Ross et al v. Trex Company, Inc.

Filing 341

ORDER by Judge Jeffrey S. White GRANTING 308 Motion for Attorney Fees. (jswlc3, COURT STAFF) (Filed on 12/16/2013)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIC ROSS, et al., Case No. 09-cv-00670-JSW Plaintiffs, 8 v. 9 10 TREX COMPANY, INC., et al., Defendants. ORDER GRANTING MOTION FOR ATTORNEYS' FEES, COSTS AND SERVICE AWARDS Re: Dkt. No. 308 United States District Court Northern District of California 11 12 13 This matter comes before the Court upon consideration of the Motion for Attorneys’ Fees, 14 Costs and Service Awards filed by Plaintiffs, in connection with their motion for final approval of 15 a class action settlement. The Court has considered the parties’ papers, relevant legal authority, 16 the record in this case, and has considered the arguments presented at the final fairness hearing 17 held on December 13, 2013. For the reasons set forth in the remainder of this Order, the Court 18 GRANTS the motion. 19 The Court finds that the lodestar method for awarding attorneys’ fees was appropriate in 20 this non-common-fund case, and that the reasonable lodestar incurred by Class Counsel Hagens 21 Berman Sobol Shapiro LLP and co-counsel Lieff Cabraser Heimann & Bernstein, LLP; Audet & 22 Partners, LLP; Tousley Brain Stephens PLLC; Cohen Milstein Sellers & Toll PLLC; Hausfeld 23 LLP; Cuneo, Gilbert & LaDuca, LLP; and Lockridge Grindal Nauen PLLP in this matter, based 24 on their reasonable hourly rates, totals $1,930,033.03. The Court finds that this amount is 25 reasonable based on: the representations of work performed in the case (and to be performed) as 26 set forth in the attorney declarations, as well as the supplemental declarations ordered by the 27 Court; and the reasonableness of that work; the reasonable hourly rates of counsel, which compare 28 favorably to other rates awarded in this judicial district, including in the Ross surface-flaking 1 settlement with Trex that directly preceded this matter, and as otherwise established by the 2 declarations submitted in support of this motion; the novelty and complexity of this litigation; the 3 skill and experience of class counsel and the quality of their representation; the substantial benefit 4 made available to the class as a result of the settlement in this action; and the risks of non- 5 payment. 6 Furthermore, a cross-check against a so-called constructive common fund confirms the 7 reasonableness of plaintiffs’ lodestar and the award of attorneys’ fees made herein. See In re 8 Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 944-45 (9th Cir. 2011) (discussing such a 9 cross-check). When the Court compares the sum of attorneys’ fees sought as part of the $1.475 million total award of fees, costs, and expenses, which is less than $1.475 million, to $9.8 million, 11 United States District Court Northern District of California 10 which is the value of a constructive common fund consisting of the funds available to the class 12 ($8.25 million), the funds negotiated to pay fees, costs, and expenses ($1.475 million), and the 13 sum negotiated to pay service awards ($75,000), the result is well below the 25% benchmark in 14 this federal judicial circuit for common fund awards. See id. at 945. This cross-check confirms 15 the reasonableness of the instant request. 16 Furthermore, plaintiffs have sought attorneys’ fees in an amount representing a negative 17 multiplier to the base lodestar. Subtracting costs and expenses (as set forth below) from $1.475 18 million leaves $1,321,200.47 available for attorneys’ fees. The base lodestar is $1,776,233.50, 19 such that the multiplier is approximately 74% - a negative multiplier. Plaintiffs sought no 20 extraordinary award of fees; to the contrary, they sought less than their lodestar, which further 21 supports the reasonableness of the fees requested and awarded. 22 The Court also finds that the foregoing counsel have incurred $153,799.53 in reasonable 23 costs and expenses in this matter, and it approves payment in that amount. These costs and 24 expenses were reasonably incurred in the ordinary course of prosecuting this case and were 25 necessary given the complex nature and nationwide reach of this matter. 26 27 Thus, in total, the Court awards $1.475 million in attorneys’ fees, costs, and expenses in this matter, and it leaves distribution of same to Class Counsel Hagens Berman Sobol Shapiro. 28 2 1 The Court also approves service awards of $7,500 to each of the named Plaintiffs and 2 Class Representatives in this matter, Dean Mahan, Gretchen Silverman, Steven McKenna, Thomas 3 Schauppner, Marjorie Zachwieja, John Forcella, Sheila Shapiro, Sabrina W. Hass and Dr. Lanny 4 W. Hass, Amy Biondi-Huffman, and Brian Hathaway, with the proviso that Ms. Hass and Dr. 5 Hass shall share one such award between them. These service awards are supported by the 6 declarations submitted by the named Plaintiffs and Class Representatives. They are otherwise 7 justified by the amount of time and effort spent by the Class Representatives on this matter on 8 behalf of the class; the duration of this matter; lost time from work and family; and the other 9 factors set forth in their supporting declarations. They also are supported by precedent. The same amount was awarded to each class representative in the Ross surface-flaking settlement against 11 United States District Court Northern District of California 10 Trex, which preceded this matter, and in Pelletz v. Weyerhaeuser Co., 592 F. Supp. 2d 1322, 1329 12 (W.D. Wash. 2009), another mold-spotting case settled with another decking manufacturer. 13 The attorneys’ fees, costs, and service awards made by this order shall be paid by 14 defendant Trex Company, Inc. in accordance with the terms of the Amended Stipulation of 15 Settlement and Release filed in this matter on July 31, 2013. 16 17 18 19 IT IS SO ORDERED. Dated: December 16, 2013 ______________________________________ JEFFREY S. WHITE United States District Judge 20 21 22 23 24 25 26 27 28 3

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