KRIMES v. JPMORGAN CHASE BANK, N.A. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/24/2017. 05/24/2017 ENTERED AND COPIES E-MAILED.(nds)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
on behalf of himself and all
others similarly situated,
JPMORGAN CHASE BANK, N.A., et al., :
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
May 24, 2017
Presently before the Court are Plaintiffs’ Unopposed
Motion for Final Approval of Class Action Settlement and
Plaintiffs’ Unopposed Motion for Attorneys’ Fees, Costs, and
Service Awards. After private mediation, Plaintiff, Jesse
Krimes, and Defendant, JP Morgan Chase Bank, have agreed to
settle Krimes’ claims that Chase charged unreasonable fees for
the use of a prepaid debit card issued to recently released
prisoners. In short, the settlement fund provides for all debit
card users to obtain a refund of all card service charges and
ATM fees and allows them to obtain any remaining balances from
their account via check. Chase has also agreed to pay from a
separate fund, attorney fees, costs, and a service award.
For the reasons that follow, the Court will grant both
In September of 2013, Krimes was released from federal
prison. ECF No. 1 ¶ 27. Upon his release, the Bureau of Prisons
(“BOP”) provided to him a prepaid Chase debit card pursuant to
the U.S. Debit Card program. Id. ¶ 28. The card was loaded with
money that Krimes possessed when he was initially incarcerated
and funds he accrued while incarcerated. Id.
According to Krimes, if he and the other releasees
“want[ed] their own money after they [were] released from
prison, they [were] forced to accept a ‘consumer relationship’
with Chase” and “accept the Chase U.S. Debit Card’s terms.”
¶¶ 2, 17 (emphasis original). Krimes also contends that Chase
charged excessive fees for using the card. Id. ¶¶ 5, 29. For
example, card holders were charged for using the card at a bank
teller window, using non-network ATMs, checking their account
balances, and were charged an inactivity fee. Id. ¶¶ 5-6, 29-30,
Krimes initiated this action on behalf of himself and
others similarly situated on September 11, 2015 against
Defendants Chase and Does 1-10, alleging unjust enrichment,
conversion, and violations of Pennsylvania’s Unfair Trade
Practices and Consumer Protection Law. Id. ¶¶ 52-60, 86-108. The
Court has jurisdiction under the Class Action Fairness Act. 28
U.S.C. § 1332(d).
On March 31, 2016, the parties filed a joint motion to
stay the proceedings pending mediation. ECF No. 27. The Court
granted that motion on April 20, 2016. ECF No. 28. The parties
engaged a neutral mediator, Jonathan Marks, and had multiple
joint and ex parte telephone conferences with him, culminating
in an all-day in-person mediation session on May 12, 2016. These
negotiations resulted in the present settlement agreement.
On August 1, 2016, Plaintiff filed a motion for
preliminary approval of a class action settlement. ECF No. 31.
The Court set the hearing to consider the motion for August 30,
2016. ECF No. 32. Before the hearing, a potential class member
and plaintiff in his own similar suit, Brett Sheib, filed an
objection to Plaintiff’s motion. ECF No. 33.
After the September 23, 2016 preliminary approval
hearing, ECF No. 42, the Court granted the motion for
preliminary approval of the class action settlement and
overruled the objection thereto. ECF Nos. 43-44. The Order also
set, inter alia, notice procedures, dates for opting in and out
of the settlement, and a date for the final approval hearing.
Plaintiff filed his unopposed motions for final
approval and for attorneys’ fees, costs, and service award on
February 20, 2017. ECF Nos. 48-50. On April 12, 2017, the Court
held the final settlement approval hearing.
The Proposed Class Action Settlement
The terms of the proposed class action settlement are
set forth in the Settlement Agreement and Release (“Settlement
Agreement”), ECF No. 31-1, and are outlined below.
The Proposed Settlement Class
The Settlement Agreement provides for a settlement
class defined as follows:
All persons in the United States who, up to and
including the date of preliminary approval, were
issued BOP Debit Cards upon their release from federal
correctional facilities as part of the U.S. Debit Card
program operated by JPMorgan Chase Bank, N.A. for the
United States Treasury Department and the Federal
Bureau of Prisons.
ECF No. 31-1 ¶ 43.
The Proposed Settlement Terms
The Settlement Agreement provides that Chase will pay
up to $446,822 to the settlement class. Id. ¶¶ 45, 71. From this
amount, each class member will be entitled to reimbursement of
all fees imposed by Chase as well as all third-party ATM
surcharges that were incurred on BOP debit cards before the date
of preliminary approval. Id. ¶ 71.
Settlement class members who still have active BOP
debit card accounts will receive their settlement payments via
deposit back into their accounts. Id. ¶ 73. Alternatively, they
may choose to receive either a paper check or replacement debit
card at no charge. Id. Class members who no longer possess an
active BOP debit card account can request their payment via a
paper check. Id. ¶ 75. Any class member requesting a check may
also request that it include, in addition to his or her
settlement payment, any residual balance in his or her debit
card account. Id. ¶ 77.
Notice and claims administration costs have been paid
by Chase. Id. ¶ 47. If any of the money remains unclaimed after
the initial distribution of payments, Chase will deduct the
costs of notice and claims administration before making a
supplemental distribution on a pro rata basis. Id. ¶ 76. Chase
will also separately pay Plaintiff’s requested service award,
attorneys’ fees, and costs not to exceed $250,000. Id. ¶ 46-47.
Specifically, Plaintiff’s Counsel has requested $230,312.89 for
attorneys’ fees, $14,687.11 in costs, and a service award of
$5,000 for Krimes. ECF No. 49 at 7.
In exchange for the benefits provided by the
settlement, settlement class members agree to release all
that were or could have been alleged in the Action and
result from, arise out of, are based upon, or in any
way relate to Chase’s possession of Settlement Class
Members’ funds, or Settlement Class Members’ access to
their funds, as part of the BOP Debit Card Program;
imposition on Settlement Class Members of Chase Fees
or ATM Surcharges in relation to the BOP Debit Card
Program; or any disclosures or other communication to
Settlement Class Members by Chase concerning BOP Debit
ECF No. 31-1 ¶ 89.
The parties selected, and the Court approved, Kurtzman
Carson Consultants (“KCC”) to disseminate notice and handle
claims administration. ECF No. 31-1 ¶ 37; see ECF Nos. 43-44
(approving the employment of KCC and the notice program). The
notices were designed to apprise the settlement class of their
rights: (a) to make claims in the event they wished to elect to
receive checks in the amount of their settlement share, and if
requested, any residual balances remaining in their debit card
accounts, (b) to exclude themselves from the settlement, or (c)
to object to the settlement’s terms or class counsel’s
anticipated fee application and request for Krime’s service
award. See id. ¶¶ 53-68.
The Class Notice program was comprised of: (a) direct
mail notice; (b) publication notice in three periodicals; (c) a
Settlement Website; (d) a toll-free telephone number; and (e) a
long-form notice with more detail than the direct mail or
publication notices, which were available on the Settlement
Website or upon written or telephonic request. See id. ¶¶ 61,
The forms of notice included, inter alia: (a) a
description of the settlement; (b) the deadline for class
members to make a claim or form-of-payment election, exclude
themselves from the settlement class, or object to the
settlement; (c) the address of the settlement website; and (d)
the number of the toll-free telephone line. Id. ¶¶ 55-60.
Under Federal Rule of Civil Procedure 23(e), the
settlement of a class action requires court approval. Fed. R.
Civ. P. 23(e)(2). A district court may approve a settlement
agreement only “after a hearing and on finding that it is fair,
reasonable, and adequate.” Id. When presented with a class
settlement agreement, the court must first determine that the
requirements for class certification under Rule 23(a) and (b)
are met and then must separately determine that the settlement
is fair to the class under Rule 23(e). In re Nat’l Football
League Players Concussion Injury Litig., 775 F.3d 570, 581 (3d
The factual determinations necessary to make Rule 23
findings must be made by a preponderance of the evidence. In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir.
2008). “‘The decision of whether to approve a proposed
settlement of a class action is left to the sound discretion of
the district court.’” In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions, 148 F.3d 283, 299 (3d Cir. 1998)
(quoting Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975)).
Where, as here, the court has not already certified the class
prior to evaluating the settlement, the court must determine
whether the proposed settlement class satisfies the requirements
of Rule 23(a) and (b). Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 619 (1997); In re Pet Food Prods. Liab. Litig., 629 F.3d
333, 341 (3d Cir. 2010).
Under Rule 23(h), at the conclusion of a successful
class action, class counsel may apply to a court for an award of
attorneys’ fees. The amount of an attorneys’ fee award “is
within the district court’s discretion so long as it employs
correct standards and procedures and makes finding of fact not
clearly erroneous[.]” Sullivan v. DB Investments, Inc., 667 F.3d
273, 329 (3d Cir. 2011) (en banc) (internal quotation marks
Whether Class Certification Is Proper
At the final fairness stage, the court must undertake
a “rigorous analysis” as to whether class certification is
appropriate. In re Nat. Football League Players, 775 F.3d at
582-83, 586. Under Rule 23(a), Plaintiffs must demonstrate that:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class. Fed. R. Civ. P. 23(a).
Rule 23(b)(3), under which Plaintiffs seek class
certification, 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). These twin requirements
are commonly referred to as predominance and superiority.
Sullivan, 667 F.3d at 296. The Court finds that both the Rule
23(a) and (b)(3) factors are satisfied here.
Finally, in addition to the Rule 23(a) and (b)(3)
requirements, the Third Circuit imposes another requirement,
ascertainabililty of the class, that must be assessed during the
Court’s preliminary determination on class certification.
Rule 23(a) Factors
Rule 23(a)(1) requires that the class be “so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P.
23(a)(1). No minimum number of plaintiffs is required to
maintain a suit as a class action, but generally if the named
plaintiff demonstrates that the potential number of plaintiffs
exceeds forty, the numerosity prong has been met. Stewart v.
Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).
Numerosity is easily satisfied here as Chase’s records
show that there are approximately 64,000 settlement class
members, equaling the number of BOP debit cards issued by Chase
to individuals in the United States since the implementation of
the BOP debit card program.
Rule 23(a)(2) requires the existence of “questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This
commonality element requires that the plaintiffs “share at least
one question of fact or law with the grievances of the
prospective class.” Rodriguez v. Nat’l City Bank, 726 F.3d 372,
382 (3d Cir. 2013). To satisfy the commonality requirement,
class claims “must depend upon a common contention . . . of such
a nature that it is capable of classwide resolution - which
means that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims
in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
Commonality exists in this case because all of the
settlement class members’ claims stem from a common course of
conduct. Each class member could access their funds upon release
only through a BOP debit card. Each was also subject to the same
fees Chase charged in connection with the cards. Also, Chase’s
principal defenses, such as government immunity, are common to
all class members.
Rule 23(a)(3) requires that the class representatives’
claims be “typical” of the claims of the class. Fed. R. Civ. P.
23(a)(3). The typicality inquiry is “intended to assess whether
the action can be efficiently maintained as a class and whether
the named plaintiffs have incentives that align with those of
absent class members so as to assure that the absentees’
interests will be fairly represented.” Baby Neal v. Casey, 43
F.3d 48, 57 (3d Cir. 1994). Where claims of the representative
plaintiffs arise from the same alleged wrongful conduct on the
part of the defendant, the typicality prong is satisfied. In re
Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir.
The typicality element is satisfied because Krime’s
claims are identical to those of the settlement class. He
alleges the same type of injury arising out of the same conduct
or circumstances to which other settlement class members were
exposed. Upon release from prison, Plaintiff and the class
members could only access their funds via the BOP debit card and
were all subject to the same fees and conditions. Thus,
Plaintiff is well-suited to represent the other settlement class
Adequacy of Representation
Rule 23(a)(4) requires representative parties to
“fairly and adequately protect the interests of the class.” Fed.
R. Civ. P. 23(a)(4). This requirement “serves to uncover
conflicts of interest between the named parties and the class
they seek to represent.” Amchem, 521 U.S. at 625. The Third
Circuit applies a two-prong test to assess the adequacy of the
proposed class representatives. First, the court must inquire
into the “qualifications of counsel to represent the class,” and
second, it must assess whether there are “conflicts of interest
between named parties and the class they seek to represent.”
Prudential, 148 F.3d at 312 (internal quotation marks and
First, class counsel, Golomb & Honik, P.C., has
represented to the Court that they have successfully handled at
least a dozen national, regional, and statewide class actions,
and other complex multi-party actions in both federal and state
courts. ECF No. 31-2 ¶¶ 16-17. They also served on the executive
committee in the multi-district litigation In re Budeprion XL
Sales & Marketing Practices Litigation and currently serve as
liaison counsel in the multidistrict litigation In re Benicar
(Olmesartan) Litigation. Id. Plaintiffs’ counsel litigated this
matter for approximately one year. They opposed Defendant’s
motion to dismiss, exchanged discovery, and engaged in lengthy
negotiations with Defendant through a neutral mediator, which
resulted in a successful settlement. The Court concludes that
Plaintiff’s counsel is well qualified to represent the class.
Second, Krimes’ interests are coextensive with, and
not antagonistic to, the interests of the settlement class.
Krimes and the absent class members have an equal interest in
the relief offered by the Settlement Agreement. Also, there is
no divergence between Krimes’ interests and those of the other
class members. Both Krimes’ and the other class members’ claims
arise from the same conduct and they all seek remedies equally
applicable and beneficial to them all. The Court concludes that
there are no conflicts of interest between Krimes and the class
such that the adequacy of representation requirement is met.
In sum, Plaintiff has demonstrated compliance with
each of the Rule 23(a) prerequisites for class certification.
Rule 23(b)(3) Factors
In addition to satisfying each of the prerequisites in
Rule 23(a), a class representative must show that the action
falls into at least one of the three categories provided in Rule
23(b). Plaintiff brings this action under Rule 23(b)(3). ECF No.
31 at 16. Under Rule 23(b)(3), a class action may be maintained
if; (1)common questions of law or fact predominate over
questions affecting only individual members; and (2) a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.
The predominance inquiry “tests whether proposed
classes are sufficiently cohesive to warrant adjudication by
representation.” Amchem, 521 U.S. at 623. Further, it assesses
whether a class action “would achieve economies of time, effort,
and expense, and promote uniformity of decision as to persons
similarly situated.” Fed. R. Civ. P. 23(b)(3), Advisory
Committee’s Note to 1966 Amendment.
The superiority requirement “asks the court to
balance, in terms of fairness and efficiency, the merits of a
class action against those of alternative available methods of
adjudication.” Warfarin, 391 F.3d at 533-34 (internal quotation
marks omitted). When assessing superiority and “[c]onfronted
with a request for settlement-only class certification, a
district court need not inquire whether the case, if tried,
would present intractable management problems, . . . for the
proposal is that there be no trial.” Amchem, 521 U.S. at 620.
Plaintiff satisfies the predominance requirement
because liability questions common to the settlement class
substantially outweigh any possible individual issues.
Plaintiff’s claims and those of the class are based on the same
legal theories and same uniform conduct.
Resolution of the claims of the settlement class
members is superior to individual law suits because it promotes
consistency and efficiency of adjudication. Since the individual
claims are relatively small, without the class, individuals
might lack incentive to pursue their claims. The Court
previously determined that this action was also superior to a
competing class action filed on June 6, 2016, captioned Sheib v.
JP Morgan Chase & Co., No. 16-cv-2880 (E.D.N.Y.). See In re
Community Bank of N. Va., 418 F.3d 277, 309 (3d Cir. 2005)
(discussing the relevance of other individuals’ suits in
approving a class action settlement, and noting that “these
individuals can opt-out and pursue their claims individually”).
Specifically, the Court concluded that the proposed class in
this action was more inclusive than in Sheib, and the settlement
provided more flexible forms of remuneration. See Krimes v.
JPMorgan Chase Bank, N.A., No. CV 15-5087, 2016 WL 6276440, at
*5–8 (E.D. Pa. Oct. 26, 2016).
Thus, the Court concludes that the class action meets
the predominance and superiority requirements of Rule 23(b)(3).
In addition to the Rule 23(a) and (b)(3) requirements,
the Third Circuit imposes another requirement under Rule 23:
ascertainability. Byrd v. Aaron’s Inc.,784 F.3d 154, 163 (3d
Cir. 2015). In Byrd, the Third Circuit explained that “[t]he
ascertainability inquiry is two-fold, requiring a plaintiff to
show that: (1) the class is defined with reference to objective
criteria, and (2) there is a reliable and administratively
feasible mechanism for determining whether putative class
members fall within the class definition.” Id. (internal
quotation marks omitted).
The putative class is ascertainable because Defendant,
as part of the mediation discovery, has identified the number of
BOP debit cards that were issued since the implementation of the
BOP debit card program. ECF No. 31-2 ¶ 4. The Court finds that
Defendant’s records are an objective and reliable means of
ascertaining the class members.
Based on the above, the settlement class satisfies the
requirements of Rule 23(a) and (b)(3), as well as the Third
Circuit’s ascertainability requirement. Therefore, the Court
will certify the class for the purposes of this settlement.
Whether the Notice to the Class Members Was Adequate
Having determined that the class may be certified, the
Court next reviews the notice procedures implemented by
plaintiffs. “In the class action context, the district court
obtains personal jurisdiction over the absentee class members by
providing proper notice of the impending class action and
providing the absentees with the opportunity to be heard or the
opportunity to exclude themselves from the class.” Prudential,
148 F.3d at 306. Rule 23 includes two provisions concerning
notice of the class members.
First, Rule 23(c)(2)(B) requires that class members be
given the best notice practicable under the circumstances,
including individual notice to all potential class members
identifiable through reasonable efforts. Specifically, the Rule
provides that such notice must, in clear, concise, and plain
language, state: (i) the nature of the action; (ii) the
definition of the class certified; (iii) the class claims,
issues, or defenses; (iv) the class member’s right to enter an
appearance by an attorney; (v) the class member’s right to be
excluded from the class; (vi) the time and manner for requesting
exclusion; and (vii) the binding effect of settlement on class
members. Fed. R. Civ. P. 23(c)(2)(B).
Second, Rule 23(e) requires notification to all
members of the class of the terms of any proposed settlement.
Fed. R. Civ. P. 23(e)(1). This “notice is designed to summarize
the litigation and the settlement” and “to apprise class members
of the right and opportunity to inspect the complete settlement
documents, papers, and pleadings filed in the litigation.”
Prudential, 148 F.3d at 327 (internal quotation marks omitted).
In the Court’s memorandum and order granting
preliminary approval of the settlement, the Court approved
notice by direct mail, periodical publication, a settlement17
specific website, and a toll-free telephone number. At that
time, the Court reviewed the parties’ notice program, including
the language of the notices and found that they were clear,
included all requisite information, and met the requirements of
Rule 23(c)(2)(B) and (e). Krimes, 2016 WL 6276440, at *7.
Plaintiff reports that, through direct mailings, KCC
was able to reach 90.15% of the 19,414 Class Members for whom
valid non-correctional facility addresses were found. ECF No.
48-2 ¶¶ 2-3. When notices were returned as undeliverable, the
information was processed through the Accurint address search
service which provided 2,082 updated addresses. Id. Plaintiff
also reports that the Court-approved notice was published in USA
Today, ESPN The Magazine, and People. Id. ¶ 2. Plaintiff further
reports that there have been 1,645 unique visitors to the
website and the toll-free number received 982 calls. Id. ¶4.
Accordingly, the Court finds that the notice program
used in this case satisfies Rule 23(c)(2)(B) and (e) and was
reasonably calculated to apprise the class of the pendency of
the action, the proposed settlement, the class members’ rights
to opt out or to object, and the applicability of a final
judgment on all participating class members. Fed. R. Civ. P.
23(c)(2)(B); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173
Whether the Proposed Settlement Is Proper
After class certification, the court must approve the
settlement of a class action and determine whether the proposed
settlement is “fair, adequate, and reasonable,” as required by
Rule 23(e)(2). Prudential, 148 F.3d at 316-17. Where the parties
simultaneously seek certification and settlement approval, the
Third Circuit requires “‘courts to be even more scrupulous than
usual’ when they examine the fairness of the proposed
settlement.” Id. at 317 (quoting In re Gen. Motors Corp. Pick-Up
Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 785 (3d Cir.
1995). This heightened standard is designed to ensure that class
counsel has demonstrated sustained advocacy throughout the
course of the proceedings and has protected the interests of all
class members. Id. Ultimately, “[t]he decision of whether to
approve a proposed settlement of a class action is left to the
sound discretion of the district court.” Girsh, 521 F.2d at 156.
In Girsh, the Third Circuit Court identified nine
factors to be considered when determining the fairness of a
proposed settlement: (1) the complexity, expense, and likely
duration of the litigation;(2) the reaction of the class to the
settlement; (3) the stage of the proceedings and the amount of
discovery completed; (4) the risks of establishing liability;
(5) the risks of establishing damages; (6) the risks of
maintaining the class action through trial; (7) the ability of
the defendants to withstand a greater judgment; (8) the range of
reasonableness of the settlement fund in light of the best
possible recovery; and (9) the range of reasonableness of the
settlement fund to a possible recovery in light of all the
attendant risks of litigation. 521 F.3d at 157. The Court
addresses the Girsh factors below - some individually, some
together as a group - before separately addressing the class
representative’s service award and the attorneys’ fees and
The Complexity, Expense, and Likely Duration of
The first Girsh factor is the complexity, expense, and
likely duration of the litigation, which aims to take into
account the “probable costs, in both time and money, of
continued litigation.” In re Cendant Corp. Litig., 264 F.3d 201,
233 (3d Cir. 2001) (internal quotation marks omitted).
Plaintiff contends that continued litigation would be
lengthy and costly since the parties would need to conduct: (1)
discovery and briefing on Chase’s immunity defenses; (2) fact
discovery for any remaining claims; and (3) class certification
discovery and briefing. The Court agrees with the parties that
the settlement, which provides substantial and immediate
benefits to the class, is far superior than protracted
litigation and appeals. Thus, this factor weighs in favor of
The Reaction of the Class to Settlement
The second Girsh factor to be considered is the
reaction of the class to the settlement. “In an effort to
measure the class’s own reaction to the settlement’s terms
directly, courts look to the number and vociferousness of the
objectors.” Gen. Motors, 55 F.3d at 812.
Only one settlement class member, Brett Sheib, has
elected to opt-out of the settlement. Moreover, apart from the
objection he lodged during the Preliminary Approval stage, there
have been no other objections. ECF No. 48-2 ¶¶6-7. Thus, this
factor also weighs heavily in favor of the settlement. See,
e.g., Prudential, 148 F.3d at 318 (affirming district court’s
conclusion that class reaction was favorable when 19,000 out of
8,000,000 class members opted out and 300 objected); Stoetzner
v. U.S. Steel Corp., 897 F.2d 115, 118–19 (3d Cir. 1990) (noting
that the second Girsh factor “strongly favor[ed]” settlement
where “only twenty-nine” “of 281 class members” objected to the
The Stage of the Proceedings
The third factor to be considered is the stage of the
proceedings and the amount of discovery completed. This Girsh
factor requires the Court to evaluate whether Plaintiffs had an
“adequate appreciation of the merits of the case before
negotiating” settlement. Prudential, 148 F.3d at 319 (internal
quotation marks omitted).
Here, the settlement was finalized only after a
rigorous mediation during which the parties engaged in analysis
of the substantive claims and defenses in the case. Moreover,
the case has been pending since September 2015 and the parties
have briefed a motion to dismiss which afforded Plaintiff an
opportunity to assess the strengths and weaknesses of the case.
The Court concludes that this factor has been met and that the
parties sufficiently appreciated the merits and dangers of the
The Risks of Continued Litigation
The fourth, fifth, and sixth Girsh factors are the
risks of establishing liability, the risks of establishing
damages, and the risks of maintaining the class action
throughout the trial. These factors balance the likelihood of
success and the potential damage award if the case were taken to
trial against the benefits of immediate settlement.” Prudential,
148 F.3d at 319. As to the risks of establishing liability, this
factor “examine[s] what the potential rewards (or downside) of
litigation might have been had class counsel elected to litigate
the claims rather than settle them.” Gen. Motors, 55 F.3d at
814. As to damages, this factor “attempts to measure the
expected value of litigating the action rather than settling it
at the current time.” Cendant Corp., 264 F.3d at 238–39 (quoting
Gen. Motors, 55 F.3d at 816). Finally,
certification have a great impact on the
range of recovery one can expect to reap
[concerning the risks of maintaining the
class action through trial] measures the
likelihood of obtaining and keeping a class
certification if the action were to proceed
Warfarin, 391 F.3d at 537 (internal quotation marks and
As discussed above, the parties have had sufficient
opportunity to evaluate the strengths and weaknesses of the case
– which includes – the risks of continuing the litigation. But
for the settlement, Defendant would have offered defenses that
could have precluded any award to the class members. Moreover,
both sides would have faced risks in battling motions for
summary judgment and possibly trial and appeal. Similarly, there
are uncertainties regarding full class certification. In that
much of the substantive discovery and motions practice is
avoided by the settlement, it is unlikely that the class members
would be better served with continuing the litigation rather
than accepting a settlement in which they receive a full refund
of all of the fees and surcharges levied and the opportunity to
obtain the entire balance in their account via check. Thus,
these factors weigh in favor of the settlement.
The Ability of the Defendant to Withstand Greater
The seventh factor regards the ability of the
defendant to withstand a greater judgment. This factor is “most
clearly relevant where a settlement in a given case is less than
would ordinarily be awarded but the defendant’s financial
circumstances do not permit a greater settlement.” Reibstein v.
Rite Aid Corp., 761 F. Supp. 2d 241, 254 (E.D. Pa. 2011).
Chase is capable of withstanding a much larger
judgment. However, the class members are also being given an
opportunity to recoup all of their alleged losses. The Court
finds that this factor does not weigh heavily for or against the
settlement. See, e.g., In re: Processed Egg Prod. Antitrust
Litig., No. 08-MD-2002, 2016 WL 3584632, at *16 (E.D. Pa. June
30, 2016) (“Even if the Court were to presume that the
defendants’ resources far exceeded the settlement amount, in
light of the balance of the other factors considered which
indicate the fairness, reasonableness, and adequacy of the
settlement, the ability of the defendants to pay more, does not
weigh against approval of the settlement.”).
The Range of Reasonableness of the Settlement
in Light of the Best Possible Recovery and the
Attendant Risks of Litigation
The eighth and ninth factors are the range of
reasonableness of the settlement fund in light of the best
possible recovery and the attendant risks of litigation. These
factors examine “whether the settlement represents a good value
for a weak case or a poor value for a strong case.” Warfarin,
391 F.3d at 538.
As the Court has stated previously, indisputably, the
class members are getting significant value from the settlement
in the form of a refund of all debit card fees, all ATM
surcharges, and the ability to obtain any balance on their card
via check. The Court concludes that these two factors also weigh
in favor of the settlement.
It is clear that upon balancing of the Girsh factors,
they tip strongly in favor of the settlement. Thus, the Court
finds the settlement fair and will approve the Settlement
Attorneys’ Fees, Costs, and the Service Award
In the Settlement Agreement, Chase agreed to pay
attorneys’ fees, costs, and a service award of up to $250,000.
ECF No. 31-1 ¶ 46. These items are to be paid separately from
the settlement proceeds. Id. ¶¶ 45-46. In their motion for fees,
Plaintiff’s counsel has requested: (1) $230,312.89 in attorneys’
fees; (2) $14,687.11 in costs; and (3) a $5,000 service award
When class counsel successfully settles a class
action, they may apply for reasonable attorneys’ fees and
nontaxable costs. Fed. R. Civ. P. 23(h). “[A] thorough judicial
review of fee applications is required in all class action
settlements.” Gen. Motors, 55 F.3d at 819. The amount of the fee
award “is within the district court’s discretion so long as it
employs correct standards and procedures and makes finding of
fact not clearly erroneous[.]” Sullivan, 667 F.3d at 329
(internal quotations and citation omitted).
Plaintiff’s counsel has reported that it billed 478.3
hours with a total value of $236,355. Specifically they report
that: (1) founding partner Ruben Honik expended 137.4 hours at a
rate of $750 per hour; (2) partner Kenneth J. Grunfeld expended
50 hours at $450 per hour; (3) associate David J. Stanoch
expended 270.7 hours at $400 per hour; and (4) paralegal
Elizabeth C. Malloy expended 20.2 hours at $125 per hour. ECF
No. 49-1 ¶¶ 29-33. The average hourly rate comes to $494 per
In that attorneys’ fees are not being paid from a
common fund, the use of the loadstar method is appropriate. “The
lodestar method is ‘designed to reward counsel for undertaking
socially beneficial litigation in cases where the expected
relief has a small enough monetary value that a percentage-ofrecovery method would provide inadequate compensation.” In re
Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009) (quoting
Prudential, 148 F.3d at 333). “The lodestar award is calculated
by multiplying the number of hours reasonably worked on a
client’s case by a reasonable hourly billing rate for such
services based on the given geographical area, the nature of the
services provided, and the experience of the attorneys.” In re
Rite Aid Corp. Secs. Litig., 396 F.3d 294, 305 (3d Cir. 2005).
The lodestar is then subject to a multiplier. See, e.g., id.;
Lindy Bros. Builders, Inc. v. Am. Radiator & Std. Sanitary
Corp., 540 F.2d 102, 117 (3d Cir. 1976).
The Court concludes that given the scope and
complexity of the litigation including the time spent on prelitigation investigation and research, motions practice, and
mediation, that the hours spent by counsel are reasonable. See
ECF No. 49-1 ¶ 36.
The Court further concludes that the hourly rates
charged by Plaintiff’s counsel, and which average $494 per hour,
are “reasonable in light of the given geographical area, the
nature of the services provided, and the experience of the
attorneys.” In re AT&T Corp. Secs. Litig, 455 F.3d 160, 164 (3d
Cir. 2006) (internal quotations and citations omitted); see,
e.g., Moore v. GMAC Mortg., No. 07-4296, 2014 WL 12538188, at *2
(E.D. Pa. Sept. 19, 2014) (finding reasonable rates between $325
and $860 per hour); In re Merck & Co., Inc. Vytorin Erisa
Litig., No. 08-285DMC, 2010 WL 547613, at *13 (D.N.J. Feb. 9,
2010) (approving rates up to $835 per hour).
The loadstar in this case is $236,355. In that
Plaintiff’s counsel seeks slightly less in fees than it expended
(230,312.89) the load multiplier is negative, further indicating
that the fees requested are reasonable. See In re Cendant Corp.
Prides Litig., 243 F.3d 722, 742 (3d Cir. 2001) (“[m]ultipliers
ranging from one to four are frequently awarded”) (internal
quotations and citation omitted). The Court concludes that,
based upon the loadstar method, the attorneys’ fees requested
Plaintiff’s counsel also reported that the $14,687.11
in costs arose from standard categories including travel and
meals ($24), copying costs ($1,137), postage/shipping ($6.40),
filing fees ($400), service of documents ($105), research
($2,214.71), and mediation fees ($10,800). ECF No. 49-1 ¶35. The
Court concludes that these fees are reasonable.
Finally, class counsel seeks a service award for
Krimes of $5,000. Service awards “compensate named plaintiffs
for the services they provided and the risks they incurred
during the course of the class action litigation and [ ] reward
the public service of contributing to the enforcement of
mandatory laws.” Sullivan, 667 F.3d at 333 n.65 (internal
quotation marks omitted).
According to Krimes he sought out and obtained counsel
after being unable to get a satisfactory answer from Chase
regarding the fees that he was being charged. ECF No. 53-1 ¶¶ 49. Krimes asserts that he worked closely with his counsel and
provided documentation and explanations regarding his debit
card, communicating with them over many weeks in person and via
telephone and email. Id. ¶¶ 10-11. He also gathered additional
information from social justice groups for his counsel. Id. ¶
11. Krimes claims he was actively involved in the case and
estimates that he spent a total of fifty to seventy hours
assisting his counsel. Id. ¶¶ 12-16.
Krimes also asserts that he was concerned about
negative publicity, embarrassment, stigma, and unwanted
attention that might result from his position as the lead
plaintiff in a case regarding previously incarcerated
individuals. Id. ¶ 19. Krimes contends that he has received
negative comments about himself and his work related to his
incarceration. Id. ¶¶ 22-25.
Krimes’ counsel confirms these contentions and asserts
that Krimes’ assistance with the case was substantial. ECF No.
53-2. There have been no objections to the award. As a result,
the Court concludes that the service award is reasonable.
The Court again finds that the requirements for class
certification under Rule 23 have been met for settlement
purposes. The Court further concludes that the Settlement
Agreement is fair, reasonable, and adequate and, thus, will
approve it. Finally, the Court finds that the requests for
counsels’ fees and costs, and Krimes service award are
reasonable. As a result, the Court will grant Plaintiff’s
unopposed motions for final approval of settlement and for
attorneys’ fees, costs, and service award.
An appropriate order follows.
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