Sanders et al v. RBS Citizens, N.A.

Filing 116

ORDER granting Plaintiffs' 108 Motion for Attorney Fees, Costs and Incentive Award. Court held a hearing on the issue on 1/23/2017. Court grants Plaintiff $1,137,816.88 in attorney's fee, $17,693.46 in litigation costs, $874,249.20 in administration costs, and $5,000 for the named plaintiff as an incentive award. The Court authorizes that these be paid from the Settlement Fund. Signed by Judge Cynthia Bashant on 1/25/2017. (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
LINDA SANDERS, on behalf of
herself and all others similarly
situated,

11
12

Case No. 13-cv-3136-BAS-RBB

Plaintiff,

13
v.

14

ORDER GRANTING MOTION
FOR ATTORNEYS’ FEES,
COSTS, AND INCENTIVE
AWARD

RBS CITIZENS, N.A.,

15

Defendant.

16
17
18
19

Plaintiffs’ counsel files a Motion for Attorneys’ Fees, Costs and Incentive

20

Award requesting $1,137,816.88 in attorneys’ fees, $17,693.46 reimbursement for

21

litigation costs, $874,249.20 in administration costs and $5,000 as an incentive award

22

for the named Plaintiff Linda Sanders. (ECF No. 108.) Defendant does not oppose.

23

The Court held a hearing on the issue on January 23, 2017 at 10:30 a.m. After

24

reviewing the Motion along with the attached Exhibits, the Court GRANTS

25

Plaintiffs’ Motion for Attorneys’ Fees, Costs and Incentive Award.

26

I.

STATEMENT OF FACTS

27

A. Underlying Case

28

On December 20, 2013, Plaintiffs filed a civil class action alleging violations
–1–

13cv3136

1

of the Telephone Consumer Protection Act, 47 U.S.C. §§227 et seq. (“TCPA”). (ECF

2

No. 1.) Plaintiffs allege Defendant used an automated telephone dialing system

3

(“ATDS”) and prerecorded voice messages to call the cellular telephones of class

4

members when attempting to collect student loan debts. (Id.) Defendant denies the

5

allegations but agrees to this settlement to avoid further litigation.

6

During the course of the litigation, counsel served third party discovery to

7

twenty-one third party vendors, conducted discovery motion practice and engaged in

8

a day-long mediation with the Hon. Edward A. Infante (Ret.). (See Declaration of

9

Douglas J. Campion in Support of Motion for Attorneys’ Fees, Costs and Incentive

10

Payments (ECF No. 108-2) (“Campion Decl.”) ¶ 12; Declaration of Ronald A.

11

Marron in Support of Motion for Attorneys’ Fees, Costs and Incentive Payments

12

(ECF No. 108-5) (“Marron Decl.”) ¶¶ 30-37.)

13

continued to conduct confirmatory discovery to locate class members. (Id.)

Post-mediation, the attorneys

14

B. Settlement and Attorneys’ Fees

15

The Settlement contemplates that Defendant “shall pay $4,551,267.50 to

16

settle the Action and obtain a full release from Settlement Class Members of all

17

Released Claims.” (Settlement Agreement and Release attached to the Declaration

18

of Douglas Campion in Support of Preliminary Approval (ECF No. 104-3

19

(“Settlement Agreement”) at § 5.01.) “The amount paid per Approved Claim shall

20

be divided among the approved claimants on a pro rata basis from the amount

21

remaining in the Settlement Fund after payment of all Settlement Costs [including

22

attorneys’ fees] from the Settlement Fund.” (Id. at § 5.02.) “Class Members shall

23

be entitled to submit a claim if their cellular phone number is on the Class List as a

24

phone number that received a Telephone Call during the Class Period. Only one

25

claim for each phone number called shall be permitted.” (Id. at § 5.03.) “As an

26

additional benefit to all Class Members, [Defendant] has developed significant

27

enhancements to its existing policies and procedures, as necessary, to require that if

28

any person revokes his or her consent by any reasonable means, that person shall
–2–

13cv3136

1

not receive any further calls from [Defendant] on his or her cellular telephone via an

2

automatic telephone dialing system and/or an artificial or prerecorded voice.” (Id.

3

at § 5.04.)

4

The Claims Administrator has sent notice to Class Members and 41,307

5

members have submitted claims. (Declaration of Steven J. Powell on Behalf of

6

Claims Administrator (ECF No. 112-4) (“Powell Decl.”) ¶¶ 14-15.) In light of the

7

number of claimants, the settlement amount for each class member is estimated to

8

be $60.89. (Memorandum of Points and Authorities in Support of Unopposed

9

Motion for Final Approval of Class Action Settlement (ECF No. 112-1), p. 11.)

10

Plaintiffs’ attorneys request $1,137,816.88 as 25% of the overall class settlement.

11

(ECF No. 108.) Alternatively, counsel detail actual attorneys’ fees in the amount

12

of $600,059.50 to which counsel requests the Court apply a 1.896 multiplier for the

13

result received. (Campion Decl. ¶ 14; Marron Decl. ¶ 28; Supplemental Declaration

14

of Ronald A. Marron In Support of Motion for Attorneys’ Fees, Costs and Incentive

15

Payment, ¶ 4.)

16

Plaintiffs’ counsel further requests $17,693.46 in costs (excluding the costs of

17

administering the class), which includes the cost of mediation, mileage to attend the

18

mediation, court reporter fees, filing fees, subpoena fees and payment for the expert

19

witness. (Campion Decl. ¶17; Marron Decl. ¶¶ 2-3.) Counsel further requests

20

reimbursement of $874,249.20 for the costs of administering the class. (Powell

21

Decl., Exh. D.) Finally, counsel requests a $5000 incentive payment for named

22

plaintiff Linda Sanders. (ECF No. 108.) Ms. Sanders files a Declaration indicating

23

that she spent 30–40 hours on this case including meeting with counsel before the

24

Complaint was filed, appearing in person at the ENE, responding to discovery

25

including interrogatories and documents requests, and reviewing and approving the

26

Settlement Agreement. (Declaration of Linda Sanders in Support of Incentive

27

Award (ECF No. 108-4) (“Sanders Decl.”) ¶¶ 4-8.)

28

II.

LEGAL STANDARD
–3–

13cv3136

1

Courts have an independent obligation to ensure that the attorneys’ and class

2

representative fees award, like the settlement, is reasonable. In re Bluetooth Headsets

3

Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). Where a settlement produces

4

a common fund for the benefit of the entire class, the courts have the discretion to

5

employ a “percentage of recovery method.” Id. at 942. Typically, courts calculate

6

25% of the fund as a “bench mark” for a reasonable fee award. Id. Injunctive relief

7

should generally be excluded from the value of the common fund when calculating

8

attorneys’ fees because most often the value of the injunctive relief is not measurable.

9

Staton v. Boeing Co., 327 F.3d 938, 945–46 (9th Cir. 2003).

10

The 25% benchmark rate, “although a starting point for analysis, may be

11

inappropriate in some cases.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th

12

Cir. 2002). Thus, court are encouraged to cross-check this method by employing the

13

“lodestar method” as well. In re Bluetooth, 654 F.3d at 949.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In the “lodestar method,” the Court multiplies the number of hours the
prevailing party reasonably expended by a reasonable hourly rate for the work. Id. at
941. The hourly rate may be adjusted for the experience of the attorney. Id. “Time
spent obtaining an attorneys’ fee in common fund cases is not compensable because
it does not benefit the Plaintiff class.” In re Washington Public Power Supply Sys.
Secs. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). The resulting amount is
“presumptively reasonable.” In re Bluetooth, 654 F.3d at 949. However, “the district
court . . . should exclude from the initial fee calculation hours that were not
‘reasonable expended.’” Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001)
(quoting Hensley v. Eckerhart., 401 U.S. 424, 433–34 (1983). The Court may then
adjust this presumptively reasonable amount upward or downward by an appropriate
positive or negative multiplier reflecting a whole host of reasonableness factors
including the quality of the representation, the complexity and novelty of the issues,
the risk of nonpayment, and, foremost in considerations, the benefit achieved for the
–4–

13cv3136

1

class. In re Bluetooth, 654 F.3d at 942.

2

“[I]ncentive awards that are intended to compensate class representatives for

3

work undertaken on behalf of a class are fairly typical in class actions cases” and “do

4

not, by themselves, create an impermissible conflict between class members and their

5

representative[].” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th

6

Cir. 2015). Nonetheless, the Court has obligation to assure that the amount requested

7

is fair. In re Bluetooth, 654 F.3d at 941.

8

III.

ANALYSIS

9

Turning first to the “percentage of recovery method” of recovery, the Court

10

notes that the amount requested is 25% of the overall recovery. Thus, using the

11

percentage of recovery method, the Court finds the amount requested appears

12

reasonable.

13

However, as directed, the Court cross-checks this amount by applying the

14

lodestar method. Counsel document the number of hours worked and the hourly rate

15

billed for the work. The Court finds both to be reasonable. The resulting amount of

16

$600,059.50 is “presumptively reasonable.” See In re Bluetooth, 654 F.3d at 949. In

17

this case, however, the Court finds it is appropriate to adjust this amount upward by

18

the multiplier requested. This case has been pending for three years, during which

19

time Plaintiffs’ counsel received no payment for their work. They fronted the costs,

20

faced a real risk of no recovery, and ultimately achieved a strong result for the class.

21

Therefore, the requested multiplier of 1.896 is an appropriate request.

22

checking, therefore, with the lodestar method, the Court finds the requested 25%

23

recovery is reasonable.

Cross-

24

Plaintiff also requests $17,693.46 in costs. “There is no doubt that an attorney

25

who has created a common fund for the benefit of the class is entitled to

26

reimbursement of reasonable litigation expenses from that fund.” Ontiveros v.

27

Zamora, 303 F.R.D. 356, 375 (E.D. Cal. 2014) (quotations omitted). “District courts

28

have discretion to reimburse expert witness fees if the expert’s services were ‘crucial
–5–

13cv3136

1

or indispensable’ to the action.” Rodriguez v. Farmers Ins. Co. of America, 649 F.

2

App’x 620 (9th Cir. 2016) (unpublished) (citation omitted). The Court has reviewed

3

the detailed requests and finds these amounts are reasonable and necessary.

4

Plaintiff additionally requests $874,249.20 for the costs of administering the

5

class. At the oral final settlement hearing, the Court expressed concern that the

6

originally estimated amount for administering the class had increased so

7

precipitously. Counsel explained that the originally estimated costs were based on

8

mailing to 971,000 class members. As detailed by Mr. Powell, however, because of

9

multiple addresses and the large number of “returned as undeliverable” notices, the

10

class administrator ended up mailing postcards to 1,372,443 addresses. (Powell

11

Decl.) The Court notes that the bill from the class administrator includes a much

12

higher first class postage rate of $481,821.48. (Powell Decl., Exh. D.) Although the

13

Court continues to be concerned about the increase, ultimately the Court finds the

14

requested amount is reasonable.

15

Finally, Plaintiff requests $5,000 in incentive award for named plaintiff Linda

16

Sanders. Although this amount greatly exceeds the amount awarded to each class

17

member and exceeds the amount of statutory damages, the amount is reasonable in

18

light of the amount of work Ms. Sanders expended on the case.

19

IV.

CONCLUSION

20

For the reasons stated above, the Court GRANTS Plaintiff’s Motion for

21

Attorneys’ Fees, Costs and an Incentive Award. (ECF No. 108.) The Court grants

22

Plaintiff $1,137,816.88 in attorneys’ fees, $17,693.46 in litigation costs, $874,249.20

23

in administration costs and $5,000 for the named plaintiff as an incentive award. The

24

Court authorizes that these amounts be paid from the Settlement Fund. The attorneys’

25

fees may be paid in cash and a portion in future periodic payments. The Law Offices

26

of Ronald A. Marron shall be entitled to receive its portion of the awarded attorneys’

27

fees immediately, according to the terms in the Settlement Agreement. Fees payable

28

to The Law Offices of Douglas J. Campion, APC (“Campion”), shall be paid by the
–6–

13cv3136

1

claims administrator to the assignment company upon receipt of that payment

2

pursuant to the terms of the Settlement Agreement. Campion shall receive its

3

attorneys’ fees in periodic payments according to the agreements with the assignment

4

company. Campion has no present right to payment of its attorneys’ fees. Prior to

5

the payment by the claims administrator to the assignment, Campion shall indemnify

6

and hold harmless the claims administrator.

7

administrator to execute the necessary documents to effectuate the fee deferral.

8

The Court authorizes the claims

IT IS SO ORDERED.

9
10

DATED: January 25, 2017

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
–7–

13cv3136