Beck et al v. City of Whitefish et al

Filing 224

FINAL SETTLEMENT APPROVAL ORDER re 219 Motion for Attorney Fees and 221 Motion for Settlement. Signed by Magistrate Judge Kathleen L. DeSoto on 11/26/2024. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JEFF BECK, individually; AMY
WEINBERG, individually; ZAC
WEINBERG, individually; ALTA
VIEWS, LLC, individually; and on behalf
of a class of similarly situated persons and
entities,

CV 22-44-M-KLD
ORDER

Plaintiffs,
vs.
CITY OF WHITEFISH, a Montana
municipality, and DOES 1-10,
Defendants.
CITY OF WHITEFISH, a Montana
municipality,
Third-Party Plaintiff,
vs.
FINANCIAL CONSULTING
SOLUTIONS GROUP, INC.,
Third-Party Defendant.
Before the Court is Plaintiffs’ Unopposed Motion for Final Settlement
Approval (Doc. 221). Pursuant to Rule 23 of the Federal Rules of Civil Procedure,
the Court preliminarily approved the class Settlement Agreement and Release
(“Settlement Agreement” or “Agreement”) reached by and between the parties (Doc.

213-1) on August 16, 2024. (Doc. 218). This Order incorporates by reference the
defined terms of the Settlement Agreement.
DISCUSSION
Since preliminary approval of the Settlement Agreement, Class Counsel has
completed the Notice process and submitted their Fee Application (Doc. 219).
Settlement Class Members were notified of the pending Settlement and Class
Counsel’s request for attorneys’ fees and costs, and no objections to the Settlement
Agreement were submitted. (Doc. 220 at 5). Now, Plaintiffs, with approval from
the other parties, request that the Court: (1) grant final certification of the Settlement
Class; (2) finally approve the Settlement Agreement as fair, reasonable, and
adequate; (3) rule that the Notice process was reasonable and the best practicable
under the circumstances; and (4) award from the Settlement Fund attorneys’ fees and
costs and class representative Service Award Payments. A Final Approval Hearing,
with counsel for all parties appearing, was held before the Court on November 19,
2024. For the reasons stated below, the Plaintiffs’ Motion is granted.
1.

Final Class Certification
On September 29, 2023, upon analysis of Plaintiffs’ Motion for Class

Certification (Doc. 39) and the requirements of Rule 23(a) and (b)(3), the Court
certified a class in this Action defined as: “All persons or entities who bore the cost
of impact fees for water and wastewater services to the City of Whitefish from
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January 1, 2019 to the present.” (Doc. 121 at 48). In the Court’s Preliminary
Approval Order, consistent with the Settlement Agreement, the Court preliminarily
certified a Settlement Class comprising all persons and entities meeting the original
class definition who did not request exclusion from this Action during the opt-out
period. (Doc 218 at 5). No circumstances have since arisen that justify altering the
Settlement Class. Accordingly, final certification of the Settlement Class, for
settlement purposes, is warranted under Rule 23(a) and (b)(3).
2.

Final Approval of the Settlement Agreement
Rule 23(e) requires court approval of any class settlement. Here, the Court

must determine whether the Settlement is “fair, reasonable, and adequate.” Fed. R.
Civ. P. 23(e)(2). At the final approval stage, the factors to be considered in making
an approval determination include:
[1] the strength of the plaintiffs’ case; [2] the risk, expense, complexity,
and likely duration of further litigation; [3] the risk of maintaining class
action status throughout the trial; [4] the amount offered in settlement;
[5] the extent of discovery completed and the stage of the proceedings;
[6] the experience and views of counsel; [7] the presence of a
governmental participant; and [8] the reaction of the class members to
the proposed settlement.
Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012).
The Settlement Agreement is fair, reasonable, and adequate. As indicated by
the several pending summary judgment and other motions—and the extensive
briefing thereon—when the Settlement Agreement was reached, there remained
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several contested complex legal and factual questions in this Action. With the
prospect of a lengthy trial and potential appeal, the Settlement provides substantial
compensation to the Settlement Class which would be unavailable if Plaintiffs
ultimately lost or were only partially successful. The Settlement avoids further delay
and expense in obtaining recovery for the Settlement Class Members.

The

Settlement amount was recommended by United States Magistrate Judge John T.
Johnston, an experienced judge and attorney who acted as mediator in this Action.
Class Counsel, with experienced litigators at both firms, state that, in their view, the
Settlement represents “a very fair result on behalf of the Settlement Class.” (Doc.
214 at 10). The City of Whitefish, a party to this Action and the Settlement
Agreement, is a governmental participant. Most importantly, no Settlement Class
Members objected to the Settlement during the objection period.
3.

Notice
Class members are to receive “the best notice that is practicable under the

circumstances,” and a court must direct notice “in a reasonable matter.” Fed. R.
Civ. P. 23(c)(2)(B), (e)(1)(B). Class Counsel represents that they complied with the
Notice procedure set forth in the Settlement Agreement and the Court’s Preliminary
Approval Order. (Doc. 220 at 5). Notice of the pendency of the Settlement was sent
via first class mail and electronic mail to the last known mailing and email addresses
of the Settlement Class Members, meaning individual notice was provided to all
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Settlement Class Members identified through reasonable effort. Consistent with the
findings of the Court’s Preliminary Approval Order, Notice to the Settlement Class
was reasonable and the best practicable under the circumstances. (Doc. 218 at 3-4).
4.

Assessment of Fees, Costs, and Service Awards
A.

Attorneys’ Fees and Costs

Attorneys’ fees and costs may be awarded in a certified class action where so
authorized by law or the parties’ agreement. Fed. R. Civ. P. 23(h). Courts have an
independent obligation to ensure that the award, like the settlement itself, is
reasonable, even if the parties have already agreed to an amount. Staton v. Boeing
Co., 327 F.3d 938, 963–64 (9th Cir. 2003). Under the “common fund” doctrine, “a
litigant or lawyer who recovers a common fund for the benefit of persons other than
himself or his client is entitled to a reasonable attorney’s fee from the fund as a
whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). “Under regular
common fund procedure, the parties settle for the total amount of the common fund
and shift the fund to the court’s supervision.” Staton, 327 F.3d at 969. “The
plaintiffs’ lawyers then apply to the court for a fee award from the fund.” Id.
Here, the Settlement represents a common-fund recovery on behalf of the
Settlement Class. Of the $1,400,000.00 Settlement Fund, Class Counsel requests an
attorneys’ fee award of $466,666.67, which represents one-third (approximately
33%) of recovery, as well as reimbursement of up to $175,000.00 in costs, which
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includes administration costs. (Doc. 219 at 3). Class Counsel filed a memorandum
in support of this request which satisfies the Court that the requested fees and costs
are reasonable and appropriate. (Doc. 219 at 4-15).
i.

Percentage-of-Recovery Reasonableness

“Because the benefit to the class is easily-quantified in common fund
settlements,” courts may “award attorneys a percentage of the common fund.” In re
Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011). Courts
typically calculate 25% of the fund as the “benchmark” for a reasonable percentageof-recovery award, however, this benchmark rate, “although a starting point for
analysis, may be inappropriate in some cases.” Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1047-48 (9th Cir. 2002). “Selection of the benchmark or any other rate must
be supported by findings that take into account all of the circumstances of the case.”
Id. In Vizcaino, the Ninth Circuit analyzed several non-exhaustive factors courts
may consider in assessing a request for attorneys’ fees calculated using the
percentage-of-recovery method. 290 F.3d at 1047-50. These factors include the
extent to which class counsel “achieved exceptional results for the class,” the risks
undertaken by class counsel in litigating the action, whether counsel’s performance
“generated benefits beyond the cash settlement fund,” the burdens class counsel
experienced while litigating the case (e.g., cost, duration, foregoing other work), and
whether the case was handled on a contingency basis. Id.
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This Court has previously approved an attorneys’ fee award of one-third of
recovery, considering circumstances such as “the extraordinary results???achieved on
behalf of the Settlement Class, the risk to the Settlement Class of continued
litigation, the skill and expertise demonstrated by Class Counsel, and . . . the absence
of any objection after notice.” Hageman v. AT & T Mobility LLC, No. CV-13-50BLG-RWA, 2015 WL 9855925, at *4 (D. Mont. Feb. 11, 2015). Here, the Court
finds that Class Counsel faced significant risk and carried burden in litigating this
Action on a contingency basis. The Settlement reflects an extraordinary result
achieved through Class Counsel’s skilled advocacy and dedication to achieving
fairness for the Settlement Class, despite the complex and novel issues involved.
With the prospect of a lengthy trial and potential appeal, the Settlement provides
substantial compensation to the Settlement Class which would be unavailable if
Plaintiffs ultimately lost or were only partially successful. Importantly, with Notice,
Class Counsel provided each Settlement Class Member an estimate of their potential
recovery if the requested fees, service awards, and the absolute maximum in costs
requested were to be deducted from the Settlement Fund. No Settlement Class
Member objected.
ii.

Lodestar Method Cross-Check

“Calculation of the lodestar, which measures the lawyers’ investment of time
in the litigation, provides a check on the reasonableness of the percentage award.”
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Vizcaino, 290 F.3d at 1050. District courts have the discretion to, and usually do,
“apply a risk multiplier when using the lodestar approach.” Stanton, 327 F.3d at
967. “A ‘multiplier’ is a number, such as 1.5 or 2, by which the base lodestar figure
is multiplied in order to increase (or decrease) the award of attorneys’ fees on the
basis of such factors as the risk involved and the length of the proceedings.” Id. at
968. “Foremost among these considerations [in applying a multiplier] is the benefit
obtained for the class.” In re Bluetooth, 654 at 942. Also, courts have “routinely
enhanced the lodestar to reflect the risk of non-payment in common fund cases.” In
re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1300 (9th Cir. 1994).
Class Counsel represents they have invested 199.5 hours of partner attorney
time, 854.3 hours of associate attorney time, and 359.4 hours of legal intern/staff
time into this case. (Doc. 219-1). Class Counsel also represents that the law firm of
Laird Cowley, PLLC typically performs billable work at rates of $325.00/hour for
partner attorney time, $275.00/hour for associate attorney time, and $150.00/hour
for legal intern/staff time. (Doc. 219 at 14). The Court is satisfied that these rates
are commensurate with a reasonable hourly rate for the region and for the experience
of the lawyers and staff. At these rates, Class Counsel’s lodestar totals $353,680.00
and their $466,666.67 fee request results in a +1.32 multiplier of the lodestar fee.
This multiplier is less than the “1.5 to 2” multiplier suggested in Staton, 327 F.3d at
968, and is within the range of multipliers of common fund cases surveyed by the
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Ninth Circuit and listed in the appendix to the Vizcaino decision, 290 F.3d at 1052.
A 1.32 multiplier appropriately reflects the benefit obtained on behalf of the
Settlement Class and the risk Class Counsel faced of non-payment, confirming Class
Counsel’s fee request is fair and reasonable.
B.

Class Representative Service Awards

The Ninth Circuit recognizes service awards for representative plaintiffs in a
class action are permissible. See Staton, 327 F.3d at 976-77 (providing examples of
approved service awards and amounts). Past service awards of $5,000.00 per class
representative have been approved at the Ninth Circuit. See, e.g., In re Mego Fin.
Corp. Sec. Litig., 214 F.3d 454, 463 (9th Cir. 2000). Here, Class Counsel requests
$3,500.00 in Service Award Payments to each of the Named Plaintiffs in this Action,
a total of $14,000.00.
The Court finds these Service Award Payments fair and reasonable to
compensate the Named Plaintiffs for their time, efforts, and other contributions in
litigating and resolving this Action on behalf of the Settlement Class. Class Counsel
represents that the Named Plaintiffs spent numerous hours preparing discovery
responses, being deposed, attending mediation, and otherwise assisting Class
Counsel in litigating this case on behalf of a class of several hundred members.
(Doc. 219 at 16). Each Named Plaintiff personally incurred travel and other

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expenses as part of the discovery process. (Doc. 219 at 16). Importantly, no
Settlement Class Member objected to the requested Service Award Payments.
ORDER
On November 18, 2024, the matter of the Court’s final approval of the
Settlement Agreement came before the Court for consideration by Plaintiffs’ Motion
for Final Settlement Approval. A hearing was held on November 19, 2024, with
counsel for each party to this Action appearing.
WHEREAS, Named Plaintiffs/Class Representatives, Jeff Beck, Amy
Weinberg, Zac Weinberg, and Alta Views, LLC; Defendant/Third-Party Plaintiff
City of Whitefish (the “City”); and Third-Party Defendant Financial Consulting
Solutions Group, Inc. (“FCS Group”) executed a Settlement Agreement and Release
and fully submitted the Agreement to the Court on August 15, 2024; and
WHEREAS, all capitalized terms used herein shall carry the same meaning as
set forth in the Settlement Agreement which are hereby incorporated as defined
terms by reference; and
WHEREAS, the Court, on August 16, 2024, entered the Preliminary Approval
Order, preliminarily approving the Settlement Agreement in accordance with
Federal Rule of Civil Procedure 23; and
WHEREAS, the Court, as part of its Preliminary Approval Order, directed that
the Notice process described in the Settlement Agreement be implemented and
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scheduled a hearing to be held on November 19, 2024, to determine whether the
Settlement should be finally approved as fair, reasonable, and adequate; and
WHEREAS, Class Counsel satisfactorily demonstrated to the Court that the
Notice process was followed; and
WHEREAS, pursuant to Rules 23(h) and 54(d)(2) of the Federal Rules of
Civil Procedure, Class Counsel submitted their Fee Application and a memorandum
in support to the Court on October 4, 2024; and
WHEREAS, Plaintiffs filed the present Motion for Final Settlement Approval
on November 18, 2024; and
WHEREAS, a Final Approval Hearing was held on November 19, 2024, at
which all interested persons were given an opportunity to be heard, and all objections
to the Settlement, if any, were duly considered;
NOW, THEREFORE, the Court, having reviewed and considered the
Settlement Agreement and the exhibits thereto, having reviewed and considered
Class Counsel’s Fee Application and memorandum in support, having conducted the
Final Approval Hearing, having reviewed and considered all other papers filed and
proceedings conducted herein, and otherwise being fully informed, finds and
concludes as follows:

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1.

The Complaint filed in this Action alleges generally that the City

charged and collected unlawful water and wastewater impact fees from developing
property owners over the period of January 1, 2019 to December 31, 2023.
2.

Consistent with the Settlement Agreement, as part of the Preliminary

Approval Order, the Court conditionally certified the Settlement Class as:
All persons and entities (and their heirs, executors, administrators,
successors and assigns) identified from impact fee and property records
as comprising the class defined in the Court’s September 29, 2023
certification order who were notified, either directly or by publication,
in January 2024 of this class action and their opportunity to be excluded
from it and did not request exclusion during the notice and opt-out
period afforded them.
Excluded from the Class is: any judge presiding over this Action and
members of their direct family.
3.

The Court hereby affirms this definition of the Settlement Class for

purposes of this Final Approval Order and Judgment.
4.

The Court finally certifies the Settlement Class in this Action, for

settlement purposes only, under Federal Rule of Civil Procedure 23(a) and (b)(3),
and, in doing so, finds that, consistent with its September 29, 2023 Order, the
requirements for maintaining a class action have been met.
5.

Class Counsel confirmed to the Court that they complied with the

Notice process described in the Settlement Agreement and Preliminary Approval
Order.

The Court hereby finds that Notice pursuant to the Agreement and

Preliminary Approval Order constituted valid, due, and sufficient notice to the
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Settlement Class and was the best method of notice practicable under the
circumstances.
6.

The Court hereby finds that final approval of the Agreement and the

Settlement embodied therein will result in substantial savings of time and money to
the Court and the litigants and will further the interests of justice.
7.

The Court hereby finds that the Named Plaintiffs and Class Counsel

have adequately represented the Settlement Class and that the Settlement Agreement
is the result of good faith arm’s length negotiations by the Parties thereto, and is fair,
reasonable, and adequate.
8.

The Court hereby finds that the Settlement treats the Settlement Class

Members equitably relative to each other, and that relief will be effectively
distributed to each Settlement Class Member.
9.

The Court hereby finds that the Settlement Class, in being informed

through Notice of the amount of attorneys’ fees, costs, and Service Award Payments
requested by Class Counsel and having the ability to review Class Counsel’s Fee
Application prior to the Objection Deadline, received reasonable notice of Class
Counsel’s request of a Fee Award and Costs.
10.

The Court hereby finds that Class Counsel’s request for attorneys’ fees

and costs and Service Award Payments on behalf of the Named Plaintiffs is fair and
reasonable.
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11.

The Court recognizes that no Settlement Class Member objected to the

Settlement of Class Counsel’s Fee Application.
NOW, THEREFORE, WITH GOOD CAUSE APPEARING, IT IS
ORDERED, ADJUDGED, AND DECREED THAT:
12.

The Court has jurisdiction over the subject matter of this Action and

over all Parties to the Action, including the Named Plaintiffs, all Settlement Class
Members, the City, and FCS Group.
13.

The Parties and the Settlement Class are bound by this Final Approval

Order and Judgment.
14.

It is hereby adjudged that the Notice provided to the Settlement Class

pursuant to the Settlement Agreement and Preliminary Approval Order constituted
the best notice practicable under the circumstances and is therefore finally approved
as reasonable. Due and adequate notice of the pendency of this Action and of the
Settlement has been provided to all Settlement Class Members. This Court hereby
finds that the Notice complied fully with the requirements of due process, the Federal
Rules of Civil Procedure, and all other applicable laws.
15.

All provisions and terms of the Settlement Agreement are hereby

adjudged to be fair, reasonable, and adequate as to the Settlement Class and all
provisions and terms of the Agreement are hereby finally approved in all respects.

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16.

This Final Approval Order is not to be deemed a finding of the validity

of any claims asserted in the Action, of any wrongdoing, or of any violation of law.
Neither the Settlement Agreement, nor any of its terms or provisions, nor any of the
negotiations or proceedings connected with it, shall be construed as an admission or
concession by the City or FCS Group of the truth of any of the allegations made in
the Action, or of any liability, fault, or wrongdoing of any kind whatsoever on the
part of the City or FCS Group, except that the City or FCS Group may file this Order
in any action that may be brought against it in order to support a defense or
counterclaim based on principles of res judicata, collateral estoppel, release, good
faith settlement, judgment bar or reduction, or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.
17.

The Parties are hereby directed to consummate the Settlement in

accordance with the Agreement’s terms and conditions.
18.

The Court has considered Class Counsel’s request for Service Award

Payments in the amount of $3,500.00 to be made to each Named Plaintiff. The Court
hereby approves this request as fair and reasonable and awards $3,500.00 to Named
Plaintiffs/class representatives Jeff Beck, Amy Weinberg, Zac Weinberg, and Alta
Views, LLC, to be paid out of the Settlement Fund.???
19.

The Court has considered Class Counsel’s request for a Fee Award and

Costs in the amount of $466,666.67, representing one-third (approximately 33%) of
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the Settlement Fund, plus actual costs of litigation not to exceed $175,000.00. The
Court hereby approves this request as fair and reasonable and awards $466,666.67
in fees and up to $175,000.00 in reimbursement of actual costs to Class Counsel, to
be paid out of the Settlement Fund.
20.

Following the Effective Date, Class Counsel is hereby directed to

initiate and complete issuance and distribution of Settlement Payments to Settlement
Class Members in accordance with Part III of the Settlement Agreement. Pursuant
to the Settlement Agreement, the Settlement Fund shall remain subject to the
jurisdiction of the Court until such time as the entirety of the Settlement Fund is
distributed pursuant to the Agreement.
21.

By operation of the entry of this Final Approval Order and Judgment,

the Court hereby dismisses the claims asserted against any Party in this Action with
prejudice and without leave to amend and enters judgment in accordance with the
terms of the Settlement Agreement. All Settlement Class Members, including the
Named Plaintiffs, are hereby enjoined from commencing, prosecuting, pursuing, or
litigating any Released Claims against the Parties,???whether directly, representatively,
or in any capacity, and regardless of whether or not any such Settlement Class
Member has appeared in the action. No person shall have any claim against any of
the Parties, their attorneys of record, any Settlement Class Member, Class Counsel,

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or the Settlement Administrator based on distributions or payments made in
accordance with the Settlement Agreement.
22.

Once all obligations in the Settlement Agreement have been satisfied,

the Parties are hereby directed to file a satisfaction of judgment with the Court.
23.

This Final Approval Order and Judgment is a final order in the Action

within the meaning and for the purposes of Rules 23(e), 41, and 54 of the Federal
Rules of Civil Procedure as to all claims among the Parties. There is no just reason
to delay its enforcement or appeal.
DATED this 26th day of November, 2026.

____________________________________
Kathleen L. DeSoto
United States Magistrate Judge

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