Tripp v. Berman & Rabin, P.A. et al

Filing 87

MEMORANDUM AND ORDER granting in part 80 Motion for Attorney Fees and Reimbursement of Expenses and Costs. The court awards fees of $85,205.00 and costs of $1,406.68. See Order for details. Signed by District Judge Daniel D. Crabtree on 5/25/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARY TRIPP,
Plaintiff,
v.
Case No. 14-cv-2646-DDC-GEB
BERMAN & RABIN P.A. and
VELOCITY INVESTMENTS, LLC,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff and the class’s Motion for Attorney Fees
and Reimbursement of Expenses and Costs. Doc. 80. Defendants filed a Response (Doc. 83),
and plaintiff and the class replied (Doc. 86). The court grants the Motion, in part, as explained
below.
I.

Background
On January 9, 2017, the court entered an order granting plaintiff’s Motion for Final

Approval for Class Settlement (Doc. 82). This settlement resolved plaintiff’s lawsuit to remedy
the defendants’ alleged violation of the Fair Debt Collection Practices Act (“FDCPA”). Plaintiff
alleged that Velocity Investments, LLC, and the law firm it hired to collect their debts, Berman
& Rabin, LLC, violated the FDCPA by sending plaintiff and other Kansas residents a form debt
collection letter that did not specify the amount of debt it sought to collect. Plaintiff filed this
lawsuit after defendants filed a collection suit against her in Kansas state court. Defendants
removed the case to this court in December 2014. Discovery ensued. The parties litigated class
certification, and the court certified the class on September 29, 2015. The parties soon settled.

1

Over the next month or so, class counsel negotiated and drafted the required settlement
papers. This work included drafting a settlement agreement, a short notice form to mail to class
members, a claim form, and a longer settlement notice to post on class counsel’s website. Class
counsel also prepared a motion seeking preliminary approval of the settlement, and the court
granted it on July 6, 2016.
Next, class counsel prepared for the final settlement approval hearing. This court held
the hearing on December 15, 2016. And, on January 9, 2017, the court approved the final
settlement. The final settlement required defendants to pay $8,500 to the Claims Administrator.
The Claims Administrator will pay $2,000 to plaintiff and distribute the rest pro-rata to the class
members submitting valid, timely claims.
The FDCPA caps the statutory damages recoverable for successful plaintiffs. See 15
U.S.C. § 1692k(a)(2)(B)(i) (capping the named plaintiff’s damages at the lesser of $500,000 or
1% of the debt collector’s net worth); see also § 1692k(a)(2)(B) (limiting the class members’
damages to their pro rata share of the lesser of $500,000 or 1% of the debt collector’s net worth).
In short, the parties’ settlement agreement awarded plaintiff and the class more than they would
have recovered under the maximum statutory damages.
The FDCPA provides that in a successful action, the court should award reasonable
attorneys’ fees in relation to the work and costs expended. Plaintiff and the class are prevailing
parties, and class counsel now seeks $103,965.00 in fees1 and $1,406.68 in costs.
II.

Legal Standard
Fed. R. Civ. P. 23(h) provides: “In a certified class action, the court may award

reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’
agreement.” The FDCPA mandates reasonable attorney fees for successful litigants. 15 U.S.C.
1

In addition to $103,965.00, class counsel also seeks the fees incurred briefing the attorney fee issue.

2

§ 1692(k). The district court has broad authority over awards of attorney fees. Law v. Nat’l
Collegiate Athletic Ass’n, 4 F. App’x 749, 751 (10th Cir. 2001). “A determination of a
reasonable attorney’s fees award begins with calculating the ‘lodestar,’ that is, ‘the reasonable
number of hours spent on litigation multiplied by a reasonable hourly rate.’” Weaver v. JTM
Performant Recovery, Inc., No. 13-cv-2408-JTM, 2014 WL 4843961, at *4 (D. Kan. Sept. 29,
2014). The party requesting attorney fees bears the burden to prove the amount of hours spent
on the case and the appropriate hourly rates. United Phosphorus, Ltd. v. Midland Fumigant, Inc.,
205 F.3d 1219, 1234 (10th Cir. 2000). “The focus must be on the ‘prevailing market rate in the
relevant community.’” Id. (quoting Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th
Cir. 1998)). Indeed, the Tenth Circuit has held that a “district court abuses its discretion when it
ignores the parties’ market evidence and sets an attorneys hourly rate using the rates it
consistently grants.” Id.
“Once an applicant has met this burden, the lodestar figure is presumed to be a reasonable
fee.” Weaver, 2014 WL 4843961, at *4 (citing Robinson v. City of Edmond, 160 F.3d 1275,
1281 (10th Cir. 1998)). But, the court may adjust the lodestar “to account for the factors set
forth in the Kansas Rules of Professional Responsibility.” Id. (citing Davis v. Miller, 7 P.3d
1223, 1236 (Kan. 2000)). These eight factors consist of the following:
(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly; (2) The likelihood, if apparent to the client, that
the acceptance of the particular employment will preclude other
employment by the lawyer; (3) The fee customarily charged in the
locality for similar legal services; (4) The amount involved and the
results obtained; (5) The time limitations imposed by the client or
by the circumstances; (6) The nature and length of the professional
relationship with the client; (7) The experience, reputation, and
ability of the lawyer or lawyers performing the services; and (8)
Whether the fee is fixed or contingent.

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Id. (citing Kan. R. Prof’l Conduct, 1.5(a)); see also Sheldon v. Vermonty, 237 F. Supp. 2d 1270,
1279 (D. Kan. 2002). With this standard in mind, the court analyzes plaintiff and class counsel’s
request for $103,965.00 in attorney fees and $1,406.68 in costs.
III.

Analysis
A. Calculating the Lodestar Amount
Class counsel calculates their proposed fee using the hours and rates described in

declarations from Keith Keogh and A.J. Stecklein, two of the lead attorneys on plaintiff’s side of
the caption. Doc. 81 at 7; see also Doc. 80-3, Doc. 80-4. Defendants oppose the figures used to
reach class counsel’s proposed fee for a variety of reasons. These conflicting positions and the
arguments advanced for each one are discussed in the following analysis.
1. Hours incurred by class counsel
“Counsel for the party claiming the fees has the burden of proving hours to the district
court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for
whom fees are sought, all hours for which compensation is requested and how those hours were
allotted to specific tasks.” Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d
1243, 1250 (10th Cir. 1998). As support for their requested fee, class counsel submitted
declarations from Mr. Keogh and Mr. Stecklein. Doc. 80-3, Doc. 80-4. Mr. Keogh and Mr.
Stecklein attached detailed billing records to their declarations. The records identify,
specifically, the hours class counsel devoted to the case, as well as law clerks, associates, and
paralegals, the specific tasks each completed for the case, and the number of hours they devoted
to each task. See Doc. 80-3 at 28–66; Doc. 80-4 at 7–10.
Defendants contend class counsel’s hours reflect hours spent on unnecessary, duplicative,
and excessive tasks. Defendants assert class counsel has failed to exercise “billing judgment.”

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Case, 157 F.3d at 1250. “Billing judgment consists of winnowing the hours actually expended
down to the hours reasonably expended.” Id. Defendants’ Opposition discusses where it
believes class counsel has failed to “winnow[ ] the hours.” The court addresses each challenge
presented by defendants’ arguments.
a. Excessive Billing Entries
Defendants assert class counsel’s billing records reflect that Mr. Keogh billed 3.3 hours
for tasks that were “unnecessary and excessive.” Doc. 83 at 5. Specifically, defendants contend
Mr. Keogh billed excessive hours: (1) reviewing emails between Mr. Hilicki, a paralegal, and
Mr. Stecklein (0.8 hours); (2) drafting or reviewing emails about defendants’ motion for an
extension of time to file their Response to class counsel’s Motion to Compel Fees (0.7 hours);
(3) reviewing emails about Mary Tripp’s notice (0.3 hours); (4) reviewing emails about a credit
charge pertaining to costs of mailing class member notices (0.3 hours); reviewing emails about
the local rules for filing a Motion to Compel (0.5 hours); and, (5) reviewing emails from the
counsel and court clerk about setting a conference call (0.7 hours). See Doc. 83 at 5–7; see also
Doc. 80-3 at 32–33, 35–36. These challenges total 3.3 of the 59.8 hours Mr. Keogh incurred in
the case.
The only excessive entries defendants identify are those involving Mr. Keogh’s email
activities. But Mr. Keogh represents that he removed the 42.9 hours he spent reviewing all
emails—including the 3.3 hours that defendants challenge here—from the total hours used to
calculate the lodestar figure. Doc. 80-3 at 5 (Keogh Dec. ¶ 11). Mr. Keogh also asserts that the
remaining 16.9 hours for which he seeks compensation consists of necessary activities “such as
communicating with [d]efendants’ counsel, drafting the proposed protective order the Court
entered, analyzing [d]efendants’ net worth data, preparing for and attending a conference with

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the [c]ourt, communicating with co-counsel about case strategy and legal issues, and giving input
into briefs.” Doc. 86 at 3. Class counsel’s records on these entries are meticulous, and
defendants challenged none of them. See Doc. 80-3 at 28–66; see also Doc. 83. Because
counsel removed the 3.3 hours that defendants challenge from the lodestar calculation,
defendants’ argument about excessive billing entries for email is not persuasive.
b. Duplicative Entries
Defendants also assert class counsel’s billing records “reflect 1.2 hours in duplicative
time entries.” Doc. 83 at 7. Specifically, defendants claim Mr. Keogh billed duplicative entries:
(1) in two separate entries for August 29, 2016, for reviewing an “email from MSH re conferring
with OC on Mot to compel time records” (0.2 hours); (2) in two separate entries for November 5,
2015, for an “Email to MSH re mediation w/ Magistrate (0.2 hours); (3) in two separate entries
for August 25, 2015, for “Email from Cindy Walters with Combined Rogs and RFPs” and
“Email from Cindy Walters with first Rogs and RFPs to Plaintiff” (0.2 hours total); (4) in two
separate entries for August 31, 2015, for “Email from Cindy Walters with Expert Witness
Disclosure” and “Email from Cindy Walters with Ds Responses to First Discovery” (0.2 hours
total); (5) for two separate entries on May 26, 2015, for “Email from Cindy Walters with Ds
Responses to First Discovery (0.2 hours total); and, (6) in two separate entries for January 31,
2015, for “Email from AJ re agreeing to extension” and “Email from AJ re approval for
extension” (0.2 hours total). See Doc. 80-3 at 37, 50, 53, 54, 62.
All of these allegedly duplicative entries, however, describe time Mr. Keogh spent
reviewing emails. Again, class counsel adequately has explained that it already removed these
entries from the figure they have used to calculate the lodestar amount. Defendants’ argument
about duplicative billing entries is not persuasive.

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c. Hours Billed Attending Mediation and the Fairness Hearing
Finally, defendants object to class counsel billing a total of 26 hours for two attorneys to
travel to and attend the mediation. Individually, Mr. Stecklein billed 12 hours attending the
mediation, and Mr. Hilicki billed 14 hours. Defendants assert class counsel failed to demonstrate
why it was necessary for both Mr. Stecklein and Mr. Hilicki to attend, or why it was necessary
for counsel to appear in person rather than by phone. To support this position, defendants point
to the combined 39 years of consumer class action experience between Mr. Stecklein and Mr.
Hilicki, and assert either attorney was qualified to handle the mediation on his own. And,
defendants emphasize only one attorney represented defendants at the mediation.2
In their Reply, class counsel asserts it was not duplicative for Mr. Stecklein and Mr.
Hilicki both to attend the mediation and fairness hearing. Class counsel asserts Mr. Hilicki took
the lead representing the class at both proceedings, but his appearance was pro hac vice. Class
counsel asserts Mr. Stecklein attended to comply with D. Kan. Rule 5.4.2, which requires
“meaningful participation by local counsel” with attorneys admitted pro hac vice.
Starting with the mediation-based aspect of this objection, class counsel submits that it
was necessary for both Mr. Stecklein and Mr. Hilicki to appear in person because telephone
attendance reduces the effectiveness of the mediation process. Class counsel also cites a Middle
District of Florida case where the court required personal attendance at mediation conferences
because “it strongly believes that mediation conferences are most effective when attended
personally, rather than telephonically.” Dodd v. Matthews, No. 8:12-cv-2054-T-33TGW, 2013
WL 3491167, at *2 (M.D. Fla. July 10, 2013).

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Doc. 64 recites that Mr. Larson and Mr. Meyer attended the mediation on November 18, 2015. The court
has confirmed that Mr. Meyer served as defendants’ representative with settlement authority during the mediation.
Mr. Larson thus represented the only attorney who attended the mediation for defendants.

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Our court values personal participation as well. But this principle doesn’t really answer
the objection lodged by defendants here. For defendants’ claim is that plaintiff’s counsel overbilled by dispatching two of their four lawyers of record to the mediation session led by Judge
Birzer.
Our local rule doesn’t bring much clarity to this issue.3 It defines the lawyers who must
appear, in person, for a court referred mediation session. “The parties’ attorney(s) responsible
for resolution of the case must also be present.” D. Kan. Rule 16.3(c)(2). This standard, though
clear in the abstract, is a challenging one to apply to the current circumstances. Did our rule
require both Mr. Stecklein and Mr. Hilicki to attend the mediation sessions? It did if both
were—in the words of our rule— “responsible for resolution.”
As the lawyers seeking the fee award, class counsel bears the burden to prove the
reasonableness of the fee award requested. United Phosphorus, Ltd., 205 F.3d at 1234. See also
Ramos v. Lamm, 713 F.2d 546, 554 n.4 (10th Cir. 1983) (“the presence of more than two lawyers
during trial or the presence of more than one lawyer at depositions and hearings must be justified
to the court.”). The motion and supporting papers never establish that both lawyers were
“responsible for resolution of the case.” D. Kan. Rule 16.3(c)(2). So this part of class counsel’s
rationale is unpersuasive.
This conclusion does not decide the bigger questions, i.e., does a reasonable fee award
encompass both Mr. Hilicki and Mr. Stecklein’s attendance at the mediation? This decision
presents a close question and some circumstances favor each side of the argument. For instance,
Judge Gwyne Birzer, the magistrate judge assigned to the case, led the mediation session in this
3

See e.g., Turner v. Young, 205 F.R.D. 592, 595 (D. Kan. 2002). In that case, Judge O’Hara ruled that D.
Kan. Rule 16.3 requires attendance, at mediation sessions led by a private mediator, “by a party representative with
settlement authority.” Id. Judge O’Hara also explained what “attendance” means and does not mean: it means a
person with settlement authority must “appear in person and participate directly, not to stand by or participate by
telephone.” Id.

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case. And she conducted it in the United States Courthouse in Wichita. The court thus
understands why Mr. Stecklein viewed attendance at this session within his local counsel duty of
“meaningful participation.” D. Kan. Rule 5.4.2.
Still, should defendants bear the financial burden of plaintiff’s decision to retain out-ofstate counsel to prosecute her claims? Or the burden of that lawyer’s decision to accept and file
a case in a forum where he was not admitted to practice? On the precise circumstances presented
here, the court concludes that defendant should not pay for decisions made by plaintiff and class
counsel. Based on its exposure to Mr. Hilicki in this case and its larger familiarity with Mr.
Stecklein, the court perceives both as able, sophisticated, and experienced consumer lawyers
with meaningful class action experience. Each one is capable of handling a mediation session by
himself—as defendants’ counsel did in this case—particularly in a case where the total recovery
for the plaintiff class amounted to $8,500. See Doc. 64. And if some issue or problem had
arisen that required the special skills of the other, Mr. Hilicki or Mr. Stecklein could have
solicited that assistance by telephone. That approach is far more efficient and thus more nearly
serves the aims of our rules. See Fed. R. Civ. P. 1. The court thus reduces Mr. Stecklein’s hours
by 12, the amount attributed to Mr. Stecklein’s participation in the case’s mediation session.
The fairness hearing, however, is a different matter. It was a formal, on-the-record
hearing conducted in open court. From its own participation and observation in this hearing, the
court knows that Mr. Hilicki and Mr. Stecklein both contributed meaningfully to the class’
preparation and presentation. Also, this is the kind of hearing that local counsel customarily
would attend. The court thus overrules defendants’ objection to the fee request based on both
lawyers’ participation in this installment of the case.

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2. Hourly Rates
Defendants next urge the court to reduce Mr. Keogh, Mr. Hilicki, and Mr. Stecklein’s
hourly rates. Defendants claim class counsel has failed to carry its burden to show that the court
should award out-of-state rates in this case.
The court has discretion to set a reasonable hourly rate. Jane L. v. Bangerter, 61 F.3d
1505, 1510 (10th Cir. 1995). “Hourly rates must reflect ‘the prevailing market rates in the
relevant community.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Local fee rates
should be applied, unless the subject of the litigation is “so unusual or requires” special skills
that “only an out-of-state lawyer possesses.” Id.
Class counsel submits their rates for this case are: (1) $600 per hour for senior attorneys
Mr. Keogh and Mr. Hilicki; (2) $400 per hour for senior attorney Mr. Stecklein; (3) $275 per
hour for associate Katherine Bowen; (4) $200 per hour for first-year associate Matthew
Robertson; and, (5) $175 per hour for paralegals.
Defendants contend that class counsel have failed to make a clear showing that out-ofstate rates should apply. While defendants have not proposed what reasonable fees might be,
they urge the court to reduce plaintiff’s rates using relevant factors to determine a reasonable
rate. The court addresses the proposed rates for the attorneys, below.
a. Senior Attorneys Mr. Keogh, Mr. Hilicki, and Mr. Stecklein
Class counsel requests an hourly rate of $600 for Mr. Keogh and Mr. Hilicki, and $400
for Mr. Stecklein. Class counsel has tried to support their requested fees with evidence of rates
awarded to counsel with less experience. See Koehler v. Freightquote.com, Inc., No. 12-2505DDC-GLR, 2016 WL 3743098, at *1 (D. Kan. July 13, 2016) (finding that a $400 “blended” rate
for attorneys was reasonable—though on the high end—for calculating the lodestar in a local

10

Fair Labor Standards Act case for an attorney with ten years’ experience and his associates with
similar experience); see also Weaver, 2014 WL 4843961, at *12 (finding an hourly rate of $275
was reasonable for an attorney with five years’ experience in FDCPA cases). This argument
doesn’t help justify the fee application at issue here. A $400 “high end” award doesn’t do much
to justify a $600 per hour rate request.
Class counsel next relies on the Laffey Matrix, which purportedly represents reasonable
fees in the D.C.-Baltimore area. See http://www.laffeymatrix.com/see.html (visited Apr. 28,
2017). The Laffey Matrix assigns attorney fee rates by the attorney’s year out of law school.
Under this matrix, Mr. Hilicki and Mr. Stecklein’s hourly rate is $826, Mr. Keogh’s hourly rate
is $685, and Ms. Bowen’s hourly rate is $421. But whatever are the reasonable rates in
Washington and Baltimore, the court must determine the appropriate hourly rate for lodestar
purposes by referring to “the prevailing market rates in the relevant community.” Wilkinson v.
I.C. Sys., Inc., No. 09-2456-JAR, 2011 WL 5304150, at *3 (D. Kan. Nov. 1, 2011). In
determining the prevailing market rate, the court may “use other relevant factors, including its
own knowledge, to establish the rate.” Id. Here, the court, in its discretion, determines that a
$400 hourly rate better reflects the prevailing market rate—indeed, a rate on the high end—for
senior attorneys in the Kansas City area. The court finds $400 to be a reasonable hourly rate for
senior attorneys Mr. Hilicki, Mr. Keogh, and Mr. Stecklein.
Class counsel also asserts that their proposed rates account for the contingency-risk and
delay in payment. Doc. 81 at 14. Class counsel contends their rates are justified because they
risked earning no fees for their work and losing out-of-pocket expenses they advanced in
addition to waiting more than two years to receive compensation. But these risks are not
something the court considers to calculate the lodestar amount. See Hensley v. Eckerhart, 461

11

U.S. 424, 434 (1983) (explaining that after calculating the “product of reasonable hours times a
reasonable rate, [the lodestar],” other considerations may lead the court to “adjust the fee upward
or downward.”). The court will use a $400 hourly rate to calculate the portion of the lodestar for
hours billed by Mr. Hilicki, Mr. Keogh, and Mr. Stecklein.
b. Associates and Paralegals
Defendants do not specifically challenge Ms. Bowen or Mr. Robertson’s proposed hourly
rate of $275 and $200, respectively. Nor do defendants challenge the proposed paralegal rate of
$175 per hour. And, as discussed above, defendants have not provided the court with any
evidence about what rates might be reasonable for the associates and the paralegals. The court
finds these rates are reasonable, and uses them to calculate the lodestar amount. See Wilkinson,
2011 WL 5304150, at *3 (finding that $290 per hour is reasonable in the Kansas City area for
lawyers with seven to ten years’ experience and $125 per hour is reasonable for paralegals).
3. Additional Hours
Class counsel asserts that the court should award them the hours incurred preparing their
Reply in addition to their hours litigating and settling the case. Class counsel represents that the
hours class counsel incurred are: (1) Mr. Hilicki (14.9 hours); (2) Mr. Stecklein (2.0 hours); and,
(3) Mr. Robertson (12.6 hours). Class counsel submitted declarations and timesheets with their
Reply. Class counsel contends that they would not have incurred these additional hours if
defendants had been willing to negotiate a settlement of the fee and cost award (which plaintiff
reportedly offered, and defendants refused, preferring instead to brief the issue). Class counsel
asserts the court should include these additional hours it incurred researching and drafting the
Reply to defendants’ Opposition in the lodestar amount. The court agrees, and calculates the
lodestar amount below.

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4. Lodestar Calculation
The court calculates the lodestar as follows:
Counsel

Hours

Rate

Total

Mr. Keogh (senior
attorney)
Mr. Hilicki (senior
attorney)
Mr. Stecklein (senior
attorney)
Ms. Bowen
(associate)
Mr. Robertson (law
clerk)
Mr. Robertson (first
year associate)
Monika Swiencinski
(paralegal)
Matthew Seckel
(paralegal)
Anne Lamoy
(paralegal)

16.9 4

$400

$6,760

108.9

$400

$43,560

43.65

$400

$17,440

5.1

$275

$1402.50

6.8

$100

$680

20

$200

$4,000

2.1

$175

$367.50

8.3

$175

$1,452.50

1.5

$175

$262.50
Total: $75,925

Additional hours spent preparing attorney fee memoranda
Mr. Hilicki (senior
attorney)
Mr. Stecklein (senior
attorney)
Mr. Robertson (first
year associate)

14.9

$400

$5,960

2.0

$400

$800

12.6

$200

$2,520
Total: $9,280

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This reflects Mr. Keogh’s billing entries after removing 42.9 hours reviewing emails.

5

Mr. Stecklein submitted 55.6 hours for the time he spent working on the case. The court reduces the
amount of time Mr. Stecklein devoted to traveling to and attending the mediation hearing (12 hours) and calculates
his portion of the lodestar using 43.6 hours. See part A.1.c., supra; see also Doc. 80-4 at 7.

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5. Adjustment
The court calculates the lodestar amount as $85,205. But, the “product of reasonable
hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434. The court
may adjust the fee upward or downward based on other considerations. Id. Here, the court
considers the factors outlined in the Kansas Rules of Professional Conduct.
The fourth factor, which considers the “amount involved and the results obtained,” seems
particularly relevant in this case. Here, class counsel seeks a high attorney fee award compared
to the settlement. While the court recognizes that class counsel negotiated a favorable settlement
for plaintiff and the class, the $8,500 settlement seems incongruous with such high attorney fees.
From the start of the case, defendants’ net worth significantly limited the amount recoverable
under the statute.
On the other hand, the Seventh Circuit has held that “[p]aying counsel in FDCPA cases at
rates lower than those they can obtain in the marketplace is inconsistent with the congressional
desire to enforce the FDCPA through private actions, and therefore misapplies the law.”
Tolentino v. Friedman, 46 F.3d 645, 653 (7th Cir. 1995). Indeed, the Third Circuit has stated:
Congress provided fee shifting to enhance enforcement of
important civil rights, consumer-protection, and environmental
policies. By providing competitive rates we assure that attorneys
will take such cases, and hence increase the likelihood that the
congressional policy of redressing public interest claims will be
vindicated.
Id. (quoting Student Pub. Interest Research Grp. v. AT&T Bell Labs., 842 F.2d 1436, 1449 (3d
Cir. 1988)).
Defendants contend that the disparity between the settlement amount and the requested
fee justifies a downward adjustment. The proposed fee award is ten times more than the
settlement amount. However, in Wilkinson, our court approved an attorney fee award of
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$18,386.00 in an FDCPA case that settled for $1,000. Wilkinson, 2011 WL 5304150, at *4. The
attorney fee in that case was 18 times more than the settlement.
At some level, a disparity between the class recovery and the lodestar calculation
certainly would warrant a reduction from the lodestar amount. But where that disparity results,
at least in part, from a defendants’ demonstrated decision to defend the case aggressively, it is
less likely to justify a lodestar reduction. Here, the record shows defendants litigated the case
aggressively. They opposed class certification, as was their right. But such strategic decisions
can create a disparity and when they do, they largely nullify the arguments for a lodestar
reduction.
The court thus declines to reduce the attorney fees in this case to make them more nearly
commensurate with plaintiff and the class’ recovery. See also Wilkinson, 2011 WL 5304150, at
*4 (recognizing that in some cases courts reduce the award of attorneys’ fees in proportion to the
damages obtained, but this is not necessarily true in consumer protection actions).
B. Costs
“Unless a federal statute, these rules, or a court order provides otherwise,” the court
should award costs to the prevailing party. Fed. R. Civ. P. 54(d)(1). Class counsel seeks
reimbursement for its out of pocket costs including filing fees (original and pro hac vice) for
$275, and travel expenses (airfare, hotel, and transportation for the mediation and fairness
hearing) for $1,131.68. In total, class counsel seeks $1,406.68 in costs. The court finds these
costs are reasonable and awards them to class counsel as the prevailing party.
Total costs: $1,406.68

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IV.

Conclusion
For the reasons discussed above, the court grants in part plaintiff and the class’s motion

for attorney fees. The court awards fees of $85,205 and costs of $1,406.68.
IT IS THEREFORE ORDERED THAT plaintiff and the class’s Motion for Attorney
Fees and Reimbursement of Expenses and Costs (Doc. 80) is granted according to the terms
adopted in this Order.
IT IS SO ORDERED.
Dated this 25th day of May, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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