Wawa customers could get $5 or $15 gift cards to settle a class-action suit. Is that fair for consumers?

Wawa customers whose payment card numbers were stolen in a massive data breach would get gift cards under a proposed settlement. The lawyers would be paid in cash.

That’s part of the potential deal to end a class-action case claiming Wawa failed to protect consumers’ credit and debit card data. Some critics said the agreement, under review by a federal judge, isn’t fair enough for consumers who were put at risk of fraud and identity theft.

“You’re not getting a check for $15. You’re getting a gift card,” said Ben Goodman, founder and CEO of 4A Security and Compliance, an Erwinna, Bucks County-based cybersecurity firm. “You get to spend that money back to Wawa.”

Wawa agreed to pay customers as much as $9 million to resolve claims stemming from the 2019 breach that exposed cardholder names, numbers, and expiration dates for nine months. The vast majority of that sum — $8 million — would be paid in $5 or $15 Wawa gift cards, according to court filings. And $1 million more could be used to reimburse consumers with cash payments up to $500, if they can show financial losses.

There are 22 million class members — people who used their payment cards at a Wawa from March 4, 2019, to Dec. 12, 2019, the company estimated.

In addition, Wawa would pay at least $35 million to improve its cybersecurity. And lawyers for the plaintiffs have asked for $3.2 million to cover their fees and expenses, administration costs, and cash payments of up to $1,000 for 13 named plaintiffs.

Lawyers representing consumers in the case said the gift cards are appropriate because Wawa has “unusually loyal” customers, who routinely return to the company’s roughly 900 stores. The convenience store chain, based in Wawa, Delaware County, said its gift cards have a 97.2% usage rate, according to court filings.

More than 3,000 products in Wawa stores, or about 78% of the items, cost less than $5, including a hoagie during Hoagiefest. The gift cards, which would be valid for one year, can’t be used for cigarettes or other tobacco products.

“We believe the settlement creates valuable benefits for consumers,” said a joint statement from the lawyers heading the class action: Sherrie Savett of Berger Montague PC; Roberta Liebenberg of Fine, Kaplan and Black R.P.C.; Benjamin Johns of Chimicles Schwartz Kriner & Donaldson-Smith LLP; and Linda Nussbaum of Nussbaum Law Group P.C.

“The Wawa gift cards established as part of the settlement are the functional equivalent of cash because they can be used for virtually any of the thousands of items sold at Wawa, including gas,” they added.

Wawa spokesperson Lori Bruce said the company “carefully considered the right way to resolve this matter” and believes “the proposed settlement is fair to customers.”

“For customers without out-of-pocket losses, gift cards are a great solution because Wawa sells over 3,000 products under the $5 gift card amount and over 4,000 products under the $15 gift card amount,” she added.

The agreement must still be approved by the judge overseeing the case.

Gift card or coupon settlements usually get strict scrutiny from courts, said Ken Jacobsen, a Temple University law professor. In the Wawa case, he said, the court will likely consider whether the gift cards would have high usage and a long shelf life, and whether they can easily be transferred from person to person, among other factors.

“At the end of the day, the court is going to look at, is this real value or is this smoke and mirrors?” Jacobsen said.

In 2005, Congress passed the Class Action Fairness Act to curb abuses in settlements, including those that gave consumers “really worthless” coupons while awarding big lawyers’ fees, Jacobsen said. Among other things, the law directs courts to give greater scrutiny to settlements and allows federal and state attorneys general to review them before final approval.

For example, the Justice Department opposed a 2019 settlement over pressure cookers that would allegedly “erupt” hot liquid. Consumers received coupons valued at less than half the price of a new pressure cooker.

In the Wawa case, however, there are a lot of items that can be purchased for $5 and $15, Jacobsen noted. Although the company could generate revenue from sales above the gift card amounts, many affected customers would probably return to Wawa to buy those items anyway, he added.

“That’s the difference between Wawa and the pressure cooker pot,” Jacobsen said. “Here, you really do have options, where you get real value for something that’s under $5.”

Class members who did not suffer attempted or actual fraud on their payment cards could get a $5 Wawa gift card. Customers who can show that someone tried or succeeded in victimizing them could receive a $15 Wawa gift card.

And consumers who can provide “reasonable documentary proof” that they lost money because of an actual or attempted fraud could be reimbursed up to $500. Customers would need to submit a claim to receive a gift card or cash payment.

Under the plan, Wawa would notify customers of the settlement with signs in stores and at gas pumps, a news release, information on its website, and a separate settlement website where consumers can file a claim.

Beyond the gift cards, critics take issue with other parts of the agreement. Goodman, the cybersecurity CEO, noted that Wawa had $13 billion in revenue in 2019 and called the settlement amount “barely a slap on the wrist.”

“The issue is a much broader one, which is that organizations like Wawa don’t invest enough in security until they have to,” Jacobsen said.

Lawyers representing former Wawa workers whose personal information may have been stolen opposed the proposed settlement earlier this month, in part because of the gift cards. The lawyers, Donald E. Haviland Jr. and William Platt of the Ambler-based Haviland Hughes law firm, noted that one of their clients was fired from Wawa and definitely wouldn’t redeem a gift card. The client, they wrote, has no desire to return to a Wawa store again.