Case 1:19-md-02915-AJT-JFA Document 2231 Filed 06/16/22 Page 1 of 40 PageID# 49271

IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIAALEXANDRIA DIVISIONIN RE: CAPITAL ONE CONSUMERDATA SECURITY BREACH LITIGATION)))MDL No. 1:19md2915 (AJT/JFA)JURY TRIAL DEMANDEDThis Document Relates to the Consumer Cases
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION
FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES
AND FOR CLASS REPRESENTATIVE SERVICE AWARDS

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TABLE OF CONTENTSI.

INTRODUCTION .............................................................................................................. 1II.

FACTUAL BACKGROUND ............................................................................................. 1
Overview of the Litigation ...................................................................................... 1
1.

Pleadings and Related Motion Practice ...................................................... 2

2.

Discovery Practice ...................................................................................... 4

3.

Class Certification, Daubert, and Dispositive Motions .............................. 6

Mediation and Settlement ....................................................................................... 8
The Terms of the Proposed Settlement ................................................................... 9

III.

1.

The Settlement Class................................................................................... 92.

The Settlement Fund ................................................................................. 10

3.

Proposed Injunctive Relief—Business Practice Changes ......................... 10

THE REQUESTED ATTORNEYS’ FEES ARE REASONABLE.................................. 11
The Settlement Creates a Common Fund from Which Percentage-of-theFund Is the Appropriate Method for Awarding Attorneys’ Fees. ......................... 11Class Counsel’s Fee Request Is Fair and Reasonable Under Fourth Circuit
Authority. .............................................................................................................. 14
1.

Class Counsel Obtained an Excellent Result for the Class. ...................... 15

2.

To Date No Class Member Has Objected to Class Counsel’s Fee
Request. ..................................................................................................... 16

3.

Class Counsel Are Skilled and Efficient Lawyers. ................................... 17

4.

The Duration and Complexity of This Litigation Supports theRequested Fee. .......................................................................................... 18

5.

Class Counsel Faced the Risk of Nonpayment. ........................................ 19

6.

Class Counsel Devoted Nearly 65,000 Hours Prosecuting thisAction. ....................................................................................................... 20

7.

Public Policy Considerations Support the Requested Fee. ....................... 21ii

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8.

33.3% of the Settlement Fund Is a Typical and Reasonable FeeAward for Cases Similar to this One. ....................................................... 22

A Cross-Check of Class Counsel’s Lodestar Confirms the Reasonablenessof the Fee Request. ................................................................................................ 25
IV.

CLASS COUNSEL’S REQUEST FOR REIMBURSEMENT OF LITIGATION
EXPENSES IS REASONABLE. ...................................................................................... 28

V.

THE REQUESTED SERVICE AWARDS ARE REASONABLE. ................................. 29

VI.

CONCLUSION ................................................................................................................. 30iii

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TABLE OF AUTHORITIESPage(s)
Cases
Adkins v. Midland Credit Mgmt., Inc.,
5:17-CV-04107, 2022 WL 327739 (S.D.W. Va. Feb. 3, 2022) ...............................................23
In re: Allura Fiber Cement Siding Litig.,
2:19-mn-02886-DCN, 2021 WL 2043531 (D.S.C. May 21, 2021) .........................................22
In re Arby’s Rest. Group, Inc. Data Sec. Litig.,
1:17-CV-1035-WMR, 2019 WL 2720818 (N.D. Ga. June 6, 2019) .......................................18
Archbold v. Wells Fargo Bank, N.A.,
No. 3:13-CV-24599, 2015 WL 4276295 (S.D.W. Va. July 14, 2015) ....................................12
Barber v. Kimbrell’s, Inc.,
577 F.2d 216 (4th Cir. 1978) ...................................................................................................15
Blum v. Stenson,
465 U.S. 886 (1984) ...........................................................................................................11, 24
Boeing Co. v. Van Gemert,
444 U.S. 472 (1980) .................................................................................................................11
Boyd v. Coventry Health Care Inc.,
299 F.R.D. 451 (D. Md. 2014)...........................................................................................15, 25
Brown v. Transurban USA, Inc.,
318 F.R.D. 560 (E.D. Va. 2016) ........................................................................................11, 29
Camden I. Condo. Ass’n, Inc. v. Dunkle,
946 F.2d 768 (11th Cir. 1991) .................................................................................................12
In re Celebrex (Celecoxib) Antitrust Litig.,
No. 2:14-CV-00361, 2018 WL 2382091 (E.D. Va. Apr. 18, 2018) ..................................15, 22
In re Citrix Data Breach Litig.,19-61350-CIV, 2021 WL 2410651 (S.D. Fla. June 11, 2021).................................................18
Daly v. Hill,
790 F.2d 1071 (4th Cir. 1986) .................................................................................................26
Decohen v. Abbasi, LLC,
299 F.R.D. 469 (D. Md. 2014).................................................................................................23iv

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Deem v. Ames True Temper, Inc.,
No. 6:10-CV-01339, 2013 WL 2285972 (S.D.W. Va. May 23, 2013)....................................13
Deloach v. Philip Morris Cos.,
No. 1:00CV01235, 2003 WL 23094907 (M.D.N.C. Dec. 19, 2003) .......................................27
Faught v. Am. Home Shield Corp.,
668 F.3d 1233 (11th Cir. 2011) ...............................................................................................14
Fulton-Green v. Accolade, Inc.,
CV 18-274, 2019 WL 4677954 (E.D. Pa. Sept. 24, 2019) ......................................................19
Galloway v. Williams,
No. 3:19-CV-470, 2020 WL 7482191 (E.D. Va. Dec. 18, 2020) (Payne, J.) ..........................15
In re Genworth Fin. Sec. Litig.,
210 F. Supp. 3d 837 (E.D. Va. 2016) .............................................................................. passim
In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
55 F.3d 768 (3d Cir. 1995).......................................................................................................12
Goldberger v. Integrated Res., Inc.,
209 F.3d 43 (2d Cir. 2000).................................................................................................12, 15
Good v. W. Virginia-Am. Water Co.,
No. 14-1374, 2017 WL 2884535 (S.D.W. Va. July 6, 2017) ..................................................18
Gottlieb v. Barry,
43 F.3d 474 (10th Cir. 1994) ...................................................................................................12
Gunter v. Ridgewood Energy Corp.,
223 F.3d 190 (3d Cir. 2000).....................................................................................................15
Hammond v. The Bank of N.Y. Mellon Corp.,
2010 WL 2643307 (S.D.N.Y. June 25, 2010) .........................................................................18
Hatzey v. Divurgent, LLC,
2:18-CV-191, 2018 WL 5624300 (E.D. Va. Oct. 9, 2018), report andrecommendation adopted sub nom. Hatzey v. Divurgent, LLC., 2:18CV191,
2018 WL 5621967 (E.D. Va. Oct. 30, 2018) ...........................................................................22
Heien v. Archstone,
837 F.3d 97 (1st Cir. 2016) ......................................................................................................12
Hensley v. Eckerhart,
461 U.S. 424 (1983) .................................................................................................................15v

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Hooker v. Sirius XM Radio, Inc.,
No. 4:13-CV-003, 2017 WL 4484258 (E.D. Va. May 11, 2017) ................................14, 22, 25
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974) ...................................................................................................15
Jones v. Dominion Res. Servs.,
601 F. Supp. 2d 756 (S.D. W. Va. 2009) ...............................................................12, 19, 21, 26
Kay Co. v. Equitable Prod. Co.,
749 F. Supp. 2d 455 (S.D.W. Va. 2010) ..................................................................................22
Krakauer v. Dish Network, L.L.C.,
No. 1:14-cv-333, 2018 WL 6305785 (M.D.N.C. Dec. 3, 2018) ..............................................12
Kruger v. Novant Health, Inc.,
1:14CV208, 2016 WL 6769066 (M.D.N.C. Sept. 29, 2016) ...................................................27
In re Linerboard Antitrust Litig.,
MDL No. 1261, 2004 WL 1221350 (E.D. Pa. June 2, 2004) ..................................................17
Manuel v. Wells Fargo Bank, Nat’l Ass’n,
No. 3:14CV238 (DJN), 2016 WL 1070819 (E.D. Va. Mar. 15, 2016) .............................12, 29
McDaniels v. Westlake Services, LLC,
Civ. A. No. ELH-11-1837, 2014 WL 556288 (D. Md. Feb. 7, 2014) .....................................23
McKnight v. Circuit City Stores, Inc.,
14 F. App’x. 147 (4th Cir. 2001) .............................................................................................15
In re Microstrategy, Inc. Sec. Litig.,
172 F. Supp. 2d 778 (E.D. Va. 2001) ..........................................................................21, 27, 28
Montague v. Dixie Nat’l Life Ins. Co.,
No. 3:09-00687-JFA, 2011 WL 3626541 (D.S.C. Aug. 17, 2011) ..........................................24
Muhammad v. Nat’l City Mortg., Inc.,
No. 2:07-0423, 2008 WL 5377783 (S.D.W Va. Dec. 19, 2008) .............................................23
Phillips v. Triad Guar. Inc.,
No. 1:09CV71, 2016 WL 2636289 (M.D.N.C. May 9, 2016) .................................................20
Poertner v. Gillette Co.,
618 Fed. Appx. 624 (11th Cir. 2015) .................................................................................14, 25
Rawa v. Monsanto Co.,934 F.3d 862 (8th Cir. 2019) ...................................................................................................12vi

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Rawlings v. Prudential-Bache Props., Inc.,
9 F.3d 513 (6th Cir. 1993) .......................................................................................................12
Reaching Hearts Int’l, Inc. v. Prince George’s Cty.,
478 F. App’x 54 (4th Cir. 2012) ..............................................................................................26
In re Remeron Direct Purchaser Antitrust Litig.,
No. CIV.03-0085 FSH, 2005 WL 3008808 (D.N.J. Nov. 9, 2005) .........................................24
In re Rent-Way Sec. Litig.,
305 F. Supp. 2d 491 (W.D. Pa. 2003) ......................................................................................20
Reynolds v. Fidelity Invs. Institutional Operations Co.,
1:18-CV-423, 2020 WL 92092 (M.D.N.C. Jan. 8, 2020) ........................................................29
Sanchez v. Lasership, Inc.,
1:12-cv-246 (GBL-TRJ), 2014 WL 12780145 (E.D. Va. Aug. 8 2014)..................................22
Savani v. URS Prof’l Sols. LLC,
121 F. Supp. 3d 564 (D.S.C. 2015)..........................................................................................11
Seaman v. Duke Univ.,
No. 1:15-CV-462, 2019 WL 4674758 (M.D.N.C. Sept. 25, 2019) .......................21, 22, 26, 27
Sims v. BB&T Corp.,
15-cv-732, 2019 WL 1993519 (M.D.N.C. May 6, 2019) ........................................................27
Singleton v. Domino’s Pizza, LLC,
976 F. Supp. 2d 665 (D. Md. 2013) ...................................................................................27, 28
Smith v. Krispy Kreme Doughnut Corp.,
No. 1:05cv00187, 2007 WL 119157 (M.D.N.C. Jan. 10, 2007)........................................17, 23
Spell v. McDaniel,
852 F.2d 762 (4th Cir. 1988) ...................................................................................................28
In re Star Sci., Inc. Sec. Litig.,
3:13-CV-00183-JAG, 2015 WL 13821326 (E.D. Va. June 26, 2015) (Gibney,J.)..............................................................................................................................................22
Strang v. JHM Mortg. Sec. Ltd. P’ship,
890 F. Supp. 499 (E.D. Va. 1995) .....................................................................................12, 13
Swedish Hosp. Corp. v. Shalala,
1 F.3d 1261 (D.C. Cir. 1993) ...................................................................................................12
In re Syngenta AG MIR 162 Corn Litig.,
357 F. Supp. 3d 1094 (D. Kan. 2018) ......................................................................................25vii

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In re The Mills Corp. Sec. Litig.,
265 F.R.D. 246 (E.D. Va. 2009) ...................................................................................... passim
Thomas v. FTS USA, LLC,
No. 3:13cv825 (REP), 2017 WL 1148283 (E.D. Va. Jan. 9, 2017), report andrecommendation adopted, 2017 WL 1147460 (E.D. Va. Mar. 27, 2017) ...................13, 24, 25
In re Titanium Dioxide Antitrust Litig.,
No. 10-CV-00318(RDB), 2013 WL 6577029 (D. Md. Dec. 13, 2013) .............................22, 27
Trombley v. Bank of America Corp.,
No. 08-cv-456-JD, 2012 WL 1599041 (D.R.I. May 4, 2012) .................................................24
Union Asset Mgmt. Holding A.G. v. Dell, Inc.,669 F.3d 632 (5th Cir. 2012) ...................................................................................................12
Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) .................................................................................................12
Other Authorities
Brian T. Fitzpatrick, The Conservative Case for Class Actions (2019).........................................13
Fed. R. Civ. P. 23(h) ......................................................................................................................11
Fed. R. Civ. P. 72 .............................................................................................................................5Lester Brickman, ABA Regulation of Contingency Fees: Money Talks, Ethics
Walks, 65 Fordham L. Rev. 247, 248 (1996) ...........................................................................24
Newberg on Class Actions § 15:82 (5th ed.) .................................................................................15viii

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I.

INTRODUCTION

Even a cursory review of the docket in this matter—spanning more than 2,200 entries—
illustrates the prodigious efforts Plaintiffs’ Counsel undertook in litigating and ultimately
resolving this case. This Court’s first-hand experience with Class Counsel’s briefing and in-person
argument, having held multiple day-long hearings along with monthly status conferences, makes
it uniquely aware of the zealous advocacy Class Counsel provided, and the vehement defense they
faced. This case was, almost undoubtedly, the most heavily litigated data breach case in history.
Over 350,000 documents were reviewed, scores of depositions were taken and defended, anddozens of discovery motions were litigated. All the while, Class Counsel operated under theprocesses and procedures of this Court’s “rocket-docket,” albeit modified some here toaccommodate the size and scope of the undertaking. These efforts brought the case through classcertification proceedings and cross motions for summary judgment, and ultimately led to one of
the largest data breach settlements in history. In recognition of those efforts, 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$2,325,516.11. Plaintiffs also request service awards of $5,000 for each of the 8 Settlement Class
Representatives and the 9 other MDL Plaintiffs who were deposed by Capital One.
II.

FACTUAL BACKGROUND
Overview of the Litigation

On July 29, 2019, Capital One announced that the sensitive personal information of
approximately 98 million Americans who had applied for Capital One credit cards had been stolen
by a malicious criminal hacker from Amazon’s AWS cloud where Capital One stored thisinformation (the “Data Breach”). Affected individuals across the country immediately began filingclass action lawsuits against Capital One and Amazon. Ultimately, more than 60 such lawsuits
1

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were filed. In October 2019, the Judicial Panel on Multidistrict Litigation consolidated andtransferred these lawsuits to this Court, the location of Capital One’s headquarters.1
On December 2, 2019, after review of over 30 applications for plaintiffs’ counsel
leadership, the Court appointed the undersigned counsel as Plaintiffs’ Lead Counsel and Local
Counsel. Doc. 210 (Pretrial Order #3). Plaintiffs’ Lead Counsel immediately began preparation ofa detailed proposed discovery plan, exchanged initial written discovery with Capital One, reachedagreement on a proposed schedule for the litigation, negotiated an ESI protocol and crafted andnegotiated search terms for ESI discovery, and negotiated a protective order. Docs. 270, 312, 329.
1. Pleadings and Related Motion Practice
On March 2, 2020, after extensive factual investigation and legal research and the vetting
and selection of appropriate, dedicated named plaintiffs (“Representative Plaintiffs”), Plaintiffs
filed a 91-page Representative Complaint, which the Court approved (Doc. 302) as the vehicle for
litigating the Plaintiffs’ claims (the “Representative Complaint”). The Representative Complaint
named Representative Plaintiffs from the states of California, Florida, New York, Texas, Virginia,
and Washington, asserting representative common law claims on behalf of a nationwide classagainst Capital One and Amazon for negligence, negligence per se, unjust enrichment, breach of
express and implied contract, and declaratory judgment, and state statutory claims under state data
breach notification and consumer protection statutes on behalf of state subclasses. Doc. 332, Doc.
354 (corrected).2
1

Unless otherwise noted, factual statements set forth in this Memorandum are supported by theConsolidated Declaration of Class Counsel (“Class Counsel Decl.”) attached as Exhibit 1.
2
During the next few months, three of the Representative Plaintiffs voluntarily dismissed theirclaims, primarily due to exigent circumstances created by COVID-19, without prejudice to theirability to submit claims as absent class members (Docs. 399, 436, 852) and a new Representative
Plaintiff was substituted, ultimately resulting in the eight current Representative Plaintiffs who are
the proposed Settlement Class Representatives. Doc. 971 (Second Amended Representative
Complaint).
2

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On April 10, 2020, Capital One and Amazon each filed motions to dismiss theRepresentative Complaint in its entirety. Docs. 386, 389. Defendants’ primary focus in thesemotions was arguing that Representative Plaintiffs had not alleged legally-cognizable harms
arising out of the Data Breach and that Defendants were not the proximate cause of any such
harms. Defendants further argued that Virginia law does not recognize a duty of care in tort tosafeguard personal information. Docs. 387, 390. Plaintiffs filed extensive opposition briefing andthe motions were fully briefed in just over one month. See Docs. 426, 427 (Plaintiffs’ Memoranda
in Opposition); Docs. 463, 464 (Defendants’ Replies).
On May 27, 2020, the Court heard nearly five hours of oral argument on Defendants’
motions to dismiss. See Doc. 494. On September 18, 2020, the Court issued an extensive rulinglargely denying the motions. Doc. 879. However, extensive briefing related to Representative
Plaintiffs’ allegations continued for months thereafter. On October 2, 2020, Capital One asked the
Court to reconsider one of its rulings—that Representative Plaintiffs had sufficiently alleged
Capital One assumed a duty of care to them in tort under Virginia law, and alternatively asked the
Court to certify this question to the Virginia Supreme Court. Doc. 916. Plaintiffs submitted
opposition briefing, and the Court denied the motion for reconsideration. Doc. 934 (Plaintiffs’
Opposition); see also Doc. 951 (Joinder by Amazon); Doc. 965 (Capital One’s Reply); Doc. 1059
(Order denying). Later, after concluding Virginia law applied as to all Representative Plaintiffs’
common law claims (Doc. 1293; see also Doc. 879 at 9), the Court granted Capital One’s request
to certify the question of tort duty to the Virginia Supreme Court (Doc. 1291). The Virginia
Supreme Court subsequently declined to accept the certified question. Doc. 1380. On October 16,
2020, Defendants each filed Answers. Docs. 953, 955. On October 30, 2020, Capital One moved
for judgment on the pleadings on Representative Plaintiffs’ unjust enrichment and implied contract3

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claims (Doc. 996), which Plaintiffs opposed. Doc. 1032 (Plaintiffs’ Opposition); see also Doc.
1060 (Capital One’s Reply). After a hearing, the Court denied the motion. Doc. 1096 (12/09/2020
Hr’g Tr.); Doc. 1290 (Order denying).
2. Discovery Practice
Meanwhile, as motion practice related to Representative Plaintiffs’ allegations wasunderway and the global COVID-19 pandemic forced much of the case to be litigated remotely,
Plaintiffs were engaged in a massive, time-consuming discovery effort. Plaintiffs served several
rounds of written discovery on Defendants and eighteen third-party subpoenas, including six
subpoenas to former Capital One employees, and reviewed over 350,000 documents—totalingnearly 3 million pages—produced by Defendants and nearly 7,500 documents—totaling an
additional 50,000 pages—produced by third parties. See (Doc. 2219-4 ¶ 20). Plaintiffs also took
33 depositions of Defendants’ fact witnesses, 13 depositions of Defendants’ Rule 30(b)(6)
witnesses, and two third-party depositions. Id. In addition, Plaintiffs answered Defendants’ written
discovery requests, which involved searches of Plaintiffs’ electronic documents in addition to thecollection and review of physical documents. Plaintiffs ultimately produced nearly 1,750
documents totaling over 7,500 pages in 54 document productions after collecting and reviewing
over 145,000 documents from 24 custodians. Id. at ¶ 21. Furthermore, discovery involved thecompletion and collection of a verified “Fact Sheet,” including ten pages of questions and eight
document requests, to MDL Plaintiffs. Ultimately, 101 MDL Plaintiffs submitted verified Fact
Sheets and responsive documents; while 147 MDL Plaintiffs chose to dismiss their pending
complaints without prejudice.3 Id. Between May and November, 2020, each of the Representative

3

Of the 101 MDL Plaintiffs who submitted verified Fact Sheets and documents, an additional 32
eventually chose to dismiss their pending complaints without prejudice.
4

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Plaintiffs sat for remote depositions. In addition, Defendants deposed nine other MDL Plaintiffs.
Id. at ¶ 22. In total, Class Counsel defended seventeen plaintiff depositions. Id.4
That offensive and defensive discovery was spurred on by significant motion practice
before Judge Anderson, much of which resulted in the production of important evidence forPlaintiffs’ case. Indeed, from the very commencement of the case, Plaintiffs litigated multiple
skirmishes concerning the form of the stipulated protective order, see (Docs. 286, 287, 304) &(Docs. 341, 349, 350, & 364), and the ESI Protocol (Docs. 351, 352, 362, 372, 373). The discovery
battles also included several rounds of motions regarding Capital One’s assertion of the bankexamination privilege over thousands of documents, which involved contested briefing andargument from the Office of the Comptroller of the Currency. Motion practice regarding
Defendants’ assertion of the attorney-client privilege and work product claims involved review of
Defendants’ privilege logs which consisted of thousands of lines of Excel spreadsheets, months ofmeet and confers, and repeated iterations of additional logging from Defendants.
Specifically, as demonstrated by the charts attached as Ex. A to the Consolidated
Declaration of Class Counsel, over two dozen discovery motions were filed by the parties in total—
not accounting for attendant motions to seal, or Rule 72 objections and motions forreconsideration. Plaintiffs filed some 19 discovery related motions, and the vast majority of thesemotions were briefed and decided on the Court’s required one-week schedule.
Expert discovery was similarly intensive. Beginning in August 2019, Plaintiffs engaged
numerous experts, including five disclosed testifying experts, to develop opinions for classcertification and trial. Dr. Stuart E. Madnick, of the Massachusetts Institute of Technology,

4

The preliminary approval filings incorrectly state this number as eighteen. Id. However,Defendants ultimately took depositions of just nine MDL Plaintiffs, plus the eight Representative
Plaintiffs, for a total of seventeen.
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rendered opinions as to the mechanism and root causes of the Data Breach, how the Data Breachshould have been prevented, and how the risk of further breaches can be mediated going forward.
Kevin Mitnick, an expert in “black hat” and “white hat” hacking, explained how the types of
personal information stolen in the Data Breach are misused to cause harm and the present risk ofcontinuing harm to victims of the Data Breach. Gary Olsen, a CPA and appraisal expert, and Terry
Long, an actuary, developed opinions relating to damages. Brian Kelley gave opinions concerning
the relation between and among Capital One’s contracts with applicants and cardholders, Capital
One’s cybersecurity policies and practices, and legal and regulatory requirements governing
Capital One’s protection of customer personal information. These experts were ultimately
disclosed, with full reports, on March 21, 2021. Several of them also drafted supplemental or
rebuttal reports, and all sat for at least one deposition. Both Defendants designated numerous
experts as well, each of whom Plaintiffs deposed. (Doc. 2219-4 at ¶ 23).
3. Class Certification, Daubert, and Dispositive Motions
On April 28, 2021, Plaintiffs filed their Motion for Class Certification, seeking certificationof a nationwide class of approximately 98 million Americans. Docs. 1259, 1261. This motion was
fully briefed on June 18, 2021. See Doc. 1443 (Capital One’s Opposition); Doc. 1435 (Amazon’s
Opposition); Doc. 1558 (Plaintiffs’ Reply as to Capital One); Doc. 1571 (Plaintiffs’ Reply as to
Amazon). Defendants each filed several Daubert challenges related to Plaintiffs’ class certification
motion, which Plaintiffs opposed, and which were fully briefed by July 2, 2021. See Docs. 1389,
1390, 1394, 1395, 1397, 1398, 1427, 1428, 1431, 1432 (Defendants’ motions to exclude andmemoranda in support); Docs. 1528, 1534, 1540, 1546, 1552 (Plaintiffs’ Oppositions); Docs. 1607,
1609, 1611, 1633, 1647 (Defendants’ Replies). Plaintiffs also moved to exclude one of Capital
One’s experts related to Plaintiffs’ Motion for Class Certification. See Docs. 1559-60.

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During the briefing on class certification, Capital One challenged the Court’s jurisdiction
over the case, arguing no Representative Plaintiff could prove their harms were caused by Capital
One where Capital One contended Representative Plaintiffs could not prove the known hacker,
Paige Thompson, further disseminated the personal information stolen in the Data Breach before
her arrest. See Docs. 1385-86. Capital One’s jurisdictional challenge ultimately resulted in several
rounds of briefing in which Plaintiffs opposed the premise of Capital One’s contention that the
Court’s jurisdiction to adjudicate the case depended on the resolution of what were undisputedly
merits issues. See Doc. 1502 (Plaintiffs’ Opposition); Doc. 1513 (Capital One’s Reply); Doc. 1653
(Capital One’s Supplemental Memorandum regarding TransUnion v. Ramirez); Doc. 1721
(Plaintiffs’ Response); Doc. 1727 (Amazon’s Joinder); Doc. 1780 (Capital One’s Supplemental
Brief challenging the Court’s jurisdiction to adjudicate Plaintiffs’ contract and unjust enrichment
claims); Doc. 1871 (Plaintiffs’ Response); Doc. 1921 (Capital One’s Reply); Docs. 2041, 2042,
2052, 2074, 2075, 2138, 2150, 2151 (filings related to supplemental authorities regarding
jurisdictional challenge).
The Court held a two-day hearing on July 12 and 13, 2021, on Plaintiffs’ Motion for Class
Certification, the various related Daubert challenges, and Capital One’s challenge to the Court’s
jurisdiction to adjudicate Representative Plaintiffs’ tort and statutory claims. See Docs. 1745,
1747; Docs. 1901-1902 (7/12-13/21 Hr’g Tr.). Soon thereafter, briefing on dispositive motionscommenced. On June 3, 2021, Capital One filed its motion for summary judgment seeking
judgment on each of Representative Plaintiffs’ claims on several bases. Capital One’s principal
argument was that Representative Plaintiffs could not prove they were harmed by Capital One
because they could not prove the hacker, Paige Thompson, further disseminated the personal
information stolen in the Data Breach before her arrest. See Docs. 1460, 1463. Plaintiffs filed7

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extensive opposition briefing, contending there was substantial evidence from which a jury could
conclude Plaintiffs’ personal information was further disseminated beyond Thompson and thatthey had suffered compensable damages resulting from Capital One’s failure to protect theirpersonal information. See Doc. 1807. On July 2, 2021, Representative Plaintiffs moved for partial
summary judgment on their claims for breach of express and implied contract against Capital One.
See Docs. 1646, 1649. On the same day, Amazon moved for summary judgment on each ofRepresentative Plaintiffs’ claims, arguing it owed no duty of care to them and that it could not beliable to them for unjust enrichment and under the asserted state statutes, to which Plaintiffs
submitted a detailed opposition. See Docs. 1678, 1693, 1820. Each of these motions were also
accompanied by sealing motions that had separate, additional briefing.
The summary judgment motions were fully briefed on August 23, 2021. Capital One andAmazon also filed additional Daubert motions in connection with summary judgment, which
Plaintiffs opposed. Docs. 1658, 1675, 1828, 1840. Plaintiffs also filed a motion to exclude thetestimony of one of Capital One’s experts related to summary judgment. See Docs. 1638, 1640.
These Daubert motions were also fully briefed on August 23, 2021. On September 30, 2021, theCourt held a full-day summary judgment hearing, including additional argument on Capital One’s
jurisdictional challenge. Doc. 2027; 9/30/21 Hr’g Tr. At the time of the settlement, the motions forclass certification, summary judgment, and to exclude expert testimony were fully submitted to
the Court and under advisement.
Mediation and Settlement
Parallel to their litigation of the Actions, the Parties engaged in arm’s-length settlement
negotiations beginning in March 2020. The negotiations were first overseen by former UnitedStates District Court Judge Layn R. Phillips and later overseen by United States District Judge
Leonie M. Brinkema. The Parties engaged in four mediation sessions, on March 21, 2020,8

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November 18, 2020, April 16, 2021, and August 3, 2021, with Judge Brinkema presiding over thelast three conferences. The Parties also engaged in several direct conferences and joint
communications with Judge Brinkema to assist on particular issues that arose in these negotiations.
On December 17, 2021, the Parties executed a binding term sheet, to be superseded by the
Settlement Agreement. (Doc. 2219-4 at ¶ 30).
While the negotiations were professional throughout, they were marked by significant
factual and legal disputes impacting the value of the case. From Plaintiffs’ perspective, the hard
work through discovery and motion practice framed the key issues for both sides, positioned thecase for settlement, and—with Judge Brinkema’s assistance—the Parties were able to reach aresolution. At all times the negotiations were made at arm’s length, and free of collusion of any
kind. Attorneys’ fees were not discussed in any manner until the Parties had reached agreement on
the material terms of the settlement, including the payment of the Settlement Fund. Id. ¶ 31.
The Terms of the Proposed Settlement
The following are the material terms of the 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.
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 opts out of the Settlement Class. (Doc. 2219-1, § 2.39).

9

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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 that 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 is fairly
traceable to the Data Breach and time spent taking preventative measures to avoid
such losses. Lost Time will be paid at the “Reimbursement Rate,” which shall be
the greater of $25 per hour, or 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).
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). The
agreed Business Practice Changes are subject to confirmatory discovery and review by Plaintiffs’
expert Dr. Stuart Madnick in advance of Plaintiffs’ motion for final approval.

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III.

THE REQUESTED ATTORNEYS’ FEES ARE REASONABLE
The Settlement Creates a Common Fund from Which Percentage-of-theFund Is the Appropriate Method for Awarding Attorneys’ Fees.

Under Fed. R. Civ. P. 23(h), “[i]n a certified class action, the court may award reasonable
attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” As
the Supreme Court recognized, “a lawyer who recovers a common fund for the benefit of persons
other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.”
Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). The common fund doctrine is based on theinherent powers of the federal court to “prevent . . . inequity by assessing attorney’s fees against
the entire fund, thus spreading fees proportionately among those benefited by the suit.” Id.
Two methods of calculating attorneys’ fees in class actions are: (1) the percentage-of-thefund method; and (2) the lodestar method. In re The Mills Corp. Sec. Litig., 265 F.R.D. 246, 260(E.D. Va. 2009). The percentage-of-the-fund method involves an award based on a percentage of
the Class’s recovery, set by the court based on several factors. Id. The lodestar method requires
multiplying the number of hours worked by a reasonable hourly rate, the product of which the
Court can then adjust by employing a “multiplier.” Id.
The Supreme Court has suggested that the percentage-of-the-fund is the appropriate
method for awarding fees under the common fund doctrine. See Blum v. Stenson, 465 U.S. 886,
900 n.16 (1984) (“[U]nder the ‘common fund doctrine,’ . . . a reasonable fee is based on apercentage of the fund bestowed on the class . . . .”). Likewise, within the Fourth Circuit, “thepercentage-of-recovery approach is not only permitted, but is the preferred approach to determine
attorney’s fees.” Savani v. URS Prof’l Sols. LLC, 121 F. Supp. 3d 564, 568 (D.S.C. 2015); seealso, e.g., Brown v. Transurban USA, Inc., 318 F.R.D. 560, 575 (E.D. Va. 2016) (“The Fourth
Circuit has not decided which of the general approaches to adopt, although the ‘current trend11Case 1:19-md-02915-AJT-JFA Document 2231 Filed 06/16/22 Page 20 of 40 PageID# 49290

among the courts of appeal favors the use of a percentage method to calculate an award of
attorneys’ fees in common fund cases.’”) (quoting Boyd v. Coventry Health Care Inc., 299 F.R.D.
451, 462 (D. Md. 2014)). Indeed, most federal courts of appeals have endorsed the percentage-ofthe-fund method for determining an award of attorneys’ fees in common fund cases.5
As another court in this district recently concluded, “districts within this Circuit, and thevast majority of courts in other jurisdictions consistently apply a percentage of the fund method
for calculating attorneys’ fees in common fund cases.” Mills, 265 F.R.D. at 260; see, e.g., Manuelv. Wells Fargo Bank, Nat’l Ass’n, No. 3:14CV238 (DJN), 2016 WL 1070819, at *5 (E.D. Va. Mar.
15, 2016) (“District Courts within this Circuit have also favored the percentage method.”);Krakauer v. Dish Network, L.L.C., No. 1:14-cv-333, 2018 WL 6305785, at *2 (M.D.N.C. Dec. 3,2018) (“District courts in the Fourth Circuit overwhelmingly prefer the percentage method incommon-fund cases . . . .”); Archbold v. Wells Fargo Bank, N.A., No. 3:13-CV-24599, 2015 WL
4276295, at *5 (S.D.W. Va. July 14, 2015) (“[T]here is a clear consensus among the federal andstate courts, consistent with Supreme Court precedent, that the award of attorneys’ fees in common
fund cases should be based on a percentage of the recovery.”); Jones v. Dominion Res. Servs., 601
F. Supp. 2d 756, 758 (S.D. W. Va. 2009) (“The percentage method has overwhelmingly become
the preferred method for calculating attorneys’ fees in common fund cases.”); Strang v. JHM
Mortg. Sec. Ltd. P’ship, 890 F. Supp. 499, 502 (E.D. Va. 1995) (“Although the Fourth Circuit has

5See, e.g., Rawa v. Monsanto Co., 934 F.3d 862, 870 (8th Cir. 2019); Heien v. Archstone, 837
F.3d 97, 100 (1st Cir. 2016); Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 644 (5thCir. 2012); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-50 (9th Cir. 2002); Goldberger v.
Integrated Res., Inc., 209 F.3d 43, 49-50 (2d Cir. 2000); In re GMC Pick-Up Truck Fuel Tank
Prods. Liab. Litig., 55 F.3d 768, 821-22 (3d Cir. 1995); Gottlieb v. Barry, 43 F.3d 474, 487 (10thCir. 1994); Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 515-16 (6th Cir. 1993); Swedish
Hosp. Corp. v. Shalala, 1 F.3d 1261, 1268-70 (D.C. Cir. 1993); Camden I. Condo. Ass’n, Inc. v.
Dunkle, 946 F.2d 768, 774 (11th Cir. 1991).
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not yet ruled on this issue, the current trend among the courts of appeal favors the use of apercentage method to calculate an award of attorneys’ fees in common fund cases.”).6
These courts recognize that the percentage-of-the-fund method is “more efficient and lessburdensome than the traditional lodestar method, and offers a more reasonable measure ofcompensation for common fund cases.” Strang, 890 F. Supp. at 503. It also better aligns theinterests of class counsel and class members because it ties the attorneys’ fees award to the overall
result achieved, rather than hours expended by the attorneys. Thomas v. FTS USA, LLC, No.
3:13cv825 (REP), 2017 WL 1148283, at *3 (E.D. Va. Jan. 9, 2017), report and recommendation
adopted, 2017 WL 1147460 (E.D. Va. Mar. 27, 2017); see also Deem v. Ames True Temper, Inc.,
No. 6:10-CV-01339, 2013 WL 2285972, at *5 (S.D.W. Va. May 23, 2013) (“The percentage
method ‘is designed to allow courts to award fees from the fund in a manner that rewards counsel
for success and penalizes it for failure.’” (quoting In re Prudential Ins. Co. Am. Sales Litig., 148
F.3d 283, 333 (3d Cir. 1998))).
“Some courts incorporate the lodestar analysis into the percentage method by crosschecking the lodestar calculation against the percentage calculation.” Thomas, 2017 WL 1148283,
at *4 (citing Jones, 601 F. Supp. 2d at 759; Manual for Complex Litigation § 14.122 (4th ed.
2004)). The lodestar calculation “adds an extra layer of assurance as to reasonableness by ensuringthat ‘the fee award is still roughly aligned with the amount of work the attorneys contributed.’” Id.
(quoting Jones, 601 F. Supp. 2d at 759).
In addition, where, as here, important non-monetary relief is part of the relief provided tothe class pursuant to the settlement, courts in this district have utilized a “bonus” percentage of the6

See also Brian T. Fitzpatrick, The Conservative Case for Class Actions at 92 n. 38 (2019)(“Today, most judges use the percentage method”).
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ascertainable value of the fund to compensate counsel for the non-monetary benefits provided.
Hooker v. Sirius XM Radio, Inc., No. 4:13-CV-003, 2017 WL 4484258, at *5–6 (E.D. Va. May
11, 2017) (“[T]he Court calculates the appropriate fee award based on 35 percent of the concrete,
ascertainable, value of the cash fund. This includes a 10 percent ‘bonus’ to compensate counsel
for the nonmonetary benefits in this case.”); see also, e.g., Poertner v. Gillette Co., 618 Fed. Appx.
624, 630 (11th Cir. 2015) (agreeing that “the value of the nonmonetary relief” is “part of thesettlement pie,” and that an objection regarding the fee was based on a “flawed valuation of thesettlement pie” that failed to account for “the substantial nonmonetary benefit”); Faught v. Am.
Home Shield Corp., 668 F.3d 1233, 1243-44 (11th Cir. 2011) (finding portion of fee properly
allocated compensation for “non-monetary benefits [counsel] achieved for the class—likecompany-wide policy changes”).
Class Counsel’s application of the percentage-of-fund method is therefore consistent withthe law in this and other circuits. As explained below, the factors courts consider when assessing
percentage-of-fund requests demonstrate the reasonableness of Class Counsel’s requested fee,
which is further confirmed by cross-checking the requested amount against the calculated lodestar.
Class Counsel’s Fee Request Is Fair and Reasonable Under Fourth Circuit
Authority.
“In determining the reasonableness of attorneys’ fees, courts look at the following factors:(1) the result obtained for the class; (2) the presence or absence of substantial objections bymembers of the class to the fees requested by counsel; (3) the skill and efficiency of the attorneys
involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) theamount of time devoted to the case by the plaintiffs’ counsel; and (7) awards in similar cases.” In
re Genworth Fin. Sec. Litig., 210 F. Supp. 3d 837, 843 (E.D. Va. 2016). Some district courts inthis Circuit have applied a slightly different version of this standard, replacing the sixth factor with
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public policy considerations. See, e.g., In re Celebrex (Celecoxib) Antitrust Litig., No. 2:14-CV00361, 2018 WL 2382091, at *4 (E.D. Va. Apr. 18, 2018); Mills, 265 F.R.D. at 261 (citing, interalia, Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000)).7 Consideration of thesefactors supports Plaintiffs’ request fee of 33.3% of the fund.
1. Class Counsel Obtained an Excellent Result for the Class.
“The first and most important factor for a court to consider when making a fee award is theresult achieved.” Genworth, 210 F. Supp. 3d at 843; see also Hensley v. Eckerhart, 461 U.S. 424,436 (1983) (“[T]he most critical factor is the degree of success obtained.”); McKnight v. Circuit
City Stores, Inc., 14 F. App’x. 147, 149 (4th Cir. 2001) (same).
Class Counsel’s zealous, effective, and efficient prosecution of this case through fact andexpert discovery, and full briefing and argument on class certification, Daubert motions, andsummary judgment, resulted in an excellent result for the Class, and the second largest data breachsettlement to date. Settlement Class Members are entitled to benefits that are tailored to the relief

7

There is some disagreement as to whether to apply these seven factors, which were adopted fromthe Third Circuit, Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 & n.1 (3d Cir. 2000), or
the 12-factor test from the Fifth Circuit adopted in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226(4th Cir. 1978) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).
See Galloway v. Williams, No. 3:19-CV-470, 2020 WL 7482191, at *5, n. 5 (E.D. Va. Dec. 18,
2020) (Payne, J.); 5 Newberg on Class Actions § 15:82 (5th ed.) (“The Fourth Circuit utilized theFifth Circuit’s Johnson factors in a statutory fee-shifting case, so some district courts have utilized
those factors in setting a percentage in common fund cases, while other district courts have used
the Second Circuit’s Goldberger factors and/or the Third Circuit’s Gunter factors.”). However,many of the Johnson/Barber factors overlap with factors in the Third Circuit test or are “subsumed
in the calculation of the hours reasonably expended and the reasonableness of the hourly rate.”
Galloway, 2020 WL 7482191, at *6, *10-11; see also Genworth, 210 F. Supp. 3d at 843 (using
the seven-factor Third Circuit test in evaluating the reasonableness of the requested fee andincorporating the Johnson/Barber factors into the lodestar cross-check). Notably, “fee award
reasonableness factors ‘need not be applied in a formulaic way’ because each case is different,‘and in certain cases, one factor may outweigh the rest.’” Boyd v. Coventry Health Care Inc., 299
F.R.D. 451, 463 (D. Md. 2014) (citations omitted). Given the overlap in the factors, a considerationof the relevant factors under any standard supports Class Counsel’s requested fee.
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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 and identity 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. See Class Counsel Decl. ¶ 25;
Declaration of Craig C. Reilly (“Reilly Decl.”), Exhibit 2, at ¶ 20.
Not only does the Settlement permit Class Members to receive a substantial cash payment,
but it also eliminates the risk of adverse rulings on class certification, summary judgment, at trial,or on appeal. Balanced against the many significant risks, the settlement value here provides an
exceptional result for the Class and supports Class Counsel’s request for attorneys’ fees. See ClassCounsel Decl. ¶ 25.
2. To Date No Class Member Has Objected to Class Counsel’s Fee Request.
The Court-approved notice informed Settlement Class Members that Co-Lead Counsel
would request attorneys’ fees not to exceed 35% of the Settlement Fund (as well as reimbursementof litigation expenses, and service awards for the Class Representatives). Doc. 2219-6 at 15, 20,
24, 26. To date, no objections have been submitted to the requested fee,8 however the deadline forobjections is not until July 7, 2022. Doc. 2220 at 12. To the extent such objections are received
after the filing of this motion, Plaintiffs will address them in their Final Approval Brief and

8

On June 14, 2022, a putative class member filed a purported generalized objection to thesettlement (see Doc. 2228), but because the putative class member opted out of the Settlement
Class, the objection is invalid.
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Response to Objections, due on August 9, 2022, (Doc. 2220 at 13). See Class Counsel Decl. ¶ 26;
Reilly Decl. ¶ 21.
3. Class Counsel Are Skilled and Efficient Lawyers.
The quality of the representation is another significant factor supporting Class Counsel’s
fee request. See Genworth, 210 F. Supp. 3d at 844 (“The skill required in complex cases such as
this involving massive discovery efforts and complicated issues of fact and law also weighs infavor of supporting the substantial attorneys’ fees award in this case.”). As reflected by theleadership application process—including some 37 applications for leadership9 and objections
thereto10—and this Court’s Pretrial Order #3, Appointing Plaintiffs’ Lead Counsel, Doc. 210,Class Counsel have substantial experience litigating complex class actions and, specifically, data
breach cases.11 See Class Counsel Decl. ¶ 27.
Here, the creation of the $190,000,000 Settlement Fund—the second largest data breachsettlement in history—is the simplest reflection of counsel’s skill and expertise in the field. See,e.g., In re Linerboard Antitrust Litig., MDL No. 1261, 2004 WL 1221350, at *5 (E.D. Pa. June 2,2004) (“the result achieved is the clearest reflection of petitioners’ skill and expertise.”). Moreover,courts often evaluate the quality of the work performed by plaintiff’s counsel in light of the qualityof the opposition’s representation. See, e.g., Mills, 265 F.R.D. at 262 (noting that counsel reacheda favorable settlement against “experienced and sophisticated defense attorneys”); Smith v. Krispy
Kreme Doughnut Corp., No. 1:05cv00187, 2007 WL 119157, at *2 (M.D.N.C. Jan. 10, 2007)(“Additional skill is required when the opponent is a sophisticated corporation with sophisticated9

See Docs. 106–111, 114, 118, 120–126, 129–133, 135–137, 140–142, 144–150, 153–155, 176
Docs. 201–204
11
See Applications of Siegel-Riebel-Yanchunis Slate and exhibits thereto, Docs. 135, 136, and
140.
10

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counsel.”). Defendants were represented by highly skilled and experienced litigators from some of
the leading defense law firms in the United States—King & Spalding (for Capital One) andFenwick (for Amazon)—both of which are ranked among the Vault Law 100 for most prestigious
law firms and have extensive experience advising corporate defendants in data breach litigation.
See Class Counsel Decl. ¶ 27; see also Reilly Decl. ¶ 22. It was in the face of such skilled andvigorous opposition that Class Counsel obtained the benefits for the Settlement Class that they did.
This factor weighs in favor of the requested fee.
4. The Duration and Complexity of This Litigation Supports the Requested
Fee.
As explained below in section III.B.III.B.8, the requested 33.3% fee is in line with otherawards in this district and Circuit. However, to the extent the Court believes the requested
percentage to be above average, courts recognize that “there are good reasons to award higherthan-typical fees when the issues in a case are particularly ‘novel and complex.’” Good v. W.
Virginia-Am. Water Co., No. 14-1374, 2017 WL 2884535, at *25 (S.D.W. Va. July 6, 2017). As
to the complexity of the case, although nearly all class actions involve a high level of risk, expense,and complexity, “[c]onsumer class action litigation” is particularly “complex and difficult toprosecute. . . . Further, data breach litigation involves the application of unsettled law withdisparate outcomes across states and circuits.” In re Arby’s Rest. Group, Inc. Data Sec. Litig., 1:17CV-1035-WMR, 2019 WL 2720818, at *3 (N.D. Ga. June 6, 2019).
Data breach cases face substantial hurdles in surviving even past the pleading stage. See,e.g., Hammond v. The Bank of N.Y. Mellon Corp., 2010 WL 2643307, at *1 (S.D.N.Y. June 25,2010) (collecting cases). And, as evidenced by a review of the docket here, “[d]ata breach cases inparticular present unique challenges with respect to issues like causation, certification, anddamages.” In re Citrix Data Breach Litig., 19-61350-CIV, 2021 WL 2410651, at *3 (S.D. Fla.
18

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June 11, 2021). Thus, these are “complex case[s] in a risky field of litigation because data breachclass actions are uncertain and class certification is rare.” Fulton-Green v. Accolade, Inc., CV 18274, 2019 WL 4677954, at *8 (E.D. Pa. Sept. 24, 2019) (citing In re Countrywide Fin. Corp.
Customer Data Sec. Breach Litig., No. 3:08-1998, 2010 WL 3341200, at *6 (W.D. Ky. Aug. 23,
2010)).
“In evaluating the complexity and duration of the litigation, courts consider not only thetime between filing the complaint and reaching settlement, but also the amount of motions practiceprior to settlement and the amount and nature of discovery.” Jones, 601 F. Supp. 2d at 761. As
demonstrated above, this case was heavily litigated—likely the most heavily litigated data breachcase in history—including scores of depositions, dozens of discovery motions, and millions ofpages of document review. Since filing the Representative Complaint (Doc. 332) in March 2020,
Class Counsel (1) fully briefed and defeated Defendants’ motions to dismiss; (2) completed all
fact and expert discovery under an aggressive schedule; (3) litigated numerous discovery andsealing motions before Judge Anderson; (4) fully briefed and argued Plaintiffs’ class certification
motion and related Daubert challenges; (5) fully briefed and argued Defendants’ summary
judgment motions; and (6) fully briefed and argued merits Daubert motions, amongst other things.
Likewise, Defendants fervently defended this case. This case’s complexity and duration therefore
strongly support the reasonableness of Class Counsel’s request. See Class Counsel Decl. ¶ 28;
Reilly Decl. ¶¶ 24-25.
5. Class Counsel Faced the Risk of Nonpayment.
Class Counsel undertook this case on a wholly contingent basis and ran a substantial riskof no recovery whatsoever. The risk of receiving little or no recovery—which was magnified hereby the rigorous defense mounted by Capital One and Amazon—is an important factor courts inthis Circuit consider when awarding attorneys’ fees. See, e.g., Mills, 265 F.R.D. at 263 (“[C]ounsel
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bore a substantial risk of nonpayment . . . . [t]he outcome of the case was hardly a foregone
conclusion, but nonetheless counsel accepted representation of the plaintiff and the class on acontingent fee basis, fronting the costs of litigation.” (citation omitted)); Phillips v. Triad Guar.
Inc., No. 1:09CV71, 2016 WL 2636289, at *6 (M.D.N.C. May 9, 2016) (finding fee award justified
where, “Lead Counsel bore the risks involved with surviving dispositive motions, obtaining classcertification, proving liability, causation, and damages, prevailing with experts, and litigating
through trial and possible appeals” knowing “that the only way [they] would be compensated wasto achieve a successful result”). In addition to the risk of non-recovery at trial, “any victory at trial
in this case would have to withstand appeals which could reverse or limit any award by a jury.”
Genworth, 210 F. Supp. 3d at 844. In the face of these risks, Class Counsel vigorously represented
Plaintiffs and obtained a substantial recovery on behalf of the Class. See Class Counsel Decl. ¶ 29.
Additionally, Class Counsel self-funded $2,325,516.11 in total expenses to prosecute thelitigation, which would not have been reimbursed absent a successful result. Id.; see also Mills,
265 F.R.D. at 263 (noting uncertainty of the case outcome, defendants’ rigorous defense, and that
“Lead Counsel devoted thousands of hours on the case and fronted nearly $3 million in costs inthe process” to conclude that factor weighed in favor of awarding the requested fee); In re RentWay Sec. Litig., 305 F. Supp. 2d 491, 516 (W.D. Pa. 2003) (“Aside from investing their time,counsel had to front copious sums of money . . . . Thus, the risks that counsel incurred inprosecuting this case were substantial and further support the requested fee award.”). The risk of
nonpayment weighs heavily in favor of the requested fee award. See Reilly Decl. ¶ 25.
6. Class Counsel Devoted Nearly 65,000 Hours Prosecuting this Action.
As detailed above and in their Declaration, Class Counsel devoted considerable time andeffort researching, investigating, and prosecuting this case. Class Counsel devoted 64,739.3 hours
to prosecuting this case, resulting in a total lodestar of $37,640,583.50. Class Counsel Decl. ¶¶ 30,
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34-39 & Ex. C thereto. Class Counsel could have spent those attorney hours litigating othermatters, which weighs in favor of awarding the requested fees. Id. ¶ 30; see, e.g., Seaman v. Duke
Univ., No. 1:15-CV-462, 2019 WL 4674758, at *4 (M.D.N.C. Sept. 25, 2019) (explaining that the“attorneys and staff have worked over 12,500 hours since it began” and “spent over $3 million
from their own pockets litigating this case,” which “was time and money the attorneys could havedirected to other simpler and less risky opportunities” supported the fee request); Genworth, 210
F. Supp. 3d at 844-45 (finding that “counsel for plaintiffs devoted an enormous amount of timeand effort into this case, totaling more than 66,000 hours and investing more than three million
dollars in fees towards consulting experts” to be among the considerations that “support theattorneys’ fees award”). The prodigious time and resources Class Counsel committed to this caseweigh in favor of the requested fee. See Reilly Decl. ¶ 26.
7. Public Policy Considerations Support the Requested Fee.
“[A] central factor in fixing the amount of attorneys’ fees is to ensure that competent,
experienced counsel will be encouraged to undertake the often risky and arduous task ofrepresenting a class . . . .” Mills, 265 F.R.D. at 260. In complex cases, fee awards have beenenhanced by courts “to provide an incentive for competent lawyers to pursue such actions in the
future.” In re Microstrategy, Inc. Sec. Litig., 172 F. Supp. 2d 778, 788 (E.D. Va. 2001). Public
policy “generally favors attorneys’ fees that will induce attorneys to act and protect individuals
who may not be able to act for themselves but also will not create an incentive to bringunmeritorious actions.” Jones, 601 F. Supp. 2d at 765 (citing In re Merrill Lynch Tyco ResearchSec. Litig., 249 F.R.D. 124, 142 (S.D.N.Y. 2008); Microstrategy, 172 F. Supp. 2d at 789 n.36).
“The cost and difficulty [of bringing a meritorious complex class action] naturally stands as adeterrent from doing so, and one object of an award of attorneys’ fees should be to counteract thisdeterrence and incentivize competent attorneys to pursue these cases when necessary.” Mills, 265
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F.R.D. at 263; see also Kay Co. v. Equitable Prod. Co., 749 F. Supp. 2d 455, 469 (S.D.W. Va.
2010) (“Attorneys’ fee awards must be large enough to ensure the availability of counsel in classactions, where the plaintiffs’ individual claims may not be large enough take on individually. The
risks of investing time and resources in a class action cannot be discounted.”). Public policy
considerations support awarding the requested fee. See Reilly Decl. ¶ 28.
8. 33.3% of the Settlement Fund Is a Typical and Reasonable Fee Award forCases Similar to this One.
A fee award of approximately one-third of the Settlement Fund, 33.3%, reflects a realworld arm’s length transaction between the Class and Class Counsel and is a generally accepted
percentage in the Fourth Circuit, as evinced by recent rulings in this District and Circuit. See, 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 are commonly
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), reportand 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 of settlement fund); Hooker,
2017 WL 4484258, *5 (awarding fees of 35% of the “concrete, ascertainable, value of the cashfund”); 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”).12
12

See also, e.g., 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’ feesin the amount of 1/3 of the settlement fund are reasonable.”); Seaman v. Duke Univ., 1:15-CV462, 2019 WL 4674758, at *3 (M.D.N.C. Sept. 25, 2019) (“Contingent fees of one-third arecommon in this circuit in cases of similar complexity.”); In re Titanium Dioxide Antitrust Litig.,
22

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Here, the requested fee award is 1) well within the acceptable range of attorneys’ feeawards in hotly contested, complex, and expensive litigation such as this, and 2) justified by thesignificant result obtained for the Class and the risks faced by Class Counsel. See Class Counsel
Decl. ¶¶ 31-33.Class Counsel’s fee request is consistent with awards in similar cases. In particular,
the requested award of 33.3% of the common fund “is in-line with those awarded inconsumer class actions involving a similar degree of complexity and risk to counsel.” Decohen v.
Abbasi, LLC, 299 F.R.D. 469, 482 (D. Md. 2014) (citing Muhammad, 2008 WL 5377783, at *8)(“[T]he one-third fee requested by counsel is in line with fee awards in similar common-fund cases
heard in West Virginia.”); McDaniels v. Westlake Services, LLC, Civ. A. No. ELH-11-1837, 2014
WL 556288, at *13 (D. Md. Feb. 7, 2014) (noting that the “the 33 1/3 percent award of thesettlement fund requested by Class Counsel in this case is in line with the awards approved byother judges of the United States District Court for the District of Maryland in consumer classactions settled with a common fund.”)); see also, e.g., Adkins v. Midland Credit Mgmt., Inc., 5:17CV-04107, 2022 WL 327739, at *6 (S.D.W. Va. Feb. 3, 2022) (“[T]he one-third fee requested bycounsel is very much in line with fee awards in similar common-fund cases.”) (citing Cox v. BB&T,
No. 5:17-cv-01982, 2019 WL 164814, at *5-6 (S.D. W. Va. Jan. 10, 2019); Dijkstra v.
Carenbauer, 5:11-CV-152, 2015 WL 12750449, at *7 (N.D.W. Va. July 29, 2015); Archbold v.
Wells Fargo Bank, N.A., 3:13-CV-24599, 2015 WL 4276295, at *6 (S.D.W. Va. July 14, 2015)).

No. 10-CV-00318(RDB), 2013 WL 6577029, at *1 (D. Md. Dec. 13, 2013) (“Class Counsel is
hereby awarded thirty-three and one-third percent (33 1/3 %) in reasonable attorneys’ fees fromthe $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 thecommon fund, plus costs, is reasonable under the circumstances of this case.”); Smith, 2007 WL
119157, at *2 (“In this jurisdiction, contingent fees of one-third . . . are common.”).
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Additionally, “[t]he percentage-of-the-fund method of awarding attorneys’ fees in classactions should approximate the fee which would be negotiated if the lawyer were offering his or
her services in the private marketplace.” In re Remeron Direct Purchaser Antitrust Litig., No.
CIV.03-0085 FSH, 2005 WL 3008808, at *16 (D.N.J. Nov. 9, 2005). “Attorneys regularly contract
for contingent fees between 30% and 40% with their clients in non-class, commercial litigation.”Id.; see also Montague v. Dixie Nat’l Life Ins. Co., No. 3:09-00687-JFA, 2011 WL 3626541, at *3(D.S.C. Aug. 17, 2011) (“A 33% fee award from the common fund in this case is consistent withwhat is routinely privately negotiated in contingency fee litigation.”).13 As one sister court
recognized, “any discussion of percentage awards should acknowledge the age-old assumptionthat a lawyer receives a third of his client’s recovery under most contingency agreements.”
Thomas, 2017 WL 1148283, at *5. Class Counsel regularly negotiates contingency fee
arrangements with both individuals and sophisticated businesses with fees that amount to one-third
the recovery, and in high-risk cases often substantially more. Thus, consideration of real-worldcontingency arrangements and the actual contingency fee arrangements used by Class Counsel
supports the requested award of 33.3% of the Settlement Fund. See Class Counsel Decl. ¶ 32.
Moreover, courts have determined that a higher percentage rate is appropriate where
discovery has been completed and the case is ready for trial. See Trombley v. Bank of America
Corp., No. 08-cv-456-JD, 2012 WL 1599041, at *3 n.3 (D.R.I. May 4, 2012) (“Higher percentage
rates for attorneys’ fees generally are reserved for cases that settle after the completion of formal

13

A one-third fee is a standard percentage in many fee agreements, including large, complex nonclass cases. See Lester Brickman, ABA Regulation of Contingency Fees: Money Talks, Ethics
Walks, 65 Fordham L. Rev. 247, 248 (1996) (noting that “standard contingency fees” are “usually
thirty-three percent to forty percent of gross recoveries”); see also Blum, 465 U.S. at 903 (Brennan,J., concurring) (“In tort suits, an attorney might receive one-third of whatever amount the plaintiff
recovers. In those cases, therefore, the fee is directly proportional to the recovery.”).
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discovery when the case is close to trial.”).14 Class Counsel achieved the settlement after the closeof discovery, and after full briefing and argument on class certification, summary judgment, andDaubert. All that remained was trial.
Finally, the nonmonetary, business practice changes are an important part of the settlement
and should also be considered in setting the fee, whether as a “bonus” percentage or further
supporting the customary request here as reasonable. Hooker, 2017 WL 4484258, at *5–6;
Poertner v. Gillette Co., 618 Fed. Appx. at 630.
Accordingly, the 33.3% award requested by Class Counsel should be granted.
A Cross-Check of Class Counsel’s Lodestar Confirms the Reasonableness ofthe Fee Request.
Courts often supplement their analysis of the percentage-of-fund method with the lodestar
cross-check. “The purpose of a lodestar cross-check is to determine whether a proposed fee award
is excessive relative to the hours reportedly worked by counsel, or whether the fee is within somereasonable multiplier of the lodestar.” Boyd, 299 F.R.D. at 467. “A lodestar cross-check firstcomputes the plaintiffs’ attorneys’ reasonable hourly rate for the litigation and multiplies that rateby the number of hours dedicated to the case,” and “then compares that figure with the attorneys’
fees award, typically resulting in a positive multiplier.” Genworth, 210 F. Supp. 3d at 845. Whenusing the lodestar as a cross-check, courts “take a somewhat truncated approach to the lodestar
analysis” and “generally do not apply the same scrutiny in a lodestar cross-check as they do whenusing the lodestar method to calculate the fee.” Thomas, 2017 WL 1148283, at *6. Thus, when“using the lodestar method as a cross-check,” the court “need not apply the ‘exhaustive scrutiny’

14

Cf. In re Syngenta AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094, 1113 (D. Kan. 2018)(Awarding 1/3 of a $1.5 billion fund, holding “[t]he Court finds that a one-third fee is customary
in contingent-fee cases (factor 5), or is even on the low side, as that figure is often higher incomplex cases or cases that proceed to trial.”).
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normally required by that method,” “[i]nstead, the reasonableness of the claimed lodestar can betested by the court’s familiarity with the case . . . .” Jones v. Dominion Res. Services, Inc., 601 F.
Supp. 2d 756, 765-66 (S.D.W. Va. 2009) (quoting Goldberger v. Integrated Res., Inc., 209 F.3d
43, 50 (2d Cir. 2000)).
A lodestar cross-check in this case supports the requested fee. Despite the risks,complexities, and challenges posed by this litigation, Class Counsel invested 64,739.3 hours of
attorney and other professional time, and a lodestar of $37,640,583.50 on behalf of the Class fromcase inception through May 31, 2022. Class Counsel Decl. ¶¶ 34, 38, & Ex. C thereto. The workby Class Counsel was non-duplicative and performed at the direction of Plaintiffs’ Co-LeadCounsel, who also audited and confirmed the validity of Class Counsels’ time and expensesubmissions and removed unapproved hours (and hours inconsistent with the Lead Counsel’sbilling protocol) and expenses where appropriate. Id. at ¶¶ 35-37 & Ex. B thereto; see also Reilly
Decl. ¶ 32.
The hourly rates charged by Class Counsel are reasonable, based on each person’s positionand experience level (and Plaintiffs’ Lead Counsel capped the hourly rate of attorneys conducting
first-level document review at $377), and have been approved by multiple courts in similar
consumer class actions. See Class Counsel Decl. ¶ 39.15 These rates are comparable to the rates
charged by other law firms with similar experience, expertise, and reputation, for similar services
in the nation’s leading legal markets. See, e.g., Seaman, 2019 WL 4674758, at *5 (listing
comparable rates from national class action firm). Moreover, as set out in the attached declaration

15

Co-Lead Counsel elected to use current rates in accord with Fourth Circuit guidance deeming it
appropriate to do so to account for the risk and delay in payment. See Daly v. Hill, 790 F.2d 1071,
1081 (4th Cir. 1986); Reaching Hearts Int’l, Inc. v. Prince George’s Cty., 478 F. App’x 54, 60(4th Cir. 2012).
26

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of attorney Craig Reilly, Class Counsel’s rates are reasonable and within the range ofreasonableness for Northern Virginia, especially for cases of this scope and complexity. See Reilly
Decl. ¶¶ 33, 8-12.16
Considering Class Counsel’s lodestar of $37,640,583.50, 33.3% of the Settlement Fundwould result in a fee award of $63,270,000, which would be a multiplier of 1.68. See Class Counsel
Decl. ¶ 41. Such a multiplier is reasonable, well within accepted ranges for class actions generally,
and is consistent with fee rulings in similar cases within the Fourth Circuit. See Reilly Decl. ¶¶ 51,
53. Indeed, “[d]istrict courts within the Fourth Circuit have regularly approved attorneys’ fees
awards with 2–3 times lodestar multipliers.” Genworth, 210 F. Supp. 3d at 845; see, e.g., Titanium
Dioxide, 2013 WL 6577029 (court awarded attorneys’ fees of one-third of settlement fund, which
resulted in a multiplier of 2.39); Microstrategy, 172 F. Supp. 2d at 790 (approving a 2.6 times
lodestar multiplier); Deloach v. Philip Morris Cos., No. 1:00CV01235, 2003 WL 23094907, at*11 (M.D.N.C. Dec. 19, 2003) (approving a 4.45 times lodestar multiplier); Seaman, 2019 WL
4674758, at *6 (approving a 2.89 times lodestar multiplier); see also Singleton, 976 F. Supp. 2d
at 689 (“Courts have generally held that lodestar multipliers falling between 2 and 4.5 demonstrate

16

To whatever extent the court finds Class Counsel’s rates to be higher than the prevailing rates
in Alexandria, Virginia, in cases involving “complex issues requiring specialized experience”—
such as this one—“it is reasonable to look beyond local rates in calculating the reasonable rate fora lodestar comparison.” Seaman, 2019 WL 4674758, at *5; see also Sims v. BB&T Corp., 15-cv732, 2019 WL 1993519, at *2 (M.D.N.C. May 6, 2019) (stating that “a national market rate isappropriate for matters involving complex issues requiring specialized expertise”); Kruger v.
Novant Health, Inc., 1:14CV208, 2016 WL 6769066, at *4 (M.D.N.C. Sept. 29, 2016) (“This court
finds the relevant market rate for cases such as the present case to be a nationwide market rate.”).
Class Counsel’s hourly rates reflect their national class action practices specializing in complex,
high-risk class action and, particularly large data breach cases, and are the rates they customarily
charge in these types of cases. See Singleton v. Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 689
n.12 (D. Md. 2013) (finding hourly rates to be reasonable because, “while somewhat high for this
district, [they] are within a reasonable range for firms with national class action practices”). ClassCounsel’s rates also likely compare favorably with those of Defendant’s lead counsel, global law
firms King & Spalding and Fenwick, based in Atlanta and Silicon Valley respectively.
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a reasonable attorneys’ fee.”). Further, the lodestar figure above does not include the substantial
amount of time that Class Counsel will be required to devote to achieving final approval,
responding to any objections, overseeing the claims administration process and the distribution of
settlement funds to the Class, and litigating any appeals. These additional hours, for which ClassCounsel will not receive any additional compensation from the Settlement Fund, effectively reducethe multiplier, and should be considered in evaluating the reasonableness of the fee request. See
Class Counsel Decl. ¶ 41.
Consideration of these factors therefore confirms the reasonableness of the requested fee.
IV.

CLASS COUNSEL’S REQUEST FOR REIMBURSEMENT OF
LITIGATION EXPENSES IS REASONABLE.

Class Counsel also request reimbursement of reasonable and necessary litigation costs andexpenses in the amount of $2,325,516.11. “There is no doubt that costs, if reasonable in nature andamount, may appropriately be reimbursed from the common fund.” Microstrategy, 172 F. Supp.
2d at 791. “It is well-established that plaintiffs who are entitled to recover attorneys’ fees are also
entitled to recover reasonable litigation-related expenses as part of their overall award.” Singleton,
976 F. Supp. 2d at 689. Such costs and expenses may include “those reasonable out-of-pocket
expenses incurred by the attorney which are normally charged to a fee-paying client, in the courseof providing legal services.” Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (internal
quotations omitted).
Class Counsel’s costs and expenses are summarized in the supporting declaration and are
the same costs that Counsel would normally charge a fee-paying client. See Class Counsel Decl.
¶¶ 42-43 & Ex. C thereto. The vast majority of these costs and expenses relate to expert witnesses,
depositions, and discovery-related matters. Accordingly, Class Counsel’s request for the28

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reimbursement of $2,325,516.11 in expenses from the Settlement Fund is reasonable and should
be approved.
V.

THE REQUESTED SERVICE AWARDS ARE REASONABLE.

Plaintiffs also request approval for a $5,000 service award for each of the 8 Settlement
Class Representatives and the 9 other MDL Plaintiffs who were deposed by Capital One. “At theend of a successful class action, it is common for trial courts to compensate class representatives
for the time and effort they invested to benefit the class.” Reynolds v. Fidelity Invs. Institutional
Operations Co., 1:18-CV-423, 2020 WL 92092, at *4 (M.D.N.C. Jan. 8, 2020). Service awards
are “intended to compensate class representatives for work done on behalf of the 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.” Brown., 318 F.R.D. at 578 (quoting Manuel,2016 WL 1070819, at *6). Among the factors to be considered in determining the reasonablenessof a service award are “the actions the plaintiff has taken to protect the interests of the class, thedegree to which the class has benefited from those actions, and the amount of time and effort theplaintiff expended in pursuing the litigation.” Manuel, 2016 WL 1070819, at *6 (quoting Cook v.
Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998)).
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) (approving a $5,000 service award to each named plaintiff); Henderson v. Verifications
Inc., No. 3:11–CV–514 (E.D. Va. Mar. 13, 2013) (approving a $5,000 service award to named
plaintiff); Pitt v. Kmart Corp., No. 3:11–CV–697 (E.D. Va. May 24, 2013) (approving a $5,000
service award to the class representative); Conley v. First Tennessee Bank, No. 1:10–CV–1247(E.D. Va. Aug. 18, 2011) (awarding a $5,000 service award to each named plaintiff); Ryals, Jr. v.

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HireRight Solutions, Inc., No. 3:09–CV–625 (E.D. Va. Dec. 22, 2011) (awarding a $10,000 service
award to each class representative)).
Here, the 8 Settlement Class Representatives and the 9 other MDL Plaintiffs who were
deposed by Capital One have fulfilled their duties to the class, making the requested service awards
appropriate. See Class Counsel Decl. ¶ 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 the extensive Fact Sheets described above, and had full day depositions taken. Id.
The 8 Settlement Class Representatives also considered and approved the terms of the proposed
settlement agreement as in the best interests of the class after extensive review and discussion with
Co-Lead Counsel. Id. The Court should therefore award Plaintiffs the reasonable and typicalservice awards in the amount of $5,000 each.
VI.

CONCLUSION

For the reasons discussed above, Plaintiffs respectfully request that the Court: (1) award
Class Counsel 33.3% of the Settlement Fund as attorneys’ fees; (2) order reimbursement of
litigation expenses incurred by Class Counsel in the amount of $2,325,516.11; and (3) award eachof the 8 Settlement Class Representatives and the 9 other MDL Plaintiffs a service award of $5,000.

Dated: June 16, 2022

Respectfully submitted,
By: /s/ Steven T. Webster
Steven T. Webster (VSB No. 31975)
WEBSTER BOOK LLP
300 N. Washington Street, Suite 404
Alexandria, VA 22314
Telephone: (888) 987-9991
swebster@websterbook.com
Plaintiffs’ Local Counsel
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Case 1:19-md-02915-AJT-JFA Document 2231 Filed 06/16/22 Page 39 of 40 PageID# 49309

Norman E. Siegel
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 2200
Kansas City, MO 64112
Telephone: (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
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
khriebel@locklaw.com
John A. Yanchunis
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
jyanchunis@ForThePeople.com
Plaintiffs’ Lead Counsel

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CERTIFICATE OF SERVICE
I hereby certify that on June 16, 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

32