A recent Law 360 story by Sophia  Morris, “Judge Questions $1.12M Atty Fees in Vibrator Privacy Suit,” reports that an Illinois federal magistrate judge recommended a lowered fee award for attorneys who represented a proposed class of consumers who alleged a sex toy maker had secretly collected user data from an internet-connected vibrator, saying more information is needed on whether their $1.12 million fee request reflected the amount of work put into the case.

U.S. Magistrate Judge Michael T. Mason said the attorneys who secured a $3.75 million settlement for the proposed class had not shown that their request for fees totaling 33.3 percent of the settlement fund was justified, given that the case settled less than three months after it was filed.  But despite his concerns, Judge Mason said that as there were no objections to the request, he recommended that the attorneys submit a lodestar calculation of their fees and then be awarded 30 percent of the settlement fund.

“In a fee petition, class counsel often provide the court with some indication of the number of hours spent working on the litigation, although in this case, plaintiffs’ counsel failed to do so,” Judge Mason said in his report and recommendations.  “This omission is a red flag; we are concerned that class counsel did not want the court to know how much (or little) time was spent before their request for $1.12 million in fees.”

The suit was filed in September with anonymous lead plaintiffs N.P. and P.S. alleging that Standard Innovation Corp. had collected user data from the vibrators and app — including intimate user preference details such as date and time of each use, the chosen vibration intensity and pattern, and the email addresses of users who registered with the app — without their knowledge or permission.

In March, Standard Innovation agreed to set up two settlement funds: $3 million to go toward users of the app and $750,000 toward purchasers of the vibrator.  Roughly 300,000 customers have purchased the vibrators, and about 100,000 use it with the app, according to the settlement memo.  As part of the agreement, which was given preliminary approval, the company will stop collecting data from its We-Vibe sex toy and destroy all the data it had collected.

Although the motion for approval of the settlement was filed in March, the parties actually reached a deal in December.  Judge Mason noted that in their June fee request, the attorney pushed for 33.3 percent of the settlement fund by citing complex cases that took years to resolve and involved time-consuming discovery.  But given that this case was speedily resolved and involved no court time, Judge Mason questioned how much time the attorneys had actually needed to investigate and research their clients’ claims.

“In light of the circumstances of this case, it seems excessive and unreasonable to award plaintiffs counsel fees of $1.12 million when many class members are only receiving $20 for their claims,” he said.  Judge Mason did recommend that the requested $5,000 incentive award be given to the named plaintiffs, even though they never had to sit for a deposition or respond to discovery.  He said it was justified “given the sensitive and personal nature of the allegations at issue here.”

The case is N.P. v. Standard Innovation (US) Corp., case number 1:16-cv-08655, in the U.S. District Court for the Northern District of Illinois.