Sharp, et al v. Watts Regulator Co.
Filing
166
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED: The plaintiffs' motion for attorney fees and costs (Filing No. 147 ) is granted. The plaintiffs, on behalf of the class, are awarded 30% of the Total Settlement Amount of $10,000,000.00 ($3,000,000.00) in attorney fees. The plaintiffs Durwin Sharp, Joseph Ponzo, Kathryn Meyers, and Joshua Whipp, individually, are each awarded $5,000.00 as a service award. The plaintiffs, on behalf of the class, are awarded costs in the amount of $20,844.79. A Judgment in accordance with this Memorandum and Order will issue this date. Ordered by Senior Judge Joseph F. Bataillon. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DURWIN SHARP, on behalf of himself and
all others similarly situated; JOSEPH
PONZO, on behalf of himself and all others
similarly situated; KATHRYN MEYERS, on
behalf of herself and all others similarly
situated; and JOSHUA WHIPP, on behalf
of himself and all others similarly situated;
8:16CV200
MEMORANDUM AND ORDER
Plaintiffs,
v.
WATTS REGULATOR CO.,
Defendant.
This matter is before the court on the plaintiffs’ motion, individually and on behalf
of the Settlement Class, for attorney fees and costs, Filing No. 147. This is a products
liability class action. The parties entered into a Settlement agreement. Filing No. 53-4.
On December 7, 2016, the court entered its Order Granting Preliminary Approval
of Class Action Settlement; Certification of Settlement Class; and Approval of Form and
Content of Proposed Notice (“Preliminary Approval Order”). Filing No. 144. The Final
Fairness Hearing was held on April 12, 2017, during which the court heard plaintiffs’
Motion for Final Approval of Class Action Settlement (“Motion for Final Approval”) and
plaintiffs’ Motion for Attorneys’ Fees and Costs.
I.
LAW
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); Johnson v.
Comerica Mortg. 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. It is within the court’s discretion to decide which method to apply. Id.
The percentage-of-recovery methodology has been approved in common-fund
settlement class action cases. See, e.g., In re US Bancorp Litig., 291 F.3d 1035, 1038
(8th Cir. 2002) (approving an award of 36% of the settlement fund); Petrovic v. Amoco
Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999) (approving award of 24% of monetary
compensation to the class). To recover fees from a common fund, attorneys must
demonstrate that their services were of some benefit to the fund or that they enhanced
the adversarial process. In Re US Bancorp Litig., 291 F.3d at 1038.
When awarding attorneys’ fees, District Courts are guided by the following twelve
factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the requisite skill required to perform the legal service properly; (4) preclusion of other
employment by the attorney due to case acceptance; (5) customary fee for similar work
in the community; (6) whether the fee is fixed or contingent; (7) the limitations imposed
by client or circumstances; (8) amount involved and results obtained; (9) the attorneys
reputation, experience and ability; (10) the case’s undesirability; (11) nature and length
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of the professional relationship with the client; and (12) awards in similar cases.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
Service awards to representative plaintiffs encourage members of a class to
become class representatives and reward individual efforts taken on behalf of a class.
Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (awarding incentive award of
$25,000).
II.
DISCUSSION
The court has considered the parties’ submissions. The plaintiffs have shown
that the law firms of Berger & Montague, Greg Coleman Law PC, Cafferty Clobes
Meriwether & Sprengel LLP, and McCuneWright LLP (“Class Counsel”) represented
them as well as the plaintiffs in the companion class action case of Klug v. Watts, No.
8:15-cv-61. See Filing No. 148-1, Declaration of Shanon J. Carson at 2. Class Counsel
worked together to divide assignments equally, avoid duplication of effort and
accomplish all tasks in the most efficient manner possible. Id. They have also shown
that as of February 6, 2017, the total number of recorded hours spent on the two cases
by all Class Counsel is approximately 3,544 hours at rates ranging from $200.00 per
hour to $900 per hour for twenty attorneys and two paralegals, resulting in a lodestar
amount of $2,253,341.20. This work was reasonable and necessary to the prosecution
and settlement of this case.
The hourly rates for the partners, associates and
professional staff who worked on the litigation are in line with the rates of attorneys with
similar expertise and experience would charge in non-contingent matters.
As a result of counsel’s efforts and extensive arms-length negotiations, the
parties settled both cases—the Klug case for $4 million and the Sharp case for $10
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million, for a Global Settlement Amount of $14 million. Counsel achieved an extremely
successful recovery that confers a substantial benefit to the settlement class. Many of
the claims were far too small for individual Class Members or attorneys to pursue
individually against a large, national company like Watts.
Class Counsel are nationally recognized in product liability class actions.
Plaintiffs have shown Class Counsel achieved an extremely successful recovery that
confers a substantial benefit to the settlement class.
The record shows Class Counsel assumed a risk in filing and litigating these
cases. Class Counsel took these cases on a fully contingent basis, investing time, effort
and money with no guarantee of any recovery. Class Counsel also proceeded knowing
that there was a chance that Watts would prevail and that, even if Plaintiffs prevailed,
the case would likely take years to resolve. This case involved a substantial amount of
work to bring it to a successful conclusion.
The plaintiffs’ request a fee of 30% of the award, which is within the amount that
courts typically award in similar cases.
The parties disclosed in the settlement
Agreement and notices that the plaintiffs would seek attorney fees in an amount to be
approved by the court. Filing No. 53-4, Settlement Agreement. There have been no
objections to the Settlement agreement or the motion for attorney fees. In consideration
of the factors set forth above, the court finds the plaintiffs’ motion for an award of fees
should be granted.
Plaintiffs have also shown that Class Counsel incurred a combined total of
approximately $41,689.58 in costs and expenses in the two cases. At the hearing on
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the motion, the parties agreed that the costs should be divided 50/50 between the two
cases. The court finds the expenses are reasonable and should be reimbursed.
Plaintiffs also seek a service award to the representative plaintiffs in the amount
of $5,000.00 each. Plaintiffs have shown by affidavit that the named individuals took
very real steps to advance the interests of the Settlement Class. Filing No. 159-2,
Declaration of Shanon J. Carson at 19.
They brought their claims concerning the
allegedly defective products to the attention of Class Counsel. Id. They searched their
files and produced all of the documents they had relating to this matter. Id. They gave
interviews concerning their experiences regarding the products to Class Counsel. Id.
Also, all named plaintiffs submitted their homes to an inspection by the defendant’s
attorneys and experts or other contractors. As a result of their efforts, the Settlement
Class Members will benefit from substantial financial recoveries. The court finds this
service award reasonable in light of each Plaintiff’s efforts in assisting Class Counsel in
achieving the Settlement. Accordingly,
IT IS HEREBY ORDERED:
1.
The plaintiffs’ motion for attorney fees and costs (Filing No. 147) is
granted.
2.
The plaintiffs, on behalf of the class, are awarded 30% of the Total
Settlement Amount of $10,000,000.00 ($3,000,000.00) in attorney fees.
3.
The plaintiffs Durwin Sharp, Joseph Ponzo, Kathryn Meyers, and Joshua
Whipp, individually, are each awarded $5,000.00 as a service award.
4.
The plaintiffs, on behalf of the class, are awarded costs in the amount of
$20,844.79.
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5.
A Judgment in accordance with this Memorandum and Order will issue
this date.
Dated this 13th day of April, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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