Third Circuit disposition — 24-1874

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 24-1874
_______________________
In re: WAWA, INC. DATA SECURITY LITIGATION
THEODORE H. FRANK,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2:19-cv-06019
District Judge: The Honorable Gene E. K. Pratter
__________________________
Argued April 10, 2025
Before: HARDIMAN, PORTER, and SMITH,
Circuit Judges.
(Filed: June 25, 2025)

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Adam E. Schulman [ARGUED]
Hamilton Lincoln Law Institute
1629 K Street NW
Suite 300
Washington, DC 20006
Counsel for Appellant
Gerard A. Dever
Matthew H. Duncan [ARGUED]
Roberta D. Liebenberg
Rachel K. Sommer
Fine Kaplan & Black
One S. Broad Street
Suite 2300
Philadelphia, PA 19107
Samantha E. Holbrook
Benjamin F. Johns
Shub Johns & Holbrook
200 Barr Harbor Drive
Four Tower Bridge, Suite 400
West Conshohocken, PA 19428
Sherrie R. Savett
Berger Montague
1818 Market Street
Suite 3600
Philadelphia, PA 19103
Counsel for Plaintiff-Appellee Kenneth Brulinski
Kristin M. Hadgis

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Eric C. Kim
Terese M. Schireson
Gregory T. Parks [ARGUED]
Morgan Lewis & Bockius
2222 Market Street
12th Floor
Philadelphia, PA 19103
Michael E. Kenneally
Morgan Lewis & Bockius
1111 Pennsylvania Avenue NW
Suite 800 North
Washington, DC 20004
Counsel for Defendants-Appellees WAWA INC. and
Wild Goose Holding Co.
Brenna Bird
William Admussen [ARGUED]
Office of Attorney General of Iowa
1305 E Walnut Street
Hoover State Office Building, 2nd Floor
Des Moines, IA 50319
Counsel for Amicus Curiae Attorney General for Iowa
in Support of Appellant
Patrick C. Valencia
Iowa Department of Justice
1305 E Walnut Street
Hoover State Office Building
Des Moines, IA 50319
Counsel for Amicus Curiae Attorney Generals for

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Alaska, Arkansas, Florida, Georgia, Idaho, Iowa,
Indiana, Louisiana,
Montana, Ohio, South Carolina, Tennessee, Utah,
Virginia, West Virginia in Support of Appellant
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
Federal Rule of Civil Procedure 1 counsels that the body
of rules that follow it are intended “to secure the just, speedy,
and inexpensive determination of every action and
proceeding.” Although more an exhortation than a legal
prescription, the language of Rule 1 nevertheless gives voice
to fundamental values that are at the heart of our Nation’s
commitment to process, as parties to litigation seek the
vindication of legal rights and the enforcement of legal duties
in federal courts. Although we conclude that fairness and
justice have been achieved by the settlement ultimately
reached by the parties in this consumer class action, whether it
was accomplished through the types of efficiency envisioned
by the drafters of the rules probably rests in the eye of the
beholder.
Rule 23, which is central to the appeal before us, is no
less bound by the values invoked in Rule 1 than is any other
rule of civil procedure. In the discussion which follows, we not

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only address the issues raised by Appellant but also consider
the roles played throughout this litigation and its settlement by
counsel, by the District Judge, and by an objector.
The instant matter is making its second visit to our
Court. Because we are satisfied that the parties before us, and
their counsel, have acquitted themselves appropriately, and
that the experienced District Judge thoroughly pursued the
inquiries required of her in ultimately approving the subject
class action’s settlement in its entirety, we will affirm.
I. BACKGROUND
This is a data breach class action. Data breaches are
increasing at an alarming pace, rising nearly threefold in the
United States from 2020 to 2024. Ani Petrosyan, Annual
Number of Data Compromises and Individuals Impacted in the
United States from 2005 to 2024, STATISTA (Apr. 2, 2025),
https://perma.cc/LS84-6MPZ. The underlying breach occurred
within the Wawa convenience store chain, which has
approximately 850 locations throughout the mid-Atlantic
region and Florida. The chain sells fuel as well as convenience
store items such as coffee, pastries, and milk. During the cyber
incursion which gave rise to this litigation, hackers stole
payment information including credit and debit card numbers,
expiration dates, and cardholder names on cards used at all
Wawa stores and fuel dispensers.
Wawa discovered the breach on December 10, 2019,
and took steps to have it contained by December 12, 2019. On
December 19, 2019, Wawa’s CEO released a public statement
detailing that Wawa had experienced a data security incident

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involving malware1 on its payment processing servers.
Wawa’s internal investigation determined that the malware
began running on March 4, 2019, and affected payment
processing systems at potentially all of Wawa’s locations until
it was contained. On January 27, 2020, the stolen payment
information was put up for sale on “Joker’s Stash
marketplace,” an exchange found on the dark web at which
stolen card information is bought and sold. Wawa Breach May
Have Compromised More Than 30 Million Payment Cards,
KREBSONSECURITY (Jan. 28, 2020), https://perma.cc/9ADW-
ZAH4.
As is common in “class action world,” a race to the
courthouse promptly ensued. Plaintiffs began filing a variety
of state statutory and common law claims in the U.S. District
Court for the Eastern District of Pennsylvania (“EDPA”) on
December 20, 2019, pursuant to the Class Action Fairness Act
(“CAFA”). A total of 15 actions were consolidated on January
8, 2020, by order of then-Chief Judge Juan Sanchez of the
EDPA. Three litigation tracks were developed, separating the
plaintiffs into broad groups: a financial institution track, an
employee track, and a consumer track. It is the consumer track
that is at issue in the appeal before us. The consumer track was
primarily represented by Berger Montague, P.C.; Fine, Kaplan
and Black, R.P.C.; Chimicles Schwartz Kriner & Donaldson-
Smith, LLP; and Nussbaum Law Group, P.C. Consumer
1 “Malware is malicious software designed to disrupt, damage,
or gain unauthorized access to computer systems.” What is
Malware?, MICROSOFT, https://perma.cc/478P-57WG (last
accessed May 2025).

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Plaintiffs filed a Consolidated Class Action Complaint on July
27, 2020, pursuant to Rule 23(a), (b)(2), and (b)(3). The
Complaint alleged a range of counts including negligence,
negligence per se, breach of implied contract, unjust
enrichment, and violations of multiple state consumer
protection and data privacy acts. Plaintiffs sought relief, which
included both damages and an injunction requiring Wawa to
“(i) strengthen its data security systems and monitoring
procedures to prevent further breaches; (ii) submit to future
annual audits of those systems; and (iii) provide several years
of free credit monitoring and identity theft insurance to all class
members.” Appx337.
A. Settlement Discussions
Settlement talks began a few months later. The parties
retained a mediator2 to supervise a mediation which was
conducted on September 15, 2020. The session lasted almost
twelve hours and was, according to the mediator, “extensive,
hard fought, conducted at arm’s length, and [] performed in
good faith without collusion or other improper conduct.”
Appx435. The parties emerged from their combined efforts
having achieved a settlement in principle.
Class members were to receive a range of benefits as
part of that initial settlement plan. The primary benefit
provided was either compensation for out-of-pocket losses or
2 Diane Welsh, a former Magistrate Judge in the EDPA, served
as the mediator. Welsh was an experienced mediator with
JAMS, an alternative dispute resolution service, who had
previously resolved over 5,000 cases.

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a Wawa gift card. The gift cards were fully transferable e-gift
cards3 that could be applied to the purchase of any Wawa
products and were, in the initial draft settlement agreement,
subject to a one-year expiration date. Claimants were carefully
divided into three tiers. Under Tier 1, customers who affirmed
that they spent at least some time monitoring their credit
statements could get a $5 Wawa gift card. Total Tier 1
compensation was subject to a $6 million cap and a $1 million
floor. Under Tier 2, customers who saw a fraudulent charge
that required some effort to sort out could receive a $15 Wawa
gift card. Total Tier 2 compensation was subject to a $2 million
cap with no floor. Under Tier 3, customers who could show
certain out-of-pocket losses caused by the breach could receive
3 No one has suggested in this appeal that the gift cards were
coupons under CAFA. In re Wawa, Inc. Data Sec. Litig., 85
F.4th 712, 718 n.7 (3d Cir. 2023) (“Wawa I”); see also
Chakejian v. Equifax Info. Servs., LLC, 275 F.R.D. 201, 215
n.17 (E.D. Pa. 2011) (detailing that “courts have generally
considered a coupon settlement to be one that provides benefits
to class members in the form of a discount towards the future
purchase of a product or service offered by the defendant”
(citation omitted)); In re Gen. Motors Corp. Pick-Up Truck
Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 808 (3d Cir. 1995)
(detailing that coupons can benefit defendants by operating as
a marketing campaign). Unlike other settlements, “[f]or
‘coupon’ settlements, the value [for purposes of calculating
fees] is the actual value of those coupons actually redeemed by
class members or distributed through a cy pres remedy.”
Principles of the Law of Aggregate Litigation § 3.13 (2010).

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up to $500 in cash. Total Tier 3 compensation was subject to a
$1 million cap without a floor.
Wawa also agreed to a range of “injunctive” relief to
improve its security systems through a continuation of a $25
million investment in security that the Wawa board had
authorized, pre-settlement, in February 2020. This
commitment included retaining a security firm to assess
compliance, conducting an annual penetration test for possible
vulnerabilities, operating a system to encrypt payment
information at sale terminals in Wawa stores, implementing
security procedures at sale terminals, and maintaining written
security programs and policies. The proposed settlement also
detailed that Wawa would provide class members notice of the
settlement via updates posted in stores, a settlement website,
and a press release directing class members to the settlement
website where they could submit compensation claims.
Only after the settlement terms had been agreed upon
did the parties discuss attorney’s fees. Defense and class
counsel negotiated class counsel’s right to seek up to $3.2
million in attorney’s fees and related costs. Specifically,
Paragraph 79 detailed that “the $3,200,000 amount will be paid
by Wawa as directed by the Court.” And Paragraph 78
provided that “Wawa shall cooperate with Class Counsel, if
and as necessary, in providing information Class Counsel may
reasonably request from Wawa in connection with preparing
the petition” for fees. Over the course of these proceedings,
Paragraph 78 has at times been referred to as a “clear sailing
agreement,” although the existence or not of such an agreement
was not determined prior to this appeal. The settlement was
silent about what would happen if the District Court awarded

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less than the full $3.2 million in fees, which meant that in
practice Wawa would retain any reductions in the fees
awarded. This is referred to as a fee reversion. See, e.g.,
Pearson v. NBTY, Inc., 772 F.3d 778, 780, 786 (7th Cir. 2014)
(describing a return of funds as a “reversion” or “kicker”).
B. Preliminary and Final Approval Proceedings
Notwithstanding the parties’ success in reaching a
settlement in principle after a single mediation session, a
“speedy” resolution of the controversy, as envisioned by Rule
1, proved elusive. On May 5, 2021, despite logistical
complications created by the COVID-19 pandemic, District
Court Judge Gene Pratter4 held a preliminary approval hearing
pursuant to Rule 23(e) during which the parties summarized
the class features and provisions of the settlement. On July 30,
2021, the District Court issued an opinion preliminarily
approving the settlement per Rule 23’s requirements. In her
opinion, Judge Pratter concluded that the settlement class met
the numerosity, commonality, typicality, and adequacy
requirements of Rule 23(a). There were over 22 million
potential class members, well beyond what was needed to meet
the numerosity requirement. Commonality was met because
common questions were present, including “how the data
breach happened, whether Wawa had a duty to protect its
customers’ payment card information, and whether Wawa’s
customers were harmed by the breach.” Appx684. Plaintiffs’
claims were typical of the broader class, as class members were
all victims of the same breach and requested common legal
4 Judge Pratter passed away on May 17, 2024, after serving
nearly 20 years on the EDPA.

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remedies. And the named plaintiffs and their experienced
counsel would adequately represent the interests of the
proposed class members. The District Court next determined
that the proposed class satisfied Rule 23(b)(3)’s requirement
that questions of law or fact common to class members
predominate over any questions affecting only individual
members. The opinion explained that nothing before the Court
even remotely suggested that class members would be
interested in litigating their claims individually or that this
litigation should proceed in a non-class forum.
Turning to the settlement terms, the District Court
looked to Rule 23(e)(2). It determined that there were no
deficiencies that would prevent approval under the Rule, which
requires a settlement to be “fair, reasonable, and adequate.”5
The District Court was satisfied that the settlement
negotiations between the parties had indeed taken place at
arm’s length. And the Court outlined that the relief offered was
adequate, providing both monetary and injunctive relief. Judge
Pratter emphasized that the gift cards offered were not part of
a coupon settlement. The “Court [saw] no reason to doubt that
the settlement [would] provide a tangible benefit to plaintiffs
and proposed class members while avoiding the costs and risks
associated with continued litigation.” Appx700-01. Finally,
she declared that both the claims process and notice process
were sufficient to make potential class members aware of the
available relief.
5 The District Court declined to address the issue of attorney’s
fees at the time of the preliminary approval hearing as she was
awaiting additional briefing.

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On November 10, 2021, class member Theodore “Ted”
Frank6 filed objections to the settlement as permitted by Rule
23(c). He argued that Wawa’s notice procedures were
improper, the gift card claims rate was too low, and class
counsel was “attempting to seize an excessive portion of the
settlement proceeds” by basing their fee on the value of the
funds made available to the class, especially because most of
the relief to class members was not cash. Appx899. He further
asserted that the settlement agreement contained an improper
clear sailing agreement and that the reversion of attorney’s fees
to Wawa, should the final award be less than $3.2 million,
deprived the District Court of its ability to fix any potential
imbalance. Significantly, Frank raised no objections to the
certification process or the District Court’s decision to certify
the class.
In response, counsel drafted a Second Amended
Settlement Agreement7 on November 12, 2021, making Tier 1
6 Frank is the founder of the Center for Class Action Fairness,
now part of the nonprofit Hamilton Lincoln Law Institute. He
is a frequent objector in class actions and, as noted in his
lawyer’s declaration on remand, he has appeared previously
before our Court. Appx1313 (referencing Frank’s appearance
in In re Baby Products Antitrust Litigation, 708 F.3d 163 (3d
Cir. 2013)).
7 Unrelated to our appeal, counsel filed a First Amended
Settlement on April 29, 2021, in response to a request from
Plaintiffs in the “employee track” to clarify that the settlement
would not sacrifice employees’ claims related to data

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gift cards automatically available to mobile application users,
a change which added approximately 560,000 mobile users to
the group of individuals set to receive gift cards. This Second
Amended Settlement also eliminated the gift cards’ expiration
date. Frank was unmoved by the changes. He continued to
complain about how the settlement would permit unawarded
attorney’s fees to revert back to Wawa. So on February 4, 2022,
counsel formalized a Third Amended Settlement Agreement
(originally docketed on December 21, 2021). This “third
round” clarified that Wawa would not benefit from approval of
less than $3.2 million in attorney’s fees; rather, any such
shortfall would be distributed to Tier 1 and Tier 2 card holders.
Frank subsequently dropped his objection to the fairness of the
settlement under Rule 23(e) on December 22, 2021.
Judge Pratter conducted a fairness hearing on January
26, 2022, to determine if the settlement was “fair, reasonable,
and adequate” as required by Rule 23(e)(2). In an April 20,
2022, opinion, she approved the settlement. She confirmed that
her analysis regarding class certification under both Rule 23(a)
and (b) remained unchanged. She reiterated that class counsel
did not present a conflict of interest, a finding she had
previously made in ruling on Rule 23(a)(4)’s adequacy
requirement. She also determined that the settlement terms
were fair and reasonable under Rule 23(e) based on the factors
outlined in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975)8 and
submitted in an employment capacity. The clarification has no
significance for our consideration of the issues presented here.
8 The Girsh factors include:

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In re Prudential Insurance Company America Sales Practice
Litigation Agent Actions, 148 F.3d 283 (3d Cir. 1998).9
“(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; (9) the range of reasonableness of the
settlement fund to a possible recovery in light of
all the attendant risks of litigation.” 521 F.2d at
157 (cleaned up).
9 The Prudential factors include:
“[(1)] the maturity of the underlying substantive
issues, as measured by experience in
adjudicating individual actions, the development
of scientific knowledge, the extent of discovery
on the merits, and other factors that bear on the
ability to assess the probable outcome of a trial
on the merits of liability and individual damages;
[(2)] the existence and probable outcome of
claims by other classes and subclasses; [(3)] the
comparison between the results achieved by the
settlement for individual class or subclass
members and the results achieved—or likely to

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The District Court then approved the fee request from
class counsel for attorney’s fees of $3,040,060, litigation
expenses of $45,940, and approximately $100,000 for
settlement administration expenses, together totaling $3.2
million. Judge Pratter determined that the factors from Gunter
v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000),
easily supported a $3.04 million attorney’s fee award along
with other expenses. “Gunter factors” used to determine if
payments to counsel are reasonable include:
“(1) the size of the fund created and the number
of persons benefitted; (2) the presence or absence
of substantial objections by members of the class
to the settlement terms and/or fees requested by
counsel; (3) the skill and efficiency of the
attorneys involved; (4) the complexity and
duration of the litigation; (5) the risk of
nonpayment; (6) the amount of time devoted to
the case by plaintiffs’ counsel; and (7) the awards
in similar cases.” Gunter, 223 F.3d at 195 n.l.
be achieved—for other claimants; [(4)] whether
class or subclass members are accorded the right
to opt out of the settlement; [(5)] whether any
provisions for attorneys’ fees are reasonable; and
[(6)] whether the procedure for processing
individual claims under the settlement is fair and
reasonable.” 148 F.3d at 323.

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Regarding Gunter factor 1, the size of the fund and
persons benefitted, the District Court relied on the value of the
funds made available to the class, not the amount distributed to
the class. Regarding factor 2, the only substantive objections
before the Court were raised by Frank. Factor 3, the skill of the
attorneys involved, also weighed in favor of approval. The
attorneys charged a reasonable average hourly rate of $653; all
had significant experience with complex class actions. As to
factor 4, the complexity of the litigation, the District Court
noted that data breach litigation is “inherently complex,” but
also that this litigation had not been pending for long.
Appx1190. Regarding factor 5, risk of nonpayment, the fact
that counsel took the case on a contingency basis weighed in
favor of granting the attorney’s fees. Factor 6, time devoted,
also weighed in favor of granting the award given that
attorneys reported nearly 6,000 hours of work. As for factor 7,
awards in similar cases, the District Court noted that “other
data breach class action litigation has resulted in attorneys’ fee
awards significantly higher than the $3,040,060 fee requested
here.” Appx1191.
Finally, a lodestar cross-check supported the requested
fee.10 A lodestar cross-check here produced a value of
$3,877,271, based on 5,942 attorney hours and a blended
10 A lodestar cross-check is calculated based on the reasonable
number of hours worked by counsel on the litigation multiplied
by a reasonable hourly rate, then adjusted up or down
depending on case-specific variables. Lindy Bros. Builders,
Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487
F.2d 161, 167-68 (3d Cir. 1973).

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hourly rate of $653. The District Court noted that multipliers
from one to four are often awarded in class action cases, and
here the number was only 0.78.
C. Wawa I
Enter Frank, as an objector once again. On appeal, he
disputed the fee award.11 In his first visit to this Court, he
argued that “class counsel would receive a disproportionate
share of the amount Wawa would pay in gift cards or cash.”
Wawa I, 85 F.4th at 717. He opposed what he considered a
“clear sailing” agreement whereby Wawa purportedly agreed
not to contest class counsel’s fee request. Id. He also pointed
to the long-since removed “fee reversion,” which would have
returned any reductions in the fee award to Wawa rather than
to the class—had it not been taken out of the final settlement.
Id. And he suggested that attorney’s fees should be capped at
25% of the actual claims paid, not the funds offered. Id.
A panel of this Court issued a decision on November 2,
2023, vacating the fee award and remanding to the District
Court with directions to (1) determine “the reasonableness of
the attorney’s fees in proportion to class benefit and [(2)] to
scrutinize the presence of side agreements.” Id. at 727.
Regarding issue one, the reasonableness of the fees, the
Wawa I panel confirmed that courts “evaluate the
reasonableness of a percentage-based [fee] award by reference
11 “[N]onnamed class members . . . who have objected in a
timely manner to approval of the settlement at the fairness
hearing have the power to bring an appeal without first
intervening.” Devlin v. Scardelletti, 536 U.S. 1, 14 (2002).

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to either amounts paid or amounts made available.” Id. at 724
(citing Manual for Complex Litigation § 14.121 (4th ed.
updated 2023)). The panel did, however, remand for additional
consideration because, in its view, the District Court “saw itself
as bound to consider only the funds made available to the
class.” Id. at 725 (referencing the District Court’s statement
that “courts consider the funds made available to class
members rather than the amount actually claimed during the
claims process”); see also Appx 1185.
As to issue two, side agreements, the panel expressed
concerns that such agreements could “tempt [counsel] to take
money from the class in return for a defendant’s agreement to
swiftly settle.” Wawa I, 85 F.4th at 725. It noted that side
agreements may suggest “that class counsel have allowed
pursuit of their own self-interests” to override their duty to
absent class members. Id. at 719 n.8 (citation omitted).12 The
12 Concerns about side agreements in class action settlements
predate the Wawa I panel’s opinion. In a May 12, 2016,
memorandum, the Advisory Committee on Civil Rules of the
Judicial Conference suggested amending Rule 23 to include a
provision that “[t]he parties seeking approval must file a
statement identifying any agreement made in connection with
the proposal.” Report of the Advisory Committee on Civil
Rules, COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
3(May 12, 2016), https://perma.cc/J4XZ-U5QR. In its report to
the Standing Committee, the Advisory Committee detailed that
“[t]he contents of any agreement identified under Rule 23(e)(3)
may [] bear on the adequacy of the proposed relief, particularly

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panel explained that a district court must therefore carefully
“review the process and substance of the settlement” and any
fee agreement to “satisfy itself that the agreement does not
indicate collusion or otherwise pose a problem.” Id. at 725-26
(quoting In re Nat’l Football League Players Concussion Inj.
Litig., 821 F.3d 410, 447 (3d Cir. 2016)).
A close reading of the Wawa I opinion reveals that the
panel did not directly hold that a clear sailing agreement
existed. Nor did that opinion cite language from the settlement
agreement in the course of its analysis. We read the opinion to
have assumed such an agreement existed here. Id. at 725
(referencing Wawa’s supposed promise to not challenge fees
but not detailing the origins or basis of such a commitment).
Focusing on the policy concerns inherent in a clear sailing
agreement, the panel defined it as a promise “not to challenge
class counsel’s request for an agreed-upon attorney’s fee
award.” Id. at 725. While explaining that the District Court
“correctly identified that clear sailing provisions require close
attention,” the panel observed that the presence of an outside
mediator, though a permissible fact for the District Court to
consider when weighing a settlement, was “alone insufficient”
to guarantee a fair fee award. Id. at 726. Additional review
would be needed to confirm that a supposed clear sailing
agreement was appropriate. Id.
As for the fee reversion, the panel acknowledged that
the reversion provision had been removed and did not appear
regarding the equitable treatment of all members of the class.”
Id. at 8. The Advisory Committee’s proposal was adopted in
2018 as Rule 23(e)(3).

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in the Third Amended Settlement Agreement. But the panel
also explained that it was concerned about the provision having
been inserted in the first place. Id. Thus, its remand directed
the District Court to “explore how the reversion arrived, what
purpose it served, and whether its presence, even temporary,
suggests coordinated rather than zealous advocacy, that makes
the fee request unreasonable.” Id. at 727.
D. Remand Proceedings
The District Court conducted a hearing on December 5,
2023, in response to the Wawa I panel’s remand. At the
hearing, Judge Pratter asked the parties to provide submissions
containing whatever information the parties believed she
needed to consider based on the panel’s opinion. Notably,
Frank expressly declined to argue that collusion had occurred
between counsel for both the class and the defense, instead
positing that the previous panel had used the word as “just
semantic shorthand” for considering potential conflicts of
interest between counsel and the class. Appx1214. At that
point, the issue of collusion was off the table.
The parties filed their declarations on December 19,
2023. Wawa’s counsel reiterated that the attorney’s fee was
reasonable and that there was no collusion. Class counsel
confirmed this account. Frank argued that the circumstances
supported an attorney’s fee award based on only actual, not
proposed recovery. And he pointed out that Wawa had
previously implied that there was a clear sailing agreement.
Judge Pratter scheduled yet another hearing—this one
held on February 2, 2024—for the purposes of discussing the
submissions she had ordered. In the hearing, counsel for Frank

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highlighted that Paragraph 78 of the settlement agreement had
previously been characterized by class counsel as a clear
sailing agreement (including in a joint declaration class
counsel filed on October 28, 2021). Class counsel countered
that counsel for Frank had conceded that there was no collusion
in relation to the fee award and that the existence of side
agreements was not disputed prior to this appeal.
On April 9, 2024, the District Court issued its remand
opinion and judgment that are the subject of this appeal. Judge
Pratter ultimately approved the fee award in response to the
mandate issued in Wawa I to (1) determine if the fee was
reasonable and (2) examine the presence of side agreements.
Starting with the controversy concerning side agreements, she
determined there were none. She also found nothing in or about
the negotiations that was untoward or problematic.
The District Court found that “the settlement agreement
does not contain and never did contain a ‘clear-sailing’
provision” as Wawa I defined the term. Appx12. She credited
the “sworn declarations of class counsel and defense counsel,”
which stated that no agreements prevented Wawa from
objecting to class counsel’s fee request. Appx13; see also
Appx13-15, 19. Wawa’s agreement to “cooperate” in
preparation for the fee petition meant no more than what the
common meaning of that term suggests. More to the point, it
did not mean that Wawa waived its right to object, as would be
needed to constitute a clear sailing provision. Appx12
(“Facially, this agreement to cooperate in providing
information would not prevent Wawa from objecting to class
counsel’s fee petition.”) (internal quotation marks omitted).
Beyond that, the District Court also declared that, clear sailing

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agreement or not, there was nothing improper about the
language used. She credited Wawa’s counsel Gregory Parks’s
emphatic and consistent testimony that “[t]here was no
‘coordinated’ advocacy, no collusion, and nothing other than
honest[,] hard-fought negotiations throughout a long process
of discussing, negotiating, and executing this sophisticated
Settlement of a large matter.” Appx19 (quoting Appx1272).
As to any fee reversion, Judge Pratter “firmly reject[ed]
the notion that class counsel and counsel for Wawa
intentionally omitted reference to the prospect of a fee
[reversion] in order to benefit counsel at the expense of the
class” or that any collusion took place. Appx 28. She further
found that “[t]here was never any discussion of any tradeoff,
such as reducing the recovery to the class in order to increase
the . . . attorney’s fees.” Appx22 (citation omitted). And in any
case, any reversion was—in the Judge’s words—“diligently
corrected” prior to her final approval. Appx28.
The District Court next moved to the reasonableness of
the fee. She reiterated that the fee award should be based on
the funds offered to the class, a result she reached based on the
benefits class members received when held up against the
limited harm they experienced. The gift cards were a
meaningful benefit as they “closely approximate cash.”
Appx31. The injunctive relief was also “central” to the award
and “weigh[ed] strongly in favor of analyzing the fee award
against the amounts made available to the class instead of the
amounts claimed by the class.” Appx36-37. Not only did the
settlement force Wawa to formally commit to improving its
security systems, the injunctive relief also “directly
address[ed] the actual harm suffered by the vast majority of

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23
class members,” namely, privacy concerns about shopping at
Wawa. Appx37.
To bolster its reasonableness finding, the District Court
again walked through the Gunter factors. She determined that
the settlement amendment, objection, and appeal process did
not reflect negatively on the skill and efficiency of class
counsel. And Judge Pratter noted that the appeal and remand
proceedings had reduced the value of counsel’s fee by an
estimated $408,492 because counsel had been forced to expend
multiple hours of additional time litigating the proceedings.
All told, Judge Pratter devoted significant effort to
understanding and ultimately approving the settlement. Based
on just the record before us, she wrote over 100 pages of
opinions and presided over hours of proceedings, including
multiple hearings after Frank’s first appeal. This included:
• 109 pages of transcripts for the Preliminary
Approval Hearing,
• 27 written pages for the Preliminary Approval
Order,
• 99 pages of transcripts for the Final Approval
Hearing,
• 27 written pages for the Final Approval and Fee
Opinion,
• 57 pages of transcripts for the First Status
Conference on remand,
• 55 pages of transcripts for the Fee Hearing on
remand, and
• 52 written pages for the Fee Opinion on remand.

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24
In response to Judge Pratter’s Order granting the
attorney’s fee award, Frank filed a timely notice of appeal on
May 8, 2024.
II. STANDARD OF REVIEW
We review attorney’s fee awards under an abuse of
discretion standard. In re Cendant Corp. Litig., 264 F.3d 201,
254 (3d Cir. 2001) (“If the court committed no legal errors, we
review its award of attorney[’]s fees for abuse of discretion.”);
In re Prudential Ins., 148 F.3d at 342 (“In awarding [class
action] attorneys’ fees, the district court has considerable
discretion.”).
This deferential standard is consistent with the fiduciary
duty a district judge owes to class members, a duty that requires
him or her to carefully analyze the fairness and propriety of the
settlement terms. See In re Rite Aid Corp. Sec. Litig., 396 F.3d
294, 307-08 (3d Cir. 2005) (“At the fee determination stage,
the district judge must protect the class’s interest by acting as
a fiduciary for the class.”), as amended (Feb. 25, 2005).
A district court’s factual findings are subject to clear
error review. IBS Fin. Corp. v. Seidman & Assocs., L.L.C., 136
F.3d 940, 945 (3d Cir. 1998).
III. DISCUSSION
We now address three issues presented in this appeal.
First, if the District Court violated Wawa I’s mandate to
scrutinize for any collusion that may have occurred between
class counsel and Wawa in allegedly reaching a clear sailing
agreement and a provision for fee reversion in the settlement
when it reached conclusions that no clear sailing agreement

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25
existed and that inclusion of fee reversion was unintentional;
second, if the District Court clearly erred by finding that class
counsel did not enter any collusive or otherwise problematic
side agreements with Wawa; and third, if the District Court
abused its discretion in determining that the fee request was
reasonable by considering only the amount “made available”
to the class instead of also the amount actually claimed by the
class.
We will address each issue in turn.
A. Wawa I’s Mandate
Frank argues that the Wawa I mandate established that
a clear sailing agreement and intentional fee reversion existed
between Wawa and class counsel, and that, accordingly, the
District Court was required to abide by this framework. We are
unconvinced.13
A lower court “has no power or authority to deviate
from the mandate issued by an appellate court.” Kennedy, 682
F.3d at 252 (citation omitted). And parties are bound by “issues
that were actually discussed by the court in the prior appeal”
and by “issues decided by necessary implication.” Todd & Co.
v. SEC, 637 F.2d 154, 157 (3d Cir. 1980). Here, the panel in
Wawa I asked the District Court to “scrutinize the presence of
side agreements.” Wawa I, 85 F.4th at 727. The District Court
adhered to that mandate, which was not premised on the
existence of side agreements (they were merely assumed), and
13 We review the District Court’s adherence to the Wawa I
mandate de novo. United States v. Kennedy, 682 F.3d 244, 253
n.7 (3d Cir. 2012).

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26
nothing in the opinion or record otherwise prevented the
District Court from drawing its own conclusions.
We look first to the supposed clear sailing agreement. A
clear sailing agreement is an agreement by the defense “not to
contest class counsel’s request for attorneys’ fees up to an
agreed amount.” Id. at 717 n.3 (quoting Howard M. Erichson,
Aggregation as Disempowerment: Red Flags in Class Action
Settlements, 92 NOTRE DAME L. REV. 859, 901, 902-03
(2016)). Clear sailing agreements are not per se impermissible
and are not a bar to approving a settlement or fee award. NFL,
821 F.3d at 447. They can, however, be “red flags,” Wawa I,
85 F.4th at 719, and thus a district court must “review the
process and substance of the settlement and satisfy itself that
the agreement does not indicate collusion or otherwise pose a
problem,” NFL, 821 F.3d at 447.
Prior to remand, the parties and Judge Pratter merely
assumed that a clear sailing agreement existed. In a joint
declaration class counsel filed on October 28, 2021, the parties
indicated multiple times that they believed Wawa had agreed
to the $3.2 million attorney’s fee award. See, e.g., Appx736
(citing “Wawa’s agreement to make a separate $3.2 [million]
lump-sum payment to Class Counsel for attorneys’ fees,
expenses, Service Awards, and Settlement Administrator
costs”). And Judge Pratter demonstrated during several stages
of the settlement approval proceedings that she presumed the
settlement contained a clear sailing agreement. The parties did
not raise arguments concerning the existence vel non of a clear

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27
sailing agreement, so Judge Pratter never made an explicit
finding either way.14
Based, no doubt, on the parties’ implicit understanding
that a clear sailing agreement existed, the panel in Wawa I
made a similar assumption. Wawa I, 85 F.4th at 725. (“Start
with the clear sailing provision, where Wawa promised as part
of the settlement not to challenge class counsel’s request for an
agreed-upon attorney’s fee award.”). Like the District Court,
the panel seemingly assumed that a clear sailing agreement
existed but did not subject that assumption to scrutiny. For
example, it did not describe or include any language from the
settlement agreement in its opinion. Importantly, it never
14 Frank also argues that Plaintiffs should be judicially
estopped from arguing that there is not a clear sailing
agreement and that Plaintiffs forfeited this argument by not
raising it prior to the remand. But because Plaintiffs did not
previously argue that there was a clear sailing agreement,
judicial estoppel is inappropriate. See MD Mall Assocs., LLC
v. CSX Transp., Inc., 715 F.3d 479, 486 (3d Cir. 2013) (stating
that judicial estoppel is appropriate when there are “(1)
irreconcilably inconsistent positions; (2) adopted in bad faith;
and (3) a showing that estoppel addresses the harm and no
lesser sanction is sufficient” (citation omitted)). And because
we instructed the District Court to examine whether there was
a clear sailing agreement on remand, we do not see how
Plaintiffs forfeited arguments bearing on that matter. We reject
Frank’s assertion that the District Court transgressed the law of
the case doctrine for the same reasons.

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28
directly held that a clear sailing provision existed. And its
remand order tasked the District Court to “scrutinize the
presence of side agreements.” Id. at 727 (emphasis added).
The record before the District Court and the panel’s
opinion also do not prevent a finding on remand that the fee
reversion was unintentional. Like clear sailing agreements,
courts must be on the lookout for “fee reversions, which
‘provide[] that if the judge reduces the amount of fees that the
proposed settlement awards to class counsel, the savings shall
enure not to the class but to the defendant.’” Wawa I, 85 F.4th
at 725 (quoting Pearson, 772 F.3d at 786 (“If the class cannot
benefit from the reduction in the award of attorneys’ fees, then
the objector, as a member of the class, would not have standing
to object, for he would have no stake in the outcome of the
dispute.”)). And fee reversions may also be red flags. They
create the potential for an improper windfall to defendants and
thus should receive at least as much scrutiny as do clear sailing
agreements. That said, they are still not per se impermissible.
See Pearson, 772 F.3d at 786-87 (“Neither can we think of a
justification for a kicker clause; at the very least there should
be a strong presumption of its invalidity.”); Roes, 1-2 v. SFBSC
Mgmt., LLC, 944 F.3d 1035, 1058 (9th Cir. 2019) (“While we
have not disallowed reversionary clauses outright, we
generally disfavor them because they create perverse
incentives.”).
Here too, the parties did not dispute the intentionality of
the fee reversion prior to the remand proceedings. But they
would have had no reason to, as the reversion was not even part
of the final settlement. Since it was neither relevant to the
settlement nor raised before her, Judge Pratter made no

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29
findings regarding the exact nature of the fee reversion prior to
remand. The Wawa I panel followed the District Court’s lead,
not once directly mentioning intentionality in its discussion of
the reversion.
As the existence of side agreements had yet to be
decided in the District Court, or by the Wawa I panel, Judge
Pratter was free to draw her own updated conclusions on
remand. What is more, because the panel asked Judge Pratter
to reexamine the underlying agreements, Wawa I, 85 F.4th at
727, it implicitly understood that her analysis could change as
part of this exercise. The fact that her framework did shift
demonstrates that she thoroughly complied with the panel’s
instructions “to scrutinize” side agreements. Id.
We therefore hold that Judge Pratter followed the Wawa
I mandate even though she found that there was no clear sailing
agreement and that the fee reversion was unintentional.
B. Side Agreements
Although we reject Frank’s contention that Judge
Pratter’s conclusions regarding the clear sailing agreement and
the fee reversion violated the Wawa I mandate, we turn to
Frank’s alternative contention that Judge Pratter’s findings
were clearly erroneous. He asserts that a clear sailing
agreement and intentional fee reversion did exist, and that both
were in conflict with class members’ interests. We disagree.
There may be unique “conflict[s] between the economic
interests of [class members] and their lawyers,” as “a rational,
self-interested lawyer looks to maximize his or her net fee, and
thus wants the representation to end at the moment where the
difference between his or her fees and costs . . . is greatest.” In

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30
re Cendant Corp. Litig., 264 F.3d at 255. But our recognizing
the potential for conflict arising out of the unique nature of the
class action device does not require us to view every action the
lawyer takes in representing a class as inherently nefarious or
even suspicious.
We first examine the supposed clear sailing agreement.
Judge Pratter correctly found that the language of the
settlement agreement, and specifically Paragraph 78, did not
constitute a clear sailing agreement. As she noted in her careful
examination, “[w]hile the plain language of paragraph 78
created an affirmative obligation for Wawa to cooperate in
providing information class counsel may reasonably request . .
. it does not follow that this affirmative obligation also
included a different, negative obligation not to contest class
counsel’s fee request.” Appx17 (emphasis removed) (internal
citation and quotation marks omitted). Although we decline to
adopt a set of magic words needed to create a clear sailing
agreement, a mere agreement to cooperate in providing
information is, standing alone, plainly insufficient.
Regardless of whether a clear sailing agreement
appeared in the settlement agreement, Judge Pratter thoroughly
examined the parties’ negotiation process and any potential
negative implications that process may have had on the class.
As part of this analysis, she found no collusion between
defense and class counsel during the settlement negotiations or
litigation proceedings. We afford great deference to her
decision to credit Parks’s testimony that the negotiation
process was hard-fought and free of collusion. First, we give a
district judge’s “determinations regarding the credibility of
witnesses” “even greater deference.” Anderson v. City of

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31
Bessemer City, 470 U.S. 564, 575 (1985); see also Fisher Bros.
v. Cambridge-Lee Indus., Inc., 630 F. Supp. 482, 488 (E.D. Pa.
1985) (“Although the court must independently evaluate the
proposed settlement, the professional judgment of counsel
involved in the litigation is entitled to significant weight.”).
And second, we acknowledge Judge Pratter’s role as a
fiduciary to the class, and the careful analysis she undertook as
part of that duty. In any event, her finding is hardly
surprising—Frank himself concedes that there was no
collusion in the settlement negotiations.
There is also no evidence that the class was harmed at
all by Paragraph 78 or the corresponding negotiations. Frank
claims that absent collusion, Paragraph 78 nevertheless created
a conflict between the class and class counsel. But he provides
no evidence to demonstrate any kind of conflict or harm
beyond a theoretical foray into the potential implications of
clear sailing agreements. What is more, Judge Pratter already
found that class counsel did not present a conflict of interest as
part of her Rule 23 findings, which Frank did not appeal.
Having detected no problem with the non-existent clear
sailing agreement, we next turn to the long-obsolete fee
reversion. As a threshold matter, we are unconvinced—as was
Judge Pratter—by Frank’s claim that the reversion was
intentional and therefore that it improperly discouraged
scrutiny of the fee award. All signs point to the propriety of the
finding that the reversion was unintentional, meaning there
could have been no improper collusion or purposeful conflict
between the parties. We see no error in Judge Pratter’s
explanation on remand that, because of the relatively low fee
award, the parties likely did not anticipate that anything less

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32
than $3.2 million would be awarded. Judge Pratter credited
testimony by Parks, Wawa’s counsel, that: “I did not anticipate
any possibility that the District Court would not approve a $3.2
million attorney’s fee award. There was therefore no
discussion of what would happen in that event.” Appx23,
1276-77. And Judge Pratter was steadfast in her expressions of
faith in counsel, adding that she “ha[d] the utmost confidence
in counsel’s integrity and loyalty to their respective clients”
and stating further that “the Court unreservedly credits their
declarations regarding how the fee reversion came about
through omission and was ultimately removed from the
Settlement Agreement.” Appx28.
At all events, the harm Frank warns of here is no more
than hypothetical. The fee reversion was quickly removed from
the initial settlement. So, if less than $3.2 million had been
awarded, the remainder would have been available for
distribution to the class, not to Wawa. Any hypothetical
objectors would also have had plenty of time to raise issues
with the fee award after the fee reversion was removed.
C. Reasonableness of Fee Award
Frank further argues that the District Court erred by
relying on the amount “made available” to the class as a basis
for calculating the attorney’s fee award instead of the amount
of claims actually paid to class members. We uphold this
ruling.
Lawyers representing a class that has been certified
under Rule 23 are entitled to reasonable fees under subsection
(h) of the Rule. It sets forth that “the court may award
reasonable attorney’s fees and nontaxable costs that are

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33
authorized by law or by the parties’ agreement.” The Rule does
not stipulate if a percentage-based fee award should be based
on the amount actually paid to the class or the amount that has
been made available. Manual for Complex Litigation § 14.121
(4th ed. updated 2023) (detailing that courts may “delay a final
assessment of the fee award and to withhold all or a substantial
part of the fee until the distribution process is complete”).
Our Court has endorsed a flexible approach when
considering if a fee award is reasonable. In Wawa I, we
confirmed that “fees must be analyzed against the benefits to
the class case-by-case.” 85 F.4th at 722. See also In re Rite Aid,
396 F.3d at 303 (“We have generally cautioned against overly
formulaic approaches in assessing and determining the
amounts and reasonableness of attorneys’ fees.”); Powell v. Pa.
R.R. Co., 267 F.2d 241, 245-46 (3d Cir. 1959) (determining
that an attorney’s fee award was “reasonable” by “considering
all the facts”); In re Prudential, 148 F.3d at 342 (“What is
important is that the district court evaluate what class counsel
actually did and how it benefitted the class.”). And we have
avoided adopting hardline rules that would make “fee awards
exceeding the amount directly distributed to class members []
presumptively unreasonable.” In re Baby Prods., 708 F.3d at
178 n.12.
We maintain our flexible approach toward analyzing fee
awards in the matter before us. Every class action presents its
own unique facts and circumstances that impact the
reasonableness of attorney’s fees. Those characteristics apply
as well to class action settlements. District courts may consider
a range of factors when determining reasonableness, including
results actually achieved for class members, the manner and

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34
operation of any applicable claims procedure, and whether the
relief obtained was monetary or nonmonetary. Fed. R. Civ. P.
23 advisory committee’s note to 2003 amendment; see also
Wawa I, 85 F.4th at 724.
On remand, Judge Pratter carefully examined in her
updated analysis the relief class members received when
compared to the legal services provided. She concluded that a
fee based on the funds made available was reasonable. And we
agree with her determination.
The attorney’s fee award is reasonable because the gift-
card based settlement will meaningfully benefit class
members. Class action settlements that are predominantly
“non-cash” ought rightly to raise our initial suspicions. In re
Gen. Motors Corp., 55 F.3d at 803 (“[N]on-cash relief [] is
recognized as a prime indicator of suspect settlements.”). They
call for our close examination. But the gift card settlement here
is not problematic. It was designed to make it easy for class
members to effectively treat the gift card they received from
the settlement as cash spendable at any Wawa store. Many
Wawa customers are frequent, or at least occasional, visitors,
meaning they would have various opportunities to use their gift
cards, particularly given the cards’ lack of expiration date.
Given that over three-fourths of Wawa’s products are priced at
less than $5 and that non-cash payments are only increasing in
this digitized era, see The 2019 Federal Reserve Payments
Study, BD. OF GOVERNORS OF THE FED. RSRV. SYS.,
https://perma.cc/G86A-FZUL (last accessed May 2025)
(detailing that non-cash payments rose by $30.6 billion from
2015 to 2018), the gift-card settlement approach agreed upon
by the parties makes even more sense.

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35
Other elements of the settlement support relying on the
amount “made available” to class members to determine the
reasonableness of the attorney’s fee award. Beyond gift cards
or cash, the class received meaningful injunctive relief that
they themselves requested in the Consolidated Complaint filed
months after Wawa had started improving security measures
on its own accord. The plaintiffs brought the Consolidated
Complaint pursuant to, inter alia, Rule 23(b)(2), which
contemplates injunctive relief. Their decision to do so indicates
that, contrary to Frank’s assertions, they did not consider
injunctive relief trivial or a way to artificially increase the value
of any settlement.
That the injunctive relief here is difficult to value in
dollar terms is beyond cavil. But that is not the same as
declaring that the relief has no value. Injunctive relief has real
value and can be used in determining a reasonable attorney’s
fee award. See Sullivan v. DB Invs., Inc., 667 F.3d 273, 329 (3d
Cir. 2011) (explaining that “the injunctive relief offered by the
settlement” should not be wholly disregarded as it “[was]
intended to benefit all class members regardless of individual
monetary recovery”). At the same time, courts must consider
in any process of valuation “the extent of the benefits [actually]
received.” Institutionalized Juvs. v. Sec’y of Pub. Welfare, 758
F.2d 897, 910 (3d Cir. 1985).
Here, the Wawa class members received targeted and
tangible benefits stemming from the injunctive relief. The
District Court found on remand that the “injunctive relief was
rationally designed to address the particular, non-monetary
harm suffered by many class members under the circumstances
of this case, namely worry[ing] about, and time spent insuring,

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36
the privacy of [their] financial information.” Appx34. The new
security measures which that relief assured helped provide
class members with some peace of mind that their information
would be protected. Now when class members return to Wawa,
they should have less concern about a future breach or other
improper disclosure.
Judge Pratter rightly rejected Frank’s argument that the
injunctive relief would have been implemented even without
the settlement. While we endorse the rule in at least one other
circuit that a company continuing what it was already doing
has “no real value” for class action settlement purposes, Koby
v. ARS Nat’l. Servs., Inc., 846 F.3d 1071, 1080 (9th Cir. 2017),
Wawa’s post-settlement security updates and formal
commitment to the relief are attributable to the settlement.
Wawa did make preemptive changes prior to the settlement,
including $25 million informally committed to security
updates in February 2020. We cannot discount the likelihood
that these updates were spurred, at least in part, by litigation
concerns and could well have been merely temporary had the
injunctive relief not been required by the settlement agreement.
We also cannot overlook that Wawa, prior to mediation,
resisted any enforceable commitment to its security updates. A
court order binding a party to continue to perform pursuant to
injunctive relief has real value. As the District Court noted,
“[t]he fickle assurances of large corporations in damage-
control mode immediately following a large-scale security
breach are pale shadows of an order by the Court.” Appx33.
The class itself recognized the value of a binding commitment
from Wawa, requesting in July 2020 that injunctive relief be

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37
formalized, five months after Wawa had informally committed
to improving security.
Finally, apart from the benefits the class received, the
nature of the claims process likewise supports a $3.2 million
attorney’s fee award. Class actions involving little overall harm
typically have a low claims rate. See, e.g., Gail Hillebrand &
Daniel Torrence, Claims Procedures in Large Consumer Class
Actions and Equitable Distribution of Benefits, 28 SANTA
CLARA L. REV. 747, 747 (1988) (detailing that “claims
procedures are ill-suited to consumer class actions in which the
class size is very large and the amount of damages per class
member is relatively small” as “[t]hese cases are characterized
by very low claims rates”). The claims rate here was typical of
similar class actions, suggesting that the fee award was
reasonable.
The class consisted of about 22 million members and
563,955 claims (counting parties who will receive automatic
gift cards through the mobile application), which means that
the claims rate was about 2.56%.15 This claims rate is
comparable to other low-harm data breach class action
settlements. See, e.g., Schneider v. Chipotle Mexican Grill,
Inc., 336 F.R.D. 588, 599 (N.D. Cal. 2020) (0.83% claims
rate); In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299,
321 (N.D. Cal. 2018) (1.8% claims rate); In re Target Corp.
15 Frank wrongly asserts that the claims rate was in fact 0.035
percent, as under 8,000 members submitted a claim. This
figure, however, fails to take into account class members set to
automatically receive gift cards via the Wawa mobile
application.

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38
Customer Data Sec. Breach Litig., No. 14-md-2522, 2017 WL
2178306, at *1-2 (D. Minn. May 17, 2017) (0.23% claims
rate).
Finally, we see no error in the District Court’s analysis
of, and reliance on, the Gunter factors and lodestar cross-
check, both of which bolster its ultimate determination that an
attorney’s fee award based on the amount “made available”
was reasonable. Wawa I, 85 F.4th at 724. On remand, Judge
Pratter repeated her analysis of the Gunter factors from earlier
in these proceedings.16 And she confirmed that a lodestar cross-
16 Regarding factor 1, the size of the fund and persons
benefitted, Judge Pratter noted on remand that over 560,000
individuals received non-expiring gift cards and cash relief
through the settlement, and every class member benefited from
the injunctive relief provisions. Factor 2, objections, were
limited to Frank and have been carefully considered and
rejected by the District Court. Factor 3, the skill of the
attorneys involved, also weighed in favor of approval because
the attorneys charged a reasonable blended rate of $653 and
had “substantial experience” with complex class actions.
Appx43-44. Regarding factor 4, the complexity of the
litigation, the District Court confirmed this factor did not
weigh for or against the award. Factor 5, risk of nonpayment,
weighed in favor of granting the attorney’s fees because
counsel took the case on contingency. Factor 6, time devoted,
also weighed in favor of the award as the attorneys billed
nearly 6,000 hours. Factor 7, awards in similar cases, weighed
in favor of the award because peer cases have resulted in even
higher fees.

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39
check also supported the requested fee.17 The District Court did
not err in these findings.
IV. CONCLUSION
The great Abraham Lincoln is recognized not only for
leading his country through the dark period of the American
Civil War but also for his homespun advice on many subjects,
including the practice of law. He was, himself, a skilled trial
lawyer. Of no minor relevance to the appeal we now rule upon
are these words from Lincoln: “The matter of fees is important,
far beyond the mere question of bread and butter involved.
Properly attended to, fuller justice is done to both lawyer and
client. An exorbitant fee should never be claimed.”18 Whether
Lincoln’s litigation experience included class lawsuits brought
pursuant to antecedents to our modern Rule 23 we cannot say.
What we do say, though, is that the attorney’s fee awarded here
was not “exorbitant.” It was, in fact, fair and reasonable.
Judge Pratter properly determined that side agreements
were not present and that the parties suffered no ill-effects from
the negotiation process. Her decision to evaluate the attorney’s
fee award based on the amount made available to the class was
also correct. It is past time for Wawa class members to receive
17 A lodestar cross-check here resulted in a negative multiplier
of 0.78, meaning that counsel was compensated for fewer
hours than they labored. As multipliers from one to four are
often awarded in class action cases, this check supports the
award.
18 NOTES FOR LAW LECTURE, 2 THE COLLECTED WORKS OF
ABRAHAM LINCOLN 82, (Roy P. Basler ed., 1953).

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40
the benefits they were promised as part of the settlement,
especially during a time of inflation.19 We will affirm the
District Court’s judgment.
19 Inflation has already taken its toll on the value of the
settlement to class members. According to reported inflation
rates, $5 in April 2025 has the same buying power as $4.51 in
April 2022, when the settlement was first approved by Judge
Pratter. CPI Inflation Calculator, U.S. BUREAU OF LAB. STAT.,
https://perma.cc/3EC8-BDM2 (last accessed May 2025).

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