The three above-captioned, nationwide class actions were filed against Capital One, its subsidiaries, and its Participating Vendors (collectively, “Defendants”),
On July 29, 2014, the court granted Plaintiffs’ unopposed request for preliminary approval of class settlement,
For the reasons explained below, the court grants the motion for final approval of the class action settlement, (Dkt. No. 260), because under the circumstances and the law the settlement reached in these three consolidated class action cases is fair, reasonable, and adequate. The court grants in part and denies in part Class Counsel’s motion for approval of attorneys’ fees, and grants Class Counsel’s requested incentive awards to the five Named Plaintiffs in the amount of $5,000 each. (Dkt. No. 175.)
BACKGROUND
I. History of the Litigation
In 1991, Congress enacted the TCPA “to address telephone marketing calls and certain telemarketing practices that Congress found to be an invasion of consumer privacy.” Jamison v. First Credit Servs.,
The calls at issue in these three consolidated class actions were made for the decidedly non-emergency purpose of debt collection. According to the Amended Master Complaint, between January 18, 2008 and June 20, 2014, Capitol One or one of its Participating Vendors (on behalf of Capital One) called class members’ cell phones using an automatic telephone dialing system or an artificial or prerecorded voice in connection with an attempt to collect on a credit card debt. (Am. Comply 52.)
After Plaintiffs filed their Master Complaint on February 28, 2013, the parties engaged in six months of class-wide discovery “sufficient to engage in meaningful settlement discussions.” (Dkt. No. 129 at 13.) On July 2, 2013, November 4, 2013, and January 29, 2014, the parties participated in mediation sessions with retired United States Magistrate Judge Edward A. Infante. The parties also spoke with Judge Infante by phone on two other occasions. (Id.) Capital One and Plaintiffs agreed thereafter to a settlement in Feb
On June 13, 2014, Plaintiffs filed their request for an order certifying the proposed class for settlement purposes, preliminarily approving the settlement agreement, approving the notice plan, ordering the dissemination of notice as set out in the Settlement Agreement, and appointing BrownGreer as the Notice and Claims Administrator. (Dkt. No. 121.) Plaintiffs filed an amended motion seeking the same relief on July 13, 2014 and, on July 29, 2014, the court granted Plaintiffs’ amended motion. (Dkt. No. 137.)
On August 12, 2014, BrownGreer began implementing the parties’ notice plan, which entailed: (1) sending 12,342,000 summary notices via email to all potential class members who had email addresses reflected in Capital One’s records; (2) mailing 4,303,218 postcard notices via first class mail to class members who had opted out of receiving email from Capital One, who did not have email addresses on file, or whose emails were undeliverable; (3) running internet banner notices on 40 websites BrownGreer determined class members were likely to visit; (4) establishing a settlement website and toll-free information telephone number dedicated to answering telephone inquiries; and (5) providing notice of the settlement to the officials designated pursuant to Class Action Fairness Act, 28 U.S.C. § 1715. (Dkt. No. 264.)
BrownGreer provided a thorough summary of its execution of the notice plan in two separate declarations provided to the court. (Dkt. Nos. 264, 305.) Here, it is sufficient to note that the notice plan reached 15,983,613 known, unique settlement class members, a figure that represents 96.03% of the known settlement class and 91.22% of the estimated total settlement class.
II. The Settlement Agreement
The important provisions of the Settlement Agreement provide for both monetary and injunctive relief to class members.
The Settlement Agreement defines the settlement class as follows:
All persons within the United States who received a non-emergency telephone call from Capital One’s dialer(s) to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice in connection with an attempt to collect on a credit card debt from January 18, 2008 through June 20, 2014, and all persons within the United States who received a non-emergency telephone call from a Participating Vendor’s dialer(s) made on behalf of Capital One to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice in connection with an attempt to collect on a credit card debt from February 28, 2009, through June 20, 2014.
The Settlement Agreement requires Defendants to establish a non-reversionary settlement fund of $75,455,099.
The Settlement Agreement also requires Capital One to institute a protocol under which it uses an automatic dialer to call a customer’s (or debtor’s) cell phone number only in cases where the individual provided the cell phone number on his or her credit application. Capital One will further refrain from calling a cell phone number unless either the cell phone number is linked to the customer’s name based on third party research or Capital One has made contact with the customer on the cell phone number within the past 90 days. (Dkt. No. 262 ¶ 21.) As discussed below, this change would bring Capital One’s use of an automatic dialer within Plaintiffs’ interpretation of the statutorily undefined term “prior express consent,” which is excluded from the prohibitions of the TCPA, 47 U.S.C. § 227(b)(1).
The court, at final approval hearing on January 15, 2015, (Dkt. No. 320), heard from Class Counsel, counsel for Capital One, and counsel for objector Jeffrey Collins. Although the court invited specific objectors by name and anyone else present in the courtroom to speak, no other objector addressed the court even though some of the objectors had previously indicated their intent to address the court at the final approval hearing.
I. Approval of a Proposed Settlement in Class Actions
A court may approve a settlement that would bind class members only if, after proper notice and a public a hearing, the court determines that the proposed settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(3). Under Seventh Circuit law, a district court must, in evaluating the fairness of a settlement, consider “the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer, an assessment of the likely complexity, length and expense of the litigation, an evaluation of the amount of opposition to settlement among affected parties, the opinion of competent counsel, and the stage of the proceedings and the amount of discovery completed at the time of settlement.” Synfuel Techs., Inc. v. DHL Express (USA), Inc.,
“The ‘most important factor relevant to the fairness of a class action settlement’ is the first one listed: ‘the strength of plaintiffs case on the merits balanced against the amount offered in the settlement.’ ” Synfuel,
“Federal courts naturally favor the settlement of class action litigation.” Isby,
II. Attorneys’ Fees in Class Actions
“In a certified class action, the court may award reasonable attorney’s fees ... that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). In determining a reasonable fee, the court “must balance the competing goals of fairly compensating attorneys for their services rendered on behalf of the class and of protecting the interests of the class members in the fund.” Skelton v. Gen. Motors Corp.,
In Synthroid, the Seventh Circuit held that the “market rate for legal fees depends in part on the risk of nonpayment a firm agrees to bear, in part on the quality of its performance, in part on the amount of work necessary to resolve the litigation, and in part on the stakes of the case.” Synthroid I,
The Federal Rules of Civil Procedure allow the court, in a certified class action, to “award reasonable ... nontaxable costs that are authorized by law or by the parties’ agreement.” Fed.R.Civ.P. 23(h). The Seventh Circuit has instructed that district courts must exercise their discretion to “disallow particular expenses that are unreasonable whether because excessive in amount or because they should not have been incurred at all.” Zabkowicz v. W. Bend Co., Div. of Dart Indus., Inc.,
ANALYSIS
I. Approval of the Class Settlement in This Litigation
Applying the five factors identified in Synfuel, the court concludes that the settlement is “fair, reasonable, and adequate,” and therefore meets the requirements of Rule 23.
A. Potential of Class Members’ Recovery through Continued Litigation Balanced Against Settlement Amount Offered
As noted above, “[t]he most important factor” in determining whether a proposed settlement satisfies Rule 23 is the “strength of [Plaintiffs’] case on the merits balanced against the amount offered in the settlement.” Synfuel,
But a settlement is a compromise, and courts need not — and indeed should not — ’“reject a settlement solely because it does not provide a complete victory to plaintiffs.” In re AT & T Mobility Wireless Data Servs. Sales Litig.,
More importantly, $34.60 per claimant is not insignificant considering Capital One’s counsel’s estimate that Plaintiffs will recover nothing through continued litigation. (Dkt. No. 267.) The court recognizes that Plaintiffs would indeed face myriad hurdles by proceeding to trial.
First, at a trial, Plaintiffs would have the burden to effectively rebut Capital One’s chief defense that the class members’ consented to be contacted on their cell phones. Capital One argues that it obtained consent to call from each class member because every version of Capital One’s standard cardholder agreement contained provisions expressing that Plaintiffs consented to receive calls through an auto-dialing technology. (Dkt. No. 267 at 2.) Plaintiffs admit that they agreed to the terms of their cardholder agreements, but argue they did not agree to be contacted “in violation of the TCPA.” (Dkt. No. 262.) Many class members, however, even provided their cell phone numbers to Capital One as their primary contact numbers. (Id.) Under an FCC order in 2008 implementing the TCPA, autodialed collection calls to “wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party,” and are therefore permissible. In re Rules and Regulations Implementing the Telephone Consumer Prot. Act of 1991, 23 F.C.C.R. 559 ¶ 9 (2008) (“2008 TCPA Order”); 47 U.S.C. § 227(b)(1)(A)(iii). The FCC’s same 2008 TCPA Order, however, states that “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” 2008 TPCA Order ¶ 10. Plaintiffs interpret the FCC’s 2008 TCPA Order to mean that the cell phone number must have been provided during the origination of the credit relationship, i.e., during the transaction. (Dkt. No. 262 at 21.) As United States District Judge J.P. Stadtmueller commented in a recent opinion, however, the 2008 TCPA Order is “far from clear.” Balschmiter v. TD Auto Finance LLC,
Second, should Plaintiffs proceed to trial, there would be manageability concerns that may pose serious obstacles to class certification, thus depriving Plaintiffs of the benefits of a class action. Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In assessing predominance, a court must analyze “the likely difficulties in managing a class action,” id. 23(b)(3)(D), which “encompass[] the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin,
Third, without the prompt and final resolution a settlement provides, Plaintiffs run the risk that forthcoming FCC orders may extinguish their claims. There are three sets of petitions currently before the FCC, all of which would eliminate or reduce Capital One’s TCPA liability in this case. The first is the FCC’s definition of an autodialer. Although the TCPA defines an autodialer as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers,” 47 U.S.C. § 227(a)(1), the FCC has expanded the definition to cover predictive dialers that can “store or produce telephone numbers,” even if they do not “us[e] a random or sequential number generator.” See In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14091-93 (2003). The FCC is considering petitions seeking to exclude from the TCPA predictive dialers used for non-telemarketing purposes, such as debt collection. (See Dkt. No. 267 (collecting petitions).) The second and, perhaps, more pressing set of petitions to the FCC ask the FCC to clarify how and when consent may be expressed by consumers. See Michael O’Rielly, FCC Commissioner, TCPA: It is Time to Provide Clarity, FCC Blog (Mar. 25, 2014) (available at http://www. fcc.gov/blog/tcpa-it-time-provide-clarity) (asserting that “the FCC needs to address this inventory of petitions as soon as possible,” and “answer ... whether consent can be inferred from consumer behavior or social norms”). The final set of petitions seeks to clarify that a caller does not violate the TCPA when it makes autodialed calls to another cell phone subscriber by mistake. (See Dkt. No. 267 (collecting petitions).) If the FCC were to issue orders favoring callers in connection with any of the issues discussed above, Plaintiffs claims would be completely barred or materially limited.
In light of Capital One’s potentially meritorious defenses and the legal uncertainty concerning the application of the TCPA,
B. Likely Complexity, Length and Expense of Litigation
In Synfuel, the Seventh Circuit instructed that the likely complexity, length, and expense of continued litigation are relevant factors district court should consider in determining whether a class action settlement satisfies Rule 23. Synfuel,
C. Scant Opposition to Settlement
The Seventh Circuit has held that the amount of opposition to a settlement among affected parties is yet another factor district courts should consider in deciding whether to approve a class action settlement. Synfuel,
D. The Experience and Views of Counsel
Under Synfuel, the opinion of competent counsel is relevant to determining whether a class action settlement is fair, reasonable, and adequate under Rule 23. Synfuel,
E. Stage of the Proceedings and the Amount of Discovery Completed
The final factor the court is to consider under Synfuel concerns the stage of the proceedings and the amount of discovery completed at the time of the settlement. Synfuel,
F. Objections Presented Are Not Well Founded Under the Applicable Law
For the reasons explained above, the factors set out by the Seventh Circuit in Synfuel support approving the Settlement Agreement in this case. Notwithstanding the court’s conclusion that the Settlement Agreement is fair, reasonable, and adequate under Rule 23, there are 14 class members who have filed timely objections, although only a subset of those 14 take issue with the amount of the settlement. (Dkt.Nos.144, 152, 184, 189, 193, 196, 199, 202, 215, 225, 227, 228.) These objections collectively state a number of arguments the court will discuss briefly below.
First, some objectors argue that class members are not receiving enough money in light of the available statutory damages. As the court discussed above, a class-wide recovery in line with the statutory awards is unrealistic and would ultimately result in class members finding their place in line among Capital One’s unsecured creditors in a bankruptcy proceeding. Moreover, as discussed above, the strength of Plaintiffs’ case did not warrant a settlement anywhere close to the statutory award, which is what Plaintiffs would have sought had they prevailed at trial on the liability issue.
Second, certain objectors complain that they should be able to make claims against the settlement fund for every call they received, consistent with the framework of the TCPA. Although the court inquired of counsel about the possibility of a call-based claims process as well, the court ultimately accepts the representations of Class Counsel and Capital One that it is unlikely that a material portion of the class had an average call volume greater or lesser than any other class member. The court also accepts Class Counsel’s representation that a call-based claims process would be extremely costly to administer and is inadvisable given the fact that increased administration costs would result in a corresponding decrease in the money available to the class.
Lastly, the court rejects the complaints of the objectors who have any issue with the notice and claims process. The court agrees with Class Counsel that the notice provided by BrownGreer was state of the art and well-tailored to reach the maximum number of class members. Lead counsel for Capitol One represented to the court that percentage of class members reached through the notice process was the highest he had ever seen. (Dkt. No. 324 at 35:16-20.) Submitting a claim, in this court’s experienced view, was exceedingly easy for the class members. Each
Accordingly, the court finds that none of the objections to the total amount of the settlement or its administration are well-founded and, for the reasons explained in detail above, the court grants the motion (Dkt. No. 260) for final approval of the class action Settlement Agreement.
II. Attorneys’ Fees
Although certain of 14 timely objectors contend that Class Counsel’s requested fee is excessive, the court need not engage in a lengthy analysis of each objector’s argument because the Seventh Circuit has directed district courts, when deciding whether requested fees are excessive, to estimate the contingent fee that the class would have negotiated with Class Counsel at the outset of the litigation, “had negotiations with clients having a real stake been feasible.” In re Trans Union Corp. Privacy Litig.,
A. Class Counsel’s Requested Fees
Class Counsel in this case represent that they have spent 4,268 hours in professional time over a three-year period litigating and settling this case on a contingent fee basis. (Dkt. No. 252.) They seek for their efforts an award of attorneys’ fees equal to 30% of the $75,455,099 settlement fund or $22,636,530. They do not seek additional payment or reimbursement for any of their expenses on top of the requested fee award, nor do they seek compensation for the injunctive relief barring Capital One from calling an individual’s cell phone without prior express consent.
To justify their request, Class Counsel argue that their requested fee is less than the 33.3% fee “consistently” awarded in TCPA and non-TCPA class action litigation in this district. (See Dkt. No. 176 at 19-20 (collecting cases).) They further argue that the substantial risk they assumed in prosecuting the litigation on a purely contingent basis supports a 30% fee because there is a reasonable chance that this case, if litigated, could result in no recovery at all for the class. Class Counsel urge the court to adopt their preferred approach to calculating fees based on a percentage of the settlement fund rather than through a lodestar analysis, and to calculate that percentage from the total settlement fund inclusive of administrative costs, cy pres awards, and incentive awards.
B. Fee Calculation Method
Although the court granted limited discovery regarding Class Counsel’s lodestar data, the court agrees with Class Counsel that the fee award in this case should be calculated as a percentage of the money recovered for the class. It has long been the law in the Seventh Circuit that in common fund cases like this one, district courts have discretion to choose either the lodestar or a percentage approach to calculating fees. Florin v. Nationsbank of Ga., N.A.,
Here, had an arm’s length negotiation been feasible, the court believes that the class would have negotiated a fee arrangement based on a percentage of the recovery, consistent with the normal practice in consumer class actions. An ex ante agreement based on lodestar requires a client to monitor counsel, and the class-member “clients” here had little incentive to do so. There are approximately 17.5 million class members in this case, the prospective relief is minimal, and none of the class members suffered tangible damages beyond the inconvenience of receiving one or more debt-collection calls to their cell phones on ostensibly overdue credit card bills. The class would not have negotiated a compensation scheme that required a level of monitoring the class members were not interested in or capable of providing. Instead, the class would have chosen the compensation scheme that required the least monitoring to align the incentives of the class and its counsel — the percentage method. The court will therefore apply the percentage method as well.
The court does not, however, agree with Class Counsel’s assertion that “it is appropriate — and the norm in the Seventh Circuit — to include administrative and notice costs when calculating fees based on a percentage-of-the-fund.” (Dkt. No. 269 at 17.) The Seventh Circuit has instructed district courts that the “ratio that is relevant to assessing the reasonableness of the attorneys’ fee that the parties agreed to is the ratio of (1) the fee to (2) the fee plus what the class members received.” Redman v. RadioShack,
In order to evaluate the fairness of Class Counsel’s fee request consistent with the Seventh’s Circuit’s recent guidance, the court must recalculate the percentage fee sought by Class Counsel. After subtracting administration and notice costs ($5,093,000) and the Named Plaintiff service awards ($25,000), the total money available to split among the class and Class Counsel is $70,337,099. Class Counsel seeks 22,636,530 of that total, or slightly above 32%.
C. Class Counsel’s Requested 32% Fee Exceeds the Market Rate
The Seventh Circuit has instructed district courts to approximate the market rate that would have prevailed at the
1. Class Counsel’s Contingent Fee Agreements
The first benchmark is any actual agreement between plaintiffs and attorneys in this case. This was a useful starting point in Synthroid because one group of sophisticated plaintiffs had negotiated a fee agreement at the outset and set the opening price. Synthroid I,
2. Data on Fee Awards in Other Cases
The second and third Synthroid benchmarks concern data from similar common fund cases where the parties set fee schedules ex ante, either through a private negotiation or a judicially conducted “auction.” Because data from pre-suit negotiations and auctions tend to be sparse — and with regard to TCPA class actions, nonexistent — district courts have also examined empirical data analyzing fee awards in other class actions where fees were awarded at the end of the case. See, e.g., AT & T Mobility,
i. Empirical Studies
In 2004, Theodore Eisenberg and Geoffrey Miller examined two data sets covering class actions from 1993 to 2002 and found that the mean fee award from settlements in the $38 to $79 million range was 16.9% and the median was 15.5%. Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical Legal Studies 27, 73 (2004). In 2010, Eisen-berg and Miller updated their study in to analyze class action settlements from 1993 to 2008. Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action Settlements: 1998-2008, 7 J. Empirical Legal Studies 248 (2010). The updated study found that the mean award from settlements in the $38.3 to $69.6 million range, the third highest decile, was 20.5% and the median was 21.9%; the mean award from settlements in the $69.6 to $175.5 range, the second highest decile, was 19.4% and the median was 19.9%. Id. at Tab. 7.
In the same year as Eisenberg and Miller published their updated 2010 study, Brian Fitzpatrick, who filed a declaration in this case on behalf of Class Counsel, (Dkt. No. 270), published a paper analyzing every federal class action settlement in 2006 and 2007. Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Studies 811 (2010). Fitzpatrick found that the mean award from settlements in the $72.5 to $100 million range was 23.7% and the median was 24.3%. Id. at 839.
All three studies confirm Eisenberg and Miller’s original finding of a scaling effect whereby the percentage fee decreases as the class recovery increases. See 1 J. Empirical Legal Stud. At 28 (“[A] scaling effect exists, with fees constituting a lower percent of the client’s recovery as the client’s recovery increases.”) In Eisen-berg and Miller’s 2010 study, they found that settlements in the top decile by total recovery yielded a median and mean fee percentage that was less than one-third of the median and mean percentage fee in settlements in the lowest decile. 7 J. Empirical Legal Studies at 264. Fitzpatrick found a similar, although less pronounced scaling effect: settlements in the top decile by recovery yielded a mean fee of 18.4% and a median of 19%, whereas settlements in the lowest decile yielded a mean fee of 28.8% and a median of 29.6%. 7 J. Empirical Legal Studies at 839; see also Silverman,
Accordingly, if past awards are reflective of the market for this case and its $75.5 million negotiated settlement fund, and if the published empirical data discussed above accurately reflect the fees awarded in TCPA class actions, it is fair to conclude that class members would have negotiated an across-the-board fee somewhere between 20% and 24% of the settle
ii. The Court’s TCPA Class Action Settlement Analysis
To assist the court in determining whether the findings from the above empirical studies are indeed representative of the across-the-board percentage fees awarded in TCPA class actions, the court requested class counsel in another settled TCPA case, Wilkins v. HSBC Bank, No. 14 C 190 (N.D.Ill.), pending on this court’s docket, to submit data from other finally approved TCPA class action settlements since 2010. Class counsel in HSBC, many of whom also represent class members in this case, diligently compiled publicly available summary information contained in 73 TCPA class action settlements approved since 2010. See HSBC, No. 14 C 190 (N.D.Ill.) (Dkt. No. 109-1). The court has now analyzed the data from 72 of the cases — one case lacked publicly available fee information — and has attempted in the table below to recreate the Eisenberg-Miller and Fitzpatrick summaries for TCPA class action settlements. Like the empirical analyses discussed in the previous section, the table below reports the mean and median fee percentage, as well as the standard deviation, for each total recovery decile of the TCPA class action settlements provided by class counsel in HSBC.
Because this court lacks the technical expertise of Eisenberg, Miller, or Fitzpatrick, and because the sample size of cases (72) is quite small, the statistics set forth above are but an informal analysis.
iii. Competitive Fee Structures Negotiated Ex Ante
The analysis desired by Seventh Circuit authority is not at an end, however, because the second and third benchmarks from Synthroid — ex ante arrangements and judicially overseen “auctions”
• The data from these securities and antitrust cases, where available, do not shed light on the market rate in consumer class actions, but they do illustrate that (1) negotiated fee agreements regularly provide for a recovery that increases at a decreasing rate and (2) negotiated fee agreements frequently result in lower fee awards than those suggested by the empirical data on past awards granted after the fact. In 2006, United States District Judge William Smith- conducted a survey of the fee structures adopted in some of the cases listed above. Cabletron,
Instead, the court compares the prevailing fee percentage (ie., the “blended” rate) in each case to the mean and median set forth in Eisenberg and Miller’s 2010 study for the corresponding recovery amount. Such a comparison should help the court determine whether and to what extent the empirical data — which largely reflect past fee awards determined ex post — overestimate the contingent fees parties agree to when they actually negotiate at the outset of a case.
The summary is as follows:
Cabletron,
As discussed earlier, the foregoing analysis is merely illustrative and does not purport to approximate the contingent fee for a TCPA class action, had that fee been
The remaining question is whether the findings discussed above apply to a hypothetical ex ante negotiation in the consumer class action context, or merely to securities and antitrust cases. The court believes the findings from securities and antitrust cases provide some guidance regarding the ex ante negotiation in any type of class action. As Eisenberg and Miller concluded in 2004 and again in 2010, “the overwhelmingly important determinant of the fee is simply the size of the recovery obtained by the class,” not the subject matter of the litigation. 7 J. Empirical Legal Studies at 250. All of the empirical studies surveying past awards found similar across-the-board percentage awards for securities, antitrust, and consumer class actions. Id. at 264 (Tab.5); 7 J. Empirical Legal Studies at 835 (Tab.8). Additionally, this court’s informal analysis discussed earlier in this opinion, and which the court could not have conducted without the diligent assistance of counsel, confirmed that the same conclusion applies to the TCPA subset of consumer class actions. Furthermore, the court has no reason to believe that securities or antitrust cases are any moré or less predictable than consumer class actions, such that counsel would be willing to negotiate a scaled fee schedule in one set of cases but not the other. As the Seventh Circuit explained in Silver-man, a downward scaling fee arrangement is well-suited to securities litigation because a large portion of class counsel’s expenses must be devoted to establishing liability, whereas damages can be calculated mechanically irom movements in stock prices. Silverman,
3. Court’s Estimation of the Market Rate for TCPA Class Actions Exclusive of Risk
The Seventh Circuit acknowledged in Synthroid I that it is, of course, “impossible to know ex post the outcome of a hypothetical bargain ex ante .... [b]ut a court can learn about similar bargains.” Synthroid I,
The special master appointed by Judge Gettleman in Trans Union observed, correctly, that determining the criteria for the hypothetical negotiation is the easy part; attaching actual numbers to the hypothetical downward scaling fee agreement is “more art than science.” Trans Union,
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In light of the Synthroid II structure’s fit with this court’s observations about the
4. Risk of the Litigation
The last factor the Seventh Circuit instructs a district court to consider is the risk plaintiffs’ lawyers face of possibly losing the litigation when they undertake class representation. The estimated magnitude of the risk necessarily affects the price at which Class Counsel in this case would have been willing to offer their services in an ex ante negotiation, had such a negotiation occurred. See Synthroid I,
As this court discussed earlier in this opinion, Class Counsel in this case faced a variety of serious obstacles to success in bringing the lawsuit, and faced the real prospect of recovering nothing. First, it was quite possible that the discovery may have revealed that many class members acquiesced to receiving calls on their cell phones when they agreed to their cardholder agreements with Capital One. Some customers provided Capital One with their cell phone numbers as their primary contact numbers, arguably waiving any right not to receive debt-collection calls on their cell phone from Capital One. Second, at the outset of the litigation there was a serious question whether the Plaintiffs’ claims could meet Rule 23’s manageability requirement given that Capital One would have to review its records to determine which class members provided consent through cardholder agreements, which class members actually provided their cell phone numbers to Capital One, and whether each class member actually owned their cell phone number at the time Capital One called it using an autodialer. Third, as Capital One has noted throughout this litigation, there are presently petitions before the FCC urging the FCC to (1) revise the TCPA’s definition of “automatic telephone dialing system” to exclude dialers like those used by Capital One, and (2) provide a safe harbor for all calls that Capital One inadvertently made to wrong numbers. Consequently, the longer this litigation were to continue, the longer Plaintiffs would be exposed to the possibility that the FCC would take action that might extinguish Plaintiffs’ claims.
On the flip side, Capital One’s potential monetary liability in this litigation is staggering. Even if each of the 7.5 million class members in this case had only received one phone call a piece and could not prove that any of the calls were made in willful violation of the TCPA, Capital One’s exposure is still greater than $8.7 billion. That type of potentially bankruptcy-level exposure is sufficient to compel an in ter-rorem settlement before a liability determination is made and is accordingly a factor that reduces Class Counsel’s risk of nonpayment. See AT & T Mobility LLC v. Concepcion,
The precise level of risk faced by Class Counsel more than two years ago, when the cases were filed, is difficult for a district court to determine and quantify .after the fact. The Seventh Circuit, however,
The next question the court now faces is how to adjust the market fee structure the court has determined, as discussed earlier in this opinion, to account for the increased risk Class Counsel faced of losing. Eisen-berg and Miller in their 2010 study concluded that “high risk” consumer class actions yield a percentage fee premium of about 6% above the “low or medium risk” cases. 7 J. Empirical Legal Studies at 265 (Tab.8). Absent better information and in light of the court’s determination that this case was only slightly riskier than a typical TCPA class action, the court adopts Eisenberg and Miller’s risk premium and applies it to the court’s estimated market rate. Although Eisenberg and Miller’s 6% premium applied to the entire fee award, such an application does not make sense in a case like this one, where the risk existed only with regard to liability, not damages. Each of the potential impediments to establishing Capital One’s liability: the class members’ alleged consent to be called; Rule 23 manageability issues; and potentially forthcoming FCC orders; only affected Class Counsel’s ability to prove their case on liability and consequently their ability to recover any damages. Once the risk resulting from the impediments to establishing liability was overcome and Capital One’s liability established, Class Counsel’s ability to obtain a large recovery was no longer materially affected by that risk. As discussed above, one of the purposes of a downward scaling fee schedule is to account for cases where the marginal costs of increasing the class’s damages recovery are low. Class counsel in an ex ante negotiation must nevertheless be provided an incentive to take the case at the outset and seek the highest award on behalf of the class that is reasonable under the facts and law of the case.
Because all of the risk factors in this case were limited to the question of Capital One’s liability, it follows that the risk premium related to Class Counsel’s fees should apply only to the attorneys’ fees
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5. Professor Henderson’s Model
Lastly, as discussed earlier, the court granted objector Jeffrey Collins’s request for discovery of information from Class Counsel regarding Class Counsel’s hours and hourly fees to calculate the lodestar in this case and in Class Counsel’s previous TCPA class cases. Collins sent Class Counsel’s information to Professor Henderson, who in turn filed a report analyzing the data and proposing an alternative method for approximating the ex ante market rate at the conclusion of a case. Collins’s counsel acknowledged at the final approval hearing that no district court or court of appeals has ever adopted Professor Henderson’s methodology. (Dkt. No. 324 at 54:17-19.) This court similarly declines to apply Professor Henderson’s method of estimating the appropriate fee award in this case. Professor Henderson’s model, though not applied, nevertheless merits a brief discussion.
Using Class Counsel’s lodestar data, Professor Henderson determined that Class Counsel, who are highly experienced, achieve a recovery for their “clients” in approximately 43% of their TCPA cases. (Dkt. No. 294 ¶ 10.) But after adjusting for Class Counsel’s tendency to devote substantially more professional time to their winning cases than to their losing cases, Henderson concluded that Class Counsel have a 64% chance of obtaining recovery for any given dollar of lodestar invested in TCPA litigation. Given a 64% chance of recovery, Henderson determined that Class Counsel need only obtain a
Professor Henderson’s model may possibly be a good predictor of the going rate in a competitive market of homogeneous plaintiffs lawyers. It does not, however, comport with the Seventh Circuit’s guidance requiring the court to hypothetically approximate an ex ante fee negotiation. As a threshold matter, Professor Henderson’s model relies exclusively on data relating to cases that were resolved after Class Counsel filed this case. That is not a criticism of Professor Henderson’s methodology — he had no choice because he was limited to the data available through discovery. The limitation, however, does undermine the applicability of Professor Henderson’s model to this case. Class Counsel did not know, at the outset of the litigation, that they needed only to achieve a 1.57 lodestar multiplier to compensate themselves for the contingent risk, and accordingly could not have relied on that multiplier to formulate their hypothetical ex ante bid for the legal work in this case. Professor Henderson’s model also assumes “a hypothetical competitive market for plaintiffs’ lawyers’ services,” without ever establishing that such a market exists. (Dkt. No. 294 ¶ 64.) The court’s job is to approximate the market as it existed before the litigation, including the degree of competition. In doing so, the court cannot assume a perfectly competitive market without the benefit of reviewing additional evidence that is absent from this record. Indeed, the joint representation model present in this case and many of the comparable TCPA cases suggests that the market among plaintiffs class action lawyers, at least for large TCPA cases, may not be highly competitive. See also Joseph Ostoyich and William Lavery, Looks Like Price-Fixing Among Class Action Plaintiffs Firms, Law360 (Feb. 12, 2014 11:30 AM), http://www.law360.com-/ articles/542260/looks-like-price-fíxing-among-class-action-plaintiffs-firms.
Ultimately, the court must follow the Seventh Circuit’s guidance in approximating the fee that would have been negotiated ex ante in this TCPA case had such a negotiation occurred. Unfortunately for Professor Henderson, his model is not among the methods accepted by the Seventh Circuit. Using the benchmarks set forth in Synthroid I, as explained above, the court concludes that the tiered fee arrangement displayed above, which approximates the agreed-upon negotiated percentage of the attorneys’ fees to be taken from a $75.5 million settlement had Class Counsel negotiated with capable, sophisticated class members having a real stake in the litigation, is about 20%. Although the court noted earlier that the fairness of a fee percentage is to be considered against the total value of the settlement to the class less administrative and notice costs, the benchmarks the court used to determine the market rate evaluated fees as a percentage of the total recovery. The court therefore grants Class Counsel $15,668,265 of fees which is equal to about 20.77%, or about one fifth, of the entire $75,455,099 settlement fund.
The Settlement Agreement states that Defendants’ contributions to the settlement fund are non-reversionary, (Settlement Agreement § 2.42), and that the settlement will “continue to be effective and enforceable by the Parties,” in the event that the court declines Class Counsel’s fee request or awards less than the amounts sought (id. § 5.03). But the Settlement Agreement is silent on the matter of who, precisely, should receive the additional funds available should the court reduce the requested fee award, as it has done here. For the avoidance of doubt, the court orders that the additional money available as a result of its reduction to Class Counsel’s requested fee should go to the class members who made timely claims. After incorporating the court’s reduced fee award, the money available to class as result of the settlement is $54,668,834, which results in a payment to each timely claimant of at least $39.66, and possibly more if some claimants fail to deposit their settlement checks within 210 days.
CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for final approval of the class action settlement [260] is granted. The settlement is fair, reasonable, and adequate. Class Counsel’s motion for approval of attorneys’ fees [175] is granted in part and denied in part. The court awards attorneys’ fees and costs in the total amount of $15,668,265 (about 20.77% of the $75,455,099 settlement amount) and incentive awards of $5,000 to each of the five Named Plaintiffs.
Notes
. Capitol One includes defendants Capital One Bank (USA), N.A., Capital One, N.A., Capital One Financial Corporation, Capital One Services, LLC, and Capital One Services II, LLC. The Participating Vendors include defendants Capital Management Services, LP (“CMS”), Leading Edge Recovery Solutions, LLC ("Leading Edge”), and AllianceOne Receivables Management, Inc. ("AllianceOne”).
. Plaintiffs never filed a proper motion for preliminary approval, although they filed two memoranda in support of such a motion. (Dkt.Nos.121, 129.) They captioned the memoranda as “motions” in the docket text, but the actual headings of the filings reveal that neither is a motion, merely a memorandum. The court ignored Plaintiffs’ oversight in light of the need for a standalone order (Dkt. No. 137) granting preliminary approval.
. The parties estimate that approximately 5% of the settlement class is unknown to Capital One or Plaintiffs. (Dkt. No. 264 ¶ 11.)
. The court calculated this figure using BrownGreer’s number of contacted class members, 15,983,613, in conjunction with its assessment that 15,983,613 represents 91.22% of the total class. (See Dkt. No. 305 ¶ 6.)
. The settlement fund is actually $75,455,098.74. For the sake of simplicity, the court has rounded the numbers to the closest dollar, as it has done with the other figures discussed in this opinion.
.The court originally set the final approval hearing for December 9, 2014, but rescheduled the hearing for January 15, 2015 after granting Collins’ request for additional discovery. Class Counsel informed all objectors who had previously stated a desire to appear of the date change and, out an abundance of
. The court includes invalid and untimely opt-out requests in the total because those requests, although invalid, signal disapproval of the settlement.
. The court has expended considerable time and effort placing the information submitted by HSBC counsel into usable a dataset for this informal analysis. To assist judges in future cases, and to provide a starting point for more adept statisticians, the court will make its underlying dataset available in a separate order on the docket.
. The Seventh Circuit has repeatedly stated that litigants do not select their own lawyers through auctions because there is no standard of quality of legal services. Silverman,
. In In re Auction Houses Antitrust Litigation,
. In Synthroid II, the Seventh Circuit set the third "recovery tier” of the consumer class fee schedule at $20-$46 million because it used the total recovery by third-party payers, $46 million, to benchmark the consumer class scale. Here, the court adopts $20-$45 million as the recovery range for the third tier of the estimated fee scale because fee scales negotiated ex ante, including those surveyed above, generally reflect uniform recovery ranges — in this case, multiples of five.
. Professor Henderson further determined that after adjusting for the amount of effort Class Counsel invested in each case, about 64% of Class Counsel’s total investments were in cases in which they recovered. {Id. ¶ 10.) Because the court is concerned with the riskiness of this case relative to other TCPA cases, however, it adopts Professor Henderson’s 43% estimate, unadjusted for Class Counsel’s investment savvy.
. (Multiplier (1.57) x Lodestar ($2,213,769)) -*• Recovery ($75,455,099) = 4.6%. Professor Henderson’s model is more complicated than the court’s basic description here. For purposes of this opinion, however, and because the court did not apply Professor Henderson’s approach, the court's summary will suffice.