Jenkins v. Pech et al

Filing 163

MEMORANDUM AND ORDER: The plaintiff's unopposed motion for attorney fees, costs, statutory damages and an incentive award (Filing No. 158) is granted. A judgment in favor of the plaintiff and against defendants in the amount of $2,000.00 as statutory damages, $2,500.00 for service as class representative, and $176,273.00 for attorney fees and costs will be entered this date. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEE A. JENKINS, on behalf of himself and
all others similarly situated;
8:14CV41
Plaintiff,
vs.

MEMORANDUM AND ORDER

CHRISTOPHER E. PECH, AND
PECH,HUGHES, & MCDONALD, P.C.,
d/b/a Litow & Pech, P.C., A Fictitious
Name;
Defendants.

This matter is before the court on the plaintiff’s unopposed motion for attorneys’
fees and costs, and for an award of statutory damages and a class representative fee to
the plaintiff. Filing No. 158. Plaintiff seeks $173,000.00 in attorney fees, $3,273.00 in
costs, and an award of statutory damages of $2000.00 and an incentive fee of
$2,500.00.
The record shows plaintiff Lee A. Jenkins, as class representative, entered into a
settlement agreement with defendants Christopher E. Pech and Pech, Hughes &
McDonald, P.C. to resolve this litigation. See Filing No. 154-2, Ex. A1, Class Action
Settlement Agreement (“the Agreement”). The Agreement includes payment of
damages and an incentive award to the class representative and costs and attorneys’
fees. Id. at 7, 9. The parties have agreed on the amount of plaintiff’s attorneys’ fees
and costs. Id. Defendants also agree to the statutory damages and incentive payment
to the plaintiff. Id. at 9.
The FDCPA requires the payment of costs and reasonable attorney fees to a
successful consumer. 15 U.S.C. § 1692k(a)(3) (stating that a successful plaintiff in an

action to enforce the FDCPA may recover "costs of the action, together with a
reasonable attorney's fee as determined by the court.”). The statute contemplates "an
award of costs and 'a reasonable attorney's fee as determined by the court' in the case
of 'any successful action to enforce the foregoing liability.'" Jerman v. Carlisle, McNellie,
Rini, Kramer, & Ulrich LPA, 559 U.S. 573, 598 (2010) (quoting 15 U.S.C. § 1692k(a)(3));
Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995) (“the fee award under §
1692k is mandatory in all but the most unusual circumstances.")
A thorough judicial review of fee applications is required in all class action
settlements. In re Diet Drugs, 582 F.3d 524, 537-38 (3d Cir. 2009); Johnston v.
Comerica Mortgage Corp., 83 F.3d 241, 246 (8th Cir. 1996) (noting that the district court
bears the responsibility of scrutinizing attorney fee requests). Courts utilize two main
approaches to analyzing a request for attorney fees: (1) the “lodestar” methodology
(multiplying the hours expended by an attorneys’ reasonable hourly rate of
compensation to produce a fee amount that can be adjusted to reflect the individualized
characteristics of a given action); and (2) the “percentage of the benefit” approach
(permitting an award of fees that is equal to some fraction of the common fund that the
attorneys were successful in gathering during the course of the litigation). Johnston, 83
F.3d at 244-45. The plaintiff seeks fees under the lodestar methodology. See Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983) (stating that the starting point in determining the
amount of attorney fees is the "lodestar," which is calculated by multiplying the number
of hours reasonably expended by reasonable hourly rates); Hanig v. Lee, 415 F.3d 822,
825 (8th Cir. 2005).

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A reasonable hourly rate is usually the ordinary rate for similar work in the
community where the case has been litigated. Emery v. Hunt, 272 F.3d 1042, 1048 (8th
Cir. 2001). District courts may rely on their own experience and knowledge of prevailing
market rates. Hanig, 415 F.3d at 825. In determining a reasonable attorney fee, the
district court should consider the factors set forth in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), though it need not exhaustively
address every factor. Emery, 272 F.3d at 1048.
In addition to attorney fees, expenses and costs necessarily incurred in
prosecution of a case may be recovered from defendants as part of the attorney fee
award to the extent the expenses constitute out-of-pocket expenses normally incurred
by attorneys and charged to fee-paying clients. West v. Nabors Drilling USA, Inc., 330
F.3d 379, 395-96 (8th Cir. 2003). Also, paralegal fees are recoverable as attorney fees
at their prevailing market rates. Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 590
(2008).
Section 1692k(a)(2)(A) authorizes the court to award up to $1,000.00 in statutory
damages per plaintiff for any violation of the FDCPA. See Savino v. Computer Credit,
Inc., 164 F.3d 81, 86 (2d Cir. 1998) (“[a]ll that is required for an award of statutory
damages is proof that the statute was violated . . . .”). The specific amount of statutory
damages, not to exceed $1,000.00, falls within the court's discretion. Id. Factors to be
considered by the court in determining an appropriate statutory damages award include
the frequency, persistence, and nature of the debt collector's noncompliance with the
Act; the debt collector's resources; the number of individuals adversely affected; and the

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extent to which the debt collector's non-compliance was intentional. See 15 U.S.C. §
1692k(b)(2).
The record shows that notice of the attorney fee agreement has been provided to
the class. Filing No. 157-2 Index of Evid., Ex. A, Affidavit of Affidavit of Bailey Hughes
at 2.

No class member has requested exclusion from the class, objected to the

settlement, or objected to the fee award. See id. The court finds that the proposed
notice was clearly designed to advise the class members of their rights. The class
members were given a fair and reasonable opportunity to appear at the Fairness
Hearing and to object to the settlement. No Class Member appeared at the hearing or
otherwise objected to the settlement.
The Agreement provides that "[d]efendants agree not to oppose Class counsel’s
costs, expenses, and attorneys’ fees request in an amount not to exceed $176,273.00,
and Defendants will pay an award up to that amount if authorized by the Court." Filing
No. 154-2, Class Action Settlement Agreement at 7. They also agree to pay plaintiff the
reasonable attorney fees and costs as the Court may award for prosecution of a
“successful action” under 15 U.S.C. 1692k. Id. at 9.
In support of its unopposed motion for attorney fees, the plaintiff has shown that
plaintiff's attorneys, O. Randolph Bragg, Pamela A. Car, and William L. Reinbrecht, and
a paralegal have expended a total of over 605 hours at rates of $125 to $350 per hour,
resulting in lodestar amount of $188,118.50. Filing Nos. 160-1 and 160-2, Index of
Evid., Exs. 1 and 1A, Declaration of O. Randolph Bragg and time records; Filing No.
160-3 and 160-4; Exs. 2 and 2A, Declaration of Pamela Car and time records; Filing No.
160-5 and 160-6, Exs. 3 and 3A, Declaration of William Reinbrecht and time records.
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The plaintiff has shown he incurred costs in the amount of $3,363.05. Filing No. 160-4,
Ex. 2A, Reinbrecht time records at 17. In addition, the class representative has shown
that he has satisfied his responsibilities to the entire class by making himself available
when needed, providing information to his attorneys and ensuring that the settlement of
is this case is fair and reasonable. Filing No. 160-7, Ex. 4, Declaration of Lee Jenkins.
The court finds the attorney fees and costs requested and agreed to in the
settlement are fair and reasonable. The court is familiar with attorney rates in this
community and with the competence and expertise of the attorneys representing the
class. The court finds rates of $300 to $350 per hour for attorneys and $125 per hour
for a paralegal are reasonable in this community for professionals with the experience
and expertise of the plaintiff's counsel. Furthermore, the number of hours expended is
reasonable in view of the protracted nature of the litigation and the complexity of issues.
The requested fees are close to ten percent lower than the lodestar amount, which itself
is reasonable. The plaintiff has demonstrated that counsels' services have benefitted
the class, in that, in addition to monetary damages, the defendants have agreed to
certain changes in their debt collection practices.
Also, the court has reviewed the plaintiff's costs submission and finds that the
costs incurred are fair and reasonable and were necessary to prosecute the claim on
behalf of the class. The court finds that the plaintiff’s motion for reimbursement of costs
should also be granted. The parties agreed to award the named plaintiff and class
representative statutory damages of $1,000.00 under the FDCPA, and damages of
$1,000.00 under the NCPA, as well as an the incentive award of $2500.00, for a total of
$4500.00. Filing No. 154-2, Ex. 1A, Class Action Settlement Agreement at 12. That
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amount is in line with damages and incentive awards in other cases and is reasonable
under the circumstances. Accordingly, the court finds the plaintiff's unopposed motion
for attorney fees, costs, statutory damages and an incentive award should be granted.
IT IS ORDERED:
1.

The plaintiff's unopposed motion for attorney fees, costs, statutory

damages and an incentive award (Filing No. 158) is granted.
2.

A judgment in favor of the plaintiff and against defendants in the amount of

$2,000.00 as statutory damages, $2,500.00 for service as class representative, and
$176,273.00 for attorney fees and costs will be entered this date.
Dated this 22nd day of February, 2016
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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