Ferrando v. Zynga Inc
2:22-cv-00214
| W.D. Wash. | Dec 1, 2022Background
- Plaintiffs Tonda Ferrando and Dex Marzano brought a class action against Zynga, alleging violations of Washington's gambling statute and seeking recovery and injunctive relief related to Zynga's social-casino applications.
- The parties reached a settlement creating a $12,000,000 common fund and prospective non-monetary relief (including a strengthened self-exclusion policy in the applications).
- Edelson PC attorneys were appointed class counsel; they moved for 25% of the common fund ($3,000,000) in attorneys’ fees, $22,500 in costs, and $5,000 incentive awards for each named plaintiff.
- Class counsel litigated on contingency, pursued a novel theory under RCW 4.24.070, and faced significant risk while defending the class before state regulators and the legislature.
- The Court analyzed the Vizcaino factors and comparable market data, declined to perform a lodestar cross-check, and approved the fee, costs, and incentive awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonableness of 25% fee | Request 25% of $12M common fund as the benchmark fee | Not contested in the record | Granted: $3,000,000 (25%); court found fees fair under Vizcaino factors and market data |
| Reimbursement of costs ($22,500) | Costs are reasonable and necessary | Not contested in the record | Granted: $22,500 awarded |
| Incentive awards ($5,000 each) | Named plaintiffs substantially assisted case and faced reputational exposure | Not contested in the record | Granted: $5,000 each for Ferrando and Marzano |
| Lodestar cross-check | Lodestar cross-check unnecessary given circumstances | Not contested in the record | Denied/declined: court not required to and did not perform lodestar cross-check (citing precedent) |
Key Cases Cited
- Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) (articulates factors for common-fund fee awards and recognizes a 25% benchmark)
- In re Optical Disk Drive Prods. Antitrust Litig., 959 F.3d 922 (9th Cir. 2020) (courts may consider prior settlements and fee awards when assessing reasonableness)
- Farrell v. Bank of Am. Corp., N.A., [citation="827 F. App'x 628"] (9th Cir. 2020) (lodestar cross-check not always required)