Cohorst v. BRE Properties, Inc. et al

Filing 122

ORDER Denying Garber's 100 Motion for Attorney Fees; Granting Kreidler's 102 Motion for Attorney Fees. Kreidler is awarded attorney's fees and costs in the total amount of $69,641. Signed by Judge Jeffrey T. Miller on 6/5/2012. (knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROSEMARY COHORST, CHARMAINE
GRIFFITH, and DEIDRE QUENELL on
behalf of themselves and all others similarly
situated,

CASE NO. 10cv2666 JM(BGS)
ORDER DENYING GRABER’S
MOTION FOR ATTORNEY’S FEES;
GRANTING KREIDLER’S MOTION
FOR ATTORNEY’S FEES

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Plaintiffs,
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vs.
BRE PROPERTIES, INC.; L1 HOLDING,
INC; LEVEL ONE, LLC; and REAL PAGE,
INC.,

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Defendants.
Counsel for Objectors Yanique Dias and Gilliane Graber (“Graber”) move for an award of

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attorney’s fees and costs in the amount of $145,000. Counsel for Objector Susan Kreidler (“Kreidler”)

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moves for an award of attorney’s fees and costs in the amount of $1,067,826.30. Plaintiffs oppose

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both motions. Pursuant to Local Rule 7.1(d)(1), the matters presented are appropriate for decision

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without oral argument. For the reasons set forth below, the court denies Graber’s motion for attorney’s

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fees and grants Kreidler’s motion for attorney’s fees and costs in the amount of $69,641.

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BACKGROUND

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The court incorporates the Report and Recommendation of Special Master (Ct. Dkt. 70) and

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the Order Adopting Report and Recommendation (“Order”) as if fully set forth herein. (Ct. Dkt. 88).

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The Order established a common attorney’s fees award in the amount of $1.54 million (“Fee Award”).

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The Objectors each claim that their efforts provided a benefit to the class and therefore they are
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entitled to an award of attorney’s fees and costs.

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In the Order, the court required Plaintiffs to provide direct mail notice to those potential class

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members for whom Level One or BRE possessed physical mail addresses. In the end, 9,583 packets

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containing the Notice of Settlement and Proof of Claim were mailed to this group. In response to the

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mailed notice, 462 claims were received and about 345 of those claims were valid. The total number

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of class members is about 1,668 (1,323 claims were received in response to the earlier notice provided

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to class members).

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On April 13, 2012, final judgment was entered in this case. (Ct. Dkt. 109). The only
remaining issue in this case concerns Objectors’ motions for attorney’s fees.

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DISCUSSION

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It is well-established that Objectors are entitled to attorney’s fees only in the event they show

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either they (1) conferred some benefit on the class or (2) substantially improved the settlement under

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consideration. See Uselton v. Commercial Lovelace, Inc., 9 F.3d 849, 855 (10th Cir. 1993); City of

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Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977).

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In determining the amount of fees awarded to objectors’ counsel who obtained a benefit to the

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class, the court considers the relationship between the fee award and the degree of success and, in its

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discretion, may reduce or increase the fee award. See McGinnis v. Kentucky Fried Chicken of

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California, 51 F.3d 805, 810 (9th Cir. 1994). Attorney’s fees and costs are awarded to objectors whose

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efforts “substantially benefit the class members.” In re Prudential Ins. Cl. Of Am. Sales Practices

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Litig., 273 F.Supp2d 563, 565 ( D.N.J. 2003); Rodriguez v. West Publg. Corp., 565 F.3d 948 (9th Cir.

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2009). The substantial benefit must “increase the fund or otherwise substantially benefit the class

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members.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1052 (9th Cir. 2002).

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Graber’s Motion for Attorney’s Fees

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The threshold issue is whether Graber obtained any substantial benefit to the class. Graber

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contends that she objected to “the contents of the notice, the defects in the dedicated website, the

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inadequate notice procedure, and the failure to disseminate mail notice to 32,000 known addresses.”

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(Motion at p.2:11-12). The court concludes that Graber did not obtain a substantial benefit for the

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class and therefore denies her attorney’s fees from the Fee Award.
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The overwhelming thrust of Graber’s objections focused on the contents of the notice, defects

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in the website and inadequate notice procedures. (Ct. Dkt. 72). These arguments provided no benefit

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to the class. In the Order, the court concluded that notice of settlement provided to class members

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must be the “best notice that is practicable under the circumstances, including individual notice to all

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members who can be identified through reasonable effort.” Fed.R.Civ.P. 23(c)(2)(B); Eisen v. Carlisle

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& Jacquelin, 417 U.S. 156, 165 (1974). The court therefore concluded that individuals for whom

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Defendants possessed addresses were reasonably entitled to mail notice, especially where the parties

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represented in open court that such notice would cost less than $2 per class member (ultimately mail

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service was provided to 9,583 potential class members).

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Graber also argues that benefit to the class was provided because “Objectors challenged Class

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Counsel’s decision to not mail notices to the 32,000 class members for whom Level One possessed

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mailing addresses.” (Motion at p.4:21-22). Notably, Graber does not provide any support for this

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conclusory statement. The court has reviewed the original 14-page Objections filed by Graber and

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notes that less than one page is dedicated to the topic of constitutional notice and only one sentence

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refers to mail notice: “With respect to Class Members no longer residing in the Rental Properties, class

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counsel could, at least, have made a good faith effort to notify former residents by mailing notices to

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the forwarding addresses which were provided when the residents vacated the premises.” (Ct. Dkt 72

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at p.13:23-27). While Graber noted general due process notice requirements, citing Mullane v. Central

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Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950), she did not cite either Fed.R.Civ.P. 23(c)(2)(B)

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or Eisen, 417 U.S. 156, 173 to adequately inform the court of the nature of her argument.

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Graber’s notice argument was simply inadequate to raise the legal issue that individual mailed

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notice was required, not merely discretionary, under the circumstances. Graber did not cite pertinent

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legal authorities to sufficiently alert the court of the mail notice requirements. In Eisen the Supreme

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Court held that “[i]ndividual notice must be sent to all class members whose names and addresses may

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be ascertained through reasonable effort.” Eisen, 417 U.S. at 173. Similarly, the Advisory

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Committee’s Note to Rule 23 indicates that notice “shall include individual notice to the members who

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can be identified through reasonable efforts.” As binding authorities require individual notice to

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known addresses of class members - an argument not raised by Graber - the court finds that Graber
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did not provide a substantial benefit to the class.

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In sum, the court denies Graber’s motion for an award of attorney’s fees from the Fee Award.

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The court notes that any attorney-client fee agreement provides the only means for counsel to be

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compensated.

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Kreidler’s Motion for Attorney’s Fees

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Unlike Graber, the court finds that Kreidler provided a substantial benefit to the class. Kreidler

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argued that Eisen and Fed.R. 23 specifically require individual notice to class members with known

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addresses. (Ct. Dkt. 73at pp:5:25 - 6:4; p.8:1-22). The individually mailed notice resulted in the

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inclusion of 345 additional class members. While the amount of settlement was not increased by

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Kreidler’s activities, the inclusion of the additional class members is a substantial benefit to those class

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members and furthers the inclusive goals of class actions. See Crown, Cork & Seal Co. v. Parker, 462

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U.S. 345, 349 (1983).

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Kreidler also argues that she benefitted the class by obtaining (1) the equal treatment of

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California residents; (2) a continuance of the final approval hearing until after the claims filing

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deadline to permit the court to consider a fully developed record at the time of the hearing; (3) the

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elimination of a possible reversion to Defendants; and (4) a reduction in class counsel’s fee. (Motion

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at pp.4:1-6:16). The overall benefit to the class of these asserted benefits, while positive, is not

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substantial and would not, standing alone, support an award of attorney’s fees. The only other issue

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concerns the amount of reasonable attorney’s fees and costs.

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Kreidler, as the party seeking the award, “bears the burden of documenting the appropriate

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hours expended in the litigation and must provide support for those hours worked.” Gates v.

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Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). Counsel for Kreidler, Kiesel Boucher Larson LLP

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(“KBL”), seek to be compensated for 713.4 hours of attorney work at an average hourly rate of

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$641.92 for a lodestar amount of $458,294.25. (Kiesel Decl.). KBL also seek a multiplier of 2.33 for

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a total of $1,067,826.30. Id. The court concludes that KBL fails to demonstrate the reasonableness

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of this approach. First, KBL fails to provide the court with any evidentiary detail concerning the

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reasonableness of the hours claimed. The Kiesel declaration appears to seek compensation for the

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substantial time dedicated by KBL to investigate and prosecute the Luminita Roman case filed in the
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Central District of California. Without some evidence supporting the claimed hours, the court is

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unable to reasonably pursue the lodestar approach. Second, Kiesel fails to support its hourly rate.

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Kiesel makes no showing that the hourly rates for its partners ($700 to $890), senior associates ($625),

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and junior associates ($325 to $375) is representative in the community for reasonably comparable

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skill, experience, and reputation1. See Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir.

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1987). As the court is unable to reliably ascertain the lodestar amount, the court declines to award

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Kiesel attorney’s fees or costs under the lodestar approach.

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The court finds, however, that a percentage of the award to the 345 new class members is

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appropriate and reasonable under the circumstances. The value of the settlement to the 345 newly

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joined class members is $497,437. (Reply at p.3:1-3). Applying the percentage of the attorney’s fees

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award to the value of the settlement (28%) yields attorney’s fees in the amount of $139,282. Of this

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amount the court concludes that class counsel and KBL should share equally in this award as both

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provided substantial benefit to these class members. Accordingly, the court awards KBL reasonable

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attorney’s fees and costs in the amount of $69,641. This amount is to be paid from the Fee Award

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previously awarded as attorney’s fees.

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In sum, the court denies Graber’s motion for attorney’s fees, grants Kreidler’s motion for
attorney’s fees, and awards Kreidler attorney’s fees and costs in the total amount of $69,641.

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IT IS SO ORDERED.
DATED: June 5, 2012

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Hon. Jeffrey T. Miller
United States District Judge

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cc:

All parties

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The court notes that partners of class counsel maintain approved rates of $550-695,
substantially less than those of KBL.
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