CCAF filed an amicus brief in support of objectors who received an inexplicably small fee award after their work benefit the class by over $100 million. On May 7, 2020 these objectors prevailed; the Third Circuit remanded with instructions for the district court to explain how it arrived at its low fee award.
Judge Thrash’s written opinion in January was much more extensive than his oral opinion at the end of the fairness hearing. It was also much more critical of objectors to the settlement, including Frank.
“We’re gratified that the court recognized the problems we identified and went beyond the special master’s proposal to return millions of dollars to class members," said Frank.
Much like the Google referrer case that CCAF argued before the Supreme Court, plaintiffs' attorneys have achieved a settlement worth a fraction of pennies-on-the-dollar, then argued that the modest recovery excuses them from actually having to benefit class members. Class member David Lowery objects.
The most promising of those arguments seems to me to be CCAF’s assertion that Equifax and class counsel failed to acknowledge and address potential conflicts among class members. The brief uses Frank and Watkins, the named objectors, to illustrate that point. In Watkins’ home state of Utah, he might be entitled to statutory damages of as much as $2,000 in claims arising from the Equifax breach. Frank, who lived in Washington, could have claimed statutory damages of $1,500. But New Yorkers in the Equifax class would be permitted only $50 for claims under New York general business law.
The fee request is the highest of any data breach settlement, with fee awards approved in similar cases against Anthem and Yahoo totaling $31 million and $30 million, respectively. In those data breach cases, U.S. District Judge Lucy Koh of the Northern District of California questioned the amount of billing and the number of law firms involved. Those same problems exist in the Equifax settlement, Frank said.
The Center for Class Action Fairness objected on behalf of two class members to the infamous Equifax data breach class action settlement. The settlement is rooted in a fundamental failure to adequately represent the class.
Frank has also argued for sanctions against the law firms and an injunction barring them from securing attorneys fees without court approval. He said he can’t afford to intervene in each of the many dozens of cases that are resolved with mootness fees. “It’s not enough to have this whack-a-mole game that will not deter the behavior,” he told Law360.
Frank said in an email that the problem with Judge Rogers' previous ruling was not that the judge didn't explain her reasoning but that her reasoning "was just legally wrong." He said he's waiting to see what plaintiffs' lawyers from Lieff Cabraser Heimann & Bernstein – who defended the lithium ion settlements at the 9th Circuit – do next. "We're still evaluating our options," he said. "It would be odd to move for rehearing of a decision I just won. Then again, I've been known to be odd."
All three judges sitting on the panel expressed doubts about the settlements' approval. Aside from Judge Bybee’s comments, U.S. Circuit Judge M. Margaret McKeown said the judge’s order approving the settlements was “conclusory,” and Judge McKeown expressed concerns that Judge Gonzalez Rogers didn’t explain her reasoning for finding that the deals were fair.
