A recent Law 360 story by Joyce Hanson, “Attys Win $10M of Subway’s Record $31M FACTA Settlement,” reports that a Florida federal judge who signed off on the largest settlement in the history of the Fair and Accurate Credit Transactions Act (FACTA), a nearly $31 million deal between Subway and a class of consumers, has approved about $10 million in attorney fees for class counsel. U.S. District Judge Cecilia M. Altonaga granted class counsel’s motion for $10.3 million of attorney fees plus $30,837.80 of expenses in the case alleging the sandwich chain unlawfully printed full credit card expiration dates on receipts, handing the award to Scott Owens PA, Bret Lusskin PA and Keogh Law Ltd.
Judge Altonaga agreed with the lawyers that the requested fee award is consistent with other fee awards in the Eleventh Circuit that are equal to one-third of a settlement fund, such as the one affirmed in 2018 in Muransky v. Godiva Chocolatier Inc. “Attorneys who recover a common benefit for persons other than themselves or their clients are entitled to a reasonable attorney’s fee from the settlement fund as a whole, and the requested fee award is consistent with other fee awards in the Eleventh Circuit,” Judge Altonaga wrote. “This fee is also consistent with three recent FACTA cases in this district, one of which was recently affirmed by the Eleventh Circuit in Muransky v. Godiva Chocolatier Inc.”
Class counsel moved on Nov. 20 for the fees and expenses, asserting that the lawyers achieved an excellent result for the class. “Here, the parties’ mediated agreement provides a settlement fund of $30,900,000, by far the largest all-cash FACTA settlement in history, and many orders of magnitude greater than the recoveries obtained in typical FACTA settlements,” the motion said. “While most FACTA settlements involve coupons or gift cards, this settlement provides cash, and not a penny will revert to defendant.”
Judge Altonaga's order also granted named plaintiffs Shane Flaum and Jason Alan’s Feb. 19 motion for final approval of the settlement with Doctor’s Associates Inc., which does business as Subway. Each class member who has submitted a valid claim will receive about $56 in cash, and Flaum and Alan respectively will receive awards of $20,000 and $10,000 under the terms of the final approved settlement.
Flaum had submitted the settlement for preliminary approval on behalf of roughly 2.69 million people whose credit and debit card information was potentially compromised by the printed receipts showing the full expiration dates of their cards. The order gave final certification to that class, which includes all Subway patrons who received receipts upon purchase that showed their credit and debit cards’ full expiration dates between Jan. 1, 2016, and the date of preliminary approval.
FACTA regulations require retailers to omit card expiration dates on receipts, as emphasized in the Credit and Debit Card Clarification Act. Subway failed to get the suit tossed in August 2016, after a Florida federal judge, citing the U.S. Supreme Court’s 2016 Spokeo Inc. v. Robins decision, said that Flaum suffered a concrete harm to satisfy subject matter jurisdiction. The suit is Flaum v. Doctor's Associates Inc., case number 0:16-cv-61198, in the U.S. District Court for the Southern District of Florida.