In re: Wawa, Inc. Data Security Litigation, No. 22-1950 (3d Cir. 2023)
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Hackers infiltrated Wawa’s payment systems and obtained the credit and bank card data of about 22,000,000 customers. Wawa announced the breach on December 19, 2019; by the next day, attorneys had identified plaintiffs and filed the first of many class action suits seeking damages for the disclosures. Nine months later, Wawa and class counsel for the consumer-plaintiffs agreed on a settlement making $9 million in gift cards and some other compensation available to customers (of which $2.9 million was claimed) and giving $3.2 million to class counsel for fees and expenses. Objections arrived.
The Third Circuit vacated the fee award. The district court must consider whether the funds made available to class members rather than the amount actually claimed during the claims process is the best measure of reasonableness and whether the fee award is reasonable in light of a “clear sailing provision,” in which Wawa promised as part of the settlement not to challenge class counsel’s request for an agreed-upon attorney’s fee award. Though not an automatic bar to settlement approval, such terms deserve careful scrutiny when calculating a reasonable fee award. The court also noted a “puzzling” fee reversion, providing that any court-ordered reduction in the attorney’s fee award would be returned to Wawa—not the class.
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