Anguiano v. LVNV Funding LLC et al

Filing 216

OPINION AND ORDER: GRANTING 207 MOTION for Attorney Fees by Plaintiff Mary Mitchell. The Court ORDERS the Defendants to pay Plaintiffs' attorneys' fees in the amount of $197,000. The Court NOTES that pursuant to Paragraph 14(c) of the Agreement, the Defendants delivered a check to Class Counsel, at least 10 days before the Fairness Hearing, in the amount of $197,000 to be held in trust for the purposes of paying any attorneys' fees and costs approved by the Court. Signed by Chief Judge Theresa L Springmann on 4/13/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARY MITCHELL (deceased), by her son
and next friend, RICHARD MITCHELL, and
KIMBERLY MOORE, on behalf of
themselves and all other class members,
Plaintiffs,
v.

CAUSE NO.: 2:12-CV-523-TLS

LVNV FUNDING, LLC; RESURGENT
CAPITAL SERVICES, L.P.; and ALEGIS
GROUP, LLC,
Defendants.

OPINION AND ORDER
This matter is before the Court on the Plaintiffs’ Motion for Attorney’s Fees [ECF No.
207], filed on August 13, 2019. In their Motion, the Plaintiffs seek attorneys’ fees in the amount
of $197,000 for the work that Class Counsel performed in connection with this case. For the
reasons set forth below, the Court GRANTS the Plaintiffs’ Motion.
BACKGROUND
On December 17, 2012, Beatrice Anguiano filed a Class Action Complaint [ECF No. 1]
against LVNV Funding, LLC; Resurgent Capital Services, L.P.; Alegis Group, LLC; and the
Brachfeld Law Group. On March 28, 2013, an Amended Class Action Complaint [ECF No. 31]
was filed, which added Mary Mitchell as a Plaintiff and dismissed Brachfeld Law Group as a
Defendant. On March 6, 2016, a Notice of Satisfaction of Judgment [ECF No. 60] was entered in
favor of Beatrice Anguiano against the Defendants. Beatrice Anguiano was then dismissed from
this lawsuit.

In its November 10, 2015 Order [ECF No. 88], the Court certified the Class pursuant to
Federal Rule of Civil Procedure 23(b)(3) and appointed Edelman, Combs, Latturner & Goodwin,
LLC as class counsel (“Class Counsel”). Nov. 10, 2015 Order 21, ECF No. 88. On September 13,
2018, a Notice of Settlement [ECF No. 183] was filed. On January 31, 2019, a Joint Motion for
Preliminary Approval [ECF No. 187] was filed requesting the court to preliminarily approve the
Class Settlement Agreement (“Agreement”), set dates for Class members to opt out of or object to
the settlement, schedule a hearing for final approval of the Agreement, approve the forms of notice
to the Class, and find that mailing the notices satisfies the due process requirements. Joint Mot.
Prelim. Approval 1, ECF No. 187. The parties then filed the Agreement [ECF No. 188] with the
Court on February 11, 2019. The Agreement was then amended [ECF No. 193] as directed by the
Court.
The Court, in its March 6, 2019 Preliminary Approval Order [ECF No. 194], granted
preliminary approval of the Agreement, approved the proposed Class Notices, and concluded that
the notices satisfied the requirements of due process and Federal Rule of Civil Procedure
23(c)(2)(B). Mar. 6, 2019 Order 1–3, ECF No. 194. A Fairness Hearing [ECF No. 203] was then
held on July 25, 2019, where no Class members appeared and there were no objections to the
Agreement.
On July 25, 2019, a Suggestion of Death [ECF No. 204] was filed, informing the Court that
Class Representative Mary Mitchell died sometime prior to the Fairness Hearing [ECF No. 203].
The Plaintiffs then filed an Unopposed Motion to Add Plaintiff as Additional Class Representative
[ECF No. 205] to add Kimberly Moore as a Class Representative and a Motion to Substitute and
Appoint Richard Mitchell as Special Representative of the Estate of Mary Mitchell [ECF No. 212]
to substitute Mary Mitchell with her son Richard Mitchell. Both Motions were granted by the

Court [ECF Nos. 208, 213]. As this litigation is nearing conclusion, the Plaintiffs have filed a
Motion for Attorney’s Fees [ECF No. 207]. The Defendants did not respond to this Motion and
the time to do so has passed.
STANDARD
Pursuant to Section 1692k(a)(3) of the Fair Debt Collection Practices Act (FDCPA), “any
debt collector who fails to comply with any provision of this subchapter with respect to any
person is liable to such person in an amount equal to the sum of– . . . in the case of any
successful action to enforce the foregoing liability, the costs of the action, together with a
reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). The general rule
for calculating attorneys’ fee awards under fee shifting statutes is applicable to attorneys’ fees
awards under the FDCPA. Gastineau v. Wright, 592 F.3d 747, 748–49 (7th Cir. 2010).
“Ordinarily a reasonable fee is calculated under the lodestar method by multiplying a reasonable
hourly rate by the number of hours reasonably expended on the litigation.” Thorncreek
Apartments III, LLC v. Mick, 886 F.3d 626, 638 (7th Cir. 2018) (citing Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011)); see also Owens v. Howe, 365 F. Supp. 2d
942, 946–47 (N.D. Ind. 2005) (“The starting point for determining a reasonable fee is the
lodestar, that is, the number of hours reasonably expended on the litigation multiplied by the
attorney’s reasonable hourly rate.” (citing Riter v. Moss & Bloomberg, Ltd., No 96 C 2001, 2000
WL 1433867, at *2 (N.D. Ill. Sept. 26, 2000))). “[T]he lodestar yields a presumptively
reasonable rate;” however, the court must consider whether the factors of the particular case
warrant such an award. World Outreach Conference Ctr. v. City of Chicago, 896 F.3d 779, 783
(7th Cir. 2018) (citing Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014)); see also
Thorncreek Apartments III, LLC, 886 F.3d at 638 (“[T]he lodestar figure is just the ‘starting

point.’” (quoting Estate of Enoch v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009))). “[S]ince the
district court is in a better position to evaluate such a fact-based issue,” it is afforded a high level
of deference when using the lodestar method to calculate a reasonable attorney fee. Mathur v.
Bd. of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir. 2003) (citing Spegon v. Catholic Bishop of
Chic., 175 F.3d 544, 551 (7th Cir. 1999); Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir.
1995)).
When considering the number of hours reasonably expended on the litigation, “[t]he
district court must determine whether ‘the plaintiff achieve[d] a level of success that makes the
hours reasonably expended a satisfactory basis for making a fee award.’” World Outreach
Conference Ctr., 896 F.3d at 783 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The
district court should also consider “the time and labor required, the novelty and difficulty of the
issues, the legal skill required, the reputation of the attorneys, the time burdens imposed by the
client or the circumstances, and awards in similar cases.” Owens, 365 F. Supp. 2d at 947 (citing
Hensley, 461 U.S. at 430 n.3). The “reasonable hourly rate should reflect the attorney’s market
rate, defined as ‘the rate that lawyers of similar ability and experience in the community
normally charge their paying clients for the type of work in question.’” Small v. Richard Wolf
Med. Instruments Corp., 264 F.3d 702, 707 (7th Cir. 2001) (citing Uphoff v. Elegant Bath, Ltd.,
176 F.3d 399, 407 (7th Cir. 1999)). It is fair for a court to presume that the attorney’s actual
billing rate for comparable work is appropriate to use as the market rate. Owens, 365 F. Supp. 2d
at 947 (citing People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996)).

ANALYSIS
In the instant case, the Plaintiffs have provided the Declaration of Daniel A. Edelman [ECF
No. 207-1], which contains the facts and details necessary for the Court to conduct a lodestar
analysis.
The Declaration indicates that a total of 580.18 hours of attorney and paralegal hours were
expended by Class Counsel during this litigation. Decl Daniel A. Edelman App’x G p. 62, ECF
No. 207-1. The Court has reviewed the time entries submitted by the Plaintiffs and notes that the
Defendants have not objected to the Plaintiffs’ submissions. When determining whether 580.18
hours is reasonable, the Court’s first considers the factors detailed above, with the level of success
achieved being the chief consideration. In an FDCPA Class Action lawsuit, the Class may recover
“any actual damage sustained by such person as a result of [the violation]” and additional damages
as the court may allow. 15 U.S.C. § 1692k(a). The Agreement states that “based on Defendants’
records, of the 5,600 Class Members, approximately 2,317 individuals made payments, totaling
approximately $83,500.32 on the debts at issue . . . .” Agreement § 9, ECF No. 188. Despite only
suffering $83,500.32 in monetary damages, the Agreement results in a Class Settlement Fund of
$144,100.00. Agreement § 10. Based on this, the Court concludes that Class Counsel obtained a
level of success that makes the hours reasonably expended a satisfactory basis for making a fee
award. See World Outreach Conference Ctr., 896 F.3d at 783. The Court also concludes that it is
reasonable that Class Counsel expended 580.18 attorney and paralegal hours when considering the
duration of the litigation (approximately 8 years), the difficulty of assembling and certifying a
Class, and the reputation of Class Counsel as experienced class action and consumer protection
attorneys.

The Declaration also includes information concerning the usual rates charged by each of
the attorneys and paralegals that Class Counsel utilized throughout this litigation. The usual rates
are as follows:
a. Daniel Edelman, Cathleen Combs, and James Latturner (partners): $700 an hour;
b. Tara Goodwin (partner): $600 an hour;
c. Julie Clark (partner): $500 an hour;
d. Heather Kolbus (partner): $500 an hour:
e. Cassandra P. Miller (partner): $450 an hour;
f. Tiffany N. Hardy (partner): $450 an hour;
g. Associates: $230 to $250 an hour;
h. Paralegals $100-$125 an hour (based upon experience).
Decl. Daniel A. Edelman ¶ 40. As these rates are the attorneys’ actual billing rates for similar
litigation services, it is presumed that the rates are reasonable. See Pickett, 664 F.3d at 640 (citing
Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)). This presumption is supported by a number
of cases, cited in the Declaration, where Class Counsel’s rates were deemed reasonable at the
district court level. See Decl. Daniel A. Edelman ¶¶ 35–39 (citing cases). This presumption is
further supported by the USAO Attorney’s Fees Matrix 2015-2020, which suggests that the rates
charged by Class Counsel are comparable to what the United States Attorney’s Office for the
District of Columbia have deemed to be reasonable. USAO Attorney’s Fees Matrix 2015-2020.1

1
The Court notes that the USAO Attorney’s Fees Matrix is generally only used in the District of Columbia. However,
the matrix is still a useful resource for determining whether attorneys’ fees are reasonable outside of the District of
Columbia, especially in similarly situated metropolitan areas, such as the Chicago metropolitan area where this Court
is located. Moore v. Midland Credit Mgmt., Inc., 3:12-CV-166, 2012 WL 6217597, at *3 (N.D. Dec. 12, 2012) (“[T]he
Court finds that consideration of . . . the Laffey Matrix is appropriate.” (citing cases in support)).

Finally, these rates are reasonable because, as explained below, the Plaintiffs are not attempting to
recover the entire lodestar amount and the Defendants do not oppose an award of attorneys’ fees.
The Declaration represents that, based on the above figures, the lodestar amount is
$244,137.50, which does not include costs or certain expended hours that have been intentionally
excluded. Decl. Daniel A. Edelman App’x G p. 48.2 Regardless, the Plaintiffs have only requested
$197,000 in attorneys’ fees because the Agreement specifically states that: “Counsel for Plaintiffs
and the [Class] shall petition the Court for approval of attorneys’ fees and costs in the agreed upon
amount of $197,000.00. Defendants shall pay counsel for Plaintiff that amount of attorneys’ fees
and costs awarded by the Court not to exceed $197,000.00.” Agreement ¶ 12. Notably, this amount
is approximately $50,000 less than the lodestar amount.
By considering both the lodestar calculation and the Agreement, the Court concludes that
$197,000 is a reasonable fee because it is the amount agreed upon by the parties and it less than
the fee yielded by the lodestar method. The Court reaches this conclusion despite the fact the
attorneys’ fees recovered will be greater than the damages recovered on behalf of the Class. Having
carefully considered the issue, the Court has determined that, due to the length of the litigation and
the limitations on damages imposed by the FDCPA, the requested attorneys’ fees are reasonable.
See Lamarr v. Montgomery Lynch and Assocs., Inc., No. 1:18-CV-185, 2019 WL 912171, at *1
(N.D. Ind. Feb. 25, 2019) (“The Seventh Circuit has stated that district court orders should
‘evidence increased reflection before awarding attorney’s fees that are large multiples of the
damages recovered or multiples of the damages claimed.’” (quoting Moriarty v. Svec II, 233 F.3d
955, 968 (7th Cir. 2001))).

2

The Court notes that the Declaration indicates that the time Class Counsel spent preparing for and at the Fairness
Hearing and all time expended by Class Counsel after the Fairness Hearing are not included in this amount and that
Class Counsel is not attempting to recover attorneys’ fees for this time. Mot. Attorney Fees ¶ 14, ECF No. 207.

CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiffs’ Motion for Attorney’s
Fees [ECF No. 207]. The Court ORDERS the Defendants to pay Plaintiffs’ attorneys’ fees in the
amount of $197,000. The Court NOTES that pursuant to Paragraph 14(c) of the Agreement, the
Defendants delivered a check to Class Counsel, at least 10 days before the Fairness Hearing, in the
amount of $197,000 to be held in trust for the purposes of paying any attorneys’ fees and costs
approved by the Court.
SO ORDERED on April 13, 2020.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT