Kinder v. Dearborn Federal Savings Bank

Filing 58

ORDER granting in part 50 Motion for Attorney Fees. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NANCY KINDER, individually and on
behalf of all others similarly situated,
Plaintiff,
Case No. 10-12570
v.
Hon. John Corbett O’Meara
DEARBORN FEDERAL SAVINGS
BANK,
Defendant.
_________________________________/

ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR ATTORNEY’S FEES
Before the court is Plaintiff’s motion for attorney’s fees, filed April 2, 2013. Defendant
filed a brief in opposition on May 10, 2013; Plaintiff submitted a reply on May 23, 2013. The
court did not hear oral argument.
Plaintiff is the prevailing party in this action brought pursuant to the Electronic Funds
Transfer Act (“EFTA”). On December 20, 2011, the court granted Plaintiff’s motion for
summary judgment on liability and her motion for class certification. On March 8, 2013, the
court awarded statutory damages to Plaintiff in the amount of $100 and to each class member
who files a claim in the amount of $1.50. Now Plaintiff seeks attorney’s fees under the EFTA,
which provides that the prevailing plaintiff is entitled to “a reasonable attorney’s fee as
determined by the court.” 15 U.S.C. § 1693m(a)(3).
Plaintiff seeks $63,203.50 in fees, including $5,683.50 for work done by the Maddin
Hauser firm to initiate the case (at hourly rates from $170 to $250 per hour), and $57,520 for

attorney Geoffrey Bestor (at an hourly rate of $400 per hour).
A reasonable attorney’s fee award is one that is “adequate to attract competent counsel”
but does not “produce windfalls to attorneys.” Blum v. Stenson, 465 U.S. 886, 893-94 (1984).
Determining a reasonable fee begins with calculating the product of a “reasonable hourly rate”
and the “number of hours reasonably expended on the litigation,” known as the “lodestar”
amount. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “A district court has broad discretion
to determine what constitutes a reasonable hourly rate for an attorney.” Wayne v. Village of
Sebring, 36 F.3d 517, 533 (6th Cir. 1994). A useful guideline in determining a reasonable hourly
rate is the “prevailing market rate . . . in the relevant community,” Blum v. Stenson, 465 U.S.
886, 895 (1984), defined as “that rate which lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court of record.” Adcock-Ladd v. Sec’y
of Treasury, 227 F.3d 343, 350 (6th Cir. 2000).
“The party seeking an award of fees should submit evidence supporting the hours worked
and rates claimed. Where the documentation of hours is inadequate, the district court may
reduce the award accordingly.” Hensley, 461 U.S. at 433. The Hensley court also explained:
The district court also should exclude from this initial fee
calculation hours that were not reasonably expended. Cases may
be overstaffed, and the skill and experience of lawyers vary
widely. Counsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee
submission. “In the private sector, ‘billing judgment’ is an
important component in fee setting. It is no less important here.
Hours that are not properly billed to one's client also are not
properly billed to one's adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 434 (citations omitted).

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Once the court has determined the lodestar amount, the court must consider whether that
amount should be adjusted upward or downward to reflect factors such as the “results obtained”
in the case. Id. (citing Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974)). The
court may also consider the factors identified in Johnson, but the Supreme Court has noted that
“many of these factors usually are subsumed within the initial calculation of hours reasonably
expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n.9.1
Plaintiff’s counsel worked a total of 170.3 hours on this matter. The court has reviewed
the supporting documentation and finds that this amount is reasonable given that this case has
been fully litigated through discovery, dispositive motions, a motion for class certification, and
trial briefs on damages. The court does not discern redundant or excessive billing.
Plaintiff’s counsel seeks an hourly rate of $170-$250 for attorneys from Maddin Hauser
and $400 for Geoffrey Bestor. The court finds Maddin Hauser’s rates to be reasonable, in light
of the relatively uncomplicated subject matter of this case and the market rates published in the
State Bar of Michigan 2010 Economics of Law Practice Summary Report (median rates for
Detroit/Ann Arbor are $255/275). Taking these factors into account, the court find that an
hourly rate of $300 is reasonable for attorney Bestor. See id. (average rate for Detroit attorney is
$290, consumer law attorney is $300). With these slightly revised rates, the lodestar amount is

1

The twelve factors outlined in Johnson are: “(1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar cases.”
Hensley, 461 U.S. at 430 n.3.
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$48,823.50 ($5,683.50 for Maddin Hauser and $43,140 for Bestor).
Defendant seeks an absolute or significant reduction in the lodestar amount based upon
the degree of success obtained, a percentage of the class fund method, or that the case is one of
many “cookie-cutter” ATM cases. The court declines to award attorney’s fees based upon a
percentage of the class fund, because the court refused to create a class fund in this matter.
Although the court agrees that this case is based upon a “cookie-cutter” complaint, the court also
notes that this case has been litigated more vigorously than most of the EFTA cases in this
district, which have settled at an early stage.
The court does find that Plaintiff’s attorney fees request is disproportionate to the degree
of success she obtained in this litigation. The court notes, however, that the disparity is a
function of the scheme created by EFTA, in which a plaintiff who has not suffered an actual
injury is entitled to vindicate statutory rights. Therefore, the court finds that a complete
reduction of fees to zero to be unwarranted and contrary to the statute.
In other EFTA class action cases, this court has approved attorney’s fees in the amount of
$8,750, $15,000, $40,000, and $15,000 (approximately 25% of the fund). See Def.’s Ex. B.
See also Hart v. Guardian Credit Union, 870 F. Supp.2d 1300 (M.D. Ala. 2012) (awarding
$19,000 in EFTA case, citing $20,000 award in another EFTA case). In light of these
comparables, the type of case, the amount of work required, and Plaintiff’s degree of success, the
court finds that $30,000 is an appropriate fee.

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ORDER
THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s motion for attorney’s fees is
GRANTED IN PART and DENIED IN PART, consistent with this opinion and order.

s/John Corbett O'Meara
United States District Judge
Date: July 3, 2013

I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, July 3, 2013, using the ECF system.

s/William Barkholz
Case Manager

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