Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 1 of 25 PageID# 449

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
IN RE: CAPITAL ONE CONSUMER)DATA SECURITY BREACH LITIGATION)__________________________________________)MDL No. 1:19-md-2915 (AJT/JFA)This Document Relates to the Consumer Cases
ORDER AND JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTIONSETTLEMENT
This matter came before the Court on Plaintiffs’ Motion for Final Approval of Class Action
Settlement (“Final Approval Motion”). 1 The Court held a hearing on the Final Approval Motion
on September 8, 2022, following which the Court finally approved the Class Action Settlement,
and in memorialization of that approval, issues this Order and Judgment Granting Final Approvalof Class Action. 2
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”).
On December 2, 2019, the Court appointed Norman E. Siegel, Karen Hanson Riebel, andPlaintiffs have also filed their Unopposed Motion for an Award of Attorneys’ Fees, Costs and Expenses, and forPlaintiff Service Awards, Docs. 2230, 2231, which the Court took under advisement following the hearing on
September 8, 2022.
2
All capitalized terms not otherwise defined have the meanings set forth in the Settlement Agreement. Doc. 2219-1(“Settlement”).
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John 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). 3
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 thisquestion to the Virginia Supreme Court. Doc. 916. Plaintiffs submitted opposition briefing, andthe Court denied the motion for reconsideration. Doc. 934 (Plaintiffs’ Opposition); Doc. 951

Three of the Representative Plaintiffs voluntarily dismissed their claims without prejudice to their 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).

32

Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 3 of 25 PageID# 451(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.
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
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Plaintiffs chose to dismiss their pending complaints. 4 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;
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.

Of the 101 MDL Plaintiffs who submitted verified Fact Sheets and documents, an additional 32 eventually chose todismiss their pending complaints.

4

4

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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 with summary
judgment, which Plaintiffs opposed. Docs. 1658, 1674, 1828, 1840. Plaintiffs filed a motion
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 supersededby 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 the5Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 6 of 25 PageID# 454

Class 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,
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. 5

5Class Counsel have applied separately for a fee of 33.3% of the Settlement Fund, or $63,270,000, and reimbursementof litigation expenses of $2,345,821.98. See generally Docs. 2230, 2231 and Class Counsel Supplemental Decl., Ex. 4 tomemorandum in support, ¶¶ 5-6. Class Counsel have also requested service awards of $5,000 each for the eight Settlement
Class Representatives and the nine other MDL Plaintiffs who were deposed by Capital One. (Id.) Capital One takes noposition on these requests.

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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.
Excluded from the Settlement Class are (i) Capital One, any entity in which Capital One has
a controlling 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
7

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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,
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
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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 and involvethe 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 commonlaw 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 andthe 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 to other Settlement Class
Members and have retained lawyers who the Court has already recognized are abundantly qualified andexperienced, 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)9

Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 10 of 25 PageID# 458(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 contract(Doc. 879 at 9) and Plaintiffs’ tort and quasi-contract claims (Doc. 1293), such that any “variations
in state law will not predominate over the common questions.” Equifax, 2020 WL 256132, at *13.
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 to10

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negotiate 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.
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
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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
to a breached contract bears the kind of claim that he may press in court.”). 6 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. 7 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
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 of action,” Marshall v. Nat’l Football League, 787 F.3d 502, 511 n.4 (8th Cir.
2015), the Court need not 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 to require evidence of aparty’s claims when the parties themselves seek settlement under Rule 23(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.
7
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 thecontext of a class action settlement, let alone one that was reached 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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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
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. 8

Only 4 Class Members submitted substantive objections, on the basis of which the Court
finds strong support for the Settlement by Settlement Class Members and weighs strongly in favorof 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. 9 The filing from RaymondJohn (Doc. 2239, filed under seal because of personal identifiers on documents), contains nodiscernable substantive objection to the Settlement.
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

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), and will be considered in connection the pending
Motion for an Award of Attorneys’ Fees, Costs and Expenses, and for Plaintiff Service Awards, Docs. 2230, 2231.
9
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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Higgitt (Doc. 2242), and Daniel Komen (Doc. 2243).
Objection to the Adequacy of Representative Plaintiffs and Class Counsel. Objector
Helfand’s claim is that there exists a fundamental conflict of interest among three groups: “classmembers who have accrued damages, those still accruing damages, and those facing the prospectof future damage accrual.” This objection has been rejected by multiple courts in analogous cases,
and is rejected here. See, e.g., In re Target Corp. Customer Data Sec. Breach Litig., 892 F.3d 968,
974- 76 (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
was necessary 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 interestin 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 in14

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Amchem, 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.
The additional grounds on which the Objectors object are also overruled. Higgitt objects tothe value of the Settlement and the benefits conferred on the Class. For example, he claims thatthe $190 Million Settlement Fund is “absurdly low,” is not “a sufficient punishment of theCompanies for their negligent disregard for the safety of the customer data entrusted to their care,”and that three years Restoration Services and Identity Defense Services 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
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understandable, do not take into account the risks and realities of litigation, and are not a basis forrejecting the settlement. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998)(“[T]he very essence of a settlement is compromise, a yielding of absolutes and an abandoning of
highest hopes.”) (cleaned up). As argued above, and as this Court provisionally determined in its
Preliminary Approval Order, the relief provided by the Settlement is “fair, reasonable, andadequate, in accordance with Rule 23(e) of the Federal Rules of Civil Procedure.” Doc. 2220 at 2.
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 the16Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 17 of 25 PageID# 465“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
prove useful to individuals who had their “sensitive information leaked twice.” As with Higgitt,
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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. 10 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, thecourts 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 opposition10

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 by different credit monitoring services, and in adifferent package, than the one provided by AllClear ID in the instant case. Credit monitoring by multiple, independent
entities still provides value to Settlement 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 the first place because theEquifax settlement is currently pending appeal before the Eleventh Circuit. It is therefore entirely possible that the twoyears’ worth of Credit Services offered in the instant case will expire before the Equifax credit monitoring becomes
active. Third . . . it would be inequitable to retrospectively render this Settlement invalid based on the contents of asubsequent settlement reached in a different court in a different case.”).

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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 withClass 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 and19Case 1:19-cv-02969-AJT-JFA Document 121 Filed 09/13/22 Page 20 of 25 PageID# 468

briefing 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).
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 for20

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class 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: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
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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.
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
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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 spent
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); (b) 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 in23

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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.
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
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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 protect
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.
IT IS SO ORDERED:

Alexandria, Virginia
September 13, 202225