Brenner v. J.C. Penney Company, Inc.

Filing 38

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER re: 16 MOTION for Attorney Fees and Costs by Jacqueline Brenner.(RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11212-RGS
JAQUELINE BRENNER,
on behalf of herself and all others similarly situated
v.
J.C. PENNEY COMPANY, INC.
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES
December 26, 2013
STEARNS, D.J.
This matter is before the court on lead plaintiff Jacqueline Brenner’s
motion for attorney’s fees and costs, requesting $450,000 in fees for law firm
class counsel Meiselman, Packman, Nealon, Scialabba, & Baker P.C.
(Meiselman Packman).1 Defendant J.C. Penney Company, Inc. (J.C. Penney),
while agreeing that class counsel is entitled to a “reasonable fee,” opposes the
request, arguing that it is unreasonable, given the straightforward nature of
the underlying litigation.
BACKGROUND
On May 17, 2013, Brenner filed this Complaint against J.C. Penney,

1

Meiselman Packman also sought $8,802.33 in costs, which was
awarded in full on October 10, 2013.

alleging that its retail stores had unlawfully gathered customer ZIP codes in
connection with credit card purchases, and had used those ZIP codes for
“intrusive marketing purposes” in violation of a Massachusetts privacy statute,
Mass. Gen. Laws ch. 93, § 105(a). This case is one of a number of ZIP code
class actions filed in this district by Meiselman Packman, and it is the third in
which Brenner appears as the named plaintiff.2
Legal Landscape of Section 105(a)
Section 105(a) of the General Laws provides that, when accepting
payments by credit card, a merchant shall not “write, cause to be written or
require that a credit card holder write personal identification information, not
required by the credit card issuer, on the credit card transaction form.” Mass.
Gen. Laws ch. 93, § 105(a). On March 11, 2013, the Massachusetts Supreme

2

See Brenner v. Kohl’s, Case No. 13-cv-10935-RGS (filed on April 15,
2013), and Brenner v. Williams Sonoma, Case No. 13-cv-10931-MLW (filed
on April 16, 2013). The other Meiselman Packman ZIP code cases pending in
this district of which the court is aware at this time are: Tyler v. Bed Bath &
Beyond, Inc.,Case No. 13-cv-10639-WGY (filed on March 20, 2013) (now
consolidated with Whiting v. Bed Bath & Beyond, Inc.); Monteferrante v.
Restoration Hardware Holdings, Inc., Case No. 13-cv-10932-MLW (filed on
April 15, 2013); Monteferrante v. The Container Store, Inc., Case No. 13-cv11362-RGS (filed on June 6, 2013). The first of the ZIP code cases, Tyler v.
Michael Stores Inc., Case No. 11-cv-10920-WGY, was filed on May 23, 2011,
and is the case that was reviewed by the SJC on questions certified by Judge
Young.
2

Judicial Court (SJC) held that a ZIP code constitutes personal identification
information for purposes of § 105(a), and that a plaintiff may bring a privacy
violation action without any allegation of a monetized loss.3 Tyler v. Michaels
Stores Inc., 464 Mass. 492 (2013). The SJC reasoned that section 105(a) was
“intended primarily to address invasion of consumer privacy by merchants,
not identify fraud.” Id. at 501. Meiselman Packman continues to represent
Melissa Tyler in the ongoing litigation before Judge Young.
Within days of the March 11, 2013 SJC decision, Meiselman Packman,
on behalf of a stable of named plaintiffs (including Brenner) mailed a series
of Chapter 93A (the Massachusetts Consumer Protection Act) demand letters
to various Massachusetts retailers, including J.C. Penney, Kohl’s and
Williams-Sonoma.4 In this case, a settlement was mediated prior to the
Complaint being filed. (The notice of settlement was filed on the same day as

3

The Court hypothesized that, in such cases, the two potentially
intangible injuries might be: (a) usage of the ZIP code derived information for
direct marketing (and the subsequent receipt of unwanted mail); and/or (b)
sale of the information. The Court acknowledged that these types of harms
are often not quantifiable, but could suffice as cognizable harm for purposes
of the statute, resulting in nominal statutory damages of$25.
4

For its part, J.C. Penney notes that it stopped asking customers for ZIP
codes in its stores on April 13, 2013. Brenner sent notice to J.C. Penny of her
intent to file this class action complaint on March 15, 2013.
3

the Complaint).

Immediately after filing the Complaint, Brenner filed a

motion for preliminary class certification and for approval of the settlement.
The only issue since litigated has been that of attorney’s fees.
Jurisdiction
The assertion of diversity subject matter jurisdiction under the Class
Action Fairness Act of 2006, 28 U.S.C. § 1332(d)(2), is not disputed.
Terms of the Class Settlement Agreement
Monetary Component: The settlement provided $25 J.C. Penney gift
certificates to the 100,100 class members in sub-class one and $10 gift
certificates to the 104,911 class members in sub-class two.5 Class members
received the certificates by direct mail along with notice of the settlement.
No Admission of Wrongdoing: In the agreement, J.C. Penney expressly
denied the allegations that anyone in the class had been damaged “in any sum
whatsoever” and denied that Brenner or anyone in the class was “entitled to
any relief.” Provision 5.1 of the agreement specifically states that there is no
admission of liability or wrongdoing on the part of J.C. Penney.

5

Sub-class one consisted of class members from whom J.C. Penney had
collected ZIP codes for the first time during a transaction after March 10,
2009, while sub-class two consisted of persons from whom J.C. Penney had
collected a ZIP code prior to March 10, 2009, and then again after March 15,
2009.
4

Choice of Law: Section 5.12 of the agreement states that it was entered
into “in accordance with the laws of the Commonwealth of Massachusetts and
shall be governed and interpreted in accordance with the laws of the
Commonwealth of Massachusetts without regard to its conflict of law
principles.”
Attorney’s Fees: Section 2.5 of the agreement notes that the parties
could not reach an agreement on the amount of attorney’s fees and costs to be
paid by J.C. Penney, and provides that class counsel “shall make a petition for
attorney’s fees to which J.C. Penney reserves the right to object.”
Notice to Class: The notice sent to class members after the preliminary
approval was entered by the court included the gift certificate with the
statement that: “You can use this certificate starting today.” The notice also
explained how to opt out of or object to the settlement. The notice did not
specify the amount of attorney’s fees being sought by Meiselman Packman.
DISCUSSION
Applicable Law
“[T]he issue of attorney’s fees has long been considered for Erie
purposes to be substantive and not procedural, and so state-law principles
normally govern the award of fees.” In re Volkswagen and Audi Warranty

5

Extension Litig., 692 F.3d 4, 12 (1st Cir. 2012) (collecting cases).6 Given the
choice-of-law provision in the Settlement Agreement, the award of attorney’s
fees is governed by Massachusetts law.
Attorney’s Fee Awards in Massachusetts
Under Massachusetts law, there are two general approaches to
determining a reasonable attorney’s fee. The first is the lodestar method. The
second is a multi-factor analysis that recognizes that “[n]either the time spent
nor any other single factor is necessarily decisive of what is considered to be
a reasonable charge for [an attorney’s] services.” Cummings v. National
Shawmut Bank of Boston, 284 Mass. 563, 569 (1934).7

6

Meiselman Packman argues that Volkswagen is inapplicable as that
case did not involve a common fund. This case, however, also does not
implicate common-fund principles because, as Volkswagen makes clear, a
settlement is not a “common fund,” at least for attorney’s fee award purposes,
when class counsel will receive fees separate from the settlement proceeds.
Such apportionment, particularly when the fee is contested, generally
“render[s] the common fund method inapplicable.” Volkswagen, 692 F.3d at
17.
7

The factors identified for consideration in Cummings are: (1) the ability
and reputation of the attorney; (2) the demand for his or her services by
others; (3) the amount at issue and the importance of the matter; (4) the price
usually charged for services in the area in which the attorney practices; (5) the
amount of money or value of property affected by the controversy; and (6) the
result secured. Id.
6

Lodestar Analysis 8
A fee calculated by “multiplying the number of hours reasonably spent
on a case times a reasonable hourly rate . . . is generally referred to as a
‘lodestar’ award.” Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). The
court’s starting point is the number of hours billed by the attorney seeking the
fee. In this connection, the fee seeker is obligated to provide the court with a
particularized account of the fee claim. Weinberger v. Great N. Nekoosa
Corp., 925 F.2d 518, 527 (1st Cir. 1991). While Meiselman Packman initially
did not include its billing records in the motion for attorney’s fees
(presumably in expectation of a common fund percentage award), the court
required that these be submitted as a measure of the reasonableness of the
dollar amount of the fee being sought. On October 23, 2013, Meiselman
Packman attached its billing records to a declaration filed along with a
supplemental memorandum. (Doc. No. 27-1.) In its submission, Meiselman
Packman reported a total of 337 billable hours expended on this case. With
the exception of a few hours billed by a paralegal, the bulk were billed by

8

It should be noted that under federal law, a court has discretion to use
a lodestar approach, or a percentage of the fund method, or a combination of
the two, while weighing essentially the same factors propounded in
Cummings. See In re Thirteen Appeals, 56 F.3d 295, 307-309 (1st Cir. 1995);
Fogerty. T-Peg, Inc. v. Vt. TimberWorks, Inc., 669 F.3d 59, 63 (1st Cir. 2012).
7

Meiselman Packman partners at a uniform rate of $600 an hour.
Adjustments to Hours for Reasonableness
The court’s first task is to calculate the number of hours “reasonably
spent.” After determining the number of hours actually spent, this entails
subtracting those hours that are “duplicative, unproductive, excessive, or
otherwise unnecessary.” Grendel’s Den Inc. v. Larkin, 749 F.2d 945, 950 (1st
Cir. 1984).
Research and Drafting: Meiselman Packman billed over 100 hours on
tasks described as legal research and motion drafting related to the J.C.
Penney case. The following entries on May 6 and May 8, 2013, are illustrative:
Attorney

Task

Hours
May 6, 2013

RESEARCH RE: CLASS CERTIFICATION
DECISIONS IN CALIFORNIA;

3.10

GDB

RESEARCH RE: STATUTORY DAMAGES IN
CALIFORNIA;

3.80

TSG

RESEARCH JCP CALIFORNIA SETTLEMENT;

1.10

TSG

RESEARCH OTHER CALIFORNIA ZIP CODE
SETTLEMENTS;

3.10

TSG

RESEARCH DAMAGES ISSUE IN CALIFORNIA V.
MASS;

1.10

GDB

May 8, 2013

8

GDB

RESEARCH RE: CLASS ACTION DECISIONS IN
ZIP CODE CASES;

2.7

GDB

RESEARCH RE: DAMAGES UNDER
BEVERLY-SONG VERSUS SECTION 105(A);

5.2

TSG

RESEARCH RE: CLASS CERTIFICATION OF ZIP
CODE CASES AND APPLICABLE FIRST CIRCUIT
LAW;

2.3

TSG

RESEARCH RE: BEVERLY-SONG SETTLEMENT
STRUCTURE AND OPINIONS APPROVING SAME;

1

The court has substantially reduced the number of allowable hours of
reimbursable research. Meiselman Packman points to its claimed expertise
in ZIP code litigation and class actions as justification for its proposed $600
an hour partner billing rate (as noted, Meiselman Packman litigated the Tyler
case before the SJC, and is lead counsel for all the other ZIP code cases in this
district). It is apparent from the billing records that the partners essentially
assigned themselves to research the same issues. While, “[t]ime spent by two
attorneys on the same general task is not . . . per se duplicative,” RodriguezHernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998), it must be
justified by the circumstances of the litigation, such as the “ferocity” of an
adversary’s defense (as was the case in Rodriguez-Hernandez, where the court
noted the “vehement ‘Stalingrad defense’” deployed by the opposing party).
Here, J.C. Penney signaled its capitulation within a month of the demand
9

letter being received.
Moreover, while the court recognizes that expert knowledge must be
regularly replenished, there is no reason why J.C. Penney should have to pay
for it where it has no special application to the litigation at hand. And to the
extent that some basic research is required, as claimed here, in the usual law
firm business model, “grunt” work is done by entry-level associates, or, where
a firm claims to have few such associates (as does Meiselman Packman), it is
billed to clients at associate rates. Cf. Lipsett v. Blanco, 975 F.2d 934, 940 (1st
Cir. 1992) (“Clerical or secretarial tasks ought not to be billed at lawyers’ rates,
even if a lawyer performs them.”).
The court has allowed Meiselman Packman 26.40 of the 79.20 hours
billed that appear to be attributable to basic or general research. This reflects
reductions for duplication of tasks9 as well as reductions to a level the court
believes to be a reasonable allocation of time to research for this case. These
hours will be reimbursed at an hourly rate of $275 rather than of $600.

9

Essentially, the court eliminated hours where two partners were each
doing the same work in the same measure where it appears from the record
that each had prime responsibility for a separate aspect of the litigation at
issue (such as Mr. Blankinship in researching and preparing for the mediation
and Mr. Garber in researching and preparing the preliminary settlement
approval papers).
10

Other Associate-Level Work: Additional work billed (such as days of
drafting the same memorandum by multiple partners) also suffers from
excessive duplication:
Attorney

Task

Hours

TSG
(6/3)

DRAFT MEMORANDUM OF LAW IN SUPPORT OF
PRELIMINARY APPROVAL;

4.9

TSG
(6/3)

DRAFT PROPOSED ORDER;

.7

TSG
(6/4)

DRAFT MEMORANDUM OF LAW IN SUPPORT OF
PRELIMINARY APPROVAL;

5.9

TSG
(6/5)

CONTINUE DRAFTING PRELIMINARY
APPROVAL PAPERS;

6.8

TSG
(6/6)

DRAFT PRELIMINARY APPROVAL
MEMORANDUM AND PROPOSED ORDER;

2.4

TSG
(6/7)

DRAFT PRELIMINARY APPROVAL BRIEF AND
PROPOSED ORDER;

2.3

GDB
(6/14)

WORK ON MOTION FOR PRELIMINARY
APPROVAL AND D. BLANKINSHIP
DECLARATION FOR SAME;

2.7

TSG
(6/17)

WORK ON PRELIMINARY APPROVAL;

.5

GDB
(6/18)

WORK ON DECLARATION IN SUPPORT OF
MOTION FOR PRELIMINARY APPROVAL;

1.1

GDB
(6/18)

WORK ON MOTION IN SUPPORT OF
PRELIMINARY APPROVAL;

3.9

TSG
(6/19)

WORK ON PRELIMINARY APPROVAL NOTICE
AND BRIEF;

1.7

11

TSG
(6/20)

DRAFT PRELIMINARY APPROVAL PAPERS,
BRIEF AND DECLARATION;

1.4

TSG
(6/24)

WORK ON PRELIMINARY APPROVAL PAPERS
AND DECLARATIONS FOR SAME AND WORK ON
NOTICE FOR SAME;

4.3

TSG
(6/25)

DRAFT MEMO AND MOTION FOR PRELIMINARY
APPROVAL AND DECLARATIONS FOR SAME;

5.7

TSG
(6/26)

CONTINUE WORKING ON PRELIMINARY
APPROVAL PAPERS AND RESEARCH RELATING
TO SAME;

3.3

TSG
(6/27)

CONTINUE DRAFTING PRELIMINARY
APPROVAL PAPERS AND RESEARCH RELATING
TO SAME;

2.3

TSG
(6/28)

DRAFT FINALIZE AND FILE PRELIMINARY
APPROVAL PAPERS;

3.10

The court recognizes that the drafting of legal documents is not a task
to be lightly undertaken, but it does not require that multiple partners work
on the same drafting task at the same time. Consequently, the work of Mr.
Blankinship on drafting the preliminary approval motion has been eliminated,
insufficiently specific entries of Mr. Garber have been halved, and 20 hours
of the drafting work has been reduced to the associate-level rate of $275 an
hour.
Also unexplained is the justification for re-billing the same research and
drafting work in September that had been performed in June, as the chart
12

below (extracted from the billing records) indicates.
Attorney

Task

Hours

TSG
(9/16)

RESEARCH AND DRAFTING FINAL APPROVAL
BRIEF IN SUPPORT OF APPROVAL OF
SETTLEMENT

5.00

TSG
(9/16)

RESEARCH RELATING TO FEE BRIEF

3.10

RESEARCH AND DRAFT FINAL APPROVAL
MEMORANDUM

4.80

TSG
(9/18)

RESEARCH AND DRAFT FINAL APPROVAL
MEMORANDUM

5.70

TSG
(9/19)

RESEARCH AND DRAFT REQUEST FOR FEES
AND EXPENSES

3.20

TSG
(9/20)

RESEARCH AND DRAFT REQUEST FOR FEES
AND EXPENSES

1.90

JFP
(9/20)

REVISE, RESEARCH AND DRAFT MOTION FOR
FINAL APPROVAL

4.30

TSG
(9/23)

RESEARCH AND DRAFT FINAL APPROVAL
MEMORANDUM AND FINAL APPROVAL ORDER

2.70

TSG
(9/24)

RESEARCH, DRAFT, REVISE, EDIT, FINALIZE
FINAL APPROVAL PAPERS INCLUDING
MEMORANDUM OF LAW IN SUPPORT OF FINAL
APPROVAL, MEMORANDUM OF LAW IN
SUPPORT OF FEES, MOTIONS FOR BOTH, FINAL
APPROVAL ORDER, DECLARATION

4.90

TSG
(9/17)

Giving the benefit of the doubt to Meiselman Packman and assuming
that the partners were reviewing prior research and memoranda from June
13

to insure the consistency of the final approval papers filed in September, the
court deems one-half of the time billed by Mr. Garber (at the partner’s $600
hourly rate) sufficient for that purpose.
Block Billing and Duplicative Work: The generic billing category “work
on mediation statement,” has been reduced by one-half and the court has
eliminated duplicative efforts by an additional partner performing the same
task, a seeming redundancy where responsibility for the mediation had been
assigned to Mr. Blankinship. For example:
Attorney

Task

Hours

GDB

WORK ON MEDIATION STATEMENT (4/30)

2.60

GDB

WORK ON MEDIATION STATEMENT (5/1)

2.70

GDB

WORK ON MEDIATION STATEMENT AND
RESEARCH FOR SAME (5/3)

6.50

GDB

WORK ON MEDIATION STATEMENT (5/6)

1.40

GDB

WORK ON MEDIATION STATEMENT AND
RESEARCH RE: SAME (5/8)

1.70

JFP

WORK ON MEDIATION STATEMENT (5/8)

2.10

For the same reason, the court has reduced the block-billed category
“work on settlement agreement” by one-half and has eliminated duplicative
entries by multiple partners.
Time Spent on Attorney’s Fee Application: The fee application is a
14

necessary component of an attorney’s fee award and reasonable hours spent
on its preparation are reimbursable. McCarthy v. Local 254, SEIU, 186 F.3d
52, 62 (1st Cir. 1999). While the court ordered supplementation of the initial
fee application to include the billing records, these should have been
submitted with the original fee application. Moreover, the court agrees with
J.C. Penney that the hours spent on further briefing of the fee issue appear
largely unnecessary, or, at the least, excessive.

The court has therefore

reduced this category by one-half and adjusted the hours’ reimbursement to
the associate rate.
The Complaint: As previously noted, Brenner v. J.C. Penney was the
third ZIP code complaint filed by Brenner against a retailer, and was the fifth
in a series of six ZIP code complaints filed by plaintiffs represented by
Meiselman Packman. The court takes judicial notice of the fact that the
Complaint filed in this matter is identical in wording to the complaint filed in
Brenner v. Williams Sonoma one month earlier (with the exception of the
substitution of defendants’ names and the deletion of certain claims specific
to Williams Sonoma). The court sees no reason to reimburse the cutting and
pasting involved in preparing the J.C. Penney complaint beyond the hour of
associate time (at the $275 rate) the task would have required, at the most.

15

Other Reductions: The work of the partner referred to as “JFP” will be
deleted, with the exception of those entries reflecting discussions with the
client. The court sees no justification for adding a third partner to this case.
Travel time has also been halved in recognition of its classification as “noncore” legal work. See, e.g., Chestnut v. Coyle, 2004 WL 438788, at *3 (D.
Mass. Mar. 9, 2004) (noting that travel time may be discounted by an even
larger percentage than other non-core work, and collecting cases). The court
has not reduced time documented as involving communications with defense
counsel, letter writing, attendance of mediations, court appearances, or
conferences, even if attended by more than one partner.
Reasonable Rate
Having determined the reasonable number of billable hours (174.65),
the court turns to the reasonable rate to apply to those hours. As previously
noted, Meiselman Packman has billed all hours, with the exception of a few
tasks performed by a paralegal, at $600 an hour, a figure which although
generous for the relevant market (Boston/Providence), the court will accept
as commensurate with the firm’s customary rate and counsels’ experience.
The court has also determined a fair rate for associate-level work to be $275
per hour and a fair rate for clerical and paralegal tasks to be $90 per hour by

16

whomever performed.
The results is a lodestar fee award of $75,959.00. This is the sum of:
65.80 research hours and associate-level drafting hours billed at a $275 rate
($18,095.00), 14.60 hours of clerical work billed at $90 per hour ($1,314.00),
and 94.25 hours billed at a partner-level rate of $600 per hour ($56,550.00).
Application of a Multiplier
Once the lodestar is established, it “represents a presumptively
reasonable fee, although it is subject to upward or downward adjustment in
certain circumstances.”

Norkunas v. Brossi Bros. Ltd. P’shp, 2012 WL

772047, *9 (D. Mass. March 7, 2012), quoting Guckenberger v. Boston Univ.,
8 F. Supp. 2d 91, 108 (D. Mass. 1998). Meiselman Packman urges this court
to apply a multiplier to the lodestar calculation in this case because of the
“extraordinary,” “exceptional,” and “unparalleled” result it secured for the
Class. (Pl.’s Suppl. Mem. 2-3.)

This the court declines to do as, in its

judgement, the case required no extensive litigation effort, given J.C. Penney’s
willingness to settle the case almost at its inception.10

10

Nor is the court

In addition to the court’s perspective, class counsel’s own statements
to the court weigh against the application of a multiplier. As Mr. Blankinship
stated at the November 22, 2013 hearing on the settlement of Brenner v.
Kohl’s, “frankly, it’s a pretty straightforward case . . . . [y]ou know, it’s not
particularly complex . . . Ms. Brenner wasn’t deposed in this case or in JC
17

concerned that the refusal to award a multiplier will discourage firms like
Meiselman Packman from prosecuting similar litigation on a contingent basis.
As was made clear when the court questioned Ms. Brenner, this is not a case
where the firm chose to take on what might have appeared a quixotic quest on
behalf of a plaintiff unable to afford counsel.

To the contrary, it was

Meiselman Packman that sought out Ms. Brenner as a plaintiff in this and
several other nearly identical cases in which the result, given the decision of
the SJC in the Tyler v. Michael Stores, was virtually preordained.
ORDER
The motion for attorney’s fees and costs is GRANTED IN PART and
DENIED IN PART. Counsel is to be awarded $75,959.00 of the requested
$450,000.00 in attorney’s fees, to be paid by J.C. Penney pursuant to the
Settlement Agreement.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

Penney, and that really was just a product of the fact that I think companies
realized, once Tyler v. Michaels was decided by the Supreme Judicial Court
that this practice was illegal, that there isn’t a lot of upside for those
companies to litigate the case . . . . it’s efficient for them to reach a settlement
that is – you know, helps them avoid litigation, while, at the same time,
provides some relief for the class.” Brenner v. Kohl’s, 13-10935, Hr’g Tr. 5:176:18, Nov. 22, 2013.
18