JACKSON et al v. WELLS FARGO BANK, N.A. et al
Filing
116
OPINION resolving 96 the parties' motion for final approval of class action settlement and 91 plaintiffs' motion for attorney fees and expenses. Signed by Judge David S. Cercone on 9/30/15. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS M. JACKSON and
)
PATRICIA G. JACKSON, as individuals )
and as representatives of the classes,
)
)
Plaintiffs,
)
)
v.
)
)
WELLS FARGO BANK, N.A. and
)
WELLS FARGO INSURANCE, INC.,
)
)
Defendants.
)
2:12cv1262
Electronic Filing
OPINION
Thomas and Patricia Jackson (“plaintiffs”) commenced this action individually and as
purported members of three putative classes seeking to hold Wells Fargo Bank (“WFB”) and
Wells Fargo Insurance, Inc. (“WFI”) (collectively “defendants”) liable for alleged improper
practices related to flood insurance undertaken in conjunction with the mortgage underwriting
process. Presently before the court are plaintiffs’ motions for final approval of class action
settlement (Doc. No. 96) and attorneys’ fees and expenses (Doc. No. 91). For the reasons set
forth below, the motions will be granted.
This case arises from demands by WFB that plaintiffs obtain flood insurance on real
property purchased with a mortgage from WFB. Similar demands were made on other
mortgagors by WFB and other mortgage lenders throughout the United States following a
change in protocol for flood insurance pertaining to the amount of flood insurance a mortgagor is
required to maintain on eligible property. This practice was not unique to WFB and has become
known as "force-placed flood insurance."
This action was filed as a case "related" to Morris v. Wells Fargo Bank, et al., 2:11cv474,
under Local Rule 40(D)(2). That case also arose from force-placed flood insurance practices
that involved "alleged improper charges and expenses incurred as a result of unnecessary and
unauthorized flood insurance placed on real estate that was purchased with a Federal Housing
Administration ("FHA") mortgage" issued by WFB. Opinion on Motion to Dismiss issued on
September 7, 2012, in Morris, 2:11cv474 (Doc. No. 99 in 2:11cv474). Plaintiffs in both the
Morris action and this case were/are represented by Attorney Kai Richter (“Attorney Richter”)
and the law firm Nichols Kaster, PLLP (“Nichols Kaster”).1
The claims the parties currently seek to compromise and settle through the pending
motions pertain to fees that WFB charged for a Standard Flood Hazard Determination ("SFHD")
made in conjunction with the National Flood Insurance Program ("NFIP"). As to these claims
plaintiffs essentially maintain that WFB charged an excessive fee for the determination and then
unlawfully engaged in a kickback or fee-splitting arrangement with WFI. The arrangement
purportedly was implemented through a "soft-dollar" accounting program utilized by defendants.
The pertinent allegations of plaintiffs' Amended Complaint are briefly summarized
below. On August 31, 2011, plaintiffs obtained a mortgage loan from WFB for $107,500.00.
Amended Complaint at ¶ 7. WFB charged plaintiffs $19.00 for a flood zone determination that
was performed by WFI prior to closing. Id. at ¶ 19. The charge was reflected on plaintiffs’
HUD-1 settlement statement. Id. Although WFB charged $19.00 for the SFHD, its actual cost
to obtain the determination was closer to $5.00. Id. at ¶ 23.
In conjunction with the mortgage plaintiffs received a Truth-in-Lending Act ("TILA")
Disclosure (“TILA Disclosure”). Id. at ¶ 8. The initial version of the TILA Disclosure stated
that flood insurance was required for plaintiffs’ property. (Id. at ¶ 8; Pls’ Ex. 2, (Doc. No. 18-2),
at p. 3). However, this error was later corrected with both parties' consent. In its unaltered
1
Attorney Richter is a partner at Nichols Kaster.
2
form, the TILA Disclosure provided that flood insurance “is required.” But a handwritten
alteration initialed by both plaintiffs purports to eliminate the requirement with the supporting
text “n/a and confirmed NOT in a flood zone”. (Pls’ Ex. 2, at p. 3). The parties disagree as to
both the erroneous nature of the TILA Disclosure’s flood zone requirement and the legal effect
of any attempted amendment. Compare (Amend. Compl., at ¶ 8), with (WFB’s Answer, at ¶ 8).
Before closing plaintiffs obtained their own independent flood zone determination from
CoreLogic Flood Services (“CoreLogic”). Id. at ¶ 17. CoreLogic determined that flood
insurance was not required on plaintiff's property. Id.; Standard Flood Hazard Determination of
August 26, 2011, Completed by CoreLogic (Doc. No. 18-9). This independent flood
determination cost plaintiffs $6.00, which is the standard amount CoreLogic charges for this
service. Id. at ¶¶ 17, 21.
At closing plaintiffs signed a SFHD which had been prepared by WFI for WFB. Id. at ¶
9. The parties at closing treated the SFHD as indicating that flood insurance was not required for
any portion of plaintiffs’ property. Id.
On November 7, 2011, WFB sent plaintiffs a form letter stating that flood insurance “is a
requirement of your loan.” Id. at ¶ 10; Letter of November 7, 2011 (Doc. No. 18-4). The letter
indicated that if plaintiffs did not provide proof of flood insurance WFB would purchase it at
plaintiffs’ expense. Id. Plaintiffs repeatedly objected to this demand. Id. at 11.
Plaintiffs wrote a letter to WFB on December 9, 2011, in which they asserted that flood
insurance was not required for their loan. As proof they enclosed a copy of the SFHD that they
and WFB had signed at closing. Id.; Thomas Jackson's Letter of December 9, 2011(Doc. No. 185). WFB did not immediately respond to plaintiffs’ letter. Feeling as if they had no choice,
plaintiffs purchased a policy providing $250,000.00 in coverage from NFIP in order to comply
with WFB's November 7, 2011, demand. Id. at ¶ 12.
3
After purchasing the insurance plaintiffs sent a second letter to WFB on December 19,
2011, informing it that they had acquired the demanded insurance and providing proof of the
same. Id.; Thomas Jackson's Letter of December 19, 2011(Doc. No. 18-6). The letter further
explained that plaintiffs' property was not in a Special Flood Hazard Area ("SFHA"); the loan
would not have been taken out if it had been known that flood insurance was required; and at
closing WFB had assured that plaintiffs were not required to obtain such insurance prior to
signing the settlement documents. Id.
WFB responded to plaintiffs in a letter dated January 5, 2012. Id. at ¶ 13. Therein WFB
acknowledged plaintiffs’ concerns about the flood insurance requirement and contended that the
SFHD used at closing was for plaintiffs' garage only, and included with the letter a separate
SFHD for plaintiffs’ home. Id.; Letter of January 5, 2012, by Christopher Cory (Doc. No. 18-7).
Plaintiffs had not received this separate determination for their residence at closing. Id. Further,
the comment section of the SFHD form indicated that WFI had made the determination
regarding the status of plaintiffs’ residence on August 23, 2011; however, the date of
determination listed on the form is August 17, 2011. Id.; Standard Flood Hazard Determination
of August 23, 2011, Section E, Comments (Doc. No. 18-3).
Upon receiving this letter plaintiffs spoke to an executive mortgage specialist at WFB.
Id. at ¶ 14. During the telephone conversation plaintiffs expressed their dismay that WFB had
not disclosed its flood insurance requirement at closing. Id. Thereafter, WFB sent a letter to
plaintiffs stating that “flood insurance was not required on your loan at the time of closing” and
that this was reflected in both the SFHD and the TILA Disclosure provided at closing. Id.; Letter
of February 17, 2012 (Doc. No. 18-8). WFB avers that this letter was the product of an
inadequate investigation by the employee who authored it. (WFB’s Answer, at ¶ 14).
Plaintiffs further maintain that WFB charged $19.00 for the SFHD. WFI received this
4
fee and kicked-back or split the charge with WFB or WFB received the fee and did not pay the
full amount to WFI. Id. at ¶¶ 24, 26. This practice repeatedly has been utilized by defendants.
Id. at ¶¶ 25, 27. Through its "soft dollars" program WFI typically kicks back a portion of the
charge it earns from referral business from WFB and the pass-back of these amounts is reflected
on the general ledger and is reported on a "Profitability Passback Report." Id. at ¶ 25. This
charge did not reflect a reasonable fee in compliance with those authorized under the National
Flood Insurance Act ("NFIA") and the practice of kick-backs or fee-splitting constituted an
illegal arrangement under the Real Estate Settlement Procedures Act (“RESPA”). Id. at ¶¶ 22,
26.
Defendants counter in part by asserting that plaintiffs' house is within a SFHA but their
garage is not. The August 17, 2011, determination by WFI thus properly determined that
plaintiffs were required to obtain flood insurance as a condition of their loan. A TILA disclosure
was prepared in accordance therewith. The SFHD was refined by a re-assessment on August 23,
2011, which determined that only plaintiffs' garage was not within the applicable SFHA.
Thereafter, the August 17, 2011, determination improperly was displaced by using the August
23, 2011, SFHD at closing and amending the TILA disclosure by hand to indicate plaintiffs were
not required to obtain flood insurance on the entire property.
WFB further contends that it is required by federal law to monitor the flood zone status of
improved property throughout the life of any mortgage it issues. Pursuant to this duty it was
required to rectify the mistake made at closing and have plaintiffs obtain the proper insurance
coverage if the home was within a SFHA, which it was according to both determinations made
by WFI in August of 2011. And plaintiffs agreed to expressed contractual provisions which
authorized the $19.00 charge for a life-of-the-loan SFHD. As a result they will be unable to
establish that the fee charged for the "life-of-the-loan" SFHD was unreasonable, which in turn
5
will undermine the ability to prove liability on all of their claims, including their fee
splitting/kickback claim(s).
In their Amended Complaint plaintiffs assert four causes of action. First, they contend
that WFB violated the Truth in Lending Act, 15 U.S.C. § 1601-1667f (“TILA”), by forcing class
members to purchase flood insurance without disclosing the requirement to do so in a TILA
disclosure. (Amend. Compl., at ¶¶ 39-45). Second, defendants violated Sections 8(a) and 8(b)
of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607(a), (b), by
orchestrating a scheme to split or kickback a portion of the $19 received for SFHD flood zone
determinations. (Id. at ¶¶ 46-54). Third, WFB breached mortgage contracts by charging fees
prohibited “by applicable law.” (Id. at ¶¶ 57-59). It also breached the covenant of good faith
and fair dealing. (Id. at ¶ 60). Finally, plaintiffs claim that WFI was enriched unjustly at the
expense of class members by its receipt of the SFHD fees. (Id. at ¶¶ 67-71).
Defendants filed motions to dismiss on December 20, 2012. (Doc. Nos. 28, 30).
Pursuant to an opinion issued on November 6, 2013, the motions were granted in part and denied
in part. WFB's motion was granted as to plaintiffs' breach of contract claim to the extent it (1)
seeks to advance a cause of action for breach of the covenant of good faith and fair dealing as an
independent basis for recovery and (2) is predicated on a violation of the reasonable fee
authorization in section 4012a(h) of the FDPA. WFI's motion was granted as to plaintiffs' unjust
enrichment claim to the extent it seeks relief based solely on a showing that the SFHA
determination was inaccurate or the SFHD fee was unreasonable. The motions were denied in
all other aspects.
Pursuant to discussions with counsel, the parties were permitted to defer their
participation in this court's mandatory Alternative Dispute Resolution Program until the pending
motions to dismiss were resolved. As part of those discussions the court suggested and
6
recommended that the parties consider using Louis B. Kushner, Esquire (“Attorney Kushner”) as
the designated neutral for that process.2 Following the opinion and rulings on November 6,
2013, the parties were referred to mediation with Attorney Kushner. (Doc. No. 50).
Prior to starting mediation the parties continued to litigate the matter. Plaintiffs served
interrogatories and requests for production of documents on November 15, 2013. (January 16,
2015, Richter Declaration (Doc. No. 93), at ¶ 14). Defendants responded to these requests on
December 23, 2013 and “produced a significant number of documents” over the next two
months. (Id.). The parties also negotiated and agreed that for the purposes of mediation
plaintiffs could use over 200,000 pages of documents produced in the Morris case. (Id. at ¶¶ 1,
15). Plaintiffs additionally served deposition notices on each defendant and four individuals
during this timeframe. (Id. at ¶ 16).
Mediation was commenced on February 26, 2014, and continued for the full day. (Id. at
¶ 17). During the session Attorney Kushner acted as an intermediary between the parties. (Id.).
The parties failed to reach an agreement in principle that day. Attorney Kushner continued the
process through a series of telephonic discussions. In the interim plaintiffs' counsel continued to
litigate the case through following up on outstanding discovery requests and pursuing
depositions. After lengthy negotiations under the auspice of Attorney Kushner an agreement in
principle was reached on May 12, 2014. (Id. at ¶¶ 18-19). The parties then exchanged a number
of drafts in an effort to arrive at a comprehensive settlement agreement and related court
2
This recommendation was made in part because lead counsel for both parties did not
practice in the Western District frequently and thus had a limited familiarity with nature, quality
and style of the services provided by the various neutrals in the court's program. It also was
made because of the notable excellence and earnest commitment that Attorney Kushner provides
in fulfilling a referral under the program.
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submissions. The parties executed the Settlement Agreement in August of 2014. (Id. at ¶ 19).
The motion for preliminary approval was filed on October 27, 2014.
The Settlement Agreement defines the Settlement Class as:
All persons who obtained a loan from [WFB] that was secured by a
first or subordinated lien on residential real property who were
charged by [WFB] for a Flood Hazard Determination between
August 30, 2011 and December 31, 2013, inclusive.
(Settlement Agreement, (Doc. No. 87-1), at ¶ 2(cc)). Pursuant to this agreement, class members
who submit a valid claim form certifying that they paid WFB for their flood zone determination
are entitled to a settlement payment of $9.50.3 (Id. at ¶ 32).
In exchange, class members who do not validly opt-out agree to release defendants from
all claims "based upon the same factual predicates as those alleged" in the action which were or
could have been asserted as of the date the Settlement Agreement was executed. (Id. at ¶
1(y)(2)). These include claims arising from or related to "Flood Hazard Determinations
performed or procured" by defendants and any communications relating to such determinations,
and any charges relating to such determinations, "including . . . any overcharges or markups by
defendants of or related to any Flood Hazard Determinations; any alleged “kickbacks” or alleged
improper payments of anything made by or received by Defendants or either of them in
connection with Flood Hazard Determinations; and/or any payment by or to Defendants or either
of them to or from any third party in connection with the performance or provision of Flood
Hazard Determinations." (Id.)
This release does not, however, extend to claims that defendants required borrowers to
maintain flood insurance in "an amount that the Settlement Class Member believes is greater
3
Per the Settlement Agreement, a valid claim form is one that is: (1) signed; (2) submitted
within 60 days of the class notice date; and (3) submitted by a class member who did not submit
a timely and valid opt-out. (Settlement Agreement, at ¶¶ 1, 29-31).
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than what is required or permitted by applicable law or is greater than what is necessary to
protect the lender’s interest in the Settlement Class Member’s property securing his or her loan"
and any right to pursue relief on the premise that "Wells Fargo require[ed] a borrower who
obtained a loan from Wells Fargo secured by residential real property to, after loan closing,
obtain flood insurance for the property securing the loan where Wells Fargo informed the
borrower at the time the borrower’s loan closed that the borrower did not need to obtain flood
insurance and there was no intervening change in FEMA’s flood zone map affecting the
property." (Id.).
Settlement Class members were provided with notice sent to their last-known address that
included a claim form consisting of a two-sided postcard. (Id. at ¶¶ 15-19; Claim Form, (Doc.
No. 87-1), at pp. 38-39). The claims administrator was to use change of address information and
utilize automated skip traces to ensure that notice had the best possible chance of reaching class
members. (Settlement Agreement, at ¶¶ 18, 20). The claims administrator was required to set up
an informational website and toll-free telephone call center under the Settlement Agreement.
(Id. at ¶¶ 21-23, 30). Nevertheless, mailing a physical copy of the enclosed claim form was the
only method made available for filing a valid claim.
In comparison with the specific release that settlement class members must provide,
plaintiffs have agreed to execute a general release under the Settlement Agreement. (Id. at ¶
1(y)(1)). Subject to court approval plaintiffs are to receive $25,000 in exchange for this release.
(Id. at ¶ 43). In addition to any other potential claims plaintiffs might have, plaintiffs’ TILA
claim pertaining to the disclosures they received regarding the actual need for flood insurance is
referenced as a basis for this payment. (Id.).
Beyond the settlement payments to class members and plaintiffs, the Settlement
Agreement provides that subject to court approval defendants also will bear the costs of
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settlement administration and attorneys’ fees and expenses up to $1,500,000.00. (Id. at ¶¶ 36,
38). Defendants agree not to oppose plaintiffs’ request for attorneys’ fees in any way. (Id. at ¶
38). With respect to settlement administration, the costs include those necessary to (1) set up the
settlement website and toll-free call center (2) provide notice to potential class members, (3)
review claim forms, and (4) ultimately mail checks. (Id. at ¶ 36). Such costs are expected to
exceed $1,500,000.00. (January 16, 2015 Richter Declaration, at ¶ 22).
Pursuant to Federal Rule of Civil Procedure 23, the court certified the proposed
Settlement Class on October 27, 2014, for the sole purpose of effectuating settlement.
(Preliminary Approval Order, (Doc. No. 89), at ¶¶ 2-3). Plaintiffs were designated as class
representatives, Nichols Kaster was appointed as class counsel for the Settlement Class, and
Rust Consulting, Inc. (“Rust”) preliminarily was approved as claims administrator. (Id. at ¶¶ 67, 10). The Settlement Agreement was given preliminary approval and the parties were directed
to begin the class notice process. (Id. at ¶¶ 8, 11-12).
On December 1, 2014, notice was sent to 2,315,364 Settlement Class members. (Botzet
Declaration, (Doc. No. 99), ¶ 7).4 Of these, 11,572 were undeliverable despite Rust’s best efforts
to update class member addresses. (Id. at ¶ 10). As of February 18, 2015, over two weeks after
the established deadline for responses, Rust had received 300,995 timely claim forms. (Id. at ¶
17). In contrast, 354 opt-out requests and ten objections were submitted.5 (Id. at ¶¶ 14-15).
Per the Preliminary Approval Order, a Final Approval Hearing was held on March 5,
2015. (Preliminary Approval Order, at ¶ 17). Plaintiffs, defendants and representatives for
objectors Alejandro Diaz, Mayda Nahhas, and Wei Cyrus Hung argued their respective
4
Joel Botzet is a senior project administrator at Rust with personal knowledge of the
company’s undertakings as settlement administrator. (Botzet Declaration, at ¶¶ 1, 3).
5
Only nine separate objections were submitted as two Settlement Class members jointly
submitted a single objection. (Id. at ¶ 15).
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positions. (Hearing Transcript, (Doc. No. 113), at pp. 4-33). The objectors assert that the
settlement is unfair because insufficient relief is provided to class members, receiving relief has
been unduly restricted, plaintiffs' receipt of additional relief renders them inadequate class
representatives, and a review of class counsel's request for "excessive" fees improperly has been
sheltered from the adversarial process and court review. Class counsel and defendants continue
to maintain that approval of the settlement and fee request is warranted.
Class actions settlements are distinguished from those in most normal suits because
Federal Rule of Civil Procedure 23(e) mandates that “[a] class action shall not be dismissed or
compromised without the approval of the court.” Fed. R. Civ. P. 23(e); In re GMC Pick-Up
Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 785 (3d Cir. 1995) (“G.M. Trucks”).
This rule “imposes on the trial judge the duty of protecting absentees, which is executed by the
court’s assuring the settlement represents adequate compensation for the release of the class
claims.” In re Prudential Ins. Co. American Sales Litigation, 143 F.3d 283, 316 (3d Cir. 1998)
(quoting G.M. Trucks, 55 F.3d at 805).
In order to fulfill this duty the court is required to “independently and objectively analyze
the evidence and circumstances before it in order to determine whether the settlement is in the
best interest of those whose claims would be extinguished.”
In re Cendant Corp. Litig., 264
F.3d 201, 231 (3d Cir. 2001), cert. denied sub nom., Mark v. California Public Employees’
Retirement Sys., 535 U.S. 929 (2002). “The court cannot accept a settlement that the proponents
have not shown to be fair, reasonable and adequate.” G.M. Trucks, 55 F.3d at 785. While the
court is to employ a vigorous analysis in fulfilling its fiduciary duty to protect the rights of
absent class members, it must also “guard against demanding too large a settlement based on its
view of the merits of the litigation; after all, settlement is a compromise, a yielding of the highest
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hopes in exchange for certainty and resolution.” In re Prudential, 148 F.3d at 317 (quoting G.M.
Trucks, 55 F.3d at 806).
Seeking class certification and settlement approval simultaneously heightens the court’s
obligation to undertake a scrupulous review to determine whether the proposed settlement is fair,
reasonable and adequate for the class. In re Prudential, 143 F.3d at 317. “This heightened
standard is intended to ensure that class counsel has engaged in sustained advocacy throughout
the course of the proceedings, particularly in settlement negotiations, and has protected the
interests of all class members.” In re Warfarian Sodium Antitrust Litig., 391 F.3d 516, 534 (3d
Cir. 2004).
There is an overriding public interest in settling class action litigation, and it is to be
encouraged by the courts, particularly in complex settings that will consume substantial judicial
resources and have the potential to linger for years. In re Warfarin, 391 F.3d at 535 (collecting
cases in support). A presumption of fairness attaches to a proposed settlement where (1) the
settlement negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the
proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of
the class objects. Id. (citing In re Cendant, 264 F.3d at 232 n.18).
“The decision of whether to approve a proposed settlement of a class action is left to the
sound discretion of the district court.” In re Prudential, 148 F.3d at 317 (quoting Girsh v. Jepson,
521 F.2d 153, 156 (3d Cir. 1975)). The exercise of this discretion is guided by what have
become known as the Girsh factors. In re Warfarin, 391 F.3d at 535. These are:
(1) the complexity, expense and likely duration of the litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery
completed;
(4) the risks of establishing liability;
(5) the risks of establishing damages;
(6) the risks of maintaining the class action through trial;
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(7) the ability of the defendants to withstand a greater judgement;
(8) the range of reasonableness of the settlement fund in light of
the best possible recovery; [and,]
(9) the range of reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation.
Girsh, 521 F.2d at 157. The proponents of a settlement bear the burden of proving consideration
of these factors on balance warrants approval of the proposed settlement. In re Cendant, 264
F.3d at 232; In re Rent-Way Sec. Litig., 305 F. Supp.2d 491, 499 (W.D. Pa. 2003).
The record here demonstrates circumstances that give rise to an initial presumption of
fairness. First, settlement negotiations were conducted at arm’s length. Nearly three months
elapsed from the beginning of mediation until the parties reached an agreement in principle.
(See January 16, 2015 Richter Declaration, at ¶¶ 17-19). At all times negotiations were
conducted through Attorney Kushner, an experienced, court-ordered mediator. (Id.). Once
Attorney Kushner facilitated the forging of a settlement in principle, the parties exchanged
multiple revisions of the material settlement terms before arriving at the version of the
Settlement Agreement which was ultimately executed. (Id.).
Second, sufficient discovery provided a foundation for negotiating the Settlement
Agreement. Class counsel asserts that defendants responded to discovery requests by providing
“a significant number of documents” which were specifically related to the asserted claims. (Id.
at ¶¶ 14). The negotiated use of over 200,000 documents originally produced in the Morris case
provided additional support to class counsel during mediation. (Id. at ¶ 15). Finally, two
depositions conducted within the context of the Morris case of individuals who were also noticed
in the instant matter also provided some additional clarity to the strengths and weaknesses of the
claims. (Id. at ¶ 16).
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Third, those endorsing the settlement are quite experienced in similar litigation. Both
class counsel and counsel for defendants have practiced extensively in class action litigation, a
substantial amount of which has involved claims against consumer mortgage lenders.
Finally, the percentage of class members who have objected is incredibly small. The ten
objectors amount to approximately .0004% of the Settlement Class.
Given these facts, the Settlement Agreement enjoys an initial presumption of fairness.
Application of each of the Girsh factors further cements the determination that the proposed
settlement is fair, reasonable and adequate for the class and should be approved.
The complexity, expense and likely duration of the litigation
“The first [Girsh] factor ‘captures the probable costs, in both time and money, of
continued litigation.’” In re Warfarin, 391 F.3d at 535-36 (quoting In re Cendant, 264 F.3d at
233). “By measuring the costs of continuing on the adversarial path, a court can gauge the
benefit of settling the claim amicably.” G.M. Trucks, 55 F.3d at 812. Here, there is little
question that litigating this matter to its conclusion would be time-consuming and expensive and
require the resolution of multiple unsettled questions of fact and law.
It is important to note that, despite nearly 3 years having elapsed since its initiation, this
case is still in a relatively early stage. Previously noticed depositions have yet to be conducted,
(January 16, 2015 Richter Declaration, at ¶ 16), and there would unquestionably be additional
document discovery. Class counsel has yet to move for unconditional class certification, which
defendants have promised to contest. (Defs’ Response to Objections, (Doc. No. 100), at p. 6).
Motions for summary judgment would likely be filed. It is not unreasonable to expect that the
ultimate trial and any subsequent appeal could take years to be resolved.
Further, as was discussed in the adjudication of defendants’ motions to dismiss, attaining
favorable resolutions of several complex questions of fact and law stand between the class and
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any recovery at trial. (See generally, M.D. Opinion (Doc. No. 46)). For example, plaintiffs’
RESPA claim is dependent on a finding that WFB was given or retained “a payment or thing of
value” in connection with flood zone determinations for which WFI was paid. (Id. at p. 16).
Defendants consistently have maintained that the so-called “management accounting credits”
(“MACs”) allocated to WFB for referring the determinations are not things of value. (Defs’
Response to Objections, at p. 11). Instead, MACs are simply a mechanism for tracking revenue
in Wells Fargo’s accounting system. (Id.). Resolution of this complex issue would likely require
expert testimony at substantial additional cost in terms of time and money to both parties. As
such, the first Girsh factor clearly points in favor of approving the settlement.
Reaction of class members to the proposed settlement
The second factor in the Girsh analysis “attempts to gauge whether members of the class
support the settlement” based on their overall response. In re Prudential, 148 F.3d at 318.
Although the practical realities of a class action dictate a cautious approach to recognizing an
inference of support based on the lack of a significant number of objectors, the receipt of only a
small number of objections provides some support for the approval of a proposed settlement. Id.
Such is the case here.
The 10 objections and 354 opt-out requests received in response to the proposed
settlement amount to approximately .0004% and .02% of the Settlement Class of 2,315,362
members, respectively. By any measure, these results are a positive indicator of fairness. See In
re Cendant, 264 F.3d 201, 234-35 (3d Cir. 2001) (finding that the second Girsh factor “weighed
strongly in favor of the Settlement,” where .0008% of the class objected and .04% opted-out);
NEWBERG ON CLASS ACTIONS § 13:54 (5th ed. 2011) (explaining that on average 1% of a class
objects and less than 1% opts-out). By comparison, the 300,995 claims filed equates to 13% of
the Settlement Class. While this response rate might seem low at first glance, there is nothing to
15
suggest that it is in any way abnormal given the relatively small individual payouts here. See
NEWBERG ON CLASS ACTIONS § 12:17 (explaining that “[h]igher claiming rates tend to
correspond with smaller classes and larger payouts”). Given all of this, the response of the class
to the proposed settlement clearly weighs in favor of approval.
The stage of the proceedings and the amount of discovery completed
This Girsh factor permits the court to take into account the degree of case development
that has occurred prior to reaching a compromise. In re Cendant, 264 F.3d at 235. Its purpose is
to assure that the parties had an “‘adequate appreciation of the merits of the case before
negotiating.’” In re Prudential, 148 F.3d at 319 (quoting G.M. Trucks, 55 F.3d at 813). The
pertinent assessment concerns the degree to which counsel have been able to gain access to
sufficient information to permit an informed, competent and supported evaluation of the legal
and factual issues involved.
The parties litigated the instant matter for 18 months before beginning mandatory
mediation. During this time they gained a solid understanding of the relative strengths and
weaknesses of the claims. Following the resolution of the motions to dismiss, “Wells Fargo
produced a significant number of documents relating to flood zone determinations, related
charges, soft dollars/[MACs, plaintiffs’ loan file, and other matters relevant to the litigation.”
(August 15, 2014 Richter Declaration, at ¶ 16). These documents, as well as the 200,000
documents previously reviewed in the Morris action, were available to plaintiffs for the purposes
of mediation. (Id. at ¶¶ 16-17). All of this supports a finding that class counsel “adequately
appreciated the merits of the case before negotiating.” In re Warfarin Sodium, 391 F.3d at 537.
Accordingly, “this factor strongly favors approval of the settlement.” Id. (citing In re Prudential,
148 F.3d at 319).
The risks of establishing liability and damages
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The fourth and fifth Girsh factors provide the means to balance the likelihood of success
and the potential damage award if the case were to proceed to trial against the benefits of an
immediate settlement. In re Prudential, 148 F.3d at 319. Through this lens the court can review
“‘what the potential rewards (or downside) of litigation might have been had class counsel
decided to litigate the claims rather than settle them.’” In re Cendant, 264 F.3d at 237 (quoting
G.M. Trucks, 55 F.3d at 814).
Plaintiffs would face significant risks in establishing defendants’ liability under each of
its asserted claims.6 With respect to plaintiffs’ RESPA claim, defendants have continued to
maintain that the MACs provided to WFB in conjunction with flood zone determinations
performed by WFI are not “things of value,” and that the $19 paid by borrowers for those
determinations was passed by WFB to WFI, untouched. (Defs’ Response to Objections, at p.
11). If a finder of fact were to determine that WFB neither received from WFI nor retained from
the borrowers anything of value as part of these transactions, plaintiffs’ RESPA claim would fail.
See Opinion of November 6, 2013 (Doc. No. 46 in 2:12cv1262) at 14-16) (citing Galiano v.
Fidelity National Title Ins. Co., 684 F.3d 309, 314 (2d Cir. 2012) (“[a] violation of § 8(a)
involves three elements: (1) a payment or thing of value; (2) given and received pursuant to an
agreement to refer settlement business; and (3) an actual referral.”); Santiago v. GMAC
Mortgage Grp., Inc., 417 F.3d 384, 389 (3d Cir. 2005) (A violation of § 8(b) involves: (1) a
payment or thing of value; (2) given and received for the completion of a settlement service; and
(3) the retention of a portion of the payment or thing of value by the recipient without the
recipient providing any part of the settlement service used in the closing.)).
6
Because force-placed flood insurance practice claims specifically are excepted from the
claims being released by class members, plaintiffs’ TILA claim based on this ground need not be
discussed in this context.
17
Further, defendants have set forth multiple legal defenses to plaintiffs’ RESPA claim,
including that any payments made by WFI to WFB were pursuant to an “affiliated business
arrangement” and therefore exempt from liability under 12 U.S.C. § 2607(c)(4).7 (See WFB’s
Answer, at p. 20). Payments which defendants could prove WFI made to WFB in observance of
the requirements of § 2607(c)(4) would fall into a safe-harbor, and could not be the basis for
RESPA liability. See § 2607(c)(4). Given all of this, a verdict that defendants are liable under
RESPA is less than assured.
Plaintiffs’ remaining claims for breach of contract and unjust enrichment both are
premised on the assertion that the $19 charged by WFB was somehow improper under the terms
of the relevant mortgages, being either illegal or set in bad faith. (Amend. Compl., at ¶¶ 58, 68).
As just discussed, a finding that these fees were illegal under RESPA is far from certain, and
there does not appear to be another law that prohibited the transferring of the fees.
A determination that WFB set fees for flood zone determinations in bad faith likewise
stands on less than secure footing. Defendants have continued to argue that its $19 fee is not
unreasonable when compared with CoreLogic’s $6 charge for a one-time determination, as their
$19 SFHD additionally provides for WFI’s continued performance of “life-of-loan monitoring
7
Affiliate business arrangements should be recognized when:
(A) a disclosure is made of the existence of such an arrangement to
the person being referred and, in connection with such
referral, such person is provided a written estimate of the
charge or range of charges generally made by the provider
to which the person is referred . . .
(B) such person is not required to use any particular provider of
settlement services, and
(C) the only thing of value that is received from the arrangement,
other than the payments permitted under this subsection, is
a return on the ownership interest or franchise
relationship[.]
12 U.S.C. § 2607(c)(4).
18
and re-determinations of flood risk.” (Defs’ Response to Objections, at p. 10). A finding that
such a fee is lawful and reasonable is well within the realm of possibility. Given the uncertainty
as to defendants’ liability, the fourth Girsh factor militates in favor of settlement approval.
Plaintiffs’ risks with respect to establishing damages, however, do not appear to be nearly
as great. Section 8(d) sets out in detail what the possible damages are in relation to a RESPA
claim. 12 U.S.C. § 2607(d). Damages stemming from WFB’s breaches of contract or the unjust
enrichment of WFI would be only slightly more nebulous. WFB is generally required by the
NFIP to conduct a flood zone determination in conjunction with its decision “to make, increase,
extend, or renew” a mortgage. 42 U.S.C. § 4012a(b)(1). The NFIP permits WFB to charge the
borrower a “reasonable fee” for such a determination. 42 U.S.C. § 4201a(h)(1). As such,
damages with respect to plaintiffs’ breach of contract claim and unjust enrichment claims would
necessarily equal the amount that each borrower paid for the flood zone determination minus the
amount of the fee determined to be reasonable. As there would be very little risk concerning the
establishment of damages, the fifth Girsh factor weighs against the settlement. However,
because proving damages is contingent upon first proving liability, the net effect of the fourth
and fifth Girsh factors continues to provide support for approval of the settlement. Compare Erie
Cnty. Retirees Ass'n v. Cnty. of Erie, Pennsylvania, 192 F. Supp. 2d 369, 375 (W.D. Pa. 2002)
(noting that "[i]n the normal course, proving damages involves many of the same risks as
proving liability because the former is contingent upon the latter" and highlighting that proving
damages frequently carries formidable risk on a number of separate variables as well) (citing In
re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 90 (D.N.J. 2001)).
The risks of maintaining the class action through trial
“Because ‘the prospects for obtaining certification have a great impact on the range of
recovery one can expect to reap from the [class] action,’ this factor measures the likelihood of
19
obtaining and keeping a class certification if the action were to proceed to trial.” In re Warfarin,
391 F.3d at 537 (quoting G.M. Trucks, 55 F.3d at 817) (alteration in original). However,
“[t]here will always be a ‘risk’ or possibility of decertification,” given that district courts have
the ability, under Rule 23, to “decertify or modify a class at any time during the litigation if it
proves to be unmanageable.” In re Prudential, 148 F.3d at 321. Because courts generally can
claim it weighs in favor of settlement, “the manageability inquiry in settlement-only class actions
may not be significant.” Id.
Whatever weight the sixth Girsh factor carries, it falls in favor of settlement approval
here. The Settlement Class has only been certified for the purposes of settlement. (Preliminary
Approval Order, at ¶¶ 4-5). Defendants have indicated that any general class certification
motion would be contested. (Defs’ Response to Objections, at pp. 11-12). In particular,
defendants argue that determining class membership will be difficult because WFB’s records do
not reliably reflect which borrowers paid the fee or, if they did, how much each applicant paid.
(Id. at p. 12). The settlement circumvents this obstacle by allowing Settlement Class members to
self-certify that they paid the fee. As obstacles exist that could prevent the certification of the
class at trial, the sixth Girsh factor supports settlement approval.
The ability of the defendants to withstand a greater judgment
This factor focuses on “whether the defendants could withstand a judgment for an
amount significantly greater than the settlement.” In re Cendant, 264 F.3d at 240. Defendants
freely admit that they “would be able to bear any judgment likely to be rendered in this case.”
(Defs’ Response to Objections, at p. 12 n.4). However, just because defendants could pay more
does not necessarily mean they should have to pay more than the parties negotiated to settle these
claims. See In re Warfarin, 391 F.3d at 538. Further, there is no indication that defendants’
20
financial resources factored into the settlement in any way. Id. Accordingly, while the seventh
Girsh factor leans against settlement in a general sense, little weight is accorded to it.
The range of reasonableness of the settlement fund in light
of the best possible recovery and all the attendant risks of litigation
“The last two Girsh factors ask whether the settlement is reasonable in light of the best
possible recovery and the risks the parties would face if the case went to trial.” In re Prudential,
148 F.3d at 322. In cases seeking primarily monetary relief, courts should compare “the present
value of the damages plaintiffs would likely recover if successful, appropriately discounted for
the risk of not prevailing, . . . with the amount of the proposed settlement.” In re Warfarin, 391
F.3d at 538. In conducting this economic valuation, a court must “guard against demanding too
large a settlement based on its view of the merits of the litigation.” G.M. Trucks, 55 F.3d at 806.
Under optimal circumstances at trial, the class’ best possible recovery would be under
RESPA. With the full amount paid for the flood zone determinations and trebled damages, the
class’ recovery under RESPA theoretically could exceed $131 million.8 See § 2607(d)(2); Kahrer
v. Ameriquest Mortgage Co., 418 F. Supp. 2d 748, 756 (W.D. Pa. 2006) (“the proper measure of
damages under RESPA is three times the entire amount paid for the settlement services
involved”). At first glance, the $2,859,452.50 that actually will be put into the hands of class
members appears small in comparison.9 This perception disappears however when these two
numbers are considered in context.
First, $131 million is far too high a recovery to evaluate the benefit to the class. To
begin with, “we know of no authority that requires a district court to assess the fairness of a
settlement in light of the potential for trebled damages.” In re Cmty. Bank of N. Virginia, 622
8
9
(2,315,362 class members) x ($19 per flood zone determination) x (3) = $131,975,634
(300,995 claims filed) x ($9.50) = $2,859,452.50
21
F.3d 275, 312 (3d Cir. 2010) (citing cases). Beyond that, without fully evaluating the class’
RESPA claim, the defenses advanced could very realistically result in no class recovery under
that claim. If otherwise successful, the class’ actual damages would likely be determined to be
the amount cumulatively paid for flood zone determinations to WFI minus what those
determinations reasonably should have cost. At best, this would amount to $13 per
determination, or $30,099,706 in total.10 This calculation of the class’ best possible recovery,
which is based on actual damages, is the appropriate one to use in assessing the fairness of the
settlement. But even this amount could be further reduced or eliminated pursuant to defendants’
assertion that WFI was to provide “life-of-loan monitoring and re-determinations of flood risk,”
whereas the $6 charge by CoreLogic was for only a “single flood hazard determination.” (Defs’
Response to Objections, at p. 10). Thus, the mathematical calculations pertaining to potential
damages must be viewed circumspectly in light of the attendant risks in proceeding with the
litigation
Second, the $2.8 million to be paid directly to Settlement Class members represents less
than half of the total value of the settlement. Under the Settlement Agreement, defendants also
will pay $1.5 million for attorneys’ fees and expenses and what is estimated to be at least $1.5
million for the costs of administering the settlement. These are costs for which the class would
otherwise be responsible, and therefore properly are considered in valuing the settlement. These
amounts bring the total value of the settlement to, at minimum, $5,859,452.50. This equals
approximately 19.5% of the class’ best possible recovery at trial based on its actual damages.11
After considering the present-day-value of money, the likelihood that the class would recover
10
(($19 per determination to WFI) – ($6 charged by CoreLogic)) x (2,315,362 class
members) = $30,099,706
11
$5,859,452.5 / $30,099,706 = 19.467%
22
less than its maximum actual damages, all of the attendant risks of litigation, and the interests in
resolution, such a recovery is well within the range of reasonableness.
This finding is made notwithstanding the fact that only approximately 13% of the
Settlement Class filed claims and will receive a recovery.12 Under the Settlement Agreement
$9.50 was made available to any Settlement Class member who submitted a valid claim form.
(Settlement Agreement, at ¶ 32). This amount represents half of the total amount paid for each
of the subject flood zone determinations and approximately 73% of each member of the class’
actual damages.13 Assuming there were more members who actually paid the $19 fee, the fact
that $9.50 was not enough to motivate them to write their name, address, and signature on the
provided postcard and mail it is no indication that the settlement, which offers such a high
percentage of actual damages, is somehow unreasonable. Further, there is no indication, given
the relatively small amount of each individual recovery, that the 13% response rate was
unusually small. See Zimmer Paper Products, Inc. v. Berger & Montague, P.C., 758 F.2d 86, 93
(3d Cir. 1985) (accepting a 12% response rate where the settlement’s opponent “has come
forward with nothing to suggest that the rate is uncharacteristically low”); Gascho v. Global
Fitness Holdings, LLC, 2014 WL 1350509, at *30 (S.D. Ohio Apr. 4, 2014) (accepting expert
testimony “that response rates in class actions generally range from one to 12 percent with a
median response rate, and a normal consumer response rate, of approximately five to eight
percent”). To the contrary, by percentage the response rate appears to be fairly high in the area
of consumer lending and supports settlement.
12
13
(300,995 claims filed) / (2,315,362 class members) = 12.999%
$9.50 / $13.00 = 73.077%
23
In summary, review of the Girsh factors clearly supports the conclusion that the proposed
settlement is fair, reasonable and adequate. See G.M. Trucks, 55 F.3d at 785. With this
backdrop, we turn to the objections.
Ten objections were submitted. Of these, two challenge the settlement with no further
explanation and four others assert at least some argument that the settlement is unfair. 14
The first objection pertaining to the fairness of the proposed settlement was submitted by
Douglas H. and Lorraine K. Porter (the “Porters”). (Porter Objection, (Doc. No. 94)). The
Porters argue that $9.50 is inadequate compensation when compared with the $600 it cost them
“for a land survey company to come out and survey [their] property” after WFB told them they
“had to pay for flood insurance,” apparently inaccurately. Id. The Porters misunderstand the
nature of this settlement. Claims arising out of a requirement by WFB that borrowers maintain
unnecessary flood insurance are explicitly excepted from those released by the Settlement Class.
(Settlement Agreement, at ¶ 1(y)(2)). Any claim the Porters may have for costs incurred to
escape from an errant requirement of flood insurance is unaffected by the settlement. As such,
the costs asserted by the Porters are irrelevant to the proposed Rule 23(e) determination.15
Alejandro Diaz and Mayda Nahhas (“Diaz and Nahhas”) jointly submitted the second and
third objections to the proposed settlement. (Diaz/Nahhas Objection, (Doc. No. 99-31), at pp. 817). The appeared through counsel at the March 5, 2015, hearing. Their sole objection is that
“[t]he proposed settlement is violative of the well-established doctrine that unclaimed settlement
14
The two objections that summarily challenge the proposed settlement as unfair were
submitted by Anne J. Edouard and Joel Masamvu. (Doc. Nos. 99-31, at p. 21; 99-33, at p. 20).
According to this court’s preliminary approval order, objectors who do not “state the basis for
the objection . . . shall be deemed to have waived any objections to the Settlement.” (Doc. No.
89, at ¶ 16). Consequently, neither of these objections requires further discussion.
15
The Porters also “object to the attorney being paid $1.5 million and we only receive
$9.50 for our cost of $600.” To the extent they intended to challenge the request for attorneys’
fees, consideration and assessment of the same is undertake infra.
24
funds must first be utilized to make class members whole before being put to a secondary use,”
(Id. at p. 8), which they further augmented at the hearing. Specifically, Diaz and Nahhas argue
that those Settlement Class members who filed a claim should receive an additional $9.50 to
“make them whole” before “unclaimed funds . . . revert to the defendant.” (Id.). This objection
ignores the structure of the proposed settlement.
Diaz and Nahhas cite to In re Baby Products Antitrust Litigation for the proposition that
“[r]eversion to the defendant risks undermining the deterrent effect of class actions by rewarding
defendants for the failure of class members to collect their share of the settlement.” 708 F.3d
163, 172 (3d Cir. 2013). Holding that a cy pres distribution is superior to a reversion of funds to
the defendant, the United States Court of Appeals for the Third Circuit was considering a
settlement fund established with a $35,500,000 deposit from the defendants, from which some
residual amount potentially could remain after all claims filed by the class were paid. Id. The
instant settlement fund is distinguishable. By entering into the Settlement Agreement,
defendants agreed to pay “a sum equal to the total amount of settlement payments due to all
Settlement Class members who submitted a valid claim form.” (Settlement Agreement, at ¶ 34).
Where defendants will pay the exact amount necessary to satisfy the claims filed, there can be no
residual amount which would revert to defendants. The objection of Diaz and Nahhas therefore
is irrelevant to the settlement at issue.
The final objection relating to the fairness of the proposed settlement was submitted by
Wei Cyrus Hung (“Hung”).16 (Hung Objection, (Doc. No. 95)). Hung first argues that the
16
Hung initially submitted a single page pro se objection which was postmarked on
December 19, 2014. (Doc. No. 99-31, at pp. 23-24). This was later superseded by a 45-page
objection filed on Hung’s behalf by the Center for Class Action Fairness. (Doc. No. 99-33, at p.
15). As Hung’s later submission reflects and builds upon each of his earlier arguments, Hung's
counseled submission will be utilized in referencing and analyzing Hung's position.
25
claims process is unnecessary and intentionally designed to depress class relief.17 (Hung
Objection, at pp. 14-20). Plaintiffs are also inadequate representatives of the class given the
$25,000 individual award under the Settlement Agreement. (Id. at pp. 28-31). Further, the
Settlement Agreement’s inclusion of a “clear sailing” provision is also a “telltale indication of an
unfair deal.” (Id. at p. 25). Finally, Hung contends that the use of a “constructive common
fund” prevents the court from directly correcting insufficient awards to class members by
reducing awards to class counsel and/or plaintiffs. (Id. at pp. 26-28).
The parties to the Settlement Agreement respond that there is nothing inherently suspect
about a claims process. (Pls’ Final Approval Brief, (Doc. No. 97), at p. 23). Requiring
Settlement Class Members to submit a claim form was necessary in order to determine the right
of each to receive payment under the settlement because the available records do not reflect
which of the class members paid the $19 charge. (Defs’ Response to Objections, at p. 16). The
$25,000 awarded to plaintiffs is in settlement of their separate TILA claim, and thus does not
undermine the adequacy of their representation of the class. Lastly, the settling parties argue that
the proposed settlement’s segregated fund does not make the class recovery unfair, and any
perceived excess in the requested fee award can still be eliminated despite the “clear sailing”
clause. (Defs’ Response to Objections, at pp. 21-22).
Hung fails to cite any controlling authority in support of his argument that the use of a
claims process makes the settlement unfair. After warning the court to “Be alert!” to the
likelihood that the proponents of the settlement would focus on the Girsh factors in support of
settlement approval, Hung then ignores those factors completely in his own analysis. (Hung
17
Hung explains that “[h]is cardinal objection is that the settlement is unfair because class
counsel is appropriating an excessive amount of the existing settlement value for itself.” (Hung
Objection, at p. 14). Hung’s arguments related to attorneys’ fees will be considered separately
below.
26
Objection, at pp. 13). Instead, he relies on the premise that a settlement in which a $9.50 check
is simply issued and sent to each class member would be more fair than the one proposed. (Id. at
pp. 14-18). This premise is based, at least in part, on the belief that the claims process “is
employed for no ostensible reason other than to depress class recovery (and thus maximize the
share of the settlement received by the attorneys).” (Id. at p. 15). Hung’s argument is wide of
the mark.
Hung concedes that “a claims-made structure can be justified by the fact that the
defendant either is unable to identify specific class members or is unable to identify the value of
those class members’ claims.” (Id.). This concession is appropriate given that “there is nothing
inherently suspect about requiring class members to submit claim forms in order to receive
payment.” Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 593 (N.D. Ill. 2011) (citing
Milliron v. T–Mobile, 2009 WL 3345762, *6 (D.N.J. 2009)). This is particularly true when, as
here, the claim submission process places very little burden on class members. As discussed
above, to submit a claim class members simply had to write their name, address, Wells Fargo
Loan number (if known), and date on a postcard attached to the notice sent to them. After
signing the completed form in attestation that the class member paid WFB flood zone
determination fees, the borrower only had to place it in the mail. (See Claim Form, at p. 39).
The number of class members who would receive payment would certainly be higher if
defendants were to send each of the 2,315,362 Settlement Class members a check without
requiring the submission of claim forms. However, the fact that some conceivable arrangement
would have been “more fair” from the perspective of one class member does not necessarily
suggest that the proposed settlement is unfair. As defendants very aptly put it, the choice here
“is not between the settlement that the parties have proposed and [Hung’s] dream settlement but
between the proposed settlement and none at all.” (Defs’ Response to Objections, at pp. 18-19);
27
see In re Prudential Ins., 962 F. Supp. 450, 534-35 (D.N.J. 1997) (“the issue is whether the
settlement is adequate and reasonable, not whether one could conceive of a better settlement.”)
(citing Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (in assessing fairness and
reasonableness of settlement, the court is “not free to delete, modify or substitute certain
provisions of the settlement”)).
There is no indication that should the proposed settlement be disapproved, defendants
would consider direct payments to Settlement Class members, which of course would roughly
quadruple the value of the settlement. (Defs’ Response to Objections, at p. 18). To the contrary,
they have repeatedly affirmed that they have no intention of paying more to settle these claims
than the amount already negotiated. (Id.). Thus, the possibility that class members could have
fared better has virtually no impact on the determination at hand where the application of the
Girsh factors has revealed that the proposed settlement is fair, reasonable and adequate
notwithstanding the claims process.
Further, contrary to Hung’s assertion, the use of a claims process does appear to have
served a legitimate purpose. Under the Settlement Agreement, only those who obtained a loan
from WFB and “were charged by [WFB] for a flood hazard determination between August 30,
2011 and December 31, 2013” are entitled to a settlement payment. (Settlement Agreement, at ¶
1(aa)). According to Botzet, defendants’ records do not contain the information necessary to
produce an accurate list of such individuals. (See Botzet Declaration Re: Hung Objection, (Doc.
No. 100-1), at ¶¶ 4-8). Rust reviewed the 244,610 claims which had been submitted as of
January 20, 2015 and found that defendants’ records pertaining to 60,911 of the subject
mortgages reflect no information related to flood zone determinations. (Id. at ¶ 5-6). Another
64,946 records show that the borrower paid “$0.00” for their determinations. (Id. at ¶ 7). Based
on these findings and the criteria of the proposed settlement, over half of the filed claims likely
28
would have been excluded by direct payments based on defendants’ records. Instead, the claims
process provided a way to overcome this deficiency in defendants’ records by simply asking
potential class members to attest that they paid for a flood zone determination.
Hung also points to the inability of class members to file a claim electronically as
supporting the notion that the proposed settlement is unfair. (Hung Objection, at pp. 18-19). In
so arguing, Hung attempts to draw a distinction between electronic and physical claims
processes, characterizing the latter as “requir[ing] class members to expend unnecessary time,
effort, and expense trekking over to their post office to return the claim form by postal mail.”
(Id. at p. 18). In reality, any additional effort associated with completing and filing a paper claim
form is far from onerous. Ignoring any negligible differences between typing information and
handwriting it, the only plausible distinction of a physical claims process is the necessity of
mailing the completed claim form as opposed to clicking “submit” on a website form. Despite
Hung’s assertion, the “trek” required for this endeavor is generally no further than to one’s own
mailbox. The assertion that it is unduly burdensome to utilize mail as opposed to electronic
submission also reflects a disregard for the potential that a certain segment of class members
may not be readily able to use a computer to file the form due to the lack of technical familiarity
or accessibility. Against this backdrop, the additional time, effort and expense to complete and
mail a post card is insignificant in assessing an otherwise fair, reasonable and adequate
settlement let alone a sound basis to invalidate such an agreement.
Hung also takes aim at the additional $25,000 payment requested by plaintiffs. He
contends that this “incentive award” “renders the representatives inadequate under Rule 23(a)(4)
and the settlement unfair under Rule 23(e)(2).” (Hung Objection, at p. 28). This argument
mischaracterizes the nature of this payment.
29
An “incentive award” is a sum that is separately granted “to compensate named plaintiffs
for the services they provided and the risks they incurred during the course of the class action
litigation.” In re Flonase Antitrust Litig., 951 F. Supp. 2d 739, 751 (E.D. Pa. 2013). Requests
for such awards are generally approved when they are “reasonable.” Id. However, it has been
posited that circumstances in which large awards are requested or de minimis relief is offered to
absent class members tend to “suggest that the payment to the class representatives may not have
been an incentive for them to invest effort in the class’s litigation but rather an incentive for them
to support a weak settlement.” NEWBERG ON CLASS ACTIONS § 13:59. Such concerns do not
arise here as the payment in question is not an incentive award.
Per the Settlement Agreement, defendants have agreed to pay plaintiffs $25,000 in
settlement of their TILA claim. That claim is related to WFB’s requirement that plaintiff's
obtain flood insurance. It thus is independent of the services plaintiffs provided as class
representatives. (Settlement Agreement, at ¶ 43). Plaintiffs are providing a general release of all
of their claims against defendants in consideration for this settlement, (id.), whereas claims
related to flood insurance by WFB are expressly excepted from the release provided by
Settlement Class members, (id. at ¶ 1(y)(2)). Thus, class members may still pursue any such
claims separately.18
With respect to the claims arising out of payments to WFB for flood zone determinations
performed by WFI, the only ones being settled on a class basis, there is an exact “alignment of
interests and incentives between the representative plaintiffs and the rest of the class.” Dewey v.
18
As the $25,000 payment to defendants is in settlement of an individual claim and not
related to the compromise of “claims, issues, or defenses of a certified class,” court approval of it
is not required. FED. R. CIV. P. 23(e). But even assuming that approval would be necessary, this
award is reasonable in light of the claims being compromised, the claimed damages and the
scope of the release provided in exchange.
30
Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012). As to these claims plaintiffs
will receive the same amount in settlement that was offered to every other class member: $9.50.
Plaintiffs' recovery on these claims was and remains co-extensive with all other participating
class members. It follows that plaintiffs had every “incentive to represent the claims of the class
vigorously.” Id. at 184. Moreover, plaintiffs' TI:A claim is premised on alleged facts and
circumstances that are unique to their mortgage transaction. The mere presence of a reasonable
payment for resolution of this claim does not give rise to an inference that impropriety is afoot.
Under these circumstances, the $25,000 award requested by plaintiffs on a distinct, individual
claim does not undermine this court’s prior certification of the class for settlement purposes, (see
Preliminary Approval Order, at ¶ 3), or the fairness of the proposed settlement.
Hung posits that the presence of a “clear sailing” provision in the Settlement Agreement
renders the proposed settlement is unfair. (Hung Objection, at p. 25). This provision provides
that defendants will pay attorneys’ fees and costs up to $1.5 million and “stipulates that attorney
awards will not be contested by the defendants.” (Id. (citing Settlement Agreement, at ¶ 38)).
Hung advances two grounds to show this provision is improper. First, he relies on noncontrolling authority for the proposition that a “clear sailing” clause “lays the groundwork for
lawyers to ‘urge a class settlement at a low figure or on a less-than-optimal basis in exchange for
red-carpet treatment on fees’ and ‘suggests, strongly,’ that its associated fee request should go
‘under the microscope of judicial scrutiny.’” (Id. (quoting Weinberger v. Great N. Nekoosa
Corp., 925 F.2d 518, 524-25 (1st Cir. 1991); citing Redman v. RadioShack Corp., 768 F.3d 622,
637 (7th Cir. 2014))). Second, he asserts that “‘[s]uch a clause by its very nature deprives the
court of the advantages of the adversary process.’” (Id. (quoting Weinberger, 925 F.2d at 525)).
While Hung’s concerns about the “clear sailing” provision raise general concerns about
collusion and self-dealing in an area that is susceptible to mischief, it is unclear how those
31
concerns are manifest in the instant matter. First, There is no per se rule against “clear sailing”
provisions in the Third Circuit. See In re Prudential, 148 F.3d 283, 335 n.112 (3d Cir. 1998)
(“The Supreme Court has . . . held that parties may simultaneously negotiate a ‘defendant’s
liability on the merits and his liability for his opponents’ attorney’s fees.’”) (quoting Evans v.
Jeff D., 475 U.S. 717, 738 n.30 (1986)). And Hung made it clear during the Final Approval
Hearing that he was not “alleging a collusive bargain” here. (Hearing Transcript, at p. 17). In
addition, the timing of fee negotiations is only “‘a factor in our review of the adequacy of the
class’s representation.’” In re Cmty. Bank of N. Virginia, 418 F.3d 277, 308 n.25 (3d Cir. 2005)
(quoting G.M. Trucks, 55 F.3d at 804). Where there is no claim or indication of collusion
between class counsel and defendants, the mere presence of a “clear sailing” provision does not
undermine what is otherwise a fair, reasonable and adequate settlement.19
Hung’s fears about the effects of “clear sailing” clauses on the adversarial process
similarly are inapplicable. Per the Settlement Agreement, defendants cannot “object to, oppose,
or comment upon” class counsel’s attorneys’ fee request. (Settlement Agreement, at ¶ 38).
Certainly, without a challenge to the fairness of the proposed settlement and the reasonableness
of a fee award, the court seemingly would be deprived “of the advantages of the adversary
process.” Weinberger, 925 F.2d at 525. But Hung’s efforts have alleviated any such concerns.
His challenge has assured that the court will scrutinize the fee petition carefully. Any
generalized concerns or dissatisfaction beyond the ensuing microscopic review is abstract and
insufficient to support a finding that the proposed settlement has been rendered unfair.
19
To the extent the incorporation of the “clear sailing” clause necessitates “that the fee
request be placed under the microscope of judicial scrutiny,” Weinberger, 925 F.2d at 525, such
scrutiny is given to that request infra.
32
The proposed settlement’s use of a “constructive common fund” is the basis for Hung’s
final argument. He specifically asserts that “[a] constructive common fund structure is an
inferior settlement structure for one principal reason - the segregation of parts means that the
court cannot remedy any allocation issues by reducing fee awards and/or named representative
payments.” (Hung Objection, at pp. 26). While other courts have expressed concerns about this
limitation and potential abuses of it, see Pearson v. NBTY, Inc., 772 F.3d 778, 786 (7th Cir.
2014), there is no indication of any such undue limitation or actual abuse here.
As discussed above, the amounts to be paid to the Settlement Class as a whole and
individually to each class member who filed a claim have already been determined to be fair,
reasonable and adequate. The inability to reduce the separately requested attorneys’ fee award in
favor of directing additional funds to Settlement Class members does not invalidate or diminish
the force of this determination. Furthermore, there is nothing about the segregation of the fee
award which prevents the court from reducing it should such a reduction be warranted. And the
fact that the amount of any reduction would be retained by defendants does not impact the level
of scrutiny to be given to the fee request, despite the assertions to this effect advanced by Hung.
(See Hung Objection, at p. 27). As there are no “allocation issues” inherent to the proposed
settlement, its utilization of a constructive common fund does not render it unfair to the
Settlement Class.
Notwithstanding the arguments in the relevant objections, the parties have satisfied their
burden of proving that the proposed settlement is fair, reasonable and adequate. The objections
related to the fairness of the settlement by the Porters, Diaz and Nahhas, and Hung will be
overruled. Plaintiffs’ motion for final approval of class action settlement will therefore be
approved.
33
Consideration of Plaintiffs’ motion for attorneys’ fees and expenses also requires “a
thorough judicial review.” In re Prudential, 148 F.3d at 333. The two basic methods for
conducting this review are the percentage-of-recovery method and the lodestar method. Id.
While the lodestar method "is more typically applied in statutory fee-shifting cases," "[t]he
percentage-of-recovery method is generally favored in common fund cases." In re Rite Aid
Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005). Whichever method is chosen, the use of the
other “to cross-check the initial fee calculation” is recommended. Id. (citing In re Prudential,
148 F.3d at 333).
The Settlement Agreement does not create a pure common fund given its separation of
the amounts to be paid for (1) satisfaction of timely claims, (2) attorneys’ fees and (3)
administration of the settlement. However, given that each of these amounts will be paid by
defendants, the economic effect essentially is that of a common fund. G.M. Trucks, 55 F.3d at
821. Consequently, “common fund principles” will be utilized. Id.
In analyzing a fee award in a common fund case a court should consider:
(1) the size of the fund created and the number of persons
benefitted;
(2) the presence or absence of substantial objections by members
of the class to the settlement terms and/or fees requested by
counsel;
(3) the skill and efficiency of the attorneys involved;
(4) the complexity and duration of the litigation;
(5) the risk of nonpayment;
(6) the amount of time devoted to the case by plaintiffs’ counsel;
and
(7) the awards in similar cases.
In re Rite Aid, 396 F.3d at 301 (quoting Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195
n.1 (3d Cir. 2000)). If relevant, the court may also weigh
(1) the value of benefits accruing to class members attributable to
the efforts of class counsel as opposed to the efforts of
34
other groups, such as government agencies conducting
investigations;
(2) the percentage fee that would have been negotiated had the
case been subject to a private contingent fee agreement at
the time counsel was retained; and
(3) any “innovative” terms of settlement.
In re AT & T Corp., 455 F.3d 160, 165 (3d Cir. 2006) (quoting In re Prudential, 148 F.3d at 338,
39, 40). These “fee award reasonableness factors ‘need not be applied in a formulaic way’
because each case is different, ‘and in certain cases, one factor may outweigh the rest.’” Id. at
166 (quoting In re Rite Aid, 396 F.3d at 301).
The size of the fund created and the number of persons benefitted
As discussed above, the proposed settlement will pay out a total of $2,859,452.50 for the
300,995 claims timely filed. In addition to this amount, defendants have agreed to pay the class’
attorney fees and expenses, up to $1.5 million (Settlement Agreement, at ¶ 38), and the costs of
settlement administration, estimated to equal at least $1.5 million (January 16, 2015 Richter
Declaration, at ¶ 22). These are sums that class members would otherwise be responsible for and
therefore are part of the total benefit to the class. See Lake Forest Partners, L.P. v. Sprint
Communications Co. L.P., No. 2:12-CV-00999, 2013 WL 3048919, at *2 (W.D. Pa. June 17,
2013) (the size of the fund should include the “separate payment of attorney’s fees and expenses,
and the expenses of administration”) (citing Boeing Co. v. Van Gernert, 444 U.S. 472, 479
(1980)). Thus, the total size of the fund created is at least $5,859,452.50.
This recovery amounts to $19.47 to each of the 300,995 Settlement Class members who
paid WFB for a flood zone determination and provided the information needed to determine they
potentially were a mortgagor that was interested in participating in the settlement. The total
individual recovery thus actually exceeds the amount that class member paid to WFB for the
subject flood determination. Given the previously-discussed hurdles which would have to be
35
overcome before any recovery for the class would be obtained at trial, this result is exceptional.
This first Gunter factor clearly weighs in favor of approving the fee request.
The presence or absence of substantial objections by members of the class to the settlement
terms and/or fees requested by counsel
As mentioned in reference to the second Girsh factor, only 10 of the 2,315,362
Settlement Class members filed an objection. Of these, 6 objected solely to the request for
attorneys’ fees. Only the objection by Hung provides more than a single sentence asserting that
the attorneys are being paid “too much.” The quantity and content of these objections are simply
insubstantial, especially in comparison to the 300,995 timely claims filed by the class. This
Gunter factor therefore also supports approval of the fee request.
The skill and efficiency of the attorneys involved
The law firm of Nichols Kaster has extensive class action experience, having initiated
over 40 national class action suits. (Nichols Kaster Firm Resume, (Doc. No. 87-2), at p. 5).
Several of these have been consumer cases against mortgage lenders and servicers, including
multiple actions against WFB. (January 16, 2015, Declaration of Kia Richter at ¶¶ 10, 12). This
experience has been evident in the handling of the instant matter.
The firm’s knowledge of defendants’ business practices in particular also has aided in its
efficient handling of this case. The case was developed in the pleading stage with the vigor, tact
and strategy that can only be delivered by skilled counsel armed with such experience,
knowledge and understanding. Similarly, the negotiated use for mediation purposes of over
200,000 pages of documents produced in the Morris action saved time and effort by avoiding
unnecessary repetition and duplication which would have surely occurred had plaintiffs been
required to initiate that process once again. In short, the skill and efficiency of class counsel
support the approval of the fee request.
36
The complexity and duration of the litigation
As previously noted, this matter was initiated nearly 3 years ago and has involved several
complex questions of law and fact. These facts weigh in favor of approving plaintiffs’ fee
request.
The risk of nonpayment
The fifth Gunter factor takes into consideration “the risk that counsel takes in prosecuting
a client's case.” Gunter, 223 F.3d at 199. Once again, this factor was subsumed within the
analysis of the Girsh factors above. While there is little concern that defendants would have
been unable to pay any judgment that might have been entered, there would be substantial risks
in establishing liability and damages at trial. Further, there would be a risk in obtaining and
thereafter maintaining class certification throughout trial. Any of these risks could have resulted
in a reduction or elimination of the recovery from which class counsel could have collected its
fees. In other words, there was no shortage of risks facing counsel and these risks became and
would have become more concrete with each formal step in the litigation. Given this reality,
plaintiffs’ fee request also is supported by this factor.
The amount of time devoted to the case by plaintiffs’ counsel
As of February 18, 2015, the time-keeping records of plaintiffs’ counsel show that they
have invested 732.2 hours in this matter. (February 19, 2015 Richter Declaration, (Doc. No. 98),
at ¶¶ 8-9). An additional 847 hours were spent reviewing the more than 200,000 documents
which were produced in the Morris action and then used for among other things preparing for the
mediation session. (January 16, 2015 Richter Declaration, at ¶ 27). Because this effort clearly
benefitted the class, these hours properly are considered in determining a reasonable fee. After
taking the relevant Morris hours into account, the requested $1.5 million fee award requested
equates to an hourly rate of $949.95. As this rate would be clearly excessive, the sixth Gunter
37
factor weighs against approving the fee request. This factor is not dispositive, however, given
the weight of the remaining factors in favor of approval.
The awards in similar cases
“While there is no consensus as to the method for determining a reasonable percentage of
attorney fees under the ‘percentage-of recovery’ approach, ‘several courts in this circuit have
observed that fee awards under [that] approach typically range from 19% to 45% of the
settlement fund, with 25% being the median award.’” Frederick v. Range Res.-Appalachia,
LLC, No. C.A. 08-288 ERIE, 2011 WL 1045665, at *9 (W.D. Pa. Mar. 17, 2011) (quoting Lazy
Oil Co. v. Witco Corp., 95 F. Supp.2d 290, 341 (W.D. Pa. 1997) (alteration in original); see In re
Rite Aid, 396 F.3d at 303 (finding no abuse of discretion where the district court relied on a
survey which showed “a median percentage recovery range of 27–30%” for all class actions
resolved or settled over a four-year period). “In most instances, [the determination] will involve
a sliding scale dependent upon the ultimate recovery, the expectation being that, absent unusual
circumstances, the percentage will decrease as the size of the fund increases.” In re Cendant
Corp. PRIDES Litig., 243 F.3d 722, 736 (3d Cir. 2001). It is the “mega funds,” those in excess
of $50 million, which tend to be at the low end of this sliding scale. In re Rent-Way, 305 F.
Supp. 2d at 513 (citing cases).
At $1.5 million, the requested fee award would represent 25.6% of the total settlement
fund. This percentage, given the total value of the nearly $6 million fund, is “well within the
range of reasonable percentage-fee awards in this Circuit.” Lake Forest Partners, L.P., 2013 WL
3048919, at *3 (approving a fee award of 26.8% of a $7,003,000 settlement). The
reasonableness of the requested award in comparison with those approved in similar cases
supports approval.
Other factors
38
Of the three “other factors” mentioned in In re Prudential, two are relevant to the present
inquiry and counsel in favor of approving the fee request. See In re AT & T Corp., 455 F.3d
160, 165 (3d Cir. 2006) (citing In re Prudential, 148 F.3d at 338, 39, 40). First, no other group
can claim responsibility for any portion of the benefits accruing to the class. The proposed
settlement purely is the product of the effort of class counsel. Second, the percentage that would
have been negotiated as part of a private contingent fee agreement at the time class counsel was
retained likely would have been substantially higher. In contrast to the 25.6% all-inclusive fee
requested here, class counsel asserts that its typical contingent fee is 33%, which is not inclusive
of expenses. (Pls’ Attorney Fee Brief, (Doc. No. 92), at p. 27).
In summary, despite the hourly rate produced when the time invested by class counsel is
examined in relation to the size of the fee requested, the overall weight of the Gunter and
relevant In re Prudential factors strongly favors approving the requested award. When subjected
to the recommended lodestar cross-check, this assessment is confirmed.
Lodestar cross-check
“[T]he lodestar cross-check calculation need not entail ‘mathematical precision’ or ‘beancounting,’ and is ‘not a full-blown lodestar inquiry.’” In re AT & T Corp., 455 F.3d 160, 169
(3d Cir. 2006) (quoting In re Rite Aid, 396 F.3d at 306, 307 n.16). It “is calculated by
multiplying the number of hours reasonably worked on a client’s case by a reasonable hourly
billing rate for such services based on the given geographical area, the nature of the services
provided, and the experience of the attorneys.” In re Rite Aid, 396 F.3d at 305. The “reasonable
hourly billing rate” should consist of “blended billing rates that approximate the fee structure of
all the attorneys who worked on the matter.” Id. at 306. Dividing the requested fee award by the
result of this calculation produces a “multiplier.” Id. “[T]he resulting multiplier need not fall
within any pre-defined range,” so long as an analysis of the award reveals that it is justified. Id.
39
at 307. A multiplier should not be permitted automatically, but instead should be used “to
account for the contingent nature or risk involved in a particular case and the quality of the
attorneys’ work.” Id. at 306. If the resulting “multiplier is too great, the court should reconsider
its calculation under the percentage-of-recovery method, with an eye toward reducing the
award.” Id.
Class counsel has produced timekeeping summaries and details demonstrating that a total
of 1579.9 hours have been expended, which includes document review within and from the
Morris action which was used to benefit the Settlement Class. (Jackson January 15, 2015 Time
Records (Doc. No. 93-1); Morris Document Review Time Records (Doc. No. 93-3); Jackson
February 18, 2015 Time Update (Doc. No. 98-3)). In making this submission class counsel has
affirmed that all time entries that counsel believes are "redundant, excessive, or non-essential to
the action” have been eliminated. (January 16, 2015 Richter Declaration, at p. 11 n.10). The
court is satisfied that the reported hours appropriately are considered.
Details provided for each time entry include the relevant task, the responsible employee,
that employee’s billing rate, and the amount of time expended. (Jackson January 15, 2015 Time
Records; Morris Document Review Time Records; Jackson February 18, 2015 Time Update).
The provided rates range from $175.00 for support staff to $525.00 for partners. (Id.). Given the
geographical areas in which class counsel practices, San Francisco and Minneapolis, these rates
fall within the range of reasonableness. See Bayat v. Bank of the W., No. C-13-2376 EMC,
2015 WL 1744342, at *9 (N.D. Cal. Apr. 15, 2015) (approving blended hourly rates of $440 and
$514 per hour) (citing cases); Fancher v. Klann, No. CIV. 13-435 DSD/JJK, 2015 WL 1810235,
at *2 (D. Minn. Apr. 21, 2015) (approving rates “ranging from $225 to $650 for counsel and
$125 for paralegals”) (citing cases).
40
The Third Circuit Court of Appeals has noted that “‘[m]ultiplers ranging from one to four
are frequently awarded in common fund cases when the lodestar method is applied.’” In re
Cendant PRIDES, 243 F.3d at 742 (quoting In re Prudential, 148 F.3d at 341). Against this
backdrop it has been “strongly suggest[ed] that a lodestar multiplier of 3 is the appropriate
ceiling for a fee award.” (Id.).
Here, multiplying class counsel’s total billable hours by the applicable billing rate for
each produces a lodestar of $530,852.50. (Morris Document Review Time Records, at p. 2;
Jackson February 18, 2015 Time Update, at p. 2). When compared with the requested fee award,
the resultant multiplier is 2.83. In addition to falling within the acceptable range identified in In
re Cendant, the use of a 2.83 multiplier is further supported by the excellent result achieved for
the class and the efficiency with which class counsel resolved the matter. The lodestar crosscheck thus confirms the reasonableness of the 25.6% percentage-of-recovery fee award based on
the Gunter factors.
Although Settlement Class members filed 6 relevant objections, only Hung offers any
substantive argument as to why an award of $1.5 million in attorneys’ fees and expenses would
be improper.20 He asserts that $1.5 million is “disproportionate” to the class’ recovery. (Hung
20
Billy and Carolyn Arnold, James S. Johnson, Jr., John and Caroline Metcalf, and the
Porters all offer single-sentence objections to the effect that class counsel is being paid too much
and the class members should be getting more. (See Doc. Nos. 99-31, at p. 5; 99-33, at p. 16, 21;
94). Muvjot Singh takes a slightly different path, arguing that class counsel should have to
“provide detailed reports on why 1.5MM is justified for legal expenses.” (Doc. No. 99-33, at p.
28). As discussed in conjunction with the lodestar cross-check, class counsel provided such
documentation in conjunction with each of the pending motions. (See Jackson January 15, 2015
Time Records; Morris Document Review Time Records; Jackson February 18, 2015 Time
Update). And of course, the fact that in combination defendant actually is paying more than the
$19.00 fee for each member of the class who supplied the information needed to identify them as
suffering a financial loss from the challenged practice (and thus allegedly suffering the same
injuries as the Jacksons) diminishes in large measure the assertion that the class members should
be getting more.
41
Objection, at pp. 20-24). From his perspective the fee award should be reduced to 25% of the
settlement fund, which should include only the value of claims actually filed and being paid. (Id.
at pp. 31-38). Hung also contends that the need to reduce the award is confirmed by a lodestar
cross-check, which should not incorporate a multiplier. (Id. at pp. 38-42).
The proponents of the settlement assert that the entire value of settlement fund available
to class members should be considered when evaluating the reasonableness of a fee award. (Pls’
Attorney Fee Brief, at pp. 14-17). Defendants also argue that a lodestar-cross-check that
properly includes all hours consumed for the benefit of the class supports the reasonableness of
the fee award. (Id. at pp. 27-30).
Hung failed to analyze the specific Girsh factors in support of his contention that the
proposed settlement is unfair. He likewise has failed to even mention the Gunter factors in
asserting that the requested fee award is “disproportionate.” Instead, he relies exclusively on
non-binding authority from other circuits to support the proposition that costs of administration
and the value of unfiled class claims must be excluded from the evaluation of an attorneys' fee
award for reasonableness. (Hung Objection, at p. 23 (citing Pearson, 772 F.3d at 781 (“the ‘ratio
that is relevant . . . is the ratio of (1) the fee to (2) the fee plus what the class members
received’”) (quoting Redman v. RadioShack Corp., 768 F.3d 622, 630 (7th Cir. 2014)). This
argument is not persuasive.
Holding that costs of administration should not be factored into the value of a settlement
fund when determining the reasonableness of an attorney fee award, the Pearson court explained
that “[n]otice and fees . . . are costs, not benefits.” Pearson, 772 F.3d at 781. What the court
appears to have overlooked is that, absent some agreement by the defendant to cover such costs,
the costs necessarily would be subtracted from the recovery actually made available to class
members. The absorption of these costs by the defendant clearly adds to the settlement’s value
42
and this value inures to the class. This is why Judge Schwab previously has held that “[u]nder
the percentage-of-fund method, it is appropriate to base the percentage on the gross cash benefits
available for class members to claim, plus the additional benefits conferred on the class by the
settling defendants’ separate payment of attorney’s fees and expenses, and the expenses of
administration.” Lake Forest Partners, L.P., 2013 WL 3048919, at *2 (citing Boeing Co., 444
U.S. at 479).21
In light of this determination, Hung’s contention that the fee award should be limited to
“25% of the true constructive common fund” is based on an equation with an improper
denominator. (See Hung Objection, at p. 31). Excluding costs of settlement administration,
Hung represents that the requested fee award eclipses 40% of the settlement’s value. (Id.). As
previously explained, the value of the settlement fund is $5,859,452.50, inclusive of the amounts
to be paid for actual class member claims, attorneys’ fees and costs of administration. At $1.5
million, the requested fee award equates to 25.6% of this value. This slight increase above what
Hung refers to as “the 25% of the fund benchmark” (Hung Objection, at p. 23) is warranted
based on consideration of the Gunter factors.
The use of an incorrect denominator also undermines Hung’s argument related to the
lodestar cross-check. He asserts that a multiplier of 5.68 indicates the requested fee is
unreasonable in light of the “strongly suggested ceiling” announced by the Third Circuit Court of
Appeals. (Hung Objection, at p. 40 (citing In re Cendant PRIDES, 243 F.3d at 742)). In arriving
at this multiplier, Hung excluded the Morris document review hours, contending that “[w]ork
21
Given that the requested fee award is reasonable when compared to the sum of only the
fee itself, actually filed class claims, and the costs of administration, and the court has not used
the potential payment defendant agreed to pay before class members who paid the $19.00 fee
were identified ($9.50 x 2,315,362 plus administration costs). Consequently, there is no reason
to address Hung’s argument that the value of unfiled claims should not factor into this
determination.
43
spent on other cases is non-compensable.” (Id. at p. 42 (citing In re Infospace, Inc., 330 F. Supp.
2d 1203, 1214 (W.D. Wash. 2004)). Once again, Hung cites no mandatory authority for this
proposition. Further, the In re Infospace court based its exclusion of such hours from the
lodestar calculation on the knowledge that the other case was “still pending . . . and that a request
for fees will be made upon resolution of the case.” Id. This reasoning does not apply here.
Class counsel has declared that it “is not seeking and will not seek a ‘double recovery’ in
connection with time spent on document review in the Morris action.” (February 19, 2015
Richter Declaration, at ¶ 12). Furthermore, the Morris action has been resolved and the
relationship of its underpinnings to this action is readily apparent. Given this and the direct
benefit that Settlement Class members received from these efforts, there is a sound basis for
including the Morris document review in calculating class counsel’s lodestar.
Including all hours applicable to this matter, class counsel’s lodestar is $530,852.50.
(Morris Document Review Time Records, at p. 2; Jackson February 18, 2015 Time Update, at p.
2). The multiplier of 2.83 necessary to reach the requested $1.5 million fee award is under the In
re Cendant PRIDES “ceiling” discussed by Hung and is otherwise reasonable as explained
above.
Hung’s only remaining argument pertaining to the lodestar cross-check is that the use of
any multiplier here is improper in light of the “Supreme Court’s forceful admonition against the
excessive use of lodestar multipliers in Perdue v. Kenny A.[ ex rel. Winn, 559 U.S. 542 (2010).]”
(Hung Objection, at p. 41). Although Hung does admit that Perdue was “an ‘analogous statutory
fee-shifting case,’” id. at p. 41 n.24 (quoting In re Pet Food Products Liab. Litig., 629 F.3d 333,
361 (3d Cir. 2010)), he fails to recognize that the lodestar method is applied quite differently in
common fund cases. While the lodestar method generally is the primary analysis in statutory
fee-shifting cases, in common fund cases it serves only to cross-check the reasonableness of the
44
results of a percentage-of-recovery method. See In re Rite Aid, 396 F.3d at 300. When used as a
cross-check, the lodestar method is not to be used to demand "mathematical precision" or engage
in "bean-counting." Milliron v. T-Mobile USA, Inc., 423 F. App'x 131, 136 (3d Cir. 2011)
(quoting In re Rite Aid, 396 F.3d at 306) (alteration in original). Consequently, even after
Perdue the Third Circuit has continued to hold that a District Court need only “explain[] the
reasonableness of the multipliers” utilized in common fund cases. Id. As explained, a
multiplier of 2.83 is reasonable and is permissible when cross-checking the reasonableness of the
requested fee award.
Having considered the Gunter and In re Prudential factors and all of the relevant
objections, class counsel has met its burden of showing that its requested fee award is
reasonable. The objections to the fee award by Hung, Billy and Carolyn Arnold, James S.
Johnson, Jr., John and Caroline Metcalf, the Porters, and Muvjot Singh will be overruled.
Plaintiffs’ motion for attorneys’ fees and expenses in the amount of $1,500,000 will be approved.
For the reasons set forth above, the pending objections will be overruled and plaintiffs’
motions for final approval of class action settlement and attorneys’ fees and expenses will be
granted. An appropriate order will follow.
Date: September 30, 2015
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Michele R. Fisher, Esquire
E. Michelle Drake, Esquire
Kai H. Richter, Esquire
Jonah S. Van Zandt, Esquire
Mark D. Lonergan, Esquire
Michael J. Steiner, Esquire
Philip Barilovits, Esquire
Steven J. Adams, Esquire
(Via CM/ECF Electronic Mail)
45
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