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EXHIBIT 5

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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[PROPOSED] ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF CLASSACTION SETTLEMENT AND AWARDING FEES, COSTS AND EXPENSES,AND SERVICE AWARDSThis matter came before the Court on Plaintiffs’ Motion for Final Approval of Class Action
Settlement (“Final Approval Motion”) and Plaintiffs’ Unopposed Motion for an Award of
Attorneys’ Fees, Costs and Expenses, and for Plaintiff Service Awards. Docs. 2230, 2231, [ ].
All capitalized terms not otherwise defined have the meanings set forth in the Settlement
Agreement. Doc. 2219-1 (“Settlement”).
BACKGROUNDOn 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 began filing class action
lawsuits against Capital One and Amazon. Ultimately, more than 60 such lawsuits were filed. In
October 2019, the Judicial Panel on Multidistrict Litigation consolidated and transferred theselawsuits to this Court for pre-trial proceedings (the “Action”).

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On December 2, 2019, the Court appointed Norman E. Siegel, Karen Hanson Riebel, andJohn Yanchunis as Plaintiffs’ Lead Counsel and Steven Webster as Local Counsel. Doc. 210,
Pretrial Order #3. On January 29, 2020, the Court approved a representative complaint as thevehicle for litigating Plaintiffs’ claims (Doc. 302), which the Plaintiffs filed on March 2, 2020 (the“Representative Complaint”). The 91-page 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 class against 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 notificationand consumer protection statutes on behalf of state subclasses. Doc. 332, Doc. 354 (corrected).1
On April 10, 2020, Capital One and Amazon each filed motions to dismiss theRepresentative Complaint in its entirety. Docs. 386-87, 389-90. Plaintiffs filed opposition briefs
to which Defendants replied. See Docs. 426, 427 (Plaintiffs’ Memoranda in Opposition); Docs.
463, 464 (Defendants’ Replies). On May 27, 2020, the Court heard oral argument on Defendants’
motions to dismiss. See Doc. 494. Those motions were granted in part and denied in part.
On September 18, 2020, the Court issued a ruling granting in part and otherwise denying
the motions. Doc. 879. However, 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 the 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 this1

Three of the Representative Plaintiffs voluntarily dismissed their claims without prejudice totheir ability to submit claims as absent class members (Docs. 399, 436, 852) and two new
Representative Plaintiffs were substituted, ultimately resulting in the eight current Representative
Plaintiffs who are the Settlement Class Representatives under the settlement. Doc. 971 (Second
Amended Representative Complaint).
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question to the Virginia Supreme Court. Doc. 916. Plaintiffs submitted opposition briefing, andthe Court denied the motion for reconsideration. Doc. 934 (Plaintiffs’ Opposition); 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; 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 toaccept 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 contract claims (Doc. 996), which Plaintiffs opposed. Doc. 1032
(Plaintiffs’ Opposition); 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).
Meanwhile, as motion practice related to Representative Plaintiffs’ allegations wasunderway, the Parties were engaged in discovery. 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—totaling nearly 3 million pages—
produced by Defendants and nearly 7,500 documents produced by third parties. See Doc. 2219-4,
Class Counsel Decl. ¶ 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, Defendants also served written discovery requests on the Plaintiffs, requiring searches ofPlaintiffs’ electronic documents in addition to the collection 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. ¶ 21.

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Furthermore, discovery involved the completion 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.2 Id. In May 2020, each of the Representative
Plaintiffs sat for remote depositions. Id. ¶ 22. In addition, Defendants deposed nine additional
MDL Plaintiffs. All of this discovery involved significant motion practice before Judge Anderson.
After discovery closed in late 2020 and expert disclosures were completed in the spring of
2021, 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. Docs. 1389, 1390,
1394, 1395, 1397, 1398, 1427, 1428, 1431, 1432 (Defendants’ motions to exclude and memoranda
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. Docs. 1559-60.
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. Docs. 1745, 1747;

2

Of the 101 MDL Plaintiffs who submitted verified Fact Sheets and documents, an additional 32
eventually chose to dismiss their pending complaints.
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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. Docs. 1460, 1463. Thatmotion was fully briefed. Doc. 1807.
On July 2, 2021, the Representative Plaintiffs moved for partial summary judgment on
their claims for breach of express and implied contract against Capital One. Docs. 1646, 1649.
That motion was fully briefed. On the same day, Amazon moved for summary judgment on eachof Representative Plaintiffs’ claims. Docs. 1678, 1693. That motion was fully briefed. Doc. 1820.
Capital One and Amazon also filed additional Daubert motions in connection withsummary judgment, which Plaintiffs opposed. Docs. 1658, 1674, 1828, 1840. Plaintiffs filed amotion to exclude the testimony of one of Capital One’s experts related to summary judgment.
Docs. 1638, 1640. These Daubert motions were fully briefed on August 23, 2021.
On September 30, 2021, the Court 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 settlement, the motions for class certification, summary judgment, to exclude expert
testimony, and to challenge Plaintiffs’ Article III standing were submitted to the Court and underadvisement.
Parallel to their litigation of the Actions, the Parties engaged in settlement negotiations
beginning in March 2020. The negotiations were first overseen by former United States 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, November 18,
2020, April 16, 2021, and August 3, 2021, with Judge Brinkema presiding over the last threeconferences. On December 17, 2021, the Parties executed a binding term sheet, to be superseded5Case 1:19-md-02915-AJT-JFA Document 2251-5 Filed 08/29/22 Page 7 of 41 PageID# 49709

by the Settlement Agreement. Doc. 2219-4, Class Counsel’s Declaration ¶ 30. The Parties signed
the Settlement Agreement on January 31, 2022. Dkt. 2219-1.
On February 7, 2022, the Court granted Plaintiffs’ Motion for Preliminary Approval andto Direct Notice. In its order (Doc. 2220), the Court found at that time that the Settlement terms
negotiated by the Parties appeared fair, reasonable, and adequate under Rule 23(e) and that theClass Representatives and Class Counsel have adequately represented the Class. Accordingly, theCourt 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. Pursuant to the Court’s direction,
the Claims Administrator appointed by the Court implemented a robust notice program, and theclaims process is ongoing.
In accordance with the Court’s order, direct mail and email notice to Class Members wasserved. The notice informed Class Members of the terms of the Settlement, including instructions
for submitting a claim for cash reimbursement for out-of-pocket losses and time spent addressing
issues related to the Data Breach. The notice further informed Class Members of the deadline tosubmit an objection to the Settlement or to opt out from the Settlement and that Class Counsel
would seek attorneys’ fees of up to 35% of the Settlement Fund, reimbursement for costs andexpenses, and service awards of $5,000 for each of the Named Plaintiffs. The Notice Plan has beensuccessfully implemented and reached approximately 96 percent of the Settlement Class by theindividual notice efforts alone. Azari Decl., Ex. 1 to memorandum in support, ¶¶ 8-23, 40. Targetedinternet advertising and extensive news coverage enhanced public awareness of the Settlement.
Azari Decl. ¶¶ 24-29, 40.
After completion of the ordered class notice, hundreds of thousands of Settlement Class
Members filed claims, and Class Counsel expects that every Class Member submitting a valid,6Case 1:19-md-02915-AJT-JFA Document 2251-5 Filed 08/29/22 Page 8 of 41 PageID# 49710

Out-Of-Pocket Loss claim will be completely (or nearly completely) reimbursed for losses that theClass Member believes are fairly traceable to the Data Breach. Conversely, only 4 Class Members
submitted substantive objections—or just .000004% of the class.
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 and Class Counsel Supplemental Decl., Ex. 4 to memorandum in support, ¶¶ 5-6. ClassCounsel 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.
FINAL APPROVAL AND JUDGMENT
Nothing has occurred that would alter the Court’s initial determination that the Settlement
is fair, reasonable, and adequate. In fact, the response of the class members to the Settlement
further underscores that the Settlement is, in fact, fair, reasonable, and adequate. Therefore, theCourt, having reviewed the Settlement Agreement and Release, including the exhibits attachedthereto (together, the “Settlement Agreement” or “Settlement”), the arguments and authorities
presented by the Parties and their counsel, and the record in the Action, and good cause appearing,hereby grants final approval of the Settlement.
Accordingly,
IT IS HEREBY ORDERED:
1.

Class Certification for Settlement Purposes Only.

The Settlement Agreement provides for a Settlement Class 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.

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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.
For the following reasons, the Court affirms that it is proper to certify, and hereby does
finally certify, for settlement purposes only, the Settlement Class pursuant to Federal Rule of Civil
Procedure 23(b)(3).
a.

Numerosity: Rule 23(a)(1) requires that a proposed settlement class be “sonumerous that joinder of all class members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, there
are approximately 98 million Settlement Class Members and numerosity is not in question. See
Jeffreys v. Commc’ns Workers of Am., AFL–CIO, 212 F.R.D. 320, 322 (E.D. Va. 2003) (notingthat “where the class numbers twenty-five or more, joinder is generally presumed to be
impracticable”).
b.

Commonality: Rule 23(a)(2) requires that there be “questions of law or factcommon to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstratethat the class members 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 that is 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). Here, all
Settlement Class Members suffered the same alleged injury from the same conduct—exposure of
their personal data in the Data Breach—and are asserting the same legal claims. Accordingly,

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common questions of law and fact abound. See, e.g., Abubaker v. Dominion Dental USA, Inc., No.
1:19-cv-01050, 2021 WL 6750844, at *3 (E.D. Va. Nov. 19, 2021) (Brinkema, J.); In re Equifax
Inc. Customer Data Security Breach Litig., No. 1:17-md-2800-TWT, 2020 WL 256132, at *11-12(N.D. Ga. March 17, 2020), aff’d in relevant part 999 F.3d 1247 (11th Cir. 2021), cert. denied subnom. 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, 307-09 (N.D. Cal. 2018).
c.

Typicality: Rule 23(a)(3) requires that “the claims or defenses of the representative

parties [be] typical of the claims or defenses of the class.” 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. The Settlement Class Representatives’ claims are typical ofother Settlement Class Members’ claims 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 Settlement 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.
d.

Adequacy of Representation: The adequacy requirement is satisfied when “therepresentative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). “The adequacy inquiry . . . serves to uncover conflicts of interest between named parties

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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 not have any interests antagonistic toother Settlement Class Members and have retained lawyers who the Court has already recognized
are abundantly qualified and experienced, thus satisfying the adequacy requirement. Doc. 2219-4¶¶ 3-9, 50.
e.

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, common questions predominate because all claims arise out of a common course of
conduct by Capital One and the only significant individual issues 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 adata breach class action “is the precise type of predominant question that makes class-wide
adjudication worthwhile.” Anthem, 327 F.R.D. at 312. Further, the Court previously found that
Virginia law applies across all common law claims, e.g., Plaintiffs’ claims for breach of contract10

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49714(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.
f.

Superiority: “[T]he purpose of the superiority requirement is to assure that the classaction is 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 clearly be
inefficient. The superiority requirement thus is satisfied. See Equifax, 2020 WL 256132, at *14;
Anthem, 327 F.R.D. at 315-16.
2.

Plaintiffs’ Counsel and Settlement Class Representatives.

The Court concludes that Norman E. Siegel of Stueve Siegel Hanson LLP, Karen Hanson
Riebel of Lockridge Grindal Nauen, P.L.L.P., and John A. Yanchunis of Morgan & Morgan
Complex Litigation Group have fairly and adequately represented the interests of the Settlement
Class Members. Plaintiffs’ Counsel have substantial experience in consumer class action litigation,and in particular data breach and privacy litigation, lead a significant effort to well develop every
aspect of this case up through the certification and summary judgment stage, and were able tonegotiate a well-informed Settlement that provides meaningful relief to Plaintiffs and the Class.
The Court previously appointed Mr. Siegel, Ms. Riebel, and Mr. Yanchunis as interim ClassCounsel and now appoints them as Class Counsel pursuant to Federal Rule of Civil Procedure
23(g).
The Court further concludes that Plaintiffs Brandon Hausauer, Carolyn Tada, Emily Behar,
Gary Zielicke, Emily Gershen, Brandi Edmondson, John Spacek, and Sara Sharp have fairly andadequately represented the interests of the Settlement Class Members and now appoints them as
Settlement Class Representatives.

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3.

Jurisdiction.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2), and personal
jurisdiction over the parties before it. Additionally, venue is proper in this District pursuant to 28
U.S.C. § 1391.
4.

Findings Concerning 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)).
The Court reaffirms its prior conclusion that it has subject matter jurisdiction to approve
the Settlement. See Doc. 2220. The Court previously concluded it had subject matter jurisdiction
to approve 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 their personal information, which Capital One allegedly breached, resulting in the theft of theirpersonal 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 overthe standing inquiry” for a breach of contract claim, because it is “readily” apparent that “a party

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to a breached contract bears the kind of claim that he may press in court.”).3 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. 1648 at 2-3 & n.4,
25-26 & nn.18-20; Doc. 1649 at 3-5; Doc. 879 at 41-42, 46-47. Thus, all Settlement Class Members
have Article III standing.4 The Court concludes it has subject matter jurisdiction to approve theSettlement and enter final judgment thereon.
5.

Findings Concerning Notice.

The Court finds that the Notice Program has been implemented by the Settlement
Administrator and the Parties in accordance with the requirements of the Settlement Agreement,
and that such Notice Program, including the utilized forms of Notice, constitutes the best noticepracticable under the circumstances and satisfies due process and the requirements of Rule 23 of
the Federal Rules of Civil Procedure. The Court finds that the Settlement Administrator and Parties
have complied with the directives of the Order Granting Preliminary Approval of Class Action

3

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.
4

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.
Ramirez 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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Settlement and Directing Notice of Proposed Settlement and the Court reaffirms its findings
concerning notice as set forth in paragraph 9 thereof.
6.

Findings Concerning Claims Process.

The Court finally approves the Claims Process as a fair and reasonable method to allocate
the Settlement benefits among Settlement Class Members. The Court directs that the Settlement
Administrator continue to effectuate the Claims Process according to the terms of the Settlement
Agreement.
7.

Objections to the Settlement.

Only 4 Class Members submitted substantive objections. This indicates strong support for
the Settlement by Settlement Class Members and weighs strongly in favor of final approval.
As an initial matter, the Court notes that Putative class members Rosemary Burnham
McDaniel (Doc. 2237) and Greg Zoccali (Doc. 2240) have opted-out of the Settlement and are
therefore not part of the Settlement Class and have no standing to object. The filing from RaymondJohn (Doc. 2239, filed under seal because of personal identifiers on documents), contains nodiscernable substantive objection to the Settlement.5
With respect to the four remaining objections, which are more substantive in nature, theCourt overrules the objections of Steven Helfand (Doc. 2238), Constance Pentz (Doc. 2241), Paul
Higgitt (Doc. 2242), and Daniel Komen (Doc. 2243).

5

To the extent any of these filings are considered “objections” they are 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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Objection to the Adequacy of Representative Plaintiffs and Class Counsel. Objector
Helfand’s6 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 futuredamage accrual.” This objection has been rejected by multiple courts in analogous cases, and isrejected here. See, e.g., In re Target Corp. Customer Data Sec. Breach Litig., 892 F.3d 968, 97476 (8th Cir. 2018); Equifax, 2020 WL 256132, at *20-22; Anthem, 327 F.R.D. at 309-11; 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 wasnecessary to represent allegedly conflicting subclasses) (Doc. 237 at 39-40 (objection); Doc. 245
at 21-23 (reply in support of final approval)).
Helfand’s reliance on Amchem, 521 U.S. 591 and Oritz v. Fibreboard Corp., 527 U.S. 815(1999), is misplaced. Unlike in this case, Amchem and Ortiz were massive personal-injury “classaction[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 classbecause claimants who suffered diverse medical conditions as a result of asbestos exposure wanted
to maximize the immediate payout, whereas healthy claimants had a strong countervailing interest

6

Class Counsel has made a record that objector Helfand “has a history of improper conduct inclass action litigation.” Equifax, 2020 WL 256132, at *42; 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”).
The Court takes this background information into consideration when considering the weight ofHelfand’s arguments. See Equifax, 2020 WL 256132, at *41 (“The fact that the objections areasserted by a serial or ‘professional’ objector, however, may be relevant in determining the weightto 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 todistinguish between meritorious objections and those advanced for improper purposes.”).
Regardless, Helfand’s objections are without merit.
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in preserving funds in case they became ill in the future. These vast differences between groups ofclaimants required “caution [because] individual stakes are high and disparities among classmembers great.” 521 U.S. at 625. Those concerns are simply not present in this consumer casewhere all Settlement Class Members allege the same injury from the compromise of their personal
information. See Equifax, 2020 WL 256132, at *21.
Moreover, there is no conflict between the two groups Helfand identifies, 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 monetary losses to date. Thus, unlike in Amchem, everyone has
an incentive 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 is overruled.
Objections to Attorneys’ Fees and Service Awards. Three of the submitted objections
relate, at least in part, to the requested attorneys’ fees or service awards—those of Objectors
Helfand, Higgitt, and Pentz (Docs. 2238, 2241, 2242). Each is rejected.
First, 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.

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The entitlement to, and the computation of, fees in this case is governed by federal, notstate, law. “Federal courts award attorneys’ fees under the common fund doctrine as a matter offederal 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’lBank, 307 U.S. 161, 164 (1939)). Even if Virginia state law, and not federal law, governed the
Court’s fee inquiry, the result would be the same because class actions in Virginia are non-existent,
and so is their attendant caselaw. Casey v. Merck & Co., 283 Va. 411, 418 (2012) (quoted by In re
Volkswagen “Clean Diesel” Litig., 94 Va. Cir. 189 (2016)). Accordingly, even if Virginia law
governed, the lack of state court jurisprudence on the question would, in any event, devolve theinquiry 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.”).7
Helfand’s factual attacks objecting to the fee are also incorrect. For example, he speculates
that the lodestar is “grossly inflated and unsupported,” that Class Counsel provided “[n]oexplanation as to why and what steps were taken to avoid duplication and when,” and “have notmeaningfully explained any steps taken to avoid duplication of efforts and waste avoidance.” Doc.
2238 at 10-11. This claim is contrary to the record. Aside from the Court’s own observation of thework performed by Class Counsel throughout the course of this litigation, Class Counsel’s

7

The cases Helfand cites are 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). These cases do not stand for the propositions that Helfand appears to attribute them—that“No multiplier can be awarded” and “Percentage of award is not allowed under Virginia law.”Doc. 2238 at 10.
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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 rate of 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, or time thatwas not performed at the direction of Co-Lead Counsel, or reports that did not meet the billing
protocol were eliminated or returned for correction; and (3) engaging in a rigorous time entry andexpense 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 andexpenses that were excessive or not consistent with the billing protocol being disallowed and notincluded in the submission, ultimately resulting in approximately 5,000 hours being eliminatedfrom consideration. Doc. 2231-1 ¶¶ 35-40.
Helfand is also incorrect that “motion practice is exceedingly thin relative to a case of thismagnitude.” Doc. 2238 at 10. Dozens of discovery motions were filed in this case, in addition to
the motion for class certification, Daubert motions, and numerous dispositive motions, as
previously discussed. Moreover, Helfand’s speculation that the work here was somehow derivativeof “Morgan & Morgan’s case against Morgan Stanley” and thus the “[w]ork performed was
redundant and duplicative” (id. at 10-11), is also facially incorrect. The “Morgan Stanley” case
was filed on July 29, 2020. See Tillman et al. v. Morgan Stanley Smith Barney, LLC, No. 1:20-cv05914, 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 andduplicative” of a case that was not filed until a year later. Moreover, Plaintiffs in the Morgan

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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, the cases areclearly 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 then re-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, without support, that the document review undertaken here
was “surely cumulative,” “[n]ot each one had to be reviewed,” and included “review of millionsof 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 andnecessary to their claims absent actually reviewing them. And, as noted above, Class Counsel 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. These objections
are overruled.
Second, Objector Pentz8 argues Class Counsel should receive no more than the average
percentage fee in “megafund” recoveries of $190 million, which according to Pentz is between

8

Class Counsel has introduced evidence that Pentz is the mother of John J. Pentz, a noted 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 of bad faith or vexatious conduct” byPentz and other attorneys for objectors, and requiring Pentz to post 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, inrequiring that Pentz post an appeal bond, that Pentz has “a documented history of filing notices ofappeal from orders approving other class action settlements, and thereafter dismissing said appeals
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16.9% and 17.9%. Doc. 2241 at 1-2. Pentz bases this objection on nonbinding authority and,principally, on a law review article: Brian T. Fitzpatrick, An Empirical Study of Class Action
Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811 (2010). She also makes several
mistaken factual assertions.
Pentz does not cite any Fourth Circuit authority adopting the analysis 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.
Rather, district courts within the Fourth Circuit have criticized this analysis—sometimes also
referred to as the “declining percentage approach”—remarking, for example, that one study
underlying this theory “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 comparison of the size of the fund and percentage of the award in other cases
discounts the specifics of each case—namely the amount of work done and the difficulty in thatspecific case of reaching a favorable result.” In re The Mills Corp. Sec. Litig., 265 F.R.D. 246,
261-62 (E.D. Va. 2009). 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 a declining percentage
reduction in every settlement involving a sizable fund. Put simply, the declining percentage
concept does not trump the fact-intensive Prudential/Gunter analysis. We have generally

when [he and his clients] were compensated by the settling class or counsel for the settling class”);
In re MetLife Demutualization Litig., 689 F. Supp. 2d 297, 350-51 (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). Regardless, objector Pentz’s objections are without merit.
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cautioned against overly formulaic approaches in assessing and determining the amounts andreasonableness 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 the requested 33.3% fee is
supported by numerous decisions from within the Fourth Circuit.9
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

9See, 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); Hooker, 2017 WL 4484258, *5 (awarding fees of 35% of the “concrete,
ascertainable, value of the cash 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 settlementfund); 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 amountof 1/3 of the settlement 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 thiscircuit in cases of similar complexity.”); In re Titanium Dioxide Antitrust Litig., No. 10-CV00318(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 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, is reasonable 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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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 becomecommon”).
Ultimately, then, the touchtone of the analysis must be the specifics of the case before the
Court. Class Counsel has indicated that his case was likely the most heavily litigated data breachcase in history. Class Counsel expended tremendous effort in zealously representing the Class, andthe 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.10 For these reasons, Pentz’s objections are overruled.
Third, Objector Higgitt argues: “Given the fact the Settlement is so absurdly low

10Pentz also makes several incorrect factual assertions. For example, she states, “[g]iven the factthat mediation in this case began in 2020 . . . a large portion of the hours generated by ClassCounsel 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 thetime of resolution, actively litigated. None of the discovery here was “confirmatory document
review.” Rather, all of the document discovery, discovery-related motion practice, dozens ofdepositions, and the like occurred during active litigation of this matter. Indeed, a great amount of
the litigation in this case occurred in 2021, including Plaintiffs’ Motion for Class Certification(filed in April 2021), and Defendants’ summary judgment and Daubert motions (filed in June andJuly 2021). Pentz also 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 speculation, and contrary to the declarations ofClass Counsel. Doc. 2231-1 ¶¶ 35-40.
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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, Plaintiffs’ request of 33.3%
is in line with many class cases from within the Fourth Circuit. Higgitt’s suggestion of 10% of thecommon 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 futurecontingent fee work despite the favorable outcome reached for the Settlement Class. Higgitt’s feerelated objection is unsupported by citation to any relevant authority. It is overruled.
Fourth, Objector Pentz claims that “the Fourth Circuit has [n]ever approved the practiceof granting incentive or service awards.” Doc. 2241 at 3. In fact, the Fourth Circuit has specificallyruled that 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.” 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).11
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

11

Pentz ignores this controlling Fourth Circuit precedent in an effort to extend the effect ofJohnson v. NPAS Sols. LLC, 975 F.3d 1244 (11th Cir. 2020). But this Court is bound by Fourth
Circuit authority, which has endorsed service awards like those sought here.
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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.
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 overrules Pentz’s Objection
and grants the requested Service Awards as fair under Rule 23(e), as described herein.
Finally, the additional grounds on which the Objectors object are also overruled. Higgitt
objects to the value of the Settlement and the benefits conferred on the Class. For example, heclaims that the $190 Million Settlement Fund is “absurdly low,” is not “a sufficient punishment of
the Companies for their negligent disregard for the safety of the customer data entrusted to theircare,” and that three years Restoration Services and Identity Defense Services is a “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 for24Case 1:19-md-02915-AJT-JFA Document 2251-5 Filed 08/29/22 Page 26 of 41 PageID#
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rejecting 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 ).
This objection is overruled.
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 the25Case 1:19-md-02915-AJT-JFA Document 2251-5 Filed 08/29/22 Page 27 of 41 PageID#
49729“proposal [as] simply unworkable.” 2020 WL 6532833, at *22. The same principle applies here,
and the objection is overruled.
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 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,
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. The Court overrules the factually incorrect objection that human agents were notavailable 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.)
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-ofPocket 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 toreceiving services under both settlements, which are provided by different companies and could
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prove useful to individuals who had their “sensitive information leaked twice.” As with Higgitt,
Komen seeks “the Settlement Agreement [to be] tailored to each individual policyholder’s
circumstance,” here including other settlement benefits they may receive in other, unrelated cases.
This is “simply unworkable” in the class action context. Skochin, 2020 WL 6532833, at *22.12 The
objection is overruled.
8.

Findings Concerning the Fairness, Adequacy, and Reasonableness of theSettlement.

The Court previously determined that the proposed Settlement meets the requirements ofRule 23(e) such that notice should issue. Doc. 2220 ¶ 2. The Court now determines that the
Settlement is fair, reasonable, and adequate and should be approved in a class judgment.
The Court’s Rule 23(e) obligations are addressed with a “two-level analysis.” In re The
Mills, 265 F.R.D. at 254. To determine whether a settlement 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 of counsel.” In re Jiffy Lube
Sec. Litig., 927 F.2d 155, 159 (4th Cir. 1991). To determine whether a settlement is adequate, the12

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, No. 20-17438, 2021 WL
2451242 (9th Cir. Feb. 16, 2021), and aff’d, No. 20-16633, 2022 WL 2304236 (9th Cir. June 27,2022) (“[T]he credit monitoring in the instant case is not entirely duplicative of the credit
monitoring in Equifax. First, the Equifax settlement contemplates credit monitoring provided bydifferent credit monitoring services, and in a different package, than the one provided by AllClear
ID in the instant case. Credit monitoring by multiple, independent entities still provides value toSettlement Class Members. Second, importantly, it is unclear whether the Equifax credit
monitoring will ever overlap with the Credit Services provided by the instant Settlement in thefirst place because the Equifax 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 instantcase 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 a different court in a different case.”).
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courts also look to: “(1) the relative strength of the plaintiffs’ case on the merits, (2) the existenceof any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goesto 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. The Court finds that this Settlement reflects an outstanding result for the Class in a casewith a significant level of risk. The Settlement provides significant monetary benefits tocompensate consumers for out-of-pocket losses and attested time spent dealing with issues related
to the alleged data breach and important commitments by Capital One as to its future data security
practices. This relief compares very favorably to settlements in other data breach class actions.
The Settlement satisfies all requirements of Rule 23(e)(2).
a.

The Settlement Class Representatives and Plaintiffs’ Counsel Have
Adequately Represented the Class (Rule 23(e)(2)(A)).

The Court finds that the Settlement Class Representatives and Class Counsel have provided
adequate representation to the Settlement Class by vigorously litigating this case in the face ofstern opposition and denials of liability. Class Counsel negotiated a multi-faceted settlement thatwas well received by the Class, as evidenced by the minimal objections. Class Counsel’s view that
the Settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class,supports approval of the Settlement.
In addition, the Court finds the Settlement Class Representatives have adequately
represented the Settlement Class. Each of them provided documents, sworn interrogatories, andsat for their depositions—all of which was vital to Class Counsel’s investigation and litigation of
the class’s claims. Furthermore, each of them has remained active in the case, communicating with28

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Class Counsel during subsequent phases of the case, and, in particular, reviewing and approving
the terms of the Settlement as being in the best interests of the Settlement Class.
b.

The Settlement was Negotiated at Arm’s Length Class (Rule 23(e)(2)(B)).

The Court finds the 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 andbriefing and argument of numerous legal issues; the length and difficulty of the negotiations; andthe involvement of two experienced mediators, including Judge Brinkema across several
mediation sessions.
c.

The Relief Provided for the Class is Adequate (Rule 23(e)(2)(C))

The relief offered to Class Members in the proposed Settlement is 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 that the Class Member believes are fairly traceable to the Data Breach; 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.
Class Counsel, a group with substantial 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, which is further confirmed byconsidering the four specific factors enumerated in Rule 23(e)(2)(C).

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Factor 1: The Costs, Risk, And Delay Of Trial And Appeal. Plaintiffs faced significant
risks and costs should they continue to litigate the case. First, there was a risk that Plaintiffs’ claims
would not have survived, or survived in full, on a class-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 forclass certification and successfully defeated Defendants’ pending motions thus proceeding to trial,
Plaintiffs still would have faced significant risk, cost, and delay including likely interlocutory andpost-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.
Factor 2: The Method Of Distributing Relief Is Effective. The proposed distribution
process will be efficient and effective. The available relief was detailed in the Notice, which laysout 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 ofrelief will be distributed as follows:30

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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 submission 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.
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 ofthe fund” approach. (Doc. 2231). After robust notice directed at the approximately 98 million
putative class members, only 3 objections relating to attorneys’ fees are before the Court, as
discussed above. Importantly, the Settlement Agreement is not conditioned 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 Settlement.
Factor 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 the provision 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 notaffect the adequacy of the relief obtained here.
d.

The Settlement Treats Class Members Equitably Relative to Each Other(Rule 23(e)(2)(D)).

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 that they believe are fairly traceable to the Data Breach, compensation for time spent32

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responding to the Data Breach, and free Identity Defense Services. Moreover, all Settlement Class
Members—even those who do not submit claims—may access Restoration Services and benefit
from Capital One’s Business Practice Commitments.
9.

Final Approval. The Court held a Final Approval Hearing on September 8, 2022.

Following argument from the Parties, and after considering all objections, the Court concludes asfollows: (a) this matter is certified as a class action for settlement purposes pursuant to Fed. R.
Civ. P. 23(b)(3) and (e); the Settlement is approved as fair, reasonable, and adequate, and finallyapproved pursuant to Fed. R. Civ. P. 23(e); (c) the Complaint in this MDL is dismissed withprejudice pursuant to the terms of the Settlement Agreement; and (d) Settlement Class Members,
except those who timely and validly excluded themselves, are bound by the releases set forth in
the Settlement Agreement. The putative class members who timely and validly excluded
themselves from the Settlement Class are listed in Exhibit A hereto. Further, because theSettlement is being reached as a compromise to resolve this litigation, including before a final
determination of the merits of any issue in this case, none of the individuals reflected on Exhibit
A may invoke the doctrines of res judicata, collateral estoppel, or any state law equivalents to
those doctrines in connection with any further litigation against Defendants in connection with theReleased Claims. The Parties are ordered to carry out the Settlement as provided in the Settlement
Agreement.
10.

Releases As of the Effective Date, the Releases set forth in Section 14 of theSettlement Agreement shall be deemed to have, and by operation of this Order and Final Judgment
shall have, fully and irrevocably released and forever discharged the Parties from all Released
Claims. Doc. 2219-1 § 14.

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11.

Business Practice Changes. Capital One shall implement and/or continue to use

the Business Practice Changes described in Exhibit 2 to the Settlement Agreement on the terms
set forth in § 5.1 and Exhibit 2 to the Settlement Agreement.
12.

Continuing Jurisdiction. The Court hereby dismisses this Action with prejudice

except the Court retains jurisdiction over this action and the Parties, attorneys and Settlement Class
Members for all matters relating to this Action, including (without limitation) the administration,interpretation, scope, effectuation or enforcement of the Settlement Agreement and this Order.
Without limiting the generality of the foregoing, any dispute concerning the Settlement
Agreement, including, but not limited to, any suit, action, arbitration or other proceeding by a
Settlement Class Member in which the provisions of the Settlement Agreement are asserted as adefense in whole or in part to any claim or cause of action or otherwise raised as an objection, shallconstitute a matter relating to this Order. Nothing in this Order shall preclude any action to enforce
the terms of the Settlement Agreement.
13.

Dismissal. This Action is hereby dismissed on the merits, in its entirety, withprejudice and without costs, save for any individual claims brought by putative class members whotimely and validly excluded themselves from the Settlement Class. The Settlement Class
Representatives and Settlement Class Members are hereby permanently barred and enjoined(including during the pendency of any appeal taken from this Order) from commencing, pursuing,
maintaining, enforcing, or prosecuting, either directly or indirectly, any Released Claims in any
judicial, administrative, arbitral or other forum. This permanent bar and injunction is necessary toprotect and effectuate the Settlement Agreement, this Order, and this Court’s authority toeffectuate the Settlement Agreement, and is ordered in aid of this Court’s jurisdiction and to protect34

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its judgments. The Court finds, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,that there is no just reason for delay, and directs the Clerk to enter final judgment.
ATTORNEYS’ FEES, COSTS, AND EXPENSES AND NAMED PLAINTIFFSERVICE AWARDS
For the reasons set forth below, the Court finds that an attorneys’ fee award in the amountof $63,270,000 is fair and reasonable, along with litigation expense reimbursement in the amountof $2,345,821.98 and service award payments to each of the eight Settlement Class
Representatives and the nine other MDL Plaintiffs who were deposed by Capital One in the amountof $5,000 each, all to be paid from the Settlement Fund. Accordingly,
IT IS HEREBY ORDERED:
1.

Attorneys’ Fees: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. See Docs. 2230, 2231 (motion and memorandum in support)
and Class Counsel Supplemental Decl. For the reasons set forth herein and in Plaintiffs’ briefing,
the Court grants the motion for attorneys’ fees and expenses.
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 Supreme Court has suggested that thepercentage-of-the-fund is the appropriate method for awarding fees under the common funddoctrine. See Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984) (“[U]nder the ‘common funddoctrine,’ . . . a reasonable fee is based on a percentage of the fund bestowed on the class . . . .”).
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Likewise, within the Fourth Circuit, “the percentage-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); see also, 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 trend among the courts of appeal favors the use of a percentage
method to calculate an award of attorneys’ fees in common fund cases.”) (internal quotations
omitted); In re The Mills, 265 F.R.D. at 260 (“[D]istricts within this Circuit, and the vast majority
of courts in other jurisdictions consistently apply a percentage of the fund method for calculating
attorneys’ fees in common fund cases.”).
Some courts incorporate a “lodestar” analysis into the percentage method by crosschecking the lodestar calculation against the percentage calculation. Thomas v. FTS USA, LLC,
No. 3:13cv825 (REP), 2017 WL 1148283, at *4 (E.D. Va. Jan. 9, 2017), report andrecommendation adopted, 2017 WL 1147460 (E.D. Va. Mar. 27, 2017); Manual for Complex
Litigation (Fourth) § 14.122. 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.” In re The Mills, 265 F.R.D. at 260
The Court applies the percentage method to find that he requested 33.3% award isappropriate here. As discussed above in the Court’s analysis of objection to the requested fee, a
33.3% award is consistent with awards in this district and in other similar cases. Here, the requested
fee award is (1) well within the acceptable range of attorneys’ fee awards in hotly contested,
complex, and expensive litigation such as this, and (2) justified by the significant result obtained
for the Settlement Class and the risks faced by Class Counsel.

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The Court further finds that the requested attorneys’ fee is reasonable in light of (1) thecomplex factual and legal issues involved and the excellent result obtained for the Class; (2) the
limited objections by Settlement Class Members to the settlement terms and/or fees requested byClass Counsel; (3) the requisite skill required and the experience, reputation and ability of ClassCounsel; (4) the complexity and duration of the litigation and the amount of time devoted to thecase by Class Counsel; (5) the litigation risks and opportunity costs to Class Counsel for pursing
this litigation; and (6) the awards in other similar cases. See Barber v. Kimbrell’s, Inc., 577 F.2d
216, 226, n. 28 (4th Cir. 1978) (applying Johnson factors test); Gunter v. Ridgewood Energy Corp.,
223 F.3d 190, 195 n.1 (3d Cir. 2000); Galloway v. Williams, No. 3:19-CV-470, 2020 WL 7482191,
at *5 (E.D. Va. Dec. 18, 2020) (applying both Johnson and Gunter factors). The fact that the
Settlement also provides injunctive relief in the form of Capital One’s Business PracticeCommitments also helps confirm the reasonableness of the requested fee, and when the value ofthat injunctive relief is considered, lowers the requested fee percentage.
Finally, a lodestar cross-check confirms that 33.3% is an appropriate fee percentage. As
summarized in the Background section of this Order and observed by the Court, the discovery andmotion practice in this case was complex and voluminous, with zealous advocacy on behalf of all
Parties. Class Counsel worked a collective 65,409 hours pursing the results achieved for the
Settlement Class for a total lodestar of $38,163,226. Based on the briefing and declarations
submitted by Class Counsel, the Court finds that the hourly billing rates and time spent by ClassCounsel were reasonable and appropriate. See Docs. 2231 (memorandum in support), 2231-1(Declaration of Class Counsel), 2231-2 (Declaration of Craig G. Reilly), and the Class Counsel
Supplemental Declaration (Ex. 4) submitted with the memorandum in support of final approval.
Based on that lodestar amount, the requested fee reflects a multiplier of 1.66. Such a37

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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, e.g., In re Genworth Fin. Sec. Litig.,
210 F. Supp. 3d 837, 845 (E.D. Va. 2016) (“District courts within the Fourth Circuit have regularly
approved attorneys’ fees awards with 2–3 times lodestar multipliers.”). A lodestar cross-check thus
confirms that the requested fee is reasonable.
But for Class Counsel’s exceptional efforts, this Settlement would not have been achieved.
Accordingly, Class Counsel’s request for $63,270,000 in fees is reasonable and appropriate. These
fees shall be allocated and distributed among lawyers representing consumer plaintiffs at the sole
discretion of Class Counsel.
2.

Litigation Costs and Expenses:

Class Counsel has requested $2,345,821.98 in litigation expenses incurred prosecuting thiscase. There is no objection to the reimbursement of litigation costs and expenses and the Court
finds reimbursement in the amount of $2,345,821.98 is appropriate and reasonable.
3.

Service Awards:

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 of the class, tomake up for financial or reputational risk undertaken in bringing the action, and, sometimes, torecognize 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 inclass 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,38

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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)).
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, Plaintiffs made themselves available toClass Counsel to assist with the investigation into their claims. Id. 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 the bestinterests of the Class after extensive review and discussion with Co-Lead Counsel. Id. The Court
therefore awards Plaintiffs service awards in the amount of $5,000 each.

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IT IS SO ORDERED:

Date:_______________________
Anthony J. Trenga
United States District Judge40