Gregory Berry v. LexisNexis Risk and Information

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2006

GREGORY THOMAS BERRY; SUMMER DARBONNE, on behalf of herself
and all others similarly situated; RICKEY MILLEN, on behalf
of himself and all others similarly situated; SHAMOON SAEED,
on behalf of himself and all others similarly situated;
ARTHUR B. HERNANDEZ, on behalf of himself and all others
similarly situated; ERIKA A. GODFREY, on behalf of herself
and all others similarly situated; TIMOTHY OTTEN, on behalf
of himself and all others similarly situated,

Plaintiffs − Appellees,

and

LEXISNEXIS RISK AND INFORMATION ANALYTICS GROUP, INC.;
SEISINT, INC.; REED ELSEVIER, INC.,

Defendants – Appellees,

v.

ADAM E. SCHULMAN,

Party-in-Interest - Appellant.

------------------------------

JAMES TAYLOR LEWIS GRIMMELMANN,

Amicus Supporting Appellants.

No. 14-2050

GREGORY THOMAS BERRY; SUMMER DARBONNE, on behalf of herself
and all others similarly situated; RICKEY MILLEN, on behalf
of himself and all others similarly situated; SHAMOON SAEED,
on behalf of himself and all others similarly situated;
ARTHUR B. HERNANDEZ, on behalf of himself and all others
similarly situated; ERIKA A. GODFREY, on behalf of herself
and all others similarly situated; TIMOTHY OTTEN, on behalf
of himself and all others similarly situated,

Plaintiffs − Appellees,

and

LEXISNEXIS RISK AND INFORMATION ANALYTICS GROUP,
INCORPORATED; SEISINT, INCORPORATED; REED ELSEVIER,
INCORPORATED,

Defendants – Appellees,

v.

MEGAN CHRISTINA AARON and the Aaron Objectors,

Party-in-Interest - Appellant.

------------------------------

JAMES TAYLOR LEWIS GRIMMELMANN,

Amicus Supporting Appellants.

No. 14-2101

GREGORY THOMAS BERRY; SUMMER DARBONNE, on behalf of herself
and all others similarly situated; RICKEY MILLEN, on behalf
of himself and all others similarly situated; SHAMOON SAEED,
on behalf of himself and all others similarly situated;
ARTHUR B. HERNANDEZ, on behalf of himself and all others
similarly situated; ERIKA A. GODFREY, on behalf of herself
and all others similarly situated; TIMOTHY OTTEN, on behalf
of himself and all others similarly situated,

Plaintiffs − Appellees,

and

2
LEXISNEXIS RISK AND INFORMATION ANALYTICS GROUP,
INCORPORATED; SEISINT, INCORPORATED; REED ELSEVIER,
INCORPORATED,

Defendants – Appellees,

v.

SCOTT HARDWAY and the Hardway Objectors,

Party-in-Interest - Appellant.

------------------------------

JAMES TAYLOR LEWIS GRIMMELMANN,

Amicus Supporting Appellants.

Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:11-cv-00754-JRS)

Argued: September 15, 2015 Decided: December 4, 2015

Before KING and HARRIS, Circuit Judges, and George J. HAZEL,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge King and Judge Hazel joined.

ARGUED: Richard Monroe Paul, III, PAUL McINNES LLP, Kansas City,
Missouri, for Appellants. William Walter Wilkins, NEXSEN PRUET,
Greenville, South Carolina; Joseph R. Palmore, MORRISON &
FOERSTER LLP, Washington, D.C., for Appellees. ON BRIEF:
Ashlea G. Schwarz, PAUL McINNES LLP, Kansas City, Missouri;
Samuel Issacharoff, New York, New York; Thomas W. Bevan, Patrick
M. Walsh, BEVAN & ASSOCIATES LPA, INC., Boston Heights, Ohio;
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia; Adam
E. Schulman, CENTER FOR CLASS ACTION FAIRNESS, Washington, D.C.,
for Appellants. Michael A. Caddell, Cynthia B. Chapman, CADDELL

3
& CHAPMAN, Houston, Texas; Kirsten E. Small, Andrew A. Mathias,
NEXSEN PRUET, Greenville, South Carolina; Leonard A. Bennett,
Matthew J. Erausquin, CONSUMER LITIGATION ASSOCIATES, P.C.,
Newport News, Virginia; James A. Francis, David Searles, John
Soumilas, FRANCIS & MAILMAN P.C., Philadelphia, Pennsylvania;
Dale W. Pittman, THE LAW OFFICE OF DALE W. PITTMAN, P.C.,
Petersburg, Virginia; Ronald I. Raether, Jr., FARUKI, IRELAND &
COX, PLL, Dayton, Ohio; David Neal Anthony, TROUTMAN SANDERS,
LLP, Richmond, Virginia; Marc A. Hearron, Washington, D.C.,
James F. McCabe, San Francisco, California, Michael B. Miller,
MORRISON & FOERSTER LLP, New York, New York, for Appellees.
Daniel F. Goldstein, Matthias L. Niska, BROWN GOLDSTEIN & LEVY,
LLP, Baltimore, Maryland; James Grimmelmann, Professor of Law,
Francis King Carey School of Law, UNIVERSITY OF MARYLAND,
Baltimore, Maryland, for Amicus Curiae.

4
PAMELA HARRIS, Circuit Judge:

The class action settlement at issue in this appeal is “the

culmination of years of litigation and negotiations” between

class counsel and the defendants, LexisNexis Risk and

Information Analytics Group, Inc.; Seisint, Inc.; and Reed

Elsevier Inc. (together, “Lexis”). Berry v. LexisNexis Risk &

Info. Analytics Grp., Inc., No. 3:11-CV-754, 2014 WL 4403524, at

*1 (E.D. Va. Sept. 5, 2014). The dispute centers around

Lexis’s sale of personal data reports to debt collectors.

According to the plaintiffs, Lexis has failed to provide the

protections of the Fair Credit Reporting Act (the “FCRA” or the

“Act”), 15 U.S.C. § 1681, et seq., in connection with its

reports. According to Lexis, its data reports do not qualify as

“consumer reports” within the meaning of the FCRA, and so it is

not required to comply with the Act.

After three separate lawsuits, extensive discovery, and a

long series of mediation conferences, a deal was struck. Lexis

would make sweeping changes to its product offerings in order to

protect consumer information, and in exchange, the class members

would release any statutory damages claims under the Act. The

district court certified a settlement class under Rule 23(b)(2)

of the Federal Rules of Civil Procedure and approved the

settlement, finding that it would make Lexis “the industry

leader among data aggregation companies in the protection of

5
customer information provided to debt collectors.” Berry, 2014

WL 4403524, at *3.

Now, a group of class members claiming the right to opt out

of the settlement class and pursue statutory damages

individually (the “Objectors”) seeks to undo that settlement. 1

We find no error in the release of the statutory damages claims

as part of a Rule 23(b)(2) settlement, and no abuse of

discretion in the district court’s approval of the settlement

agreement. Accordingly, we affirm the district court’s decision

in full.

I.

A.

The FCRA regulates the collection and dissemination of

certain consumer data bearing on credit eligibility. Its

protections are focused on the sale of “consumer reports” –

communications (1) containing information related to any one of

seven specific consumer characteristics (including credit

standing and worthiness and other personal information), which

are (2) prepared to assist buyers in making certain eligibility

1 The Objectors consist of three separate groups of class
members objecting to the settlement: the “Aaron Objectors,”
20,206 members of the 23(b)(2) class; the “Hardway Objectors,”
another 7,289 class members; and Adam Schulman, a class member
representing himself.

6
determinations, including credit eligibility. 15 U.S.C.

§ 1681a(d).

The Act imposes various obligations on “consumer reporting

agencies” – companies that regularly prepare “consumer reports,”

15 U.S.C. § 1681a(f) – and provides a wide panoply of

protections for consumers. For example, consumer reports may be

furnished only for certain uses, such as credit transactions.

Id. at § 1681b(a)(3)(A). Consumers are given the right to view

the information in their files, id. at § 1681g(a)(1), and if

they dispute the information they find, the consumer reporting

agency must conduct a reasonable investigation into the

information’s accuracy, id. at § 1681i(a)(1)(A). None of those

protections applies, however, unless and until a “consumer

report” has been issued.

Lexis is a data broker that sells an identity report called

Accurint® for Collections (“Accurint”), used to locate people

and assets, authenticate identities, and verify credentials.

The Accurint database contains information on over 200 million

people, and millions of Accurint reports are sold each year.

For years, Lexis sold Accurint without complying with the FCRA,

on the theory that Accurint is not a “consumer report” that

triggers the Act’s protections. Whether Accurint reports in

fact constitute “consumer reports” under the FCRA is the crux of

the parties’ dispute.

7
 B.

Class counsel and Lexis have a long history. This is the

third national putative class action brought by counsel against

Lexis, each alleging essentially the same thing: that Lexis

violated the FCRA by selling Accurint reports without affording

FCRA protections. Neither of the two prior suits resulted in

any class settlement or court-ordered relief. In Graham v.

LexisNexis Risk & Information Analytics Management Group, Inc.,

No. 3:09-cv-00655-JRS (E.D. Va. Jan. 21, 2011), the plaintiffs

dismissed the claims after Lexis moved to dismiss for lack of

standing. And in Adams v. LexisNexis Risk & Information

Analytics Group, Inc., No. 08-4708 (D.N.J. October 28, 2010),

the parties settled after the district court denied Lexis’s

motion for judgment on the pleadings. Over the course of these

lawsuits, class counsel and Lexis negotiated numerous times,

including at least nine in-person mediation conferences and many

more telephone conferences.

Throughout this litigation, class counsel endeavored to

prove not only that Lexis violated the FCRA, but also that it

did so “willfully.” That is because in addition to creating

liability for actual damages sustained by an individual as a

result of a violation, 15 U.S.C. § 1681o(a), the FCRA provides

for statutory damages of between $100 and $1,000 for willful

violations, id. at § 1681n(a), which would be available to all

8
class members. But willfulness is a high standard, requiring

knowing or reckless disregard of the FCRA’s requirements.

Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57, 69 (2007).

Unless Lexis was “objectively unreasonable,” id. at 69, in

concluding that its Accurint reports were not “consumer reports”

subject to the FCRA, then there would be no liability for

statutory damages.

The Adams court’s treatment of the willfulness issue, in

particular, is relevant to the case we review today. Class

counsel focused on the district court’s refusal to dismiss the

case on the pleadings because it would be “premature . . . to

say that [the p]laintiff can produce no evidence to support [a

willfulness] finding,” No. 08-4708, 2010 WL 1931135, at *10

(D.N.J. May 12, 2010). But Lexis pointed to an Opinion Letter

issued by the Federal Trade Commission in 2008 declaring that

Accurint reports are not “credit reports” under the FCRA, see

FTC Opinion Letter to Marc Rotenberg at 1 n.1 (July 29, 2008)

(“FTC Opinion Letter” or “Opinion Letter”), and argued that it

cannot be “objectively unreasonable” to adopt the view of the

federal agency responsible for enforcing the FCRA. And indeed,

as Lexis noted, the Adams court subsequently clarified that

unless discovery showed that the FTC had reversed the view taken

in its 2008 Opinion Letter, the Adams plaintiffs would have

difficulty showing willfulness.

9
 C.

This case began in 2011, when the named plaintiffs (the

“Plaintiffs” or the “Class Representatives”), individuals who

were the subject of Accurint reports, filed a putative class

action against Lexis. The complaint alleged that Lexis violated

the FCRA in three ways: by selling Accurint reports without

first ensuring that buyers were purchasing the reports for uses

permitted by the FCRA, refusing to allow consumers to view their

Accurint reports, and refusing to investigate when consumers

disputed information in Accurint reports. The Plaintiffs

proposed three classes to match: an “Impermissible Use” class,

including all persons listed in Accurint reports sold by Lexis;

and “File Request” and “Dispute” classes, limited to consumers

who interacted more directly with Lexis and were refused access

to their Accurint reports or denied investigations when they

filed disputes. The Plaintiffs sought both actual and statutory

damages. But – as has become important to the Objectors’

argument – because the FCRA does not provide expressly for an

injunctive remedy in private actions, they did not seek

injunctive relief.

Over a year later, after months of discovery and a series

of negotiations with the aid of “three highly skilled

mediators,” including two federal judges, Berry, 2014 WL

4403524, at *14, the Plaintiffs and Lexis at last reached a

10
settlement agreement (the “Agreement”). Instead of the three

classes contemplated by the Plaintiffs’ complaint, the Agreement

calls for just two. The first, not directly at issue here,

consists of approximately 31,000 individuals who actively sought

to treat Accurint reports as consumer reports under the FCRA by

requesting copies or attempting to dispute information. Under

the Agreement, those class members will release all potential

FCRA claims against Lexis in exchange for financial compensation

of approximately $300 per person. The district court’s

certification of that class (the “(b)(3) Class”) under Federal

Rule of Civil Procedure 23(b)(3) and approval of its settlement

are not challenged on appeal.

The focus of this controversy is the second class,

certified under Federal Rule of Civil Procedure 23(b)(2) (the

“(b)(2) Class”). Much larger than the first class, the (b)(2)

Class includes all individuals in the United States about whom

the Accurint database contained information from November 2006

to April 2013 – roughly 200 million people. 2 And the settlement

2 Given what is effectively a nationwide class, we must
contend with the possibility that we ourselves are among the
members of the (b)(2) Class. At oral argument, counsel for
Lexis and for the Plaintiffs took the position that we are not
class members under a fair and practical reading of the
Agreement, which excludes from the class “the presiding judge in
the action and his staff, and all members of their immediate
family.” J.A. 108. Counsel for the Objectors did not disagree
and also volunteered to waive any potential conflict. While

11
provided the (b)(2) Class under the Agreement differs

significantly from that provided the (b)(3) Class. First,

unlike members of the (b)(3) Class, (b)(2) Class members retain

the right to seek actual damages individually under the FCRA,

though they waive any claim for statutory damages, as well as

punitive damages. And second, what (b)(2) Class members receive

in exchange is not monetary but purely injunctive relief – a

fundamental change in the product suite that Lexis offers the

debt-collection industry that “will result in a significant

shift from the currently accepted industry practices.” Berry,

2014 WL 4403524, at *3.

Specifically, under the Agreement, Lexis is to divide its

Accurint report into two new products. The first, “Collections

Decisioning,” will be treated as falling within the FCRA’s

“consumer report” definition. This means, among other things,

that Collections Decisioning reports can be used only for

those representations may be sufficient to resolve any problem
that otherwise would arise, we need not rely on them here. We
agree with the view expressed in the Compendium of Selected
Opinions for the Committee on Codes of Conduct that “[a] judge’s
inclusion as a class member in a Rule 23(b)(2) class action
seeking only injunctive and declaratory relief, in which a
substantial segment of the general public are also members, does
not require recusal, unless the judge has an interest in the
action unique from that of members of the general public
included in the class.” See Compendium § 3.1-6[4](d). Because
any interest we may have in this litigation is common to the
general public, recusal is not required.

12
permissible purposes under the FCRA, and so will be available

only to buyers that have completed a detailed credentialing

process. Consumers also will have the right to view the

information in their reports, free of charge in certain

circumstances, and to dispute information they believe to be

inaccurate, all as provided by the FCRA.

The second suite of products, called “Contact & Locate,” is

intended only for the “limited purpose of finding and locating

debtors or locating assets,” J.A. 121, and will not include any

of the “seven characteristic” information that makes a

communication a “consumer report.” Id. Accordingly, “Contact &

Locate” is not treated as subject to the FCRA, and the Agreement

stipulates that “the Contact & Locate suite of products and

services do not constitute ‘consumer reports’ as that term is

defined under the FCRA.” J.A. 123. Nevertheless, consumers

will be given certain FCRA-like protections in connection with

Contact & Locate. For example, consumers will be able to obtain

free copies of their Contact & Locate reports once each year,

and they will be able to submit statements disputing the

information they find.

In April 2013, the district court granted the parties’

joint motion for preliminary certification of two classes for

settlement purposes. The Objectors filed motions challenging

certification of the (b)(2) Class and the terms of the

13
settlement itself. After a day-long final approval hearing at

which the parties and the Objectors presented argument, the

district court certified the (b)(2) Class and approved the

settlement.

Certification of a settlement class under Rule 23(b)(2) was

appropriate, the court ruled, because the relief sought by the

class is injunctive, rather than monetary, and “indivisible” in

that it “will accrue to all members of the Rule 23(b)(2) class.”

Berry, 2014 WL 4403524, at *11. The court dismissed the

Objectors’ claim that a lack of opt-out rights from the

mandatory (b)(2) Class precluded certification, emphasizing that

class members retained the right to sue for individualized

relief in the form of actual damages and waived only non-

individualized statutory damages, uniform as to all class

members. Id. at *11-12.

The district court also approved the terms of the Agreement

as “fair, reasonable, and adequate” under Federal Rule of Civil

Procedure 23(e)(2). According to the court, no concerns as to

fairness were raised by the process leading up to the Agreement,

involving “arm’s-length negotiations by highly experienced

counsel after full discovery was completed.” Id. at *14. But

most important, the court held, was the “relative strength” of

the parties’ claims and defenses. Id. at *15. Given the 2008

FTC Opinion Letter deeming Accurint reports outside the scope of

14
the FCRA, the district court found that the Objectors’ prospects

of recovering statutory damages for a willful violation were

“speculative at best,” making release of those claims in

exchange for substantial injunctive relief demonstrably fair and

adequate. Id.

Finally, the district court approved incentive awards of

$5,000 each for the Class Representatives and granted class

counsel’s motion for attorneys’ fees, awarding $5,333,188.21 in

connection with the (b)(2) Class settlement. Id. at *15-16.

The Objectors timely appealed, challenging certification of the

(b)(2) Class, approval of the Agreement, and the award of

attorneys’ fees.

II.

The Objectors first challenge the district court’s

certification of the (b)(2) Class for settlement purposes. We

review a district court’s decision to certify a class only for

“clear abuse of discretion.” Flinn v. FMC Corp., 528 F.2d

1169, 1172 (4th Cir. 1975). An error of law or clear error in

finding of fact is an abuse of discretion. Thorn v. Jefferson-

Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006). But

short of such error, we give “substantial deference” to a

district court’s certification decision, recognizing that a

“district court possesses greater familiarity and expertise than

15
a court of appeals in managing the practical problems of a class

action.” Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 179

(4th Cir. 2010).

A.

Under Rule 23(a) of the Federal Rules of Civil Procedure, a

party seeking class certification, whether for settlement or

litigation purposes, first 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).

Second, if the requirements of Rule 23(a) are met, then the

proposed class must fit within one of the three types of classes

listed in Rule 23(b). At issue here is Rule 23(b)(2), which

permits certification where “the party opposing the class has

acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a

whole.” Fed. R. Civ. P. 23(b)(2). “[B]ecause of the group

nature of the harm alleged and the broad character of the relief

sought, the (b)(2) class is, by its very nature, assumed to be a

homogenous and cohesive group with few conflicting interests

16
among its members.” Allison v. Citgo Petroleum Corp., 151 F.3d

402, 413 (5th Cir. 1998). Accordingly, Rule 23(b)(2) classes

are “mandatory,” in that “opt-out rights” for class members are

deemed unnecessary and are not provided under the Rule. See

id.; see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2558 (2011).

Federal circuits, including ours, have held that mandatory

Rule 23(b)(2) classes may be certified in some cases even when

monetary relief is at issue. See Thorn, 445 F.3d at 331;

Allison, 151 F.3d at 413-14. Where monetary relief

predominates, Rule 23(b)(2) certification is inappropriate.

Thorn, 445 F.3d at 331-32. But where monetary relief is

“incidental” to injunctive or declaratory relief, Rule 23(b)(2)

certification may be permissible. Allison, 151 F.3d at 415; see

also Dukes, 131 S. Ct. at 2560 (discussing Allison). This rule

follows from the premise underlying the mandatory nature of Rule

23(b)(2) classes: If a class action is more about individual

monetary awards than it is about uniform injunctive or

declaratory remedies, then the “presumption of cohesiveness”

breaks down and the procedural safeguard of opt-out rights

becomes necessary. Allison, 151 F.3d at 413; see Eubanks v.

Billington, 110 F.3d 87, 95 (D.C. Cir. 1997). And indeed, the

Supreme Court clarified in Dukes that claims for individualized

monetary relief – in that case, back-pay awards under Title VII

17
– are not “incidental” for purposes of Rule 23(b)(2) and may not

be certified under that Rule. 131 S. Ct. at 2557.

B.

The Objectors’ principal argument is that certification of

the (b)(2) Class runs afoul of these limits. According to the

Objectors, the statutory damages waived under the Agreement

predominate over the injunctive relief awarded and are not of

the “incidental” and non-individualized sort, see Dukes, 131 S.

Ct. at 2557, 2560; Allison, 151 F.3d at 415, that may be

certified under Rule 23(b)(2). 3

We disagree. As the district court explained, this is a

paradigmatic Rule 23(b)(2) case: The “meaningful, valuable

injunctive relief” afforded by the Agreement is “indivisible,”

“benefitting all [] members” of the (b)(2) Class at once.

Berry, 2014 WL 4403524, at *11. And the statutory damages

claims released under the Agreement are not the kind of

individualized claims that threaten class cohesion and are

prohibited by Dukes. When it comes to statutory damages under

the FCRA, what matters is the conduct of the defendant, Lexis –

which, as the district court emphasized, “was uniform with

3We can assume for purposes of this opinion that a class
settlement that releases damages claims is on precisely the same
footing under Rule 23(b)(2) and the Due Process Clause as one
that provides for damages. We note, however, that Lexis
contests that premise, and we do not decide its validity today.

18
respect to each of the class members.” Id. at *12. The

availability of statutory damages in this case, in other words,

is a simple function of Lexis’s policies with respect to its

Accurint reports, applicable to the entire (b)(2) Class. 4 If

Lexis unreasonably failed to treat Accurint reports as “consumer

reports” subject to the FCRA, then every class member would be

entitled uniformly to the same amount of statutory damages, set

by rote calculation. Id.

Indeed, this settlement appears to be structured precisely

to comply with Dukes and with Rule 23(b)(2). There are, to be

sure, individualized monetary damages claims at issue here –

those for actual damages under the FCRA – but those claims, as

the district court emphasized, are retained by the (b)(2) Class

members. Id. In contrast, the monetary claims released – those

for statutory damages – “flow directly from liability to the

class as a whole” on the same set of claims underlying the

4 Like the district court, we find unpersuasive the
Objectors’ contention that the Adams decision, see supra at
Section I.B., effectively divides the (b)(2) Class into two
groups differently positioned with respect to willfulness:
(1) class members whose claims arose after the Adams decision
put Lexis on notice that its Accurint reports were subject to
the FCRA, making those members eligible for statutory damages;
and (2) class members whose claims arose before Adams put Lexis
on notice. In fact, the Adams court did not rule that Accurint
reports qualified as “consumer reports” under the FCRA, as it
subsequently explained to the parties: “I think there has been
some misinterpretation of what my [motion for judgment on the
pleadings] ruling was.” J.A. 2367.

19
injunctive relief, making them non-individualized under Dukes

and “incidental” for purposes of Rule 23(b)(2). Dukes, 131 S.

Ct. at 2560 (quoting Allison, 151 F.3d at 415) (emphasis in

original).

The Objectors also argue that the statutory damages claims

released by the Agreement cannot be deemed “incidental” to

injunctive relief because the Plaintiffs’ original complaint did

not seek any injunctive relief under the FCRA. Again, we

disagree.

We may assume, as did the district court, that the FCRA,

which does not provide expressly for a private right of action

for injunctive relief, does not permit consumers to seek

injunctive remedies. But like the district court, we think that

is beside the point: “[I]n the settlement context, ‘it is the

parties’ agreement that serves as the source of the court’s

authority to enter any judgment at all.’” Berry, 2014 WL

4403524, at *12 (quoting Local Number 93 v. City of Cleveland,

478 U.S. 501, 522 (1986)); see Sullivan v. DB Invs., Inc., 667

F.3d 273, 317 (3d Cir. 2011) (court may “approve a mutually

agreed-upon stipulation enjoining conduct . . . regardless of

whether the plaintiffs could have received identical relief in a

contested suit”). And Lexis is free to agree to a settlement

enforcing a contractual obligation that could not be imposed

without its consent. Indeed, many FCRA class action disputes

20
are resolved in part through consent decrees. See, e.g.,

Serrano v. Sterling Testing Sys., Inc., 711 F. Supp. 2d 402, 409

(E.D. Pa. 2010).

Failing to acknowledge the critical role of the settlement

agreement, the Objectors rely on authority from outside the

settlement context that is unavailing here. Specifically, the

Objectors point to decisions from the Fifth and Eleventh

Circuits, each noting that the unavailability of injunctive

relief under a statute would preclude certification of a Rule

23(b)(2) class. See Christ v. Beneficial Corp., 547 F.3d 1292,

1298 (11th Cir. 2008); Bolin v. Sears, Roebuck & Co., 231 F.3d

970, 977 n.39 (5th Cir. 2000). But in neither of those cases

did the defendants agree to a settlement; instead, the

defendants in both cases opposed certification. Christ, 547

F.3d at 1295-96; Bolin, 231 F.3d at 973. We can agree that in

those circumstances, where the defendant is unwilling to settle

and the relevant statute does not allow for injunctive relief,

Rule 23(b)(2) certification would be inappropriate because the

plaintiffs would have no prospect of achieving injunctive

relief. But simply to describe those circumstances is to

differentiate them from those before us now, where the (b)(2)

Class members indeed will achieve substantial injunctive relief,

by virtue of the parties’ settlement, upon approval of the

Agreement.

21
 Nor does the failure of the Plaintiffs to seek injunctive

relief in their original complaint independently preclude

certification under Rule 23(b)(2). By its terms, Rule 23(b)(2)

applies so long as “final injunctive relief . . . is appropriate

respecting the class as a whole,” Fed. R. Civ. P. 23(b)(2)

(emphasis added), and the corresponding Advisory Committee’s

Note likewise focuses on the “final relief” afforded in a Rule

23(b)(2) case, 39 F.R.D. 69, 102 (1966). We therefore look to

the Agreement itself, and to the “final relief” it contemplates,

to assess the propriety of any monetary remedy. Any other

result would not only contravene the terms of Rule 23(b)(2), it

would discourage settlement by binding plaintiffs to the choices

they make at the earliest stages of litigation and foreclosing

the kinds of remedial compromises necessary to achieve

agreement.

That is not to say that the relief requested in a complaint

may never inform the inquiry into whether monetary relief is

truly “incidental” under Rule 23(b)(2). That inquiry is

intended in part to guard against certification when an

“injunction request is illusory,” made only to justify a damages

award that otherwise would be improper under Rule 23(b)(2). See

Thorn, 445 F.3d at 329; Richards v. Delta Air Lines, Inc., 453

F.3d 525, 530 (D.C. Cir. 2006). So if, for instance,

substantial monetary damages actually are awarded under a Rule

22
23(b)(2) class settlement, then the absence of a request for

injunctive relief in the original complaint may give rise to

concerns that it is the money and not the injunction that is

driving the case. Cf. Hecht v. United Collection Bureau, Inc.,

691 F.3d 218, 224 (2d Cir. 2012) (Rule 23(b)(2) certification

invalid where complaint did not mention injunctive relief and

“damages . . . [were] the only remedy awarded that clearly

applied to every class member”); Fry v. Hayt, Hayt & Landau, 198

F.R.D. 461, 469 n.8 (E.D. Pa. 2000) (Rule 23(b)(2) certification

inappropriate where plaintiff seeks substantial monetary

judgment as part of settlement and did not seek injunction in

original complaint). But here, where the only relief actually

awarded to the (b)(2) Class is injunctive, those concerns are

not present.

C.

In the alternative, the Objectors argue that even if the

statutory damages claims released by the (b)(2) Class are

incidental and not predominant, due process precludes

certification of the class without opt-out rights. Here, the

Objectors rely on dicta from the Supreme Court’s decision in

Dukes, noting the “serious possibility” that due process

requires opt-out rights (and concomitant notice) under Rule

23(b)(2) even “where the monetary claims do not predominate.”

Dukes, 131 S. Ct. at 2559. But as the district court explained,

23
the Supreme Court did not go that far in Dukes, holding instead

only that claims for individualized monetary relief may not be

certified under Rule 23(b)(2). Berry, 2014 WL 4403524, at *12.

Like the district court, we decline to go where the Supreme

Court has not.

As discussed above, federal courts long have permitted

certification of mandatory Rule 23(b)(2) classes involving

monetary relief so long as that relief is “incidental” to

injunctive or declaratory relief – meaning that damages must be

in the nature of a “group remedy,” flowing “directly from

liability to the class as a whole.” Allison, 151 F.3d at 415;

see id. at 411 (collecting cases). In such circumstances, our

court has held, opt-out rights are not required because

individualized adjudications are unnecessary. See Thorn, 445

F.3d at 330 & n.25 (“By requiring that injunctive or declaratory

relief predominate . . . Rule 23(b)(2) ensures that the benefits

of the class action inure to the class as a whole without

running the risk of cutting off the rights of absent class

members to recover money damages and class members who want

individualized evaluation of their claim for money damages.”).

We do not believe that the Court’s dictum in Dukes warrants

or even authorizes overturning this established precedent. See

United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999) (Fourth

Circuit panels are “bound by prior precedent from other panels

24
in this circuit absent contrary law from an en banc or Supreme

Court decision”). And we note that our unwillingness to jump

ahead of the Supreme Court in this regard is shared by our

sister circuits. Two other federal courts of appeals have

considered whether, in light of Dukes, Rule 23(b)(2)

certification remains permissible when monetary damages are

involved. And both have affirmed the continued validity of Rule

23(b)(2) certification of monetary claims so long as the

monetary relief is non-individualized and “incidental” to

injunctive or declaratory remedies. See Amara v. CIGNA Corp.,

775 F.3d 510, 519-20 (2d Cir. 2014); Johnson v. Meriter Health

Servs. Emp. Ret. Plan, 702 F.3d 364, 369-71 (7th Cir. 2012); see

also Douglin v. GreatBanc Trust Co., No. 1:14-cv-00620-RA, 2015

WL 3526248, at *5-7 (S.D.N.Y. June 30, 2015).

To be sure, and as the district court recognized, when a

“proposed settlement is intended to preclude further litigation

by absent persons, due process requires that their interests be

adequately represented.” Berry, 2014 WL 4403524, at *11 (citing

In re Jiffy Lube, 927 F.2d 155, 158 (4th Cir. 1991)). But the

premise behind certification of mandatory classes under Rule

23(b)(2) is that because the relief sought is uniform, so are

the interests of class members, making class-wide representation

possible and opt-out rights unnecessary. See Dukes, 131 S. Ct.

at 2558; Thorn, 445 F.3d at 330 & n.25; Allison, 151 F.3d at

25
413-14. And before a class may be certified under Rule

23(b)(2), of course, a court must find under Rule 23(a)(4) – as

the district court did here – that the interests of all of the

class members will be fairly and adequately represented by the

named plaintiffs and class counsel. Rule 23(e)’s settlement

approval process provides additional protection, ensuring that

Rule 23(b)(2) class members receive notice of a proposed

settlement and an opportunity to object, and that a “settlement

will not take effect unless the trial judge – after analyzing

the facts and law of the case and considering all objections to

the proposed settlement – determines it to be fair, adequate,

and reasonable.” Kincade v. Gen. Tire and Rubber Co., 635 F.2d

501, 507-08 (5th Cir. 1981). We see no reason to depart here

from the general understanding that these procedural safeguards

are sufficient to protect the due process rights of objecting

Rule 23(b)(2) class members.

Indeed, the particular terms of this Agreement make opt-out

rights especially unnecessary here. The Dukes Court was

concerned about the “need for plaintiffs with individual

monetary claims to decide for themselves whether to tie their

fates to the class representatives’ or go it alone – a choice

Rule 23(b)(2) does not ensure that they have.” Dukes, 131 S.

Ct. at 2559 (emphasis in original). But here, the right to “go

it alone” is built into the Agreement itself, under which any

26
(b)(2) Class member may pursue actual damages resulting from

individualized harm under the FCRA. In this sense, (b)(2) Class

members are “opted out” already, by virtue of the settlement in

question. As the district court explained, the Agreement

“preserves Rule 23(b)(2) class members’ rights to bring claims

for actual damages, thereby preserving their due process

rights.” Berry, 2014 WL 4403524, at *12.

Finally, the practical implications of the Objectors’

position give us pause. What is being sought is a blanket right

to opt out of a Rule 23(b)(2) settlement that provides purely

injunctive relief solely because non-individualized statutory

damages claims are released, while individualized actual damages

claims are retained. That such a rule would discourage

settlement seems undeniable; defendants like Lexis surely will

not agree to settlements like this one if they cannot buy

something approaching global peace. See Kincade, 635 F.2d at

507. And in light of all the other procedural protections

already in place, not to mention the retention of actual damages

claims under this Agreement, any marginal benefit that might

accrue to disenchanted class members is unlikely to be worth

this cost. As the Supreme Court has recognized, procedural due

process is a “flexible concept,” requiring varying degrees of

protection “depending upon the importance attached to the

interest and the particular circumstances under which the

27
deprivation may occur.” Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 320 (1985). We do not think it

requires the rigid opt-out rule proposed by the Objectors here.

D.

We briefly address the Objectors’ final argument against

certification: that the (b)(2) Class's representation is

inadequate under Rule 23(a)(4) because monetary payments of

$5,000 to each Class Representative created a conflict of

interest between those Representatives and the rest of the

class. Though we appreciate that such awards can misalign the

interests of class representatives and other class members in

certain circumstances, we hold that the district court did not

abuse its discretion in approving the payments here. 5

Incentive awards are “intended to compensate class

representatives for work done on behalf of the class, to make up

for financial or reputational risk undertaken in bringing the

action, and, sometimes, to recognize their willingness to act as

a private attorney general.” Rodriguez v. W. Publ’g Corp., 563

F.3d 948, 958-59 (9th Cir. 2009). They are “fairly typical in

class action cases.” Id. at 958 (quoting 4 William B.

5 Nor do we find any abuse of discretion in the district
court’s judgment that the (b)(2) Class members otherwise were
represented adequately under Rule 23(a)(4). To the extent the
Objectors argue to the contrary, we find their claims
unpersuasive.

28
Rubenstein et al., Newberg on Class Actions § 11:38 (4th ed.

2008)). The district court found that awards of $5,000 were

appropriate here because the Class Representatives acted for the

benefit of the class, and it cited other cases in which district

courts in our circuit have ordered similarly substantial

payments.

The Objectors point us to cases from other circuits

scrutinizing such awards when a “settlement gives preferential

treatment to the named plaintiffs while only perfunctory relief

to unnamed class members,” In re Dry Max Pampers Litig., 724

F.3d 713, 718 (6th Cir. 2013). And it is true that when

incentive agreements are entered into at the onset of

litigation, see Rodriguez, 563 F.3d at 959, and particularly

when they are conditioned on class representative support for a

settlement, Radcliffe v. Experian Info. Sols. Inc., 715 F.3d

1157, 1164 (9th Cir. 2013), large awards may raise concerns

about whether named plaintiffs might “compromise the interest of

the class for personal gain,” Dry Max Pampers, 724 F.3d at 722

(quoting Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003)).

In this case, however, the incentive awards were not agreed

upon ex ante, and they were not conditioned on the Class

Representatives’ support for the Agreement. Indeed, they were

not negotiated until after the substantive terms of the

Agreement had been established, making it significantly less

29
likely that the Class Representatives would have been influenced

in the performance of their representative duties. And finally,

this is not a case in which unnamed class members received “only

perfunctory relief,” see Dry Max Pampers, 724 F.3d at 718, –

instead, the district court found that the class members were

afforded substantial relief by significant changes in Lexis’s

consumer-protection practices – and there is no indication that

the highly experienced class counsel pursued this lawsuit any

less vigorously because of the Class Representatives’ fee award.

Under these circumstances, we defer to the judgment of the

district court in approving the Class Representatives’ awards

and finding adequate representation under Rule 23(a)(4).

III.

The Objectors next challenge the district court’s approval

of the (b)(2) Class settlement, arguing principally that it is

unfair and inadequate because it releases class members’

statutory damages claims without providing for any monetary

relief in exchange. Again, we afford the district court’s

decision substantial deference, reversing only “upon a clear

showing that the district court abused its discretion in

approving the settlement.” Flinn, 528 F.2d at 1172 (citations

and internal quotation marks omitted).

30
 A.

As discussed above, a key procedural protection afforded

Rule 23(b)(2) class members is that a settlement will not be

approved over their objections unless a district court finds it

to be “fair, reasonable, and adequate.” Fed. R. Civ. P.

23(e)(2); see In re Jiffy Lube, 927 F.2d at 158. The fairness

analysis is intended primarily to ensure that a “settlement [is]

reached as a result of good-faith bargaining at arm’s length,

without collusion.” In re Jiffy Lube, 927 F.2d at 159.

The district court properly considered the factors we have

identified as bearing on this inquiry: “(1) the posture of the

case at the time settlement was proposed, (2) the extent of

discovery that had been conducted, (3) the circumstances

surrounding the negotiations, and (4) the experience of counsel

in the area of [FCRA] class action litigation.” Id. Noting the

“extensive discovery” conducted through the course of three

separate lawsuits, the district court concluded that the parties

here “reached an agreement through arm’s-length negotiations by

highly experienced counsel after full discovery was completed,”

sufficient to demonstrate the fairness of the Agreement. Berry,

2014 WL 4403524, at *14. The Objectors do not and could not

take serious issue with this assessment, and we see no reason to

disturb the court’s judgment.

31
 As to the Objectors’ primary complaint – that the Agreement

is inadequate because it fails to provide any monetary

compensation for the release of statutory damages claims – the

district court emphasized the most important factor in weighing

the substantive reasonableness of a settlement agreement: the

“strength of the plaintiffs’ claims on the merits.” Flinn, 528

F.2d at 1172. In other words, the fairness of a deal under

which class members give up statutory damages claims in exchange

for injunctive relief depends critically on an assessment of the

Plaintiffs’ case that they are entitled to statutory damages in

the first place.

The district court deemed that case “speculative at best,”

Berry, 2014 WL 4403524, at *15, and we think that is generous.

In order to recover statutory damages under the FCRA, the

Plaintiffs would have to show a “willful” violation by Lexis, 15

U.S.C. § 1681n, which in turn would require that Lexis have

adopted an “objectively unreasonable” reading of the Act when it

concluded that its Accurint reports were not covered as

“consumer reports.” Safeco, 551 U.S. at 69. As the district

court noted, the Supreme Court has made clear that where “the

statutory text and relevant court and agency guidance allow for

more than one reasonable interpretation . . . a defendant who

merely adopts one such interpretation” cannot be held liable as

a willful violator. Id. at 70 n.20. And here, with agency

32
guidance expressly specifying that Accurint reports are not

subject to the FCRA, see FTC Opinion Letter, it is hard to see

how Lexis can be said to have acted unreasonably by adopting

that reading. 6

On the other side of the ledger, of course, is the benefit

to the (b)(2) Class of “substantial [injunctive] relief without

the risk of litigation.” Berry, 2014 WL 4403524, at *15. The

district court described the injunction in this case as

implementing a “substantial, nationwide program that addresses

the issues raised in the Complaint by the [(b)(2) Class] and

will result in a significant shift” in industry practices,

making Lexis “the industry leader” in consumer-information

protection. Id. at *3. Indeed, the record includes a finding

by an information privacy law expert that the injunctive relief

provided in the Agreement provides consumers with benefits so

substantial that their monetary value is in the billions of

dollars. The Objectors’ exclusive focus on the absence of

monetary relief is unsupported by law and also imprudent as a

matter of common sense: There was no realistic prospect that

6
Nothing about the Adams litigation dictates a different
result. Although the district court in that case denied Lexis’s
motion for judgment on the pleadings on the willfulness issue,
it subsequently clarified on reconsideration that it was “very
persuaded by the FTC’s letter,” J.A. 2377, and that if “the
plaintiffs don’t come forward with authority to the contrary
. . . then . . . [they] have a difficult row to hoe,” J.A. 2368.

33
Lexis could or would provide meaningful monetary relief to a

class of 200 million people. 7

We can find no reason to disturb the district court’s

assessment of the relative strength of the parties’ legal

positions or its fact-intensive analysis of the benefits

provided the (b)(2) Class by the parties’ settlement. In our

view, the district court was well within its discretion in

approving the settlement as fair, reasonable, and adequate under

Rule 23(e).

B.

The Objectors bring one final challenge to the settlement,

arguing that it impermissibly immunizes Lexis from future FCRA

liability in connection with its new Contact & Locate product.

We disagree.

The Objectors’ claim appears to rest on two sections of the

Agreement. In the first, the parties stipulate that “the

7 For that reason and others, the fact that the much smaller
(b)(3) Class received monetary relief under the Agreement does
not by itself render unreasonable the non-monetary relief
provided the (b)(2) Class. The (b)(3) Class, unlike the (b)(2)
Class, consists of individuals who took some affirmative action
against Lexis, seeking to view their Accurint reports or
challenging information included in those reports, putting them
in a fundamentally different position with respect to Lexis.
And in exchange for the monetary relief provided by the
Agreement, the (b)(3) Class releases all of its damages claims
against Lexis, while the (b)(2) Class retains the right to sue
for actual damages.

34
Contact & Locate suite of products and services will not involve

the provision of ‘consumer reports’ as that term is defined

under the FCRA.” J.A. 120-21. In the second, the parties

“acknowledge that the specific design and content of the Contact

& Locate . . . suite of products and services may change over

time to respond to the then current requirements of customers

and the market.” J.A. 122. According to the Objectors, the

upshot is that Lexis has carte blanche to develop Contact &

Locate into a product that is indeed a “consumer report” under

the FCRA, while class members, bound by their stipulation, will

be unable to respond.

We think that significantly overstates Lexis’s freedom

under the Agreement. It is true that the Agreement provides

Lexis the discretion it needs to develop Contact & Locate

according to market needs. But as the district court explained,

it also sets boundaries for the design and implementation of

Contact & Locate, which assure that the product cannot operate

as a “consumer report” for purposes of the FCRA. Under the

Agreement, for instance, Contact & Locate may include only

information that does not contain any of the “seven

characteristic” consumer information covered by the FCRA. J.A.

121; Berry, 2014 WL 4403524, at *4. And in the section of the

Agreement labeled the “Rule 23(b)(2) Settlement Class Release,”

J.A. 129, the parties clarify that their agreement is only that

35
the “Post Settlement Products” (of which Contact & Locate is

one) “shall not be ‘consumer reports’ within the meaning of the

FCRA so long as [they] are not used in whole or in part as a

factor in determining eligibility for credit” or any other

purpose that could qualify them as consumer reports. J.A. 132-

33 (emphasis added). Under that provision, Lexis has no free

pass from FCRA liability; instead, the Agreement applies only so

long as Contact & Locate remains true to the parties’ intent and

is not used in a manner that would make it a “consumer report.”

Releases, of course, are a standard feature of class action

settlements. Indeed, the release of claims that form the basis

of litigation is the raison d’être of any settlement, so the

Objectors do not dispute that it would have been appropriate for

the (b)(2) Class to stipulate that Lexis’s Accurint reports

comply with the FCRA. But it is different and unreasonable,

they argue, to release claims regarding Contact & Locate,

because Contact & Locate does not yet exist. Again, we think

this overstates the case. Contact & Locate is a new name, but

it is a new name for what is essentially a scaled-down version

of the old Accurint reports, without the features that allegedly

made Accurint troublesome under the FCRA. In class action

settlements, parties may release not only the very claims raised

in their cases, but also claims arising out of the “identical

factual predicate.” See, e.g., In re Literary Works in Elec.

36
Databases Copyright Litig., 654 F.3d 242, 248 (2d Cir. 2011).

Although the name of the product has changed, now, as before,

Lexis attempts only to sell information that will enable debt

collectors to locate assets, and not information to be used for

credit eligibility determinations. Because the (b)(2) Class can

release claims against Accurint, it can do so for Contact &

Locate, as well.

IV.

We are left with one final argument: a challenge by one

(and only one) Objector 8 to the district court’s approval of

class counsel’s approximately $5.3 million fee for securing

injunctive relief for the (b)(2) Class. Federal Rule of Civil

Procedure 23(h) permits “the court [to] award reasonable

attorney’s fees . . . that are authorized by . . . the parties’

agreement.” Fed. R. Civ. P. 23(h). We review attorneys’ fee

awards for abuse of discretion only. Carroll v. Wolpoff &

Abramson, 53 F.3d 626, 628 (4th Cir. 1995). That review is

“sharply circumscribed,” and a fee award “must not be overturned

unless it is clearly wrong.” Plyler v. Evatt, 902 F.2d 273, 278

(4th Cir. 1990) (internal quotation marks omitted).

8 Objector Schulman is the only Objector and member of the
200 million-member (b)(2) Class to contest the award of fees in
this case.

37
 Here, class counsel’s fee was negotiated by the parties,

and the Agreement allowed for a total attorneys’ fee award of up

to $5.5 million to be paid entirely by Lexis. The district

court awarded the requested fee after analyzing it through the

lodestar method. With regard to the Rule 23(b)(2) Class

settlement, the district court found that “a lodestar of

$3,349,379.95 and a multiplier of 1.99 are applicable and, in

light of the fact that counsel allocated approximately 80% of

their time to crafting injunctive relief for the Rule 23(b)(2)

class, an award of $5,333,188.21 is appropriate.” 9 Berry, 2014

WL 4403524, at *15. Objector Schulman argues primarily that

the district court’s explanation for its fee award was

insufficiently detailed and, in particular, that the court

failed to respond to his protests that class counsel’s hourly

rate and number of hours worked were unreasonable. And indeed,

despite our very deferential review in this area, we do require

district courts to set forth clearly findings of fact for fee

awards so that we have an adequate basis to review for abuse of

discretion. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226

9Under the lodestar method, the district court multiplies
the number of hours worked by a reasonable hourly rate. And it
can then “adjust the lodestar figure using a ‘multiplier’
derived from a number of factors, such as the benefit achieved
for the class and the complexity of the case.” Kay Co. v.
Equitable Prod. Co., 749 F. Supp. 2d 455, 462 (S.D.W. Va. 2010).

38
(4th Cir. 1978) (adopting the twelve fee-shifting factors of

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974), whenever the district court is required to determine

reasonable attorneys’ fees).

We acknowledge that the district court’s explanation of its

fee award was brief, compressed into a single paragraph. And we

stress the importance of addressing fee requests fully and

carefully, so that we may engage in meaningful review. See

Blankenship v. Schweiker, 676 F.2d 116, 118 (4th Cir. 1982)

(vacating fee award where district court did not engage in

thorough review). On balance, however, and under the

circumstances of this case, we think that the district court’s

explanation was sufficient and that the court did not otherwise

abuse its discretion in approving the fee award.

The district court provided the specific basis on which it

awarded fees: that class counsel “expended large amounts of time

and labor,” and “achieved an excellent result in this large and

complex action.” Berry, 2014 WL 4403524, at *15. It went on to

detail why the result was indeed “excellent,” finding that the

Agreement “provides substantial benefits for over 200 million

consumers” and “forces [Lexis] to comply with the FCRA.” Id.

And the court compared the lodestar multiplier to those applied

in similar cases. That explanation is in accord with several of

the more prominent Barber factors, which “include such

39
considerations as the time and labor required, the novelty or

difficulty of the issues litigated, customary fees in similar

situations, and the quality of the results involved.” In re

MRRM, P.A., 404 F.3d 863, 867-68 (4th Cir. 2005).

As to the reasonableness of class counsel’s hourly rate, it

is not the case, as Objector Schulman would have it, that the

court erred by relying solely on counsel’s affidavit as evidence

of prevailing market rates. On the contrary, the record

contains multiple expert opinions, all backed by voluminous

evidence, that both counsel’s hourly rate and the time spent on

the case were reasonable. The district court’s findings rest

not on unsupported and self-serving assertions from counsel, but

on the testimony of experts like Professor Geoffrey Miller,

comparing class counsel’s rates to those charged in bankruptcy

litigation as well as to rates awarded in similar class action

cases, and opining that counsel’s attestations to the time

incurred were consistent with the complexity and the duration of

the litigation. The court’s reference to “large amounts of time

and labor” may have been brief, but it was backed by substantial

evidence on which the court was entitled to rely.

Moreover, this case does not raise the kind of concerns

that might call for an especially robust or detailed explanation

of a fee award by a district court. There is no reason to worry

here that “the lawyers might [have] urge[d] a class settlement

40
at a low figure or on a less-than-optimal basis in exchange for

red-carpet treatment on fees.” See Weinberger v. Great N.

Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991). As discussed

above, given the size of the (b)(2) Class and the fragility of

its legal position, there was never any realistic possibility of

class-wide monetary relief; put bluntly, there is no reason to

think that class counsel left money on the table in negotiating

this Agreement. And it is not as if the injunctive relief

ultimately achieved for the (b)(2) Class was below expectations.

Again, the district court’s assessment of the injunction as an

“excellent result in [a] large and complex action” may have been

on the terse side, but it is amply supported by the experts who

opined on the fee award, characterizing the injunction as

bringing about a “sea change” in business practices, J.A. 2015-

16, and as a “serious advancement of consumer rights by a

dominant member of the data broker industry,” J.A. 583. See

McDonnell v. Miller Oil Co., 134 F.3d 638, 641 (4th Cir. 1998)

(finding that the “most critical factor in calculating a

reasonable fee award is the degree of success obtained”

(internal quotation marks omitted)). 10

10Other features of this case further diminish any concern
about the fee award and, accordingly, any need for heightened
scrutiny by the district court. Because class counsel’s fee is
to be paid entirely by Lexis, it does not reduce the (b)(2)
Class’s recovery. Cf. Cook v. Niedert, 142 F.3d 1004, 1011 (7th

41
 Finally, the fact that only one of the approximately 200

million members of the (b)(2) Class objects to the award of

attorneys’ fees is relevant to our decision. Notice of the

proposed settlement in this case reached 75.1 percent of the

(b)(2) Class members, but only Objector Schulman raised any

concerns; indeed, the other Objectors specifically declined to

join this portion of the challenge. That almost complete lack

of objection to the fee request provides additional support for

the district court’s decision to approve it. See In re Rite Aid

Corp. Sec. Litig., 396 F.3d 294, 305 (3d Cir. 2005) (noting that

only two of 300,000 class members objecting to fee request is a

“rare phenomenon” and evidence that the district court did not

abuse its discretion in awarding fees); see also Flinn, 528 F.2d

at 1174 (finding class action settlement reasonable where

“[o]nly five members of the class filed any dissent from the

settlement”).

Cir. 1998) (when attorneys’ fee reduces amount of common fund,
court must carefully scrutinize fee application). Nor, of
course, will it require the expenditure of taxpayer funds, which
might warrant additional scrutiny. Cf. Perdue v. Kenny A., 559
U.S. 542, 559 (2010) (limiting the use of multipliers in
lodestar-based fee awards against the government under fee-
shifting statutes). Finally, the parties did not even begin to
negotiate class counsel’s fee until after the substantive terms
of the Agreement were finalized, making it far less likely that
counsel could have traded off the interests of class members to
advance their own ends.

42
 Again, we should not be understood to minimize the need for

district courts to explain their attorneys’ fee awards and to

take account of relevant objections. But on the facts of this

case, we find that the district court satisfied that standard,

and committed no abuse of discretion in awarding attorneys’ fees

to class counsel in connection with the (b)(2) Class settlement.

V.

For the reasons set forth above, we affirm the decision of

the district court.

AFFIRMED

43