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