Payam Ahdoot v. Babolat VS North America Inc et al

Filing 47

MINUTE ORDER IN CHAMBERS by Judge Gary A. Feess: Order Requesting Further Briefing. Parties are seeking preliminary approval of their Settlement Agreement. The Court has two concerns that must be addressed before the Court will consider preliminari ly approving this settlement as a class action settlement. First, Plaintiffs' request for attorneys' fees is made without any supporting billing records which prevents the Court from analyzing the reasonableness of the request. Accordingly, the Court ORDERS Plaintiffs to submit further briefing detailing specific information regarding the number of hours worked, the hourly rate for each attorney charging time to the case, and the reasonable hourly rate. Second, the Court is unable to d iscern if Rust Consulting, Inc., is an appropriate Settlement Administrator absent any information of any sort regarding Rust Consulting, Inc.'s anticipated fees. Accordingly, the court ORDERS Plaintiffs to submit further briefing detailing any agreed-upon fee in the services agreement with Rust Consulting, Inc. and/or any estimates of that fee amount. Plaintiffs are to submit this information by close of business on Thursday, September 18, 2014. See document for details. (smo)

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-02823 GAF (VBKx)

Title

Payam Ahdoot v. Babolat VS North America

Present: The Honorable

Date

September 4, 2014

GARY ALLEN FEESS

Stephen Montes
Deputy Clerk

None
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

None

None

Proceedings:

(In Chambers)
ORDER REQUESTING FURTHER BRIEFING

In this action, the Parties are seeking preliminary approval of their Settlement Agreement.
(See Docket No. 43-1 (Mem. in Support of Mot. for Preliminary Approval of Class Action
Settlement (“Mem.”)].) The Court has two concerns that must be addressed before the Court
will consider preliminarily approving this settlement as a class action settlement. Plaintiff’s
counsel is ORDERED to submit a supplemental brief addressing the Court’s concerns explained
below no later than Thursday, September 18, 2014.
First, Plaintiffs’ request for attorneys’ fees is made without any supporting billing records
which prevents the Court from analyzing the reasonableness of the request.
In common fund cases such as the instant case, the district court has discretion to apply
either the “percentage of the fund” method or the “lodestar” method for determining attorney’s
fees. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The lodestar method,
multiplying reasonable hours worked by a reasonable rate, may be used as a cross-check on the
reasonableness of fees awarded through a percentage method. Id. at 1048-50.1 The Ninth
Circuit has acknowledged 25% as a benchmark for fees in common-fund cases as the starting

1

In Vizcaino, the Ninth Circuit noted:
Where such investment is minimal, as in the case of an early settlement, the lodestar calculation
may convince a court that a lower percentage is reasonable. Similarly, the lodestar calculation can
be helpful in suggesting a higher percentage when litigation has been protracted. Thus, while the
primary basis of the fee award remains the percentage method, the lodestar may provide a useful
perspective on the reasonableness of a given percentage award

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-02823 GAF (VBKx)

Title

Date

September 4, 2014

Payam Ahdoot v. Babolat VS North America

point, which can then be adjusted upward or downward based on the circumstances of the case.
See Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989).
As part of the Settlement Agreement, Plaintiffs’ counsel are asking for 25% of the Gross
Settlement Fund of $4,500,000. (Mem. at 7; Docket No. 43-2 [Decl. of Christopher J. Hamner
(“Hamner Decl.”)] at Exhibit 1 [Stip. and Agreement of Settlement (“Settlement Agmt.”)], at 2122.) As Plaintiffs have not provided any documentation regarding their hourly rates, hours
worked, or the reasonableness of either, the Court cannot calculate the lodestar to cross-check
the amount asked for by Plaintiffs’ counsel as attorneys’ fees.
Accordingly, the Court ORDERS Plaintiffs to submit further briefing detailing specific
information regarding the number of hours worked, the hourly rate for each attorney charging
time to the case, and the reasonable hourly rate, such as the “hourly amount to which attorneys
of like skill in the area would typically be entitled.” Ketchum v. Moses, 24 Cal. 4th 1122, 1133
(2001).
Second, the Court is unable to discern if Rust Consulting, Inc., is an appropriate
Settlement Administrator absent any information of any sort regarding Rust Consulting, Inc.’s
anticipated fees.
A settlement may be approved only after a hearing and on finding that it is fair,
reasonable, and adequate. See Fed. R. Civ. P. 23(e)(2). In determining whether the Settlement
Agreement is fair, reasonable, and adequate, the Court must consider whether the Settlement
Administrator recommended by the Plaintiffs, Rust Consulting, Inc., is an appropriate Settlement
Administrator.
The Settlement Agreement provides that the “Settlement Administration Expenses shall
be fully paid from the Gross Settlement Fund.” (Settlement Agmt. at 21, § A.) Under the
Settlement Agreement, Settlement Administration Expenses are “the fees and costs charged and
incurred by the Settlement Administrator, including, but not limited to, the fees and costs
associated with the banking and escrow charges for the Settlement Account, required notices
under the Class Action Fairness Act, 28 U.S.C. §1715, the Publication Notice . . . , the
Settlement website, the banner advertisement on Tennis.com, the tollfree Settlement telephone
number with recorded messages, the Settlement Administrator’s review of claims to determine
whether they are Valid Claims, all reports and declarations required to be submitted by the
Settlement Administrator under this Settlement Agreement, the fulfillment of all Valid Claims
(not including the Class Recovery) and such other costs and expenses of the Settlement
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-02823 GAF (VBKx)

Title

Date

September 4, 2014

Payam Ahdoot v. Babolat VS North America

Administrator as required and approved by the Court pursuant to the Settlement Administrator’s
services agreement.” (Id. at 9, § CC) However, Plaintiffs have not provided the Court the
Settlement Administrator’s service agreement or any other statement or estimate of Rust
Consulting, Inc.’s fees. Without such information, the Court cannot determine whether Rust
Consulting, Inc., is an appropriate Settlement Administrator.
Accordingly, the court ORDERS Plaintiffs to submit further briefing detailing any
agreed-upon fee in the services agreement with Rust Consulting, Inc. and/or any estimates of
that fee amount. Plaintiffs are to submit this information by close of business on Thursday,
September 18, 2014.
IT IS SO ORDERED.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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