11th Circuit Affirms Equifax Settlement, Reverses Incentive Fees

    After several objections, the U.S. Court of Appeals for the Eleventh Circuit affirmed the $380.5 million Equifax settlement. The only reversal involved incentive awards to named class members. Nonetheless,  a subsequent 11th Circuit ruling prohibited these fees. The ruling led the court to remand the case back to the lower court to vacate them.

    A Brief History of the Equifax Case

    In 2017, Equifax, a consumer credit reporting agency, admitted to a data breach involving more than 147 customers’ sensitive information. Hackers accessed names, addresses, birth dates, Social Security numbers, driver’s license numbers, and other information that could lead to identity theft.

    In January 2020, Equifax agreed to a $425 million settlement with the Federal Trade Commission and others. In this agreement, Equifax also settled with the Consumer Financial Protection Bureau and 50 U.S. states and territories.

    Numerous plaintiffs filed lawsuits, in addition to regulatory action. The suits were consolidated under Chief Judge Thomas W. Thrash Jr. of the U.S. District Court for the Northern District of Georgia. (In re: Equifax Inc. Customer Data Security Breach Litigation, Case No. 1:17-md-2800-TWT).

    Years of litigation finally resulted in a settlement agreement in January 2020, which the 11th Circuit affirmed in June 2021.

    Objections to the Equifax Settlement

    Numerous objectors appealed on various issues, and U.S. Circuit Court Judge Beverly Martin penned the decision affirming the settlement.

    Standing

    An objector claimed class members who hadn’t suffered identity theft from the data breach lacked Article III standing to sue. The 11th Circuit ruled last year in Tsao v. Captiva MVP Restaurant Partners, LLC. The court held that data breach victims have standing. The victims have standing if they allege actual access to personal data increases their risk of theft or misuse. The court found the amount and importance of the data stolen gave class members standing. The risk of harm was enough.

    With regard to standing, the same objector claimed the settlement didn’t remedy the class members’ injuries. The objector alleged nothing prevented third parties from using the members’ data. The court noted the action was against Equifax based on the class members’ risk of identity theft. According to the court, the settlement redressed those injuries through mitigation efforts.

    Objector Requirements

    An objector claimed the district court’s administrative requirements for objectors infringed on their rights to be heard. The objector alleged the requirements encroached on their right for representation by counsel and deterred objections. The district court required objectors to provide certain information, including their names, address, signature, and grounds for the objection. The information also included legal and factual basis for their objection and a list of previous objections in recent class actions. Availability dates for depositions were also needed.

    The 11th Circuit found the district court had broad discretion in how to manage the class action. Furthermore, the 11th Circuit held that the district court did not abuse its discretion. The district court’s requirements were expressly to avoid a “chaotic process.” It also agreed with the district court, which received 388 objections, that requirements were not enough to deter good-faith objectors.

    Ghostwritten Order

    An objector challenged the district court’s adoption of an order “ghostwritten” by the plaintiff’s attorneys on several grounds. Thrash initially approved the settlement and told class counsel to draft an opinion regarding his findings. The 11th Circuit found the settlement stays even if Thrash used a ghostwritten opinion because the process was fundamentally fair. It noted ghostwriting, in general, isn’t welcome in the circuit. However, there is no explicit rule against it.

    Class Subgroups

    An objector argued class plaintiffs should’ve been divided into subgroups and retained separate counsel. This is because some of the states they lived in offered additional statutory damages against Equifax. The 11th Circuit disagreed. It found the objector failed to show a fundamental conflict among the plaintiffs. Additionally, the 11th Circuit noted the objector did not show that any local consumer protection law applied to Equifax.

    Attorneys’ Fees

    Objectors claimed the $77.5 million attorneys’ fees award was unreasonable. One objector argued the court should’ve applied the lodestar method. Another argued the court should’ve considered the “economies of scale” in a “megafund” case. The court disagreed with the objectors’ arguments. It found the attorneys’ fees (20.36% of the settlement amount) were reasonable under the percentage.

    Incentive Awards

    Inventive awards were routinely granted to class representatives to make up for their services. However, in Johnson v. NPAS Sols., LLC, the 11th Circuit prohibited awards based on bringing a lawsuit. Because of this decision, the court remanded the case for the district court to vacate the incentive awards. However, it would not vacate the entire settlement based on this issue.

    Appeal Bonds

    Objectors challenged the district court’s requirement for a $2,000 appeal bond for each objector. The 11th Circuit found the Federal Rule of Appellate Procedure 7 allowed such bonds. Therefore, the district court didn’t abuse its discretion in imposing them.

    What Happens Next

    The appeals process is not over—at least one objector has filed an appeal. However, it’s unlikely that any further objections will alter the settlement. Once the appeals process ends, the parties can implement the settlement.

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