above and in the Motion for Fees, this case was likely the most heavily litigateddata breach case in history. Class Counsel expended tremendous effort in zealously representing
the Class, and the fee requested here amounts to a modest multiplier of 1.66, far less than the“common” multipliers detailed in the megafund cases analyzed in In re Cendant Corp. and In re
NASDAQ Mkt.-Makers, among others.
Pentz also makes several factual assertions that demonstrate her unfamiliarity with therecord in this case. For example, she states, “[g]iven the fact that mediation in this case began in2020 . . . a large portion of the hours generated by Class Counsel consists of confirmatory
document review . . . .” Doc. 2241 at 2. While multiple mediation sessions were held throughout
the pendency of this case, this matter was, up until the time of resolution, actively litigated. Noneof the discovery here was “confirmatory document review.” Rather, all of the document discovery,
discovery-related motion practice, dozens of depositions, and the like, occurred during active
litigation of this matter. Indeed, as the Court is well aware, a great amount of the litigation in thiscase occurred in 2021, including Plaintiffs’ Motion for Class Certification (filed in April 2021),
and Defendants’ summary judgment and Daubert motions (filed in June and July 2021). Thus, theproposition that a mediation held in early 2020 demonstrates that a “large portion of the hours
generated by Class Counsel consists of confirmatory document review” is transparently incorrect.
Lastly, Pentz states that “it is likely that at least $10 million of that figure was generated
by staff attorneys, contract attorneys, and project attorneys performing rote document review, or
firm associates performing the same work that could have been performed far more inexpensively
by such attorneys.” Doc. 2241 at 2. This is purely uninformed speculation and contrary to the32Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 41 of 49 PageID# 49521

established record. As explained above, the fact of the matter is that Class Counsel: (1) capped thehourly rate of attorneys conducting first-level document review at the lesser of the lawyer’s regularhourly rate or $377; (2) implemented a rigorous timekeeping process from the outset of the case;(3) engaged in a rigorous time entry and expense audit process prior to submission of the Motion
for Fees; and (4) all submitted hourly rates are reasonable, based on each person’s position andexperience level; are based on rate scales each Co-Lead Counsel has submitted and Courts haveapproved in other contingency cases; are comparable to or lower than the rates charged by otherlaw firms with similar experience, expertise, and reputation, for similar services in the nation’s
leading legal markets; and were extensively reviewed and attested to by a local leading expert on
attorney hourly rates. Docs. 2231-1 ¶¶ 35-40, 2231-2. Accordingly, Pentz’s speculation to thecontrary should be disregarded.
3.

Objection That the Fee Should be Reduced Because the Settlement Is“Absurdly Low”.

Finally, Objector Higgitt argues: “Given the fact the Settlement is so absurdly low
Attorney’s fees at the rate of 35% of the total settlement amount is too high an [sic] is utterly
predatory. I would suggest a figure of no more than 10%.” Doc. 2242 at 2. As an initial matter,
Plaintiffs seek 33.3% of the common fund in fees, not 35%. Moreover, as demonstrated in the
Motion for Fees and above, Plaintiffs’ request of 33.3% is in line with many class cases fromwithin the Fourth Circuit. Higgitt’s suggestion of 10% of the common fund is well below the floor
identified in In re The Mills, 265 F.R.D. at 264, and would result in a significant negative multiplier
to Class Counsel’s lodestar thus disincentivizing future contingent work such as this case despite
the favorable outcome reached for the Settlement Class. Higgitt’s fee-related objection isunsupported by a single citation to any relevant authority. It should be overruled.

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4.

Objection That Service Awards Are Impermissible.

Objector Pentz claims that “the Fourth Circuit has [n]ever approved the practice of granting
incentive or service awards.” Doc. 2241 at 3. In fact, the Fourth Circuit has specifically ruled that
service awards “are intended to compensate class representatives for work done on behalf of theclass, to make up for financial or reputational risk undertaken in bringing the action, and,sometimes, to recognize their willingness to act as a private attorney general.” Berry, 807 F.3d at
613 (internal quotation omitted). In that case, the Fourth Circuit stated that such awards are “fairly
typical in class action cases” and upheld $5,000 service awards as within the district court’s
discretion “because the Class Representatives acted for the benefit of the class.” Id. (citation
omitted).
Pentz ignores this controlling Fourth Circuit precedent in a gambit to extend the effect ofJohnson v. NPAS Sols. LLC, 975 F.3d 1244 (11th Cir. 2020). That recent Eleventh Circuit decision
upset decades of federal jurisprudence that authorized limited service awards as part of Rule23(e)’s analysis of adequacy of representation. Instead, Johnson held that two Supreme Court cases
from the 1880s—Trustees v. Greenough, 105 U.S. 527 (1882) and Central Railroad & Banking
Co. v. Pettus, 113 U.S. 116 (1885)—prohibit incentive awards to class representative plaintiffs
under Rule 23. Johnson, 975 F.3d at 1255. In a dissent from a denial of rehearing en banc, Judge
Jill Pryor explains why these 140-year-old cases, (also cited on page 3 of Pentz’s Objection), haveno bearing on incentive awards under Rule 23, which was not passed at all until 1938, and not in
its current form until 1966:
By holding that incentive awards are unlawful per se, themajority opinion broke with decisions from this and every othercircuit allowing these awards when properly approved under thestrictures of Rule 23. Indeed, the majority opinion adopted a position
that had never been embraced by any court. . . and since the majority
opinion in this case issued, every court outside this circuit to haveconsidered it has declined to follow it. And no wonder. In
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Greenough and Pettus, decided long before modern class actions
were born, the Supreme Court applied equitable trust principles . . .
in [a] now-super-seded legal landscape . . .
. . The fairness-based standard for evaluating disparate
settlement distributions between representative plaintiffs and classmembers . . . which panels of this court have continually applied inreviewing class action settlements, does not conflict with Supreme
Court precedent and should continue to govern our analysis ofincentive awards authorized by class action settlement agreements.
Johnson v. NPAS Solutions, LLC, 2022 WL 3083717, at *1-2 (11th Cir. Aug. 3, 2022) (dissent
from denial of rehearing en banc) (cleaned up).
In Berry, the Fourth Circuit also specifically addressed the other case Pentz cites, In re Dry
Max Pampers Litig., 724 F.3d 713, 718 (6th Cir. 2013). The Fourth Circuit declined to follow In
re Dry Max, and ruled that where “the incentive awards were not agreed upon ex ante, were notconditioned on the Class Representatives’ support for the Agreement, . . . were not negotiated until
after the substantive terms of the Agreement had been established, . . . and where the district court
found that the class members were afforded substantial relief,” the district court was within its
discretion to approve the Class Representatives’ awards. Berry, 807 F. 3d at 613-14. Each of these
conditions was also fulfilled in this case. Doc. 2219-4 ¶¶ 42, 43.
By ignoring the Fourth Circuit binding precedent that upholds incentive awards under Rule23, Objector Pentz hopes to lure this Court into extending the Eleventh Circuit’s outlier opinion.
To do so would itself violate the fairness analysis required by Rule 23. As Judge Pryor’s dissent
cogently explains, “a class representative’s responsibilities are often time-consuming andburdensome. . . [and] may also expose her to reputational risk and even financial, emotional, andphysical harm . . .[leading a major treatise on class actions to observe that, in the absence of
reasonable service awards] they have a fair argument that the settlement is not treating themequitably relative to absent class members.” Johnson, 2022 WL 3083717, at *10.

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Here, the eight Settlement Class Representatives and the nine other MDL Plaintiffs who
were deposed by Capital One have fulfilled their duties to the Settlement Class, making therequested Service Awards appropriate. Doc. 2231 at 29-30. The Court should overrule Pentz’s
Objection and grant the requested Service Awards as fair under Rule 23(e).
C.

OTHER MISCELLANEOUS OBJECTIONS.

Higgitt objects to the value of the Settlement and the benefits conferred on the Class. For
example, he claims that the $190 Million Settlement Fund is “absurdly low,” is not “a sufficientpunishment of the Companies for their negligent disregard for the safety of the customer data
entrusted to their care,” and that three years Restoration Services and Identity Defense Services isa “wholly inadequate” period of time. Doc. 2242 at 1-2.
However, “[i]n determining whether to approve a class action settlement, the issue is notwhether everyone affected by the settlement is completely satisfied. Instead, the test is whether thesettlement, as a whole, is a fair, adequate, and reasonable resolution of the class claims asserted.”
Skochin v. Genworth Fin., Inc., 2020 WL 6532833, at *18 (E.D. Va. 2020). When a settlement
results from hard-fought litigation and negotiation, objections regarding the amount of thesettlement do not provide a justification for its rejection unless the amount secured is unfair,unreasonable, or inadequate. Id. Objections that the settlement fund is too small for the class size,or that a defendant should be required to pay more to punish and deter future bad behavior, while
understandable, do not take into account the risks and realities of litigation, and are not a basis forrejecting the settlement. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998)(“[T]he very essence of a settlement is compromise, a yielding of absolutes and an abandoning of
highest hopes.”) (cleaned up). As argued above, and as this Court provisionally determined in its
Preliminary Approval Order, the relief provided by the Settlement is “fair, reasonable, andadequate, in accordance with Rule 23(e) of the Federal Rules of Civil Procedure.” Doc. 2220 at 2.
36

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Higgitt also objects to the processes by which customers can interact with the Settlement
Administrator to gain information about the Settlement. Doc. 2242 at 2. These objections containfactual errors. His first process-related objection is that: “No provision has been made for eachmember of the Class to discover what exact private information was stolen during this breach.” Id.
In fact, those Settlement Class Members whose Social Security numbers or linked bank accountnumbers were accessed during the Data Breach were specifically notified of that fact. Doc. 22196 at 23. With respect to the remainder of the data accessed in the Data Breach, which included“some combination of people’s names, addresses, zip codes/postal codes, phone numbers, email
addresses, dates of birth, self-reported income, credit scores, credit limits, balances, payment
history, contact data, and/or fragments of transaction data from a total of 23 days during 2016,2017 and 2018,” (Doc. 2242 at 2), it would be entirely impractical—if not impossible—to devise
a system that would convey to Settlement Class Members the specific combination of accesseddata for each of 98 million Settlement Class Members. Furthermore, Higgitt does not explain whythat level of detail would be helpful to him or to other Settlement Class Members who did not havethe most sensitive data (Social Security numbers and bank account numbers) accessed during theData Breach. Where “the essence of the objection is that, to be fair and reasonable, the Settlement
Agreement must be tailored to each individual[‘s] circumstance,” the Skochin court overruled the“proposal [as] simply unworkable.” 2020 WL 6532833, at *22. The same principle applies here.
Higgitt then objects that “it is not possible [to reach a human being] via the Settlement
telephone numbers 855-604-1811.” Doc. 2242 at 2. This is simply incorrect, as demonstrated by
the Settlement Administrator’s declaration:
The toll-free telephone number was prominently displayed in all
Notice documents. During normal business hours, callers also havethe option to speak to a live operator. The automated phone system
is available 24 hours per day, 7 days per week. As of August 24,37

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2022, there have been 197,094 calls to the toll-free telephone
number representing 901,481 minutes of use, and service agents
have handled 32,330 incoming calls representing 286,862 minutesof use and 2,843 outbound calls representing 13,857 minutes of use.
Azari Decl. ¶ 33. This Court should overrule the factually incorrect objection that human agentswere not available at the toll-free number.
Finally, objector Komen takes issue with the benefits conferred on the Class, although only
on behalf of the subset of Settlement Class Members who are also “members of the Equifax data
breach settlement class” Doc. 2243 at 1. He argues that the “three years of Identity Defense
Services and Restoration Services proposed as compensation for the Capital One breach” has a“likely overlap” with the “four years of Experian’s credit monitoring services” offered in Equifax.
Id. He states that the services provided here “do not provide sufficient additional value to us, whohave had our sensitive information leaked twice.” Id.
While apparently made in good faith, Komen’s objection does not present a valid objection
to the value of the Settlement. He ignores the monetary relief the Settlement provides, which
includes compensation for Out-of-Pocket Losses and Lost Time up to $25,000. Doc. 2219-2 ¶¶ 3,
4, 6. And he ignores Capital One’s Business Practice commitments relating to cybersecurity.
Finally, there is no impediment to receiving services under both settlements, which are provided
by different companies and could prove useful to individuals who had their “sensitive information
leaked twice.” As with Higgitt, Komen seeks “the Settlement Agreement [to be] tailored to eachindividual policyholder’s circumstance,” here including other settlement benefits they may receivein other, unrelated cases. This is “simply unworkable” in the class action context, and the objection
should be overruled. Skochin, 2020 WL 6532833, at *22.9

9

See also In re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-MD-02752-LHK, 2020 WL
4212811, at *18 (N.D. Cal. July 22, 2020), appeal dismissed, 20-17438, 2021 WL 2451242 (9th38Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 47 of 49 PageID# 49527

CONCLUSION
For the reasons set forth above, Plaintiffs request that the Court enter an order overruling
all objections, finally approving the Settlement as fair, reasonable, and adequate under Rule23(e)(2), certifying the Settlement Class for purposes of judgment on the Settlement, and granting
the request for attorneys’ fees, expenses, and service awards.

Cir. Feb. 16, 2021), and aff’d, No. 20-16633, 2022 WL 2304236 (9th Cir. June 27, 2022) (“[T]hecredit monitoring in the instant case is not entirely duplicative of the credit monitoring in Equifax.
First, the Equifax settlement contemplates credit monitoring provided by different credit
monitoring services, and in a different package, than the one provided by AllClear ID in the instantcase. Credit monitoring by multiple, independent entities still provides value to Settlement Class
Members. Second, importantly, it is unclear whether the Equifax credit monitoring will everoverlap with the Credit Services provided by the instant Settlement in the first place because theEquifax settlement is currently pending appeal before the Eleventh Circuit. It is therefore entirely
possible that the two years’ worth of Credit Services offered in the instant case will expire before
the Equifax credit monitoring becomes active. Third . . . it would be inequitable to retrospectively
render this Settlement invalid based on the contents of a subsequent settlement reached in adifferent court in a different case.”).
39Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 48 of 49 PageID# 49528

Dated: August 29, 2022
Respectfully Submitted,/s/ Steven T. Webster
Steven T. Webster (VSB No. 31975)
WEBSTER BOOK LLP
300 N. Washington Street, Suite 404
Alexandria, Virginia 22314
Tel: (888) 987-9991
stw@websterbook.com
Plaintiffs’ Local Counsel
Norman E. Siegel
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Tel: (816) 714-7100
siegel@stuevesiegel.com
Karen Hanson Riebel
LOCKRIDGE GRINDAL NAUEN, P.L.L.P
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Tel: (612) 339-6900
khriebel@locklaw.com
John A. Yanchunis
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Tel: (813) 223-5505
jyanchunis@ForThePeople.com
Plaintiffs’ Lead Counsel

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Case 1:19-md-02915-AJT-JFA Document 2251 Filed 08/29/22 Page 49 of 49 PageID# 49529

CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2022, I electronically filed the foregoing document with
the Clerk of the Court using the CM/ECF system, which will send notice of electronic filing to allcounsel of record.
/s/ Steven T. Webster
Steven T. Webster (VSB No. 31975)
WEBSTER BOOK LLP

41