Solo et al v. United Parcel Service Co.

Filing 156

ORDER Awarding Fees, Costs and Service Award re 151 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Southern Division
BLEACHTECH LLC, individually and
on behalf of all others similarly
situated,

Case No. 14-12719
Honorable Denise Page Hood

Plaintiff,
v.
UNITED PARCEL SERVICE, INC., an
Ohio Corporation,
Defendant.
_____________________________/
ORDER AWARDING FEES, COSTS AND SERVICE AWARD
On May 16, 2022, Plaintiff filed its Motion for Attorney Fees, Approval of
Service Award, and for Reimbursement of Expenses (“Motion for Fees”) (ECF No.
151). Plaintiff and Class Counsel also filed declarations to enable the Court to
evaluate the fairness, adequacy and reasonableness of the proposed attorney fees,
costs, and Service Award. Following Notice to the Settlement Class, no objections
to the proposed fees, costs, and Service Award were filed.
This matter came before the Court on June 28, 2022, for a Final Approval
Hearing pursuant to the Court’s Preliminary Approval Order dated April 8, 2022.
The Court carefully reviewed all of the filings related to the Settlement, including
the Motion for Fees and heard argument on the Motion for Final Approval and the

Motion for Fees.
After full consideration of the Motion for Fees and the presentations of the
Parties, the Court specifically concludes that the proposed fees, costs, and Service
Award are fair, adequate, and reasonable, and an acceptable amount to compensate
Plaintiff and Class Counsel for litigating the claims filed for the benefit of the
Settlement Class.
The Court therefore: (a) grants the Motion for Fees; (b) authorizes the
payment of the Service Award to Plaintiff; and (c) awards attorneys’ fees and costs
to Class Counsel (“Order Awarding Fees”).
The Court now makes the following findings of fact and conclusions of law,
and HEREBY ORDERS AND ADJUDGES THAT:
1.

All of the definitions contained in the Settlement Agreement (attached

to the Final Approval Order as Exhibit A) shall apply to this Order Awarding Fees
and are incorporated by reference as if fully set forth herein. Further, the Court
incorporates herein and accepts the factual allegations contained in the Motion for
Fees.
2.

An award of attorneys' fees in common fund cases need only be

“reasonable under the circumstances.”

Weitz & Luxenberg P.C. v. Sulzer

Orthopedics, Inc., 398 F.3d 778, 780 (6th Cir. 2005). The Sixth Circuit permits
calculation of attorneys’ fees under either the percentage of the fund method

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(counsel receive a percentage of the total settlement fund) or the lodestar method
(multiplying the number of hours spent on the litigation by law firm members by
their hourly rate). Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 51516 (6th Cir. 1993). In weighing the benefits and shortcomings of each method, the
Sixth Circuit in Rawlings concluded: “For these reasons, it is necessary that district
courts be permitted to select the more appropriate method for calculating attorney's
fees in light of the unique characteristics of class actions in general, and of the unique
circumstances of the actual cases before them.” Id. at 516. The Sixth Circuit has
observed that “[t]he percentage of the fund method has a number of advantages; it
is easy to calculate; it establishes reasonable expectations on the part of plaintiffs'
attorneys as to their expected recovery; and it encourages early settlement, which
avoids protracted litigation.” Id.
3.

In applying the percentage method, “commonly, fee awards in common

fund cases are calculated as a percentage of the fund created, typically ranging from
20 to 50 percent of the fund.” In re Rio, 1996 WL 780512 at *16 (citing Wise v.
Popoff, 835 F. Supp. 977, 980 (E.D. Mich. 1993). District courts in the Sixth Circuit
begin with a “benchmark percentage” ranging between 20-50%. In re Cincinnati
Gas & Elec. Co. Sec. Litig., 643 F. Supp. 148, 150 (S.D. Ohio 1986); In re
Telectronics Pacing Sys., 137 F. Supp. 2d 1029, 1046 (S.D. Ohio 2001) (noting that
the range of reasonableness has been designated as between 20% and 50% of the

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common fund). These courts then generally apply the factors enumerated in Bowling
v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), discussed and applied below, to
determine the reasonableness of a requested fee.
4.

Class Counsel’s request for 33 1/3 % of the common fund created by

their efforts is well within the benchmark range and in line with what is often
awarded in this Circuit. See e.g., Bessey v. Packerland Plainwell, Inc., 4:06-cv-95,
2007 WL 3173972, at *4 (W.D. Mich. Oct. 26, 2007) (awarding one-third of
settlement fund as attorneys’ fees and holding that “[e]mpirical studies show that,
regardless whether the percentage method or the lodestar method is used fee awards
in class actions average around one-third of the recovery”) (internal question
omitted).

The fee requested here is also in line with the fees awarded in other

overdraft fee class actions throughout the country.
5.

In evaluating the reasonableness of a fee request, courts in the Sixth

Circuit evaluate the following factors: (1) the value of the benefit rendered to the
plaintiff class; (2) the value of the services on an hourly basis; (3) whether the
services were undertaken on a contingent fee basis; (4) society’s take in rewarding
attorneys who produce such benefits in order to maintain an incentive to others; (5)
the complexity of the litigation; and (6) the professional skill and standing of counsel
involved on both sides. Bowling, 102 F.3d at 780. As discussed below, each of
these factors supports the requested fee here.

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The Value of the Benefit Rendered to the Class
6.

As noted above, the Settlement establishes a common fund of

approximately $5,700,000, and Notice has been disseminated to approximately 90%
of the nearly 2,150,00 members of the Settlement Class. If the Court approves the
Settlement, Plaintiff and the Settlement Class will recover over fifty percent (50%)
of their most probable damages (Covered Packages shipped in the second half of
2013) and a lesser amount of other claims (Covered Packages shipped before the
second half of 2013) when basing it on the Settlement Fund alone. However, when
considering UPS’s separate payment of up to half of the costs of Notice and
Settlement administration, the percentage recovery is significant. As discussed
above, this is an extraordinary result given the obstacles facing Plaintiffs. As the
action has resulted in significant benefits to Settlement Class Members, this factor
weighs heavily in favor of the requested fee award.
The Value of the Services on an Hourly Basis
7.

The collective lodestar of all Class Counsel is $3,063,068 based on

counsels’ ordinary rates. An award of $1,894,400 represents a multiplier of -.38
(i.e., 62% of the lodestar amount), which is well within the range adopted by courts
in the Sixth Circuit. See In re Cardinal Health Inc. Sec. Litig., 528 F. Supp. 2d 752,
767-78 (S.D. Ohio 2007) (“Most courts agree that the typical lodestar multiplier” in
a large class action “ranges from 1.3 to 4.5.”). Given the nature, complexity, and

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potential duration of this action, as detailed above, the risk of non-recovery, the value
of the social benefit, and the results in light of the obstacles, the multiplier is
appropriate and reasonable.
Whether the Services Were Undertaken on a Contingent Fee Basis
8.

In undertaking to prosecute this complex case entirely on a contingent

fee basis, Class Counsel assumed a significant risk of nonpayment or underpayment.
That risk warrants an appropriate fee. See e.g., Bowling, 922 F. Supp. at 1282. The
risks are inherent in financing and prosecuting complex litigation of this type, but
Class Counsel undertook representation with the knowledge that they would have to
spend substantial time and money and face significant risks without any assurance
of being compensated for their efforts. Only the most experienced plaintiffs’
litigation firms would risk the time and expense involved in bringing this action in
light of the possibility of a recovery at an uncertain date, or of no recovery at all.
Apart from the risk of no recovery, the deferral of fees in such an undertaking while
at the same time advancing possibly hundreds of thousands of dollars in expenses
would deter most firms.
Society’s Stake in Rewarding Attorneys Who Produce Such Benefits in Order to
Maintain an Incentive to Others
9.

As noted above, Class Counsel’s fee request is well within the range of

awards in similar cases both in the Sixth Circuit and elsewhere. Wise v. Popoff, 835
F. Supp. 977, 980 (E.D. Mich. 1993). It is these types of awards that maintain an
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incentive for lawyers, like Class Counsel, to take on cases, wholly on contingency,
prosecuting them for years, all the while never knowing whether they will in the end
recoup substantial investment of dollars of time and costs invested in the case. Class
Counsel took on representation of this class in what were simultaneously the
worthiest and riskiest of circumstances. Society has an interest in adequately
compensating counsel who take on such risks to ensure that classes will be able to
find representation.
The Complexity of the Litigation
10.

The claims and defenses are complex and litigating them is both

difficult and time-consuming. This action settled after over six years of litigation,
and recovery by any means other than settlement would have required additional
years of litigation. Class Counsel’s experience and knowledge from those cases
resulted in the settlement of this action at this juncture. The Settlement also provides
immediate and substantial benefits to approximately 2,000,000 members of the
Settlement Class, all of which are current or former UPS customers.
The Professional Skill and Standing of Counsel Involved on Both Sides
11.

In any given case, the skill of legal counsel should be commensurate

with the novelty and complexity of the issues, as well as the skill of the opposing
counsel. Litigation of this action required counsel highly trained in class action law
and procedure as well as the specialized issues presented here. Class Counsel

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possess these attributes, and their participation added immense value to the
representation of this large Settlement Class. The record demonstrates that the
action involved a broad range of complex and novel challenges, which Class
Counsel met at every juncture. Class Counsel used the extensive knowledge and
experience obtained from past cases and applied it to the instant action in order to
achieve a fair and reasonable settlement for the Settlement Class Members. Further,
considering the potential for this action to turn into an even more lengthy litigation,
Class Counsel’s ability to negotiate the instant Settlement demonstrates their high
level of skill and efficiency. Moreover, throughout the litigation, UPS has been
represented by highly capable counsel who were competent adversaries.
12.

For these reasons, Class Counsel is hereby awarded $1,894,000 in

attorneys’ fees, which is 33 1/3 % of the $5,700,000 Settlement Fund. Further, the
Court finds that Class Counsel’s request for reimbursement of $54,882.00 in
expenses to be reasonable and that the expenses were incurred in furtherance of the
action.
13.

The Court finds that Class Counsel’s request for Service Award to be

paid to Plaintiff BleachTech LLC is appropriate, and the amount of $5,000.00
requested is reasonable. Awards to class representatives lie within the discretion of
the Court and may be awarded for the benefit conferred on the Settlement Class.
Plaintiff provided assistance that enabled Class Counsel to successfully prosecute

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the action and reach the Settlement, including: (a) submitting to interviews with
Class Counsel; (b) locating and forwarding responsive documents and information;
and (c) participating in conferences with Class Counsel. In so doing, the Plaintiff
was integral to forming the theory of the case. Plaintiff’s representatives not only
devoted their time and effort to the litigation, but the end result of their efforts, and
those of Class Counsel, constituted substantial benefits to the Settlement Class. See
In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 535 (E.D. Mich. 2003).
Therefore, Plaintiffs BleachTech LLC shall be paid a Service Award of $5,000.00
from the Settlement Fund.
14.

The Settlement Administrator is hereby directed to pay the attorneys’

fees, expenses, and Service Award from the Settlement Common Fund as provided
in the Settlement Agreement. Fifty percent of reasonable costs of Notice and
administration of the Settlement will be paid from the Settlement Common Fund;
UPS will pay the other fifty percent.
IT IS SO ORDERED.
Dated: July 20, 2022

s/Denise Page Hood
Hon. Denise Page Hood
United States District Judge

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