Pan v. Atlas Real Estate Group LLC

Filing 64

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathryn A. Starnella on 10 March 2025. IT IS HEREBY RECOMMENDED that the Unopposed Motion for Attorney Fees, Costs, and Service Award 60 be GRANTED. (cmadr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00910-DDD-KAS
JEFFREY PAN, on behalf of himself and all others similarly situated,
Plaintiff,
v.
ATLAS REAL ESTATE GROUP LLC,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Unopposed Motion for Attorney
Fees, Costs, and Service Award [#60] (the “Motion”). The Court has reviewed the
Motion [#60], the accompanying Brief [#61] and Declaration of Raina C. Borrelli [#62], the
entire case file, and the applicable law. In the Motion [#60], Plaintiff asks the Court to: (1)
approve Plaintiff’s counsel’s request for attorney fees and costs in the total amount of
$215,000, and (2) approve a service award for the named Plaintiff Jeffrey Pan in the
amount of $2,500. Motion [#60] at 1; see also Brief [#61] at 13. For the reasons set forth
below, the Court RECOMMENDS that the Motion [#60] be GRANTED. 1

1 Because the issue of fees and costs to be awarded in a class action is a dispositive matter, the

undersigned must issue a Recommendation on the Motion [#60]. See Fed. R. Civ. P. 23(h)(4)
(“The court may refer issues related to the amount of the award to . . . a magistrate judge, as
provided in Rule 54(d)(2)(D).”); Fed. R. Civ. P. 54(d)(2)(D) (“[T]he court . . . may refer a motion
for attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial
matter.”); Fed. R. Civ. P. 72(b)(1) (“The magistrate judge must enter a recommended disposition,
including, if appropriate, proposed findings of fact.”).

I. Background
Plaintiff Jeffrey Pan filed this action on April 12, 2023, asserting eight claims
against Defendant Atlas Real Estate Group LLC, which “is a property management and
real estate brokerage company active throughout the United States”: (1) negligence, (2)
negligence per se, (3) breach of implied contract, (4) breach of fiduciary duty, (5) unjust
enrichment, (6) violations of the Colorado Consumer Protection Act, (7) invasion of
privacy, and (8) declaratory judgment. Compl. [#1] ¶¶ 2, 78-177. In short, these claims
are based on Defendant’s alleged “failure to protect highly sensitive data,” including
personal identifiable information, also known as “PII,” “when cybercriminals infiltrated its
insufficiently protected computer systems in a data breach[.]” Id. ¶¶ 1, 3. The data of more
than 4,500 people was exposed in the breach, including information such as names,
Social Security numbers, financial account numbers, and driver’s license numbers. Id. ¶¶
20-21.
After conducting initial discovery in the case, the parties participated in private
mediation and ultimately reached a settlement. See Borrelli Decl. [#62] ¶¶ 3, 6; Settlement
Agreement [#54-1]. On November 7, 2024, the undersigned issued a Recommendation
[#58] that the District Judge grant Plaintiff’s Unopposed Motion for Preliminary Approval
of Class Action Settlement [#53]. On December 3, 2024, the District Judge adopted that
Recommendation and set a Final Fairness Hearing for April 23, 2025. Order [#59]. That
motion and order did not address the attorney fees, costs, and service award which are
the subject of the present Motion [#60]. As is relevant here, the Settlement Agreement
[#54-1] contemplates Class Counsel seeking an award of fees and costs “in an amount

2

not to exceed” $215,000.00. Settlement Agreement [#54-1] at 14 ¶ 8.2. 2 The Settlement
Agreement also contemplates Class Counsel seeking a service award of $2,500 to
recognize Plaintiff’s efforts in the litigation and commitment to the Settlement Class. Id.
at 14 ¶ 8.1. Defendant has agreed to pay for the fees, costs, and service award separate
and apart from the cash compensation provided to the Settlement Class, and these
amounts are subject to approval by the Court. Id. at 14 ¶¶ 8.1-8.2.
II. Analysis
A.

Service Award
Class Counsel asks the Court to approve an award of $2,500 to the sole named

Plaintiff in this action, Jeffrey Pan, to recognize his service to the Settlement Class as a
whole. Brief [#61] at 12-13.
“[C]ourts regularly give incentive awards to compensate named plaintiffs for the
work they performed—their time and effort invested in the case.” Chieftan Royalty Co. v.
Enervest Energy Institutional Fund XIII-A, L.P., 888 F.3d 455, 468 (10th Cir. 2017).
“These services typically include monitoring class counsel, being deposed by opposing
counsel, keeping informed of the progress of the litigation, and serving as a client for
purposes of approving any proposed settlement with the defendant.” Id. (citation and
internal quotation marks omitted). A service award “should be proportional to the
contribution of the plaintiff.” Id.
In support of the requested service award, Class Counsel notes, among other
things, “Plaintiff spent time reviewing the pleadings, answered Class Counsel’s many
questions, remained available throughout the litigation process, and reviewed and
2 The Court cites to the CM/ECF docket’s page number for the Settlement Agreement [#54-1]

rather than to any internal page numbering on the document itself.
3

approved the Settlement.” Brief [#61] at 12; Borelli Decl. [#62] ¶ 32; see also Settlement
Agreement [#54-1] at 14 ¶ 8.1 (discussing the service award). Based on his involvement
in the case, the Court finds that a service award of $2,500 is fair and reasonable. See,
e.g., Krant v. UnitedLex Corp., No. 23-2443-DDC-TJJ, 2024 WL 5187565, at *10 (D. Kan.
Dec. 20, 2024) (approving service awards of $2,500, $1,360, and $780 for each of the
three named Plaintiffs, respectively, based on each one’s differing contributions in a
similar data breach class action); Beasley v. TTEC Servs. Corp., Nos. 22-cv-00097-PABSTV, 22-cv-00347-PAB-STV, 2024 WL 710411, at *7 (D. Colo. Feb. 21, 2024) (approving
a service award of $2,500 in a similar data breach class action).
Accordingly, the Court recommends that the Motion [#60] be granted to the
extent that the $2,500 service award to Plaintiff Jeffrey Pan be approved.
B.

Costs and Fees
Pursuant to Fed. R. Civ. P. 23(h), “[i]n a certified class action, the court may award

reasonable attorney’s fees and nontaxable costs that are authorized by law or by the
parties’ agreement.” In so doing, the court must ensure that the claim for fees and costs
is made by a motion under Rule 54(d)(2), that notice of the motion is directed to class
members, and that a class member or party from whom payment is sought may object.
Fed. R. Civ. P. 23(h)(1)-(2). These requirements have been met. See [#54-1] at 34 (Notice
of Proposed Class Action Settlement, approved by the District Judge at Order [#59], by
adoption of the Recommendation [#58] at 20).
1.

Costs

Class Counsel asks the Court to approve an award of costs in the amount of
$8,157. Brief [#61] at 12. There are two components to these costs: (1) $407.00 in filing

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fees, and (2) $7,750.00 in mediation fees for the private mediator, Stradley Ronon
Stevens & Young, LLP. Borrelli Decl. [#62] ¶ 31. The Court finds these costs to be
reasonable. See, e.g., Krant, 2024 WL 5187565, at *9 (approving an award of costs of
$28,755.17 in a similar data breach class action, where the costs were “necessary to
litigate this case effectively, and were of the type counsel normally would charge a paying
client”); Beasley, 2024 WL 710411, at *7 (approving an award of costs of $14,080.53 for
“filing fees, legal research, postage, and mediation expenses” in a similar data breach
class action).
Accordingly, the Court recommends that the Motion [#60] be granted to the extent
that an award of $8,157 in costs be approved.
2.

Fees

The Settlement Agreement contemplates a total award of no more than $215,000
for both costs and fees collectively. Settlement Agreement [#54-1] at 14 ¶ 8.2 (“Settlement
Class Counsel will not request an award of attorneys’ fees and costs exceeding twohundred and fifteen thousand dollars and no/100 ($215,000.00)”) (emphasis added). In
the Motion [#60], Plaintiff seeks an award of the full amount of $215,000 for both costs
and fees collectively. Brief [#61] at 1. Thus, because the Court recommends that $8,157
in costs be approved, see § II.B.1., the Court determines whether the remaining $206,843
is a reasonable amount of fees to be awarded.
In common fund class action settlement cases, the court retains the discretion to
apply either the “percentage-of-the-fund method” or the “lodestar method” of determining
the reasonableness of fees. In re Syngenta AG MIR 162 Corn Litig, 61 F.4th 1126, 1193
(10th Cir. 2023) (“[B]ecause the touchstone of a fee award analysis is reasonableness,

5

[the Tenth Circuit] do[es] not require rigid adherence to either the percentage-of-the-fund
or lodestar methods in the common fund context.”). However, the Tenth Circuit has
repeatedly expressed a preference for utilizing the percentage-of-the-fund method in
common fund cases and the lodestar method in statutory fee cases. See, e.g., id.
(recognizing the Tenth Circuit’s “preference for the percentage-of-the-fund approach” in
common fund cases); Chieftain Royalty Co., 888 F.3d at 458 (“This court has approved
both methods in common-fund cases, although expressing a preference for the
percentage-of-the-fund approach.”); Uselton v. Com. Lovelace Motor Freight, Inc., 9 F.3d
849, 853 (10th Cir. 1993) (recognizing that the Tenth Circuit had previously “distinguished
common fund cases from statutory fee cases and recognized the propriety of awarding
attorneys’ fees in the former on a percentage of the fund, rather than lodestar, basis”).
Regardless of the method used, the Court applies the twelve Johnson factors 3 to
determine the reasonable of the fee request. Brown v. Phillips Petroleum Co., 838 F.2d
451, 454-55 (10th Cir. 1988); see also In re Syngenta AG MIR 162 Corn Litig, 61 F.4th at
1193 (reaffirming the requirement that district courts consider the Johnson factors). Those
factors are:
(1) the time and labor involved; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) any prearranged fee . . . ; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10)
the undesirability of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.

3 The so-called Johnson factors were articulated in Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974).

6

Brown, 838 F.2d at 454-55. However, “in evaluating the reasonableness of a fee award,
a court need not specifically address each Johnson factor,” and often not all factors are
relevant. Beasley, 2024 WL 710411, at *7 (citing Gudenkauf v. Stauffer Commc’ns, Inc.,
158 F.3d 1074, 1083 (10th Cir. 1998); Brown, 838 F.2d at 455-56 (stating that “rarely are
all of the Johnson factors applicable; this is particularly so in a common fund situation,”
and finding that “[t]he court here clearly considered all of the relevant Johnson factors
and applied them appropriately”)).
Here, the fee arrangement made by the parties obviously does not fall into the
statutory fee award category, for which the lodestar method is usually most appropriate.
However, the fee arrangement also does not fall neatly into the common fund category,
for which the percentage-of-the-fund method is usually most appropriate, because
Defendant has agreed to pay for the fees award separate and apart from the cash
compensation provided to the Settlement Class. Settlement Agreement [#54-1] at 14 ¶
8.2. Of these two, though, the Court finds the percentage-of-the-fund method aligns
mostly closely with the circumstances of this case, given that it is a class action settlement
where the fees are based on the parties’ agreement and not on a statutory fee award.
As Plaintiff notes, “the total monetary value of the Settlement can be approximated
by combining the value of the different components of the Settlement.” Brief [#61] at 4.
The Court takes the size of the class (4,520 individuals, see Borrelli Decl. [#62] ¶ 2) and
multiplies it by the value of the cash payments available to each member of the class.
See id. Thus, the amount available for reimbursement of ordinary losses is 4,520 times
$2,000 per class member, which equates to $9,040,000. Borrelli Decl. [#62] ¶ 12;
Settlement Agreement [#54-1] at 7 ¶ 3.2(a). The amount available for lost time is 4,520

7

times $80 per class member, which equates to $361,000. Borrelli Decl. [#62] ¶ 13;
Settlement Agreement [#54-1] at 7 ¶ 3.2(b). The amount available for extraordinary losses
is 4,520 times $5,000 per class member, which equates to $22,600,000. Borrelli Decl.
[#62] ¶ 14; Settlement Agreement [#54-1] at 7-8 ¶ 3.2(c). The Settlement Agreement also
provides for two years of three-bureau credit monitoring and at least $1,000,000 in identity
theft protection insurance, which is valued at about $1,084,800 (consisting of 4,520 times
24 months times an estimated cost of $10 per month). Borrelli Decl. [#62] ¶ 16; Settlement
Agreement [#54-1] at 8 ¶ 3.4. 4 Thus, adding $9,040,000 (ordinary losses) plus $361,000
(lost time) plus $22,600,000 (extraordinary losses) plus $1,084,800 (credit monitoring)
equates to a direct value of the settlement to the class of up to about $33,085,800. 5
The $206,843 in fees requested by counsel is only a small fraction of this number,
approximately 0.625%. Even if only a quarter of the potential value of the settlement were
ultimately paid out, i.e., about $8,271,450, the fee request would still only result in a
percentage of about 2.5%. Although this percentage appears to be presumptively
reasonable, the Court now considers the twelve Johnson factors, as it must. See In re
Syngenta AG MIR 162 Corn Litig, 61 F.4th at 1193.

4 Plaintiff also notes that the Settlement Agreement provides for an alternative cash payment of

$50 per class member, but because this payment would be made in lieu of claims for ordinary
losses, lost time, extraordinary losses, and credit monitoring, the Court finds that this amount
should not be added to the settlement’s valuation, as it would be duplicative. See Borrelli Decl.
[#62] ¶ 15; Settlement Agreement [#54-1] at 8 ¶ 3.3.

5 This number does not include the fact that, under the Settlement Agreement [#54-1], Defendant

is also paying for the costs of Notice and Claims Administration (about $16,339), the service
award ($2,500), costs ($8,157), and “information security improvements” to prevent a future data
breach, all of which arguably adds to the value of the settlement for class members. See Borrelli
Decl. [#62] ¶¶ 17-19; Settlement Agreement [#54-1] at 8 ¶¶ 3.5, 4.1 & 14 ¶¶ 8.1-8.2.
8

a.

The Time and Labor Required

Regarding the time and labor required, Class Counsel has so far expended 179.30
hours of time on this matter. 6 Borrelli Decl. [#62] ¶ 21 (chart). The labor included: (1)
investigation of the data breach; (2) communication with prospective class
representatives; (3) drafting the Complaint [#1]; (4) drafting Plaintiff’s Response [#24] to
Defendant’s Motion to Dismiss [#14]; (5) researching case law; (6) reviewing Defendant’s
discovery responses and production; (7) drafting Plaintiff’s mediation statement; (8)
preparing for and attending mediation; (9) drafting the settlement’s term sheet; (10)
drafting the Settlement Agreement, see [#54-1] at 1-22; (11) securing bids for settlement
administration; (12) drafting Plaintiff’s Unopposed Motion for Preliminary Approval of
Class Action Settlement [#53] and Memorandum [#54] in support; (13) preparing the
notice documents, see [#54-1] at 23-44; (14) overseeing the claims administration
process, and (15) drafting the current Motion [#60] and related documents [#61, #62].
Borrelli Decl. [#62] ¶ 21.
Based on these representations, the Court finds that the first factor weighs in favor
of approval. See, e.g., Stanley v. Panorama Orthopedics & Spine Ctr., P.C., No. 1:22-cv01176-RM-SBP, 2024 WL 1743497, at *13 (D. Colo. Apr. 23, 2024) (finding that the first
factor weighed in favor of approval where the plaintiffs’ counsel “has dedicated significant
time and resources to this multi-year litigation, including in connection with two formal

6 Specifically, these hours were expended by counsel and her firm as follows: (1) Raina C. Borrelli,

Managing Partner: 58.70 hours; (2) Samuel J. Strauss, Managing Partner, 18.20 hours; (3)
Brittany Resch, Partner: 5.80 hours; (4) Andrew Gunem, Associate Attorney: 54.40 hours; (5)
Carolyn Chen, Associate Attorney: 39.70 hours; (6) Zog Begolli, Associate Attorney, 0.20 hours;
(7) Rudis Requeno, Legal Assistant, 1.0 hour; (8) Elizabeth Adell, Legal Assistant, 1.0 hour; and
(9) Jack Rader, Legal Assistant: 0.3 hours. Borrelli Decl. [#62] ¶ 21 (chart).
9

mediations and the filing of multiple pleadings in this federal case, and more time will be
spent in seeing the settlement through to its conclusion”).
b.

The Novelty and Difficulty of the Questions Presented

Regarding the novelty and difficulty of the questions presented by the case, Class
Counsel asserts that this “case implicated difficult questions including Article III standing,
the relevance of the Supreme Court’s decision in TransUnion [LLC v. Ramirez, 594 U.S.
413 (2021)], data breach case law, and eight different causes of action pursuant to
common law and Colorado statutory law.” Borrelli Decl. [#62] ¶ 24. These statements are
supported by a review of the Complaint [#1] and Defendant’s Motion to Dismiss Plaintiff
Jeffrey Pan’s Class Action Complaint Pursuant to Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6)
[#14], as well as Plaintiff’s Response [#24] and Defendant’s Reply [#27] thereto.
Based on this review, the Court finds that the second factor weighs in favor of
approval. See, e.g., Brown, 838 F.2d at 455 (“The court records in this litigation attest to
the novelty and difficulty of the questions presented.”).
c.

The Skills Requisite to Perform the Legal Service Properly

Regarding the skills requisite to perform the legal service properly, Class Counsel,
Ms. Borrelli, received her J.D. magna cum laude from the University of Minnesota Law
School in 2011. Borrelli Decl. [#62] ¶ 36. She has repeatedly been named to the annual
Minnesota “Rising Star” Super Lawyers list (2014-2021) by SuperLawyers Magazine. Id.
Strauss Borrelli PLLC is a Chicago-based law firm focusing on complex class
actions, in particular such cases involving data security, privacy, and consumer
protection. Id. ¶ 33. Ms. Borrelli is currently a partner at this firm, working in its nationwide
class action practice and focusing on the litigation of complex class actions in federal and

10

state courts, including lawsuits concerning data breaches, the Telephone Consumer
Protection Act, false advertising, and consumer protection issues. Id. ¶ 34. Before joining
her current firm, she was a partner at two other firms where she also litigated complex
class actions in federal and state courts. Id. ¶ 35.
In the last ten years, Ms. Borrelli has had substantial involvement in many complex
class actions in federal and state courts, including: Hudock v. LG Electronics USA, Inc.,
No. 16-cv-1220 (JRT/KMM) (D. Minn.); Baldwin v. Miracle-Ear, Inc., No. 20-cv-01502
(JRT/HB) (D. Minn.); In re FCA Monostable Gearshifts Litig., No. 16-md-02744 (E.D.
Mich.); Zeiger v. WellPet LLC, No. 17-cv-04056 (N.D. Cal.); Wyoming v. Procter &
Gamble, No. 15-cv-2101 (D. Minn.); In re Big Heart Pet Brands Litig., No. 18-cv-00861
(N.D. Cal.); Sullivan v. Fluidmaster, No. 14-cv-05696 (N.D. Ill.); Rice v. Electrolux Home
Products, Inc., No. 15-cv-00371 (M.D. Pa.); Gorczynski v. Electrolux Home Products, Inc.,
No. 18-cv-10661 (D.N.J.); Reitman v. Champion Petfoods, No. 18-cv-1736 (C.D. Cal.);
and Reynolds, v. FCA US, LLC, No. 19-cv-11745 (E.D. Mich.). Borrelli Decl. [#62] ¶ 37.
In addition, Ms. Borrelli has significant past experience in data privacy litigation
and is currently litigating more than a hundred data breach cases around the country as
lead counsel or co-counsel, including: In re Netgain Tech. Consumer Data Breach Litig.,
No. 21-cv-1210 (D. Minn.) (appointed by the court to the plaintiffs’ Interim Executive
Committee); In re C.R. England, Inc. Data Breach Litig., No. 2:22-cv-374-DAK-JCB
(appointed by the court as interim co-lead counsel); Medina v. PracticeMax Inc., No. 22cv-01261-DLR (D. Ariz.) (appointed to Executive Leadership Committee); Forslund v.
R.R. Donnelley & Sons Co., No. 1:22-cv-04260 (N.D. Ill.) (appointed as interim co-lead
class counsel); In re Lincare Holdings, Inc. Data Breach Litig., No. 8:22-cv-01472 (M.D.

11

Fla.) (appointed to Interim Executive Leadership Committee); McLaughlin v. Flagstar, No.
22-cv-11470 (E.D. Mich.); Corra v. Acts Retirement Services, Inc., No. 2:22-cv-02917
(E.D. Pa.); Grogan v. McGrath RentCorp., Inc., No. 22-cv-490 (N.D. Cal.); Goetz v.
Benefit Recovery Specialists, Inc., No. 2020CV000550 (Wis. Cir. Ct., Walworth Cnty.)
(data breach settlement on behalf of 500,000 breach victims); Kunkelman v. Curators of
the University of Missouri, d/b/a MU Health Care, No. 21BACV00182 (Mo. Cir. Ct., Boone
Cnty.); Baldwin v. Nat’l Western Life Ins. Co., No. 21-cv-04066-WJE (W.D. Mo.)
(settlement on behalf of 800,000 data breach victims). Borrelli Decl. [#62] ¶ 38.
In short, Class Counsel undoubtedly has substantial experience in handling
complex class action litigation generally as well as data breach cases specifically, and
she therefore has the skills to properly perform the legal services required here. Thus, the
Court finds that the third factor weighs in favor of approval. See, e.g., Beasley, 2024 WL
710411, at *7 (finding this factor weighed in favor of approval where “[c]lass counsel have
significant experience in class action cases and data breach litigation”).
d.

The Preclusion of Other Employment by the Attorney

Regarding the preclusion of other employment by the attorney due to acceptance
of this case, Class Counsel notes that 179.30 hours were expended on this case, “which
necessarily precluded Class Counsel from other employment during that time.” Brief [#61]
at 9. The Court finds that this fourth factor weighs in favor of approval. See, e.g., Stanley,
2024 WL 1743497, at *13 (finding that this factor weighed in favor of approval where
“counsel spent over 180 hours litigating this matter, an expenditure of time that
necessarily precluded him from performing other work for more than one-twelfth of a
calendar year”).

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e.

The Customary Fee

Regarding the customary fee, Plaintiff asserts that this factor is inapplicable
because “there is no ‘customary fee’ in class actions taken on contingency.” Borrelli Decl.
[#62] ¶ 25. The Court agrees and finds that this fifth factor is inapplicable. See also Brown,
838 F.2d at 455 (“The ‘customary fee’ factor in a common fund case is the same as the
[twelfth] factor suggesting consideration of awards in similar cases.”).
f.

Whether the Fee Is Fixed or Contingent

Regarding whether the fee is fixed or contingent, this factor is “helpful but not
determinative.” Brown, 838 F.2d at 455. Here, Class Counsel took this lawsuit “on a wholly
contingent basis—which posed the substantial risk of zero recovery.” Borrelli Decl. [#62]
¶ 26. Courts generally find such agreements to weigh in favor of approval. See, e.g.,
Bilinsky v. Gatos Silver, Inc., No. 22-cv-00453-PAB-KAS, 2024 WL 4494290, at *7 (D.
Colo. Oct. 15, 2024) (“Class counsel additionally took this case on a contingency basis,
adding to the risk class counsel incurred by bringing the case.”) (internal citation omitted);
Stanley, 2024 WL 1743497, at *13 (“[C]ounsel worked on a contingency fee basis, thus
assuming the risk that he would not recover any fees, but also providing access to counsel
for persons who otherwise would not have been able to afford legal representation[.]”);
Beasley, 2024 WL 710411, at *7 (similar). Here, too, the Court finds that the sixth factor
weighs in favor of approval.
g.

Time Limitations Imposed by the Client or Circumstances

Regarding time limitations imposed by the client or the circumstances of the case,
Class Counsel notes that, “[i]n data breach cases, securing timely relief for Class
Members is paramount given the ongoing risk of identity theft and fraud.” Borrelli Decl.

13

[#62] ¶ 27. The Court agrees and therefore finds that the seventh factor weighs in favor
of approval.
h.

The Amount Involved and the Results Obtained

Regarding the amount involved and the results obtained, this factor may be
“decisive” in a common fund class action case. Brown, 838 F.2d at 455. Here, Plaintiff
points out that “Class Counsel successfully obtained monetary and non-monetary relief
that is both timely and tailored to the injuries arising from the Data Breach.” Borrelli Decl.
[#62] ¶ 28. As described in the Recommendation [#58], the results obtained in light of the
amount involved is “fair, reasonable, and adequate” under the circumstances of this case.
See [#58] at 15-17. Thus, the Court finds that the eighth factor weighs in favor of approval.
See, e.g., Stanley, 2024 WL 1743497, at *13 (finding that a “favorable result” weighed in
favor of approval of this factor).
i.

The Experience, Reputation, and Ability of Counsel

Regarding the experience, reputation, and ability of counsel, the Court has already
outlined Ms. Borrelli’s significant background with respect to class actions and data
breach cases in Section II.B.2.c. above. Her ability is demonstrated in this case by the
favorable settlement which was obtained for the class. See Borrelli Decl. [#62] ¶ 29. The
Court finds that this ninth factor weighs in favor of approval. See, e.g., Bilinsky, 2024 WL
4494290, at *7 (“Class counsel have significant experience in class action cases and
securities litigation, as reflected in the information provided to the Court.”); Stanley, 2024
WL 1743497, at *13 (“[C]ounsel’s extensive experience in litigation involving federal and
state wage statutes and regulations is manifested in the successful outcome he achieved
for his clients[.]”).

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j.

The “Undesirability” of the Case

Regarding the “undesirability” of the case, Plaintiff again points out that “Class
Counsel prosecuted this case on a wholly contingent basis—which posed the substantial
risk of zero recovery.” Borrelli Decl. [#62] ¶ 26. Courts have found that this type of
arrangement weighs in favor of a finding of “undesirability.” See, e.g., Stanley, 2024 WL
1743497, at *13 (“[T]he case, which reasonably could only have been litigated via a
contingency fee arrangement, likely rendered it undesirable to a large number of the
members of the bar of this Court[.]”). The Court therefore finds that the tenth factor weighs
in favor of approval.
k.

The Professional Relationship with the Client

Regarding the professional relationship between counsel and the client, Plaintiff
asserts that this factor is inapplicable because “Class Counsel did not have a professional
relationship with the client before this case.” Borrelli Decl. [#62] ¶ 30. The Court therefore
also finds this eleventh factor to be inapplicable. See, e.g., Stanley, 2024 WL 1743497,
at *13 (“[P]er counsel’s representation, because he did not have a professional
relationship with [the] [p]laintiffs or any class member prior to the instant litigation, this
factor is not applicable[.]”).
l.

Awards in Similar Cases

Regarding fee awards made in similar cases, the Court again notes that, even if
only a quarter of the potential value of the settlement were ultimately paid out, i.e., about
$8,271,450, the fee request would still only result in a percentage of about 2.5%.
Generally, “[i]n situations such as this, where the Proposed Settlement creates a common
fund, attorneys’ fees of one-third or thereabouts are generally deemed reasonable.”

15

Thompson v. Qwest Corp., No. 17-cv-1745-WJM-KMT, 2018 WL 2183988, at *3 (D. Colo.
May 11, 2018). Here, for the $206,843 in requested fees to equate to approximately onethird of the settlement, the settlement’s payout would be reduced to $620,529. In other
words, even if only $620,529 of the potential value of $33,085,800 were ultimately paid
out, Plaintiff’s fee request would still be reasonable. As it is, the fee request appears to
be far below what is common in class action cases. The Court therefore finds that the
twelfth factor weighs in favor of approval.
m.

Conclusion Regarding Fees

Weighing the Johnson factors, the Court finds that ten factors weigh in favor of
approval and that two factors are inapplicable. Thus, the Court finds that $206,843 is a
reasonable amount of fees to be awarded. 7
Accordingly, the Court recommends that the Motion [#60] be granted to extent
that an award of $206,843 in fees be approved.
III. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#60] be GRANTED, as follows:

7 The Court notes that, even after a loadstar cross-check, the fee award remains reasonable. See,

e.g., Beasley, 2024 WL 710411, at *7 n.4 (briefly cross-checking the percentage-of-the-fund
method with the lodestar method). As of the date the Motion [#60] was filed, Plaintiff’s counsel
has incurred $94,655.00 in fees. Borrelli Decl. [#62] ¶ 21; see also id. ¶ 23 (noting that, “in the
coming months, Class Counsel anticipates spending dozens of hours . . . overseeing the Claims
administration process, answering questions from Class Members, drafting the final approval
motion and memorandum, reviewing and addressing any objections to the settlement, preparing
for and attending the final fairness hearing, and overseeing the distribution of cash payments”).
At this time, $206,843 divided by $94,655 equates to a lodestar multiplier of approximately 2.19.
Borrelli Decl. [#62] ¶ 22. “Courts have awarded fees equivalent to the loadstar [sic] with multipliers
ranging from 0.8 to 4.6.” Bilinsky, 2024 WL 4494290, at *7 n.4. A multiplier of 2.19, which will only
decrease as counsel spends additional time on this lawsuit, easily fits within this range of
reasonableness.
16

(1) that a service award of $2,500 for Plaintiff Jeffrey Pan be approved;
(2) that an award of $8,157 in costs be approved; and
(3) that an award of $206,843 in fees be approved. 8
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may serve and file specific written objections to the proposed findings and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” MoralesFernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
DATED: March 10, 2025

BY THE COURT:

Kathryn A. Starnella
United States Magistrate Judge

8 The Court notes that the recommended approval of fees, costs, and the service award may be

subject to class member objections, if any, to be addressed at the Final Fairness Hearing.
17