Klopfenstein et al v. Fifth Third Bank

Filing 323

ORDER granting 303 Plaintiffs' Motion for Attorney Fees. Defendant shall pay $3,317,128.60 in fees and $268,236.33 in costs. Defendant is also responsible for the cost of class notice and distribution. Each named Plaintiff shall be paid $10,000 each ($50,000 total) from the statutory damages award. Signed by Judge Michael R. Barrett on 3/10/2025. (kkz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
William R. Klopfenstein, et al.,
Plaintiffs,

Case No. 1:12cv851

v.

Judge Michael R. Barrett

Fifth Third Bank,
Defendant.
OPINION & ORDER
This matter came on for consideration of Plaintiffs’ Motion for Attorney Fees, Costs
and Incentive Awards (Doc. 303) together with Defendant’s Response (Doc. 304) and
Plaintiffs’ Reply (Doc. 311).
This class action arises out of Defendant’s “Early Access” cash advance loan
program. Following this Court’s ruling on Defendant’s Motion to Dismiss and an appeal
of that decision to the Sixth Circuit, the following claims remained: (1) breach of contract;
and (2) violation of the Truth in Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”). 1 This
Court granted summary judgment in favor of Plaintiffs on their TILA claim (Doc. 209,
PAGEID 6057-6060); but a jury returned a general verdict in favor of Defendant on
Plaintiffs’ breach of contract claim (Doc. 272, PAGEID 8643).

1Plaintiffs also brought claims for: (1) violations of the Electronic Funds Transfer Act; (2)

violation of 12 U.S.C. § 1831(d); (3) conversion; (4) unjust enrichment under Ohio law; (5) unjust
enrichment under Illinois law; (6) unjust enrichment under Tennessee law; (7) unjust enrichment
under Kentucky law; (8) unjust enrichment under Florida law; (9) unjust enrichment under
Michigan law; (10) unjust enrichment under Indiana law; (11) fraud under Ohio law; (12) fraud
under Tennessee law; (13) fraud under Florida law; (14) fraud under Indiana law; (15) violation
of Illinois’ Consumer Fraud and Deceptive Business Practice Act; and (16) violation of
Kentucky’s Consumer Protection Act. (Doc. 68). These claims were dismissed in this Court’s
ruling on Defendants’ Motion to Dismiss. (Doc. 89).
1

“Section 1640(a)(3) of the TILA provides that a successful plaintiff is entitled to
‘reasonable attorney fees, as determined by the Court.’” Purtle v. Eldridge Auto Sales,
Inc., 91 F.3d 797 (6th Cir. 1996) (quoting 15 U.S.C. § 1640(a)(3)). “The starting point for
determining a reasonable fee is the lodestar, which is the product of the number of hours
billed and a reasonable hourly rate.” Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616
(6th Cir. 2007). “To arrive at a reasonable hourly rate, courts use as a guideline the
prevailing market rate, defined as the rate that lawyers of comparable skill and experience
can reasonably expect to command within the venue of the court of record.” Geier v.
Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (citing Adcock-Ladd v. Sec'y of Treasury,
227 F.3d 343, 350 (6th Cir. 2000)).
“From there, the district court may adjust the figure based on ‘relevant
considerations peculiar to the subject litigation.’” Betancourt v. Indian Hills Plaza LLC, 87
F.4th 828, 831 (6th Cir. 2023) (quoting Adcock-Ladd, 227 F.3d at 349). “‘[T]he most
critical factor’ in determining the reasonableness of a fee award ‘is the degree of success
obtained.’” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S. Ct. 1933, 1943, 76 L. Ed. 2d 40
(1983)). As the Supreme Court has explained:
Where the plaintiff has failed to prevail on a claim that is distinct in all
respects from his successful claims, the hours spent on the unsuccessful
claim should be excluded in considering the amount of a reasonable fee.
Where a lawsuit consists of related claims, a plaintiff who has won
substantial relief should not have his attorney's fee reduced simply because
the district court did not adopt each contention raised. But where the
plaintiff achieved only limited success, the district court should award only
that amount of fees that is reasonable in relation to the results obtained.
Id. at 440.

2

If the plaintiff has only achieved “limited success,” a court must decide by what
amount to discount the total amount of fees. Richard v. Caliber Home Loans, Inc., 832 F.
App'x 940, 946 (6th Cir. 2020) (finding that the district court did not abuse its discretion
by reducing total fee award by 30 percent where the plaintiff did not prevail on two of his
four claims). As part of this analysis, the Court must address two issues: “(1) whether the
claims on which the plaintiff failed to prevail were or were not related to the claims on
which he or she succeeded, and (2) whether the plaintiff achieved a sufficient degree of
success to render the hours reasonably expended a satisfactory basis for awarding
attorney fees.” Imwalle v. Reliance Med. Products, Inc., 515 F.3d 531, 552 (6th Cir. 2008)
(citing Hensley, 461 U.S. at 434).
Plaintiffs maintain they are entitled to all attorney fees directly attributable to the
TILA claim; but are not seeking fees related to work which only supported their breach of
contract claim (which they estimate to be 15% of their time) or any time logged after the
Court's summary judgment ruling on Plaintiffs’ TILA claim (Doc. 303, PAGEID 10361).
Plaintiffs explain that the appropriate amount of fees is $5,638,622.53 for all
attorney/paralegal work on the litigation. Plaintiffs also seek $315,572.13 in costs and
$50,000 in class representative service awards ($10,000 for each of the five class
representatives). Plaintiffs also request that Defendant pay the cost of class notice and
distribution of the individual awards.
In support of Plaintiffs’ Motion for Attorney Fees, Plaintiffs supplied the Court with
various timesheets and billing records of the timekeepers involved in this litigation, as well
as cost sheets. Plaintiffs seek remuneration in accordance with the “LSI Adjusted Laffey
Matrix” for fees on hourly rates or hourly rates which approximate the Matrix. See Laffey

3

Matrix, http://www.laffeymatrix.com/see.html (last visited Feb. 25, 2025). 2

Relevant

portions of the Laffey Matrix are shown here:

2As one district court explained:

the “Laffey Matrix,” a tool developed by the United States Department of Justice
and adjusted by the nationwide legal services component of the Consumer Price
Index that is used by courts to determine appropriate market rates for attorneys
who practice in the Washington, D.C. area. . . . The Sixth Circuit and a court in this
district have used the Laffey Matrix to determine the reasonable hourly rates of
Washington, D.C. attorneys where the hiring of Washington, D.C. attorneys was
deemed reasonable . . .
Tyson v. Sterling Rental, Inc., Case No. 13-CV-13490, 2019 WL 3554713, at *10 (E.D. Mich. Apr.
17, 2019), adopted 2019 WL 3024719 (E.D. Mich. July 11, 2019) (citing Adcock-Ladd, 227 F.3d
at 347 n.3, 351; Entm't Software Ass'n v. Granholm, No. 05-73634, 2006 WL 6306504, at *3 (E.D.
Mich. Nov. 30, 2006)).
4

Defendant does not dispute that Plaintiffs are entitled to fees. Instead, Defendant
opposes the amount of fees requested. As to the hourly rate, Defendant maintains that
the Court should use the Rubin Committee rates, which are hourly rates identified by the
Rubin Committee in 1983, adjusted upward each year by 4% for inflation. Judges in the
Southern District of Ohio often rely on the Rubin Committee rates to make determinations
regarding the reasonableness of rates for the area. See HealthCare Facility Mgmt. LLC
v. Engnan, No. 1:23-CV-246, 2023 WL 5846874, at *4, n.22 (S.D. Ohio Sept. 11, 2023)
(citing cases). These rates are tiered by years of experience:

Defendant also argues that the number of hours claimed by Plaintiffs is not
reasonable. Defendant maintains that Plaintiffs’ assertion that only 15% of attorney time
was spent solely on the breach of contract claim overstates the overlap between the
breach of contract claim the TILA claims. (Doc. 304, PAGEID 10835). Defendant also
maintains that Plaintiffs’ lack of success on their other dismissed claims justifies an
across-the-board reduction of the lodestar amount; and there should be a reduction for
duplicative or excessive billing due to a TILA claim’s relative lack of complexity. In
addition, Defendant maintains a 20% reduction should be applied to any block billing; and
5

any vague entries and clerical fees should be removed from the calculation of fees. As
to costs, Defendant proposes that the Court apply a 50% across-the-board reduction to
Plaintiffs’ request for costs and expenses; and Plaintiffs should pay for the cost of notice
in its entirety. Finally, Defendant maintains that the cost of distribution and any service
awards to the named Plaintiffs should be paid out of the judgment.
Appropriate Rate
This case began in the Northern District of Ohio and was subsequently transferred
to this Court. The case was later consolidated with similar cases from Western District of
Kentucky, Middle District of Tennessee, Southern District of Illinois and the Southern
District of Florida. (Doc. 65). The case involves a defendant who does business on a
multi-state level, across various jurisdictions. 3

Therefore, this Court must consider

whether out-of-market rates are appropriate and constitute a reasonable hourly rate under
the circumstances.
Out-of-market rates for counsel are appropriate when they have “expertise and
national practice.” Doe v. Ohio, Case No. 2:91-CV-00464, 2020 WL 728276, at *11 (S.D.
Ohio Feb. 12, 2020), adopted Case No. 2:91-CV-464, 2020 WL 996561 (S.D. Ohio Mar.
2, 2020) (citing U.S. ex rel. Lefan v. Gen. Elec. Co., 397 F. App'x 144, 146 (6th Cir. 2010)
and Louisville Black Police Officers Org. v. City of Louisville, 700 F.2d 268, 278 (6th Cir.
1983) (district courts may “look to a national market ... or any other market they believe
appropriate to fairly compensate particular attorneys in individual cases”)). “When fees
are sought for an out-of-town specialist, courts must determine (1) whether hiring the out3As the Sixth Circuit recognized when this case was on appeal: “Fifth Third is a state-

chartered, federally insured bank headquartered in Ohio, with branches in several states,
including Ohio, Michigan, Kentucky, and Tennessee.” In re Fifth Third Early Access Cash
Advance Litig., 925 F.3d 265, 269-270 (6th Cir. 2019).
6

of-town specialist was reasonable in the first instance, and (2) whether the rates sought
by the out-of-town specialist are reasonable for an attorney of his or her degree of skill,
experience, and reputation.” Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995) (citing
Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 1982); Maceira v. Pagan, 698
F.2d 38, 40 (1st Cir. 1983)).
This Court has relied upon the Rubin Committee rates in the past. However,
because these cases spawned from several jurisdictions and were consolidated before
this Court, counsel on both sides have come from outside the Southern District of Ohio.
Counsel for Plaintiffs submitted declarations, resumes, and documentation, which confirm
their nationwide status and practices. Over the course of this litigation, the Court has
become quite familiar with the Tycko & Zavareei law firm and the other firms representing
Plaintiffs. The Court had the opportunity to read and observe all of the attorneys’ work in
this case and is confident in their status and ability. This is a national practice case,
requiring specialized knowledge and expertise, and, frankly, the Rubin rates do not
provide sufficient compensation for this particular matter. Instead, the Court will rely upon
the rates from the Laffey Matrix.
When a case, such as this one, has been litigated for an extended period, “it is at
the Court's discretion whether to apply the current year's rates.” Mitchell v. City of
Cincinnati, Case No. 1:21-CV-626, 2024 WL 5041020, at *3 (S.D. Ohio Dec. 9, 2024)
(citing Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005)). The Court may
choose to use historic rates “so as to avoid a windfall or prevent the payment of fees at
rates that were not in effect when much of the work was done.” Id. (citing Gonter v. Hunt
Value Co., 510 F.3d 610, 617 (6th Cir. 2007)).

7

Here, the Court concludes that the historic rates from the Laffey Matrix are
appropriate and constitute a reasonable hourly rate in this case. The Court has reviewed
all of the individual timekeepers’ records provided by Plaintiffs and calculated the Laffey
Matrix rate for the individual timekeepers at the yearly rate for when the services were
performed.
Reasonable Number of Hours
In determining whether the number of hours expended on a case is reasonable,
“the standard is whether a reasonable attorney would have believed the work to be
reasonably expended in pursuit of success at the point in time when the work was
performed.” Wooldridge v. Marlene Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990),
abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598 (2001)). The relevant inquiry is not whether “in
hindsight the time expenditure was strictly necessary to obtain the relief achieved.” Id.
However, “[t]he documentation offered in support of the hours charged must be of
sufficient detail to enable a court to determine with a high degree of certainty that such
hours were actually and reasonably expended in the prosecution of such litigation.”
Imwalle, 515 F.3d at 553 (quoting United Slate, Local 307 v. G & M Roofing & Sheet Metal
Co., 732 F.2d 495, 502, n. 2 (6th Cir. 1984)). Additionally, counsel is expected to exercise
billing judgment by excluding “hours that were not ‘reasonably expended.’” Hensley, 461
U.S. at 434.
Plaintiffs are not seeking fees related to work which only supported their breach of
contract claim. However, in reviewing the hours expended, the Court did find some time
which was strictly attributable to the breach of contract claim. For example, the Court

8

reviewed the reports and testimony of certain expert witnesses: Patricia Oliver, Michael
Simkovic and Charles Grice. (Docs. 188-1, 188-4, 188-5). These witnesses opined upon
the statutory non-compliance of the TILA language which formed the basis for the TILA
violation and the breach of contract claim. Therefore, their testimony was relevant to both
claims. On the other hand, Arthur Olsen opined as to the damages calculation for the
breach of contract claim. (Doc. 194-2, PAGEID 4935). His testimony can therefore only
be applicable to the breach of contract claim. Accordingly, the Court has excluded any
attorney time entries associated with this expert witness.
Defendant complains that Plaintiffs have claimed 578 hours based on vague
descriptions of work, such as “Discovery,” “document review – 4.5 hours,” or “Status with
B.B. and R.P.” (Doc. 304, PAGEID 10832). However, as this Court has explained:
Billing entries do not need to be “explicitly detailed.” McCombs v. Meijer,
Inc., 395 F.3d 346, 360 (6th Cir. 2005). Moreover, billing entries should not
be considered in a vacuum. See, e.g., U.S. ex rel. Lefan v. Gen. Elec. Co.,
397 F. App'x 144, 149 (6th Cir. 2010) (holding that billing entries for “Email,”
“Telephone Conference w/REL,” and “Travel to Owensboro” were
sufficiently detailed to support an attorneys' fees award, where the court
could determine, through “context,” the nature of the “work performed”).
United States ex rel. Trakhter v. Provider Servs., Inc., No. 1:11-CV-217, 2019 WL
2422422, at *6 (S.D. Ohio June 10, 2019). The Court finds that the entries in the records
provided to the Court are sufficiently descriptive for the Court to determine whether or not
the hours were reasonably expended.
The Court has reviewed all the timekeeper records submitted; and taking the
above observations into consideration makes the following determination regarding the
reasonable number of hours expended at a reasonable hourly rate (i.e., the lodestar):

9

FEE CHART
Tyco & Zavareei LLP
TIMEKEEPER

REQUEST

DETERMINATION

Hassan Zavareei

$ 887,985.70

$ 650,712. 20

Anna Haac

$ 853,064.80

$ 473,670.00 + $ 174,007.00 4

Jeffrey Kaliel

$ 313,709.40

$ 135,660.75

Shana Khader

$ 117,739.80

$ 88,464.10

David Lawler

$ 87,345.00

$ 72,684.93

Dia Rasinariu

$ 163,247.70

$ 105,476.80

Cort Carlson

$ 61,354.80

$ 29,405.00

Aaron McReynolds

$ 39,889.10

$ 38,192.20

Amy Berkowitz

$ 2294.40

$ 979.90

Connor Rowe

$ 71.70

$0

Dana Gillis

$ 501.90

$0

Emma Bass

$382.40

$0

Emma Schlip

$ 191.20

$0

Genna Wolinsky

$ 5353.60

$0

James Morrison

$ 621.40

$0

Karen Ressue

$ 573.60

$0

Matthew Folkerts

$ 7193.90

$ 5988.40

Maura Dunn

$ 3991.00

$ 3631.20

4The Court has included attorney time spent preparing Plaintiffs’ request for attorney

fees because “[t]he cases from this and other circuits uniformly hold that a lawyer should
receive a fee for preparing and successfully litigating the attorney fee case after the original
case is over.” Coulter v. State of Tenn., 805 F.2d 146, 151 (6th Cir. 1986), abrogated on other
grounds by, The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686 (6th Cir. 2016)).
10

Mia Goschalk

$ 5186.30

$ 3023.60

Nathan Laporte

$ 2987.50

$ 2428.50

Nicole Parzenheim

$ 3632.80

$ 3093.10

Sydney Teng

$ 3178.70

$ 2404.40

Allegra Lubar

$ 2294.40

$0

Stephanie Ricker

$ 95.60

$0

TOTAL:

$ 2,562,886.70

$ 1,789,822.08

Spangenberg, Shibley, & Liber LLP
TIMEKEEPER

REQUEST

DETERMINATION

Daniel French

$ 158,303.40

$ 110,813.10

Dennis Lawndowne

$ 138,054.77

$ 79,508.75

Jeradon Mura

$ 4266.34

No Time Entries

Jeremy Tor

$ 1176.52

No Time Entries

Kevin Hullick

$ 206,798.55

$ 141,994.62

Stuart Scott

$ 787,348.73

$ 592,984.74

Hudson Curtin

$ 5191.08

$ 5257.12

Kyra Wieber

$ 286.80

$0

Samantha Oetting

$ 564.04

$0

TOTAL:

$ 1,301,990.23

$ 930,558.13

Wagner, Vaughan & McLaughlin, P.A.
TIMEKEEPER

REQUEST

DETERMINATION

Jason Whittemore

$ 856,840.20

$ 587,750.54

Alan Wagner

$ 56,866.60

$ 40,393.40
11

Kevin McLaughlin

$ 96,187.00

$ 64,023.90

Michael McLaughlin
Arelys McQuade
Vicky Knudsen

$ 114,473.10

$ 83,053.30

$ 18,904.90

$15,503.60

TOTAL:

$ 1,143,271.80

$ 790,724.74

Barnow and Associates, P.C.
TIMEKEEPER

REQUEST

DETERMINATION

Ben Barnow

$ 102,690.00

$ 53,513.98

Anthony Parkhill

$ 725.00

$ 550.00

Erich Schork

$ 73,805.00

$ 42,746.00

Sharon Harris

$ 52,967.50

$ 34,300.00

Blake Strautins

$ 29,240.00

$ 19,584.00

Riley Prince

$ 240.00

$0

TOTAL:

$ 259,667.50

$ 150,693.98

Carey, Danis, and Lowe
TIMEKEEPER

REQUEST

DETERMINATION

Francis J. “Casey”
Flynn, Jr.

$ 122,431.60

$ 83,404.90

Tiffany Yiatras

$ 116,723.20

$ 79,449.30

TOTAL:

$ 239,154.80

$ 162,854.20

Jones Ward PLC
TIMEKEEPER

REQUEST

DETERMINATION

Jasper D. Ward, IV

$ 74,366.60

$ 40,836.00

Alex C. Davis

$ 57,684.60

$ 37,015.50
12

TOTAL:
OVERALL

TOTAL:

$ 132,051.20

$ 77851.50

$ 5,639,022.23

$ 3,902,504.23

Degree of Success
Defendant argues that Plaintiffs’ lack of success warrants a reduction in the
lodestar amount. Defendant explains that Plaintiffs’ main focus throughout the litigation
was on the breach of contract action, not the TILA claim. While this may be true from a
potential recovery posture, you must have one to hit the other. Both the breach of contract
claim and the TILA claim are premised upon the Annual Percentage Rate (“APR”)
disclosure.

The Early Access loan agreement stated that the APR was 120%, but

because most Early Access customers paid off the loan in less than thirty days, these
customers paid more than the 120% APR disclosed in the contract. The Court found that
this disclosure did not comply with TILA’s disclosure requirements (Doc. 209, PAGEID
6058); but the case moved forward on Plaintiffs’ breach of contract claim. At trial, Plaintiffs
argued that Defendant breached the APR term when it charged Plaintiff more than 120%
APR.

The jury agreed and found that Defendant breached the Early Access loan

agreement; but ultimately found in Defendant’s favor because the voluntary payment
doctrine applied. (Doc. 272-1, PAGEID 8644).
Moreover, when this case was on appeal, Defendant argued that this Court
improperly certified the dismissed breach of contract claim as a final judgment under
Federal Rule of Civil Procedure 54(b) because the breach of contract and TILA counts
represent a single “claim.” In re Fifth Third Early Access Cash Advance Litig., 925 F.3d

13

265, 273 (6th Cir. 2019). The Sixth Circuit observed that the TILA and breach of contract
counts stemmed from different acts or omissions by Defendant; and each count sought
to recover damages that stem from separate injuries. Id. at 274. However, the Sixth
Circuit observed:
To be sure, each count is not entirely divorced from the other. For example,
the complaint alleges that Fifth Third “breached the contract by failing to
provide an accurate APR summary for Early Access Loans on monthly bank
statements.” Similarly, the TILA count alleges that Fifth Third “did not
provide accurate and meaningful APR disclosures to Plaintiffs regarding
Early Access Loans.”
925 F.3d at 275. The Sixth Circuit concluded that “despite the presence of some overlap,”
for purposes of Rule 54(b), the differences between the TILA and breach of contract
counts “sufficiently outweigh what they have in common” and permitted the appeal. Id.
All of this is to say that even though Plaintiffs set forth different legal theories, there
was overlap as to the basis for liability; and at the center of both claims was the APR
disclosure in the Early Access loan agreement.

While they have taken different

procedural paths, the two claims have always been related. As the Sixth Circuit has
instructed:
“[w]hen claims are based on a common core of facts or are based on related
legal theories, for the purpose of calculating attorney fees they should not
be treated as distinct claims, and the cost of litigating the related claims
should not be reduced.” Deja Vu, 421 F.3d at 423 (internal quotation marks
omitted). This is because when several claims arise from a common core
of facts, “[m]uch of counsel's time will be devoted generally to the litigation
as a whole, making it difficult to divide the hours expended on a claim-byclaim basis. Such a lawsuit cannot be viewed as a series of discrete
claims.” Hensley, 461 U.S. at 435, 103 S.Ct. 1933.
Waldo v. Consumers Energy Co., 726 F.3d 802, 823 (6th Cir. 2013). Therefore, the Court
declines to make a reduction solely based on the lack of success on the breach of contact
claim. Again, as the Sixth Circuit has explained:
14

a court should not measure a plaintiff's success simply by using a ratio of
successful claims to claims raised. See Deja Vu of Nashville, Inc. v. Metro.
Gov't of Nashville & Davidson Cnty., 421 F.3d 417, 423 (6th Cir. 2005).
Indeed, “[w]e have ‘repeatedly rejected mechanical reductions in fees
based on the number of issues on which a plaintiff has prevailed.’” Imwalle
v. Reliance Med. Prods., Inc., 515 F.3d 531, 554 (6th Cir. 2008) (quoting
Deja Vu, 421 F.3d at 423).
726 F.3d 802, 822-23 (6th Cir. 2013). In keeping with these directives, the Court will not
use any type of ratio of successful claims to the total number of claims raised to reduce
the amount of fees. The Court notes that Plaintiffs have already applied a 15% reduction
in the total time spent to account for time attributable solely to the breach of contract
claim, and a further reduction is not in order.
Defendant would also have the Court look at the amount of fees spent relative to
the total recovery. Defendant points out that the fees outweigh the two million dollars in
statutory damages on the TILA claim. While this is true, attorney's fees are not limited by
the amount of the plaintiff’s recovery. Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797,
802 (6th Cir. 1996) (citing In re Pine, 705 F.2d 936, 938 (7th Cir.1983) and McGowan v.
King, Inc., 661 F.2d 48 (5th Cir.1981)); see also Daenzer v. Wayland Ford, Inc., 210
F.R.D. 202, 204 (W.D. Mich. 2002) (awarding costs and reasonable attorney’s fees where
the plaintiff won summary judgment on the TILA claim but was denied statutory damages
due to the financial situation of the defendant). The Court notes that this case was
litigated for a long period of time which led to an accumulation of fees.
Finally, Defendant argues that Plaintiffs are not entitled to any fees which
accumulated after Plaintiffs rejected a settlement offer in October of 2016. Defendant
says that this work did not contribute to Plaintiffs’ success because the settlement would
have resulted in a larger class award.

15

To be clear, the settlement offer was not made as an offer of judgment pursuant
to Federal Rule of Civil Procedure 68. Therefore, “the normal rules for awarding fees
apply, including the discretionary authority of the district court to award fees and to
consider a wide range of factors in doing so.” McKelvey v. Sec'y of U.S. Army, 768 F.3d
491, 496–97 (6th Cir. 2014); see also Kritcher v. Prudential Sec., Inc., 799 F. App'x 376,
379 (6th Cir. 2020) (explaining that “a district court may consider substantial settlement
offers that are rejected in calculating fee awards as part of the ‘degree of success’ in the
litigation.”). Under this analysis, the Court rejects the notion that Plaintiffs’ failure to
accept the settlement offer in October of 2016 is a basis for reducing the loadstar amount.
There is nothing in the history of this case indicating that Plaintiffs unnecessarily
prolonged the litigation by rejecting the settlement offer in October of 2016. At that point
in time both the TILA claim and the breach of contract claim were still very much in
dispute; and the bulk of the work necessary to pursue both claims took place after
settlement discussions stalled. Moreover, the Sixth Circuit has observed:
Hindsight has a way of making things look clearer at the point of decision—
the time of declining to settle a case—than they may have been. Just
because a plaintiff ends up with less than what was offered during
settlement negotiations does not mean fees should be reduced.
McKelvey, 768 F.3d at 495. Therefore, the Court concludes Plaintiffs’ decision to reject
Defendant’s settlement offer in October of 2016 does not warrant a reduction in fees in
this case.
Duplication of Services
Defendant argues that there should be a reduction for excessive lawyering and
duplication of effort. (Doc. 304, PAGEID 10831-33). Defendant points out that multiple

16

lawyers from multiple Plaintiffs’ firms billed for the same work and also billed more than
2,179 hours for internal conferencing time. (Doc. 304, PAGEID 10832).
As one district court has observed:
when assessing whether counsel has exercised billing judgment, district
courts need not act as “green-eyeshade accountants” who attempt to
“achieve auditing perfection.” Ne. Ohio Coal. for the Homeless v. Husted,
831 F.3d 686, 703 (6th Cir. 2016) (quoting Fox, 563 U.S. at 838). Neither
Supreme Court nor Sixth Circuit precedent require courts “to cull through
the records and conduct a[ ] line-item review.” Id. at 713 n.11. Rather,
district courts “must simply ... do ‘rough justice.’ ” Id. at 703. (quoting Fox,
563 U.S. at 838). “This means that the court can rely on estimates based
on its ‘overall sense of a suit.’” Id. (quoting Fox, 563 U.S. at 838).
Pianko v. Gen. R.V. Ctr., Inc., Case No. 20-CV-13371, 2025 WL 546935, at *4 (E.D. Mich.
Feb. 19, 2025). Accordingly, the Court may employ an across-the-board reduction, as
opposed to line-by-line reductions. Id. (citing Auto All. Int'l, Inc. v. U.S. Customs Serv.,
155 F. App'x 226, 228 (2005)). This method is particularly appropriate in a case like this
one where fee documentation is voluminous. See id. (citing Loranger v. Stierheim, 10
F.3d 776, 783 (11th Cir. 1994) (“Where fee documentation is voluminous ... an hour-byhour review is simply impractical and a waste of judicial resources.”)).
The Court notes that when a number of cases are consolidated for class action
purposes, it is not the least bit unusual for various law firms to be involved in the
prosecution of the matter and to divide the workload. In reviewing the timesheets there
was a clear division of assignment of various aspects of the case from motion practice,
expert preparation, and discovery requests to review of other counsel’s work. There was
also, by implication and borne out by the timekeeper’s records, a number of entries that
were duplicative services performed by various timekeepers as well as multiple attorney
review of updates from other timekeepers. The time recorded demonstrated much

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substantive work but also entries that only include descriptions such as “review” and
“respond to” (usually .1 or .2 entries). Frankly, it is difficult to determine if a short “review”
entry resulted in more substantive action on the part of the recipient or was merely a file
notation. Therefore, the Court will utilize a percentage reduction over all timekeepers.
Having reviewed all the time entries, the Court determines that a 15% reduction to the
above calculation is appropriate, which equals a total of $3,317,128.60 in fees.
Costs and expenses
“The award of statutory costs is a matter for the district court, in its best judgment
as to what was reasonable and necessary, and the appellate courts will not normally
interfere with the exercise of that discretion.” Waldo, 726 F.3d at 827 (citing Sigley v.
Kuhn, 2000 WL 145187, at *8 (6th Cir. 2000)) (analyzing a request for attorney's fees and
costs pursuant to 42 U.S.C. § 1988).
The Court has reviewed the cost and expense reports submitted by Plaintiffs’
counsel. The entries typically involve charges for Westlaw, Pacer, transcripts, travel and
photocopies. Unlike the timekeeper records provided for counsel and staff, the Court is
unable to discern expenses which could arguably be solely for the breach of contract
claim. Therefore, the Court will apply the same 15% percent reduction used above.
Class Representatives
Plaintiffs

have

requested

that

the

five

class

representatives

receive

incentive/service awards of $10,000 each. Plaintiffs explain that the class representatives
have participated in numerous meetings with their attorneys, reviewed discovery requests
and responses, and had their depositions taken. Defendant does not argue that the class
representatives did not adequately represent the class. Instead, Defendant takes the

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position that any incentive award must be paid from the judgment. Plaintiffs do not
disagree. (Doc. 311, PAGEID 121181).
The Court finds Plaintiffs' request for incentive awards well-taken. The named
Plaintiffs are entitled to an incentive award in the amount of $10,000 each, but these
amounts will be paid from the statutory damages award.
Costs of Notice and Distribution
Defendant argues that the costs of notice and distribution should be paid out of the
statutory damages award. While the class must initially bear the cost of notice to the
class, interim litigation costs may be shifted to the defendant after a plaintiff ‘s showing of
some success on the merits. Hook v. Baker, No. C2-02-CV-901, 2004 WL 3113717, at
*3 (S.D. Ohio Sept. 1, 2004) (“Simply stated, because the Court has already certified the
class and determined that defendant is liable to plaintiffs for violating the TILA and ORISA,
the cost of the notice should be borne by defendant.”). Here, the class has been certified,
Defendant has been found liable for violating TILA and statutory damages were awarded.
Moreover, Defendant maintains the customer databases containing Plaintiffs’ individual
information. Therefore, Defendant will be responsible for the costs of notice to the class
and disbursement of payments.

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Conclusion
Therefore, it is ORDERED that Defendant pay $3,317,128.60 in fees and
$268,236.33 in costs. Defendant is also responsible for the cost of class notice and
distribution. Each named Plaintiff shall be paid $10,000 each ($50,000 total) from the
statutory damages award.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

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