Johnson, et al v. First American Title Insurance Company
Filing
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ORDER granting 353 Motion for Attorney Fees. Pursuant to the Settlement Agreement between the parties, attorneys' fees and costs in the total amount of $300,000 are awarded in favor of Plaintiffs and against Defendant. Signed by Judge David G Campbell on 5/14/2012.(NVO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Daniel Perez and Elizabeth Perez, on behalf
of themselves and all others similarly
situated,
No. CV-08-01184-PHX-DGC
ORDER
Plaintiffs,
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v.
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First American Title Insurance Company,
Defendant.
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Plaintiffs have filed an unopposed motion for an award of attorneys’ fees and costs
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in the amount of $300,000. Doc. 353 at 15. Defendant filed a response stating that the
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motion is unopposed because the amount is consistent with the Settlement Agreement
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reached by the parties and noting that the Court may, in its discretion, award a lesser
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amount. Doc. 357 at 1-2; see Doc. 352 (order approving Settlement Agreement). For the
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reasons set forth below, the Court finds the requested fee award appropriate and
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reasonable and will grant Plaintiffs’ motion.
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I.
Appropriateness of Fees.
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“[T]he parties to a class action properly may negotiate not only the settlement of
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the action itself, but also the payment of attorneys’ fees.” Williams v. MGM-Pathe
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Communications Co., 129 F.3d 1026, 1027 (9th Cir. 1997) (citing Evans v. Jeff D., 475
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U.S. 717, 734-35, 738 n. 30 (1986)). Plaintiffs brought claims on behalf of themselves
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and class members, alleging that Defendant First American Title Insurance Company
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(“First American”) overcharged them for the purchase of title insurance. After three
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years of contested litigation, the parties negotiated a class settlement with the assistance
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of a Ninth Circuit mediator. Doc. 353 at 3. Upon further mediated negotiations, the
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parties agreed that Defendants would separately pay Plaintiffs’ attorneys’ fees and costs,
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not to exceed $300,000. Id., Doc. 357 at 1, referencing Settlement Agreement § III. F.
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Having reached this agreement through proper negotiations, the Court finds that
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Plaintiffs’ fee request is warranted.
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II.
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Reasonableness of Fees.
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Lodestar Amount.
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Where, as here, Defendants have agreed to pay attorneys’ fees separately from the
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fund set aside for the class, the fees are based on the lodestar amount rather than a
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percentage of the relief granted. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th
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Cir. 1998) (explaining two methods of fee calculations). The lodestar amount consists of
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the number of hours reasonably expended on the litigation multiplied by a reasonable
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hourly rate. Id. The hours must be reasonable in relation to the success achieved.
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McGinnis v. Kentucky Fried Chicken of California, 51 F.3d 805, 810 (9th Cir. 1994).
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Plaintiffs have submitted declarations from counsel for three law firms,
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representing a total of 2,875.49 hours expended on behalf of Plaintiffs in this litigation.
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Doc. 354 at 2, 354-2 at 1; 355 at 8; 356-1 at 1. The Court is familiar with the facts of this
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case and the manner in which it was litigated over the past three years and concludes that
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this number is reasonable. As Plaintiffs point out, class counsel conducted extensive
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discovery, issuing three sets of interrogatories and document requests, taking ten
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depositions, reviewing over 90,000 pages of documents, and making site visits to First
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American to retrieve electronic data. Docs. 353 at 10-11, 356, ¶ 12. Counsel also
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achieved some success for their efforts, obtaining class certification and partial summary
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judgment, resulting in a settlement projected to refund 100% of overcharges for
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qualifying class members. Doc. 353 at 4, 11, 12.
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The hourly rate for individual attorneys at the three firms ranges up to $625
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(Doc. 355 at 8), $650 (Doc. 354-2 at 1) and $675. Doc. 355 at 8. The Court finds these
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rates to be at the high end of the reasonable range. The resulting lodestar amount for all
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three firms is over $1.4 million. Doc. 353 at 8. As Plaintiffs point out, however, the
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$300,000 cap in fees effectively reduces the average hourly rate to approximately $105.
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Id. Because the Settlement Agreement significantly reduces the lodestar amount, the
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Court concludes that Plaintiffs’ request for the full, allowable amount of fees is
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reasonable.
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B.
Other Guidelines.
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The Ninth Circuit has adopted a number of guidelines for determining the
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reasonableness of attorneys’ fees, many of which have been subsumed by the lodestar
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analysis. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1972) (adopting the
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twelve Johnson guidelines from the Fifth Circuit); Morales v. San Rafael, 96 F.3d 359,
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364, 364 n. 9, 10, 11 (9th Cir. 1996) (noting that courts need not recite the Kerr factors,
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but need only consider those not subsumed in the lodestar amount). Plaintiffs raise
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several considerations in relation to these guidelines in addition to those discussed above,
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including that the litigation presented complex technical issues of data retrieval and
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interpretation and that the level of effort from class counsel precluded their work on other
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cases while they assumed the risk of non-payment. Doc. 353 at 12-14. The Court agrees
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that the novelty and complexity of the litigation and the risks and contingent nature of the
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litigation also weigh in favor of granting Plaintiffs the full $300,000 in attorneys’ fees.
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C.
Costs.
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Plaintiffs present evidence that they expended an additional $555,205.78 in costs.
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Doc. 353 at 15. The Court has already determined that Plaintiffs are entitled to the full
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$300,000 award.
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separately discuss the reasonableness of the claimed costs.
Because costs are subsumed in this amount, the Court will not
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IT IS ORDERED:
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Plaintiff’s Unopposed Motion for Attorneys’ Fees (Doc. 353) is granted.
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Pursuant to the Settlement Agreement between the parties, attorneys’ fees and costs in the
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total amount of $300,000 are awarded in favor of Plaintiffs and against Defendant.
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Dated this 14th day of May, 2012.
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