Baptista v. Mutual of Omaha Insurance Company et al

Filing 39

MEMORANDUM AND ORDER: GRANTING 32 Motion for Final Approval of Class Settlement Agreement; and, GRANTING IN PART AND DENYING IN PART 31 Motion For Approval of Attorneys' Fees and Costs: the motion for approval of attorney's fees and costs is GRANTED as specified in the instant order, and DENIED otherwise; the motion for reimbursement of expenses is GRANTED; and the motion for an incentive award for Baptista is GRANTED as specified in the instant order, and DENIED otherwise. So Ordered by Chief Judge Mary M. Lisi on 3/14/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
NANCY A . BAPTISTA , individually and on
behalf of all others similarly situated,
Plaintiffs
C.A. No. 010-467 - ML

v.

MUTUAL OF OMAHA INSURANCE
COMPANY, UNITED OF OMAHA LIFE
INSURANCE COMPANY and DOES 1
through 100, inclusive,
Defendants

MEMORANDUM AND ORDER
This

case was brought by Nancy Baptista

("Baptista")

as a

class action suit under the Employee Retirement Income Security Act
of

1974,

29

U.S.C.

§

1001

et

("ERISA " )

seq.

regarding

the

defendants' practice of administering death benefits from certain
employee

benefit plans

settlement class

insured by the

defendants.

(together with Baptista,

A proposed

the "Plaintiffs")

was

conditionally certified for settlement purposes pursuant to Fed. R.
Civ. P . 23(b) (3).

The matter before the Court is the Plaintiffs'

motion for final approval of the class action settlement and their
request for an award of attorneys'

fees ,

reimbursement of costs,

and an incentive award for the named plaintiff.
2012,

On January 2 0 ,

the Court conducted a final fairness hearing to determine

whether the

settlement agreement between the parties was

reasonable,

and

a de qua te,

and

to

address

class

fair ,

counsel ' s

application for an award of attorneys' fees and costs and payment
1

of an incentive award to Baptista .

For the reasons stated herein ,

the Plaintiffs' motion is granted , in part, and denied , in part.
I.

Factual Background:

Baptista,

a Rhode Island resident ,

is the beneficiary of a

life insurance policy provided by her late husband ' s employer and
issued by United of Omaha Life Insurance Company, an affiliate of
Mutual of Omaha Insurance Company (together, "Mutual of Omaha") .
Baptista's husband died on October 24, 2007. On December 6, 2007,
Baptista submitted a death benefit claim to Mutual of Omaha.
response,

on January 10 ,

allowance

letter

In

2008, Baptista received a death benefit

from Mutual

of

Omaha ,

advising

her

that

the

benefits were placed into a Total Access Benefits Service (" TABS")
Account .

Baptista

was

informed

that

the

account

offered

a

"competitive interest rate , 1 " personalized checks , and easy access
to her money.

Baptista also received a "Total

Complaint 1 20 .

Access Benefits Service Account Information Certificate," which
stated that TABS is a program of Mutual of Omaha and that her
"proceeds and accrued interest under the TABS account are paid by
Mutual of Omaha Insurance Company . " Complaint 1 21 .
The complaint alleges that Mutual of Omaha
stated ,

transfer

any

funds

to

the

TABS

(1)

account

did not,
when

it

as
was

The TABS confirmation certificate dated 01 - 10-08 reflects an
interest rate of 2.5% , for an annual percentage yield of 2 . 52% ,
which was significantly below the then applicable prime interest
rate. Ex . C to Complaint (Docket No. 1 - 4) .
2

established;

(2) invested the death benefits owed to Baptista "for

its own account and not for
benefitsu

to

investments

Baptista;

than

the

the exclusive purpose of providing

and

(3)

interest

that

"earned
it

more

paid

connection with her Account.u Complaint t25,

to
26.

through

such

[Baptista]

in

The complaint

further alleges that Baptista's claims are typical of the claims of
a plaintiff class composed of more than 10,000 class members. 2
Baptista asserts claims of unjust enrichment, a violation of ERISA,
suggesting that, under ERISA, Mutual of Omaha owed a fiduciary duty
to her and other TABS account holders, and that it was, therefore,
prohibited from investing the benefits for

its

own account and

without fully accounting to Baptista (and the plaintiff class) for
the monies it earned through such investments.
Baptista

seeks

earned through

disgorgement
its

of

all

the

allegedly unlawful

Complaint t

moneys
practices

Mutual

30.

of Omaha

involving

TABS

accounts. Complaint at 13.
The complaint includes in the proposed class any beneficiaries
under ERISA-governed employee welfare benefit plans under which
Mutual of Omaha "paidu death benefits through the creation of a
TABS account.

The class period is set "[a]t any time after the

date six years immediately preceding the filing of this complaint.

u

Complaint t 33.

After some initial investigation, the number of prospective
plaintiffs was established at approximately 6,800.
3

II.

Litigation Time Line

On November 17, 2010, Baptista filed a complaint in this Court
on

her

own

Baptista

behalf

and

requested ,

that

of

inter alia,

all

others

that

similarly

Mutual

of

situated.

Omaha

hold

in

constructive trust all monies it has earned through its practice
and she also sought injunctive relief enjoining Mutual of Omaha
from committing future violations of ERISA.
On January 31 , 2011, Mutual of Omaha answered the complaint ,
asserting,

inter alia, that the claims were barred by the statute

of limitations; that the Plaintiff and other putative class members
caused or contributed to the loss claimed;

that the Plaintiffs'

claims are barred by signed releases; and that Mutual of Omaha 's
actions were
ERISA.

consistent with the

applicable plan documents

and

Answer at 5-6.

On March
conference .

22 ,

2011 ,

the parties participated in

In its Rule 16 statement,

a

the Plaintiffs'

Rule

16

counsel

indicated that the parties had already "conferred and agreed to
stay this litigation for 60 days in order to engage in meaningful
settlement

discussions"

confidentiality ,

and

defendants

that,

had

"under

begun

various documents to advance this cause."

to

an

share

agreement
with

of

plaintiff

(Docket No. 21) .

In the

course of the Rule 16 conference, the parties made a joint motion
to stay the case for sixty (60) days, which was granted.
On May 23 , 2011 , the parties submitted a one paragraph joint

4

status report, representing that they had engaged in negotiat ions
and were attempting to schedule a mediation towards the end of June
2011 .

Plaintiffs also requested that the stay be lifted since they

believed that a continuance would not further negotiations. (Docket
No. 23) . On June 3, 2011, the parties participated in a telephone
conference , where they informed the Court that a mediation of the
case was scheduled in Atlanta with a mediator.
On July 27 ,

2011, plaintiff submitted a Notice of Unopposed

Motion for Preliminary Approval of Class Settlement and to Schedule
a Fairness Hearing, together with a memorandum, an affidavit, and
various

exhibits .

(Docket No.

24) .

At

a

status

conference on

August 4 , 2011, the parties represented that, following a one day
session

with

a

mediator on

June

30 ,

general agreement to settle the case.
alia ,

2011,

they had come

The Court inquired,

to

a

inter

how the parties had arrived at the settlement amount;

how

much time plaintiffs' counsel had spent on discovery; the extent of
Baptista ' s involvement in the litigation, thus far; and about the
appropriateness

of

returning

any

cy pres

fund

to

a

foundation

administered by Mutual of Omaha, as suggested by the parties.

The

Court then instructed the parties to modify the Proposed Individual
Notice of Settlement,
class

members

in part,

(estimated

at

to explicitly inform prospective
approximately

6,800

individuals)

regarding a waiver of future claims, to clarify the means of opting
out

of

the

settlement

and/or

participating

5

in

future

Court

proceedings regarding approval of the settlement, and to select a
recipient of any cy pres fund unaffiliated with the Defendants.
On August 11 ,
parties that,
Action

2011,

the Court entered a stipulation by the

for purposes of notice requirements under the Class

Fairness

Act

("CAFA"),

28

U.S.C.

1715,

§

the

settlement of the class action had not yet been filed.

proposed
Mutual of

Omaha was directed to send out CAFA notices within ten days after
filing of the Stipulation of Settlement.

(Docket No. 27) .

On September 28, 2011, Baptista filed an Unopposed Motion for
Preliminary

Approval

of

Class

(Docket

Settlement.

No.

29).

Plaintiffs ' counsel represented, inter alia, that they had received
extensive financial information from Defendants' counsel and that
Plaintiffs '

counsel had conducted substantial informal discovery

regarding Defendants' financial records.
motion that Defendants '

It is also noted in the

counsel and Plaintiffs'

counsel are well

acquainted since they have been litigating a similar case, and that
Plaintiffs'

counsel 's investigation

(and experience with similar

cases) and review of the initial disclosures and informal discovery
allowed them to review and assess the merits of the case and to
recommend this settlement."
30,

2011,

(Docket No. 29

the Court entered an Order

~

7 -8).

On September

(1) preliminarily approving

the Settlement, pursuant to which the parties agreed to settle the
litigation for $1.9 Million;
class

counsel;

and

(3)

(2) appointing Plaintiffs' counsel as

approving

6

the

notice

to

class members.

(Docket No. 30).
On January 6, 2012, Baptista submitted a Motion for Approval
of

Attorney's

Fees and Costs

(Docket No.

Approval of Class Settlement (Docket No. 32)

31)

and a Motion

for

On January 13, 2012,

Baptista filed an affidavit of an associate account executive with
A.B. Data Ltd., the appointed Settlement Administrator responsible
for providing notice to all known settlement class members.
On January 20, 2012, the Court held a hearing on the request
for final approval of the settlement.

Neither Baptista nor any

other members of the settlement class were present.

Counsel for

the settlement class presented one witness, a local attorney with
some

involvement

reasonableness

in

of

attorneys' fees.

class

33

1/3%

action
of

the

litigation,
settlement

3

regarding

amount

the

sought

as

According to the witness's testimony, his current

billable rate is $335 per hour; new associates bill around $200 per
hour; and paralegals generally bill $150 per hour.
that

some

attorneys

handling

He also stated

litigation

complex

in

this

jurisdiction bill as much as $650 per hour; but he noted that, for
work he performed for insurance companies ,
closer to $275 per hour.
in

Rhode

Island

his billing rate was

He further stated that contingency fees

normally

ranged

from

25 % to

40%,

more

for

"catastrophic" cases.

With respect to the instant litigation, the attorney only
reviewed the pending motions; he did not review the Complaint or
any other related documents or correspondence.
7

III.

Discussion
(A) Class Action Settlement
Pursuant to Federal Rule 23(e) of the Federal Rules of Civil

Procedure, if a proposed settlement "would bind class members, the
court may approve it only after a hearing and on finding that it is
fair,

reasonable,

and adequate."

Fed. R. Civ. P. 23(e) (2); City

P'ship Co. v. Atlantic Acquisition Ltd., 100 F.3d 1041, 1043 (1st
Cir. 1996) ("A district court can approve a class action settlement
only if it is fair, adequate and reasonable.").

When considering

a motion for final approval for a class settlement, the Court must
conduct a detailed assessment of the settlement terms,

the class

members' interests, the interests of other third parties that might
Duhaime v.

be affected, and the circumstances of the litigation.

John Hancock Mut. Life Ins. Co., 183 F.3d 1, 2, 7 (1st Cir. 1999).
See also In re Gen.

Motors Corp.

Pick-Up Truck Fuel Tank Prod.

Liab. Litiq., 55 F.3d 768, 805 (3d Cir. 1995) ("Rule 23(e)
on the

trial

judge the

duty of protecting absentees,

imposes
which

is

executed by the court's assuring that the settlement represents
adequate compensation for the release of the class claims.")
The First Circuit has noted that "[w]hen sufficient discovery
has been provided and the parties have bargained at arms-length,
there is a presumption in favor of the settlement."
Co. v. Atlantic Acquisition Ltd., 100 F.3d at 1044.
fairness

of

a

settlement,

case

law

8

offers

a

City P'ship
To assess the

"laundry

list

of

factors,"

ultimately

"balancing

the

involving

advantages

a

and

decision

by

the

disadvantages

of

trial
the

judge

proposed

settlement as against the consequences of going to trial or other
possible

but

perhaps

settlement."

unattainable

variations

on

the

Nat' 1 Ass' n of Chain Drug Stores v.

Carpenters Health Benefits Fund,

proffered

New England

582 F.3d 30, 44 n. 13

(1st Cir.

2009) (listing cases, including City of Detroit v. Grinnell Corp.,
495 F.2d 448,

463

other

include

courts

(2d.

Cir.
(1)

duration of the litigation,
settlement,

( 3)

1974))
the

The factors considered by

complexity,

expense

and

likely

(2) the reaction of the class to the

the stage of the proceedings and the amount of

dis cove ry completed , (4) the risks of establishing liability, (5) the
risks

of establishing damages, (6)

the

risks of maintaining the

class action through the trial,

( 7) the ability of the defendants

to withstand a greater judgment,

(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.

City

of Detroit v. Grinnell Corp., 495 F.2d at 463.
In this case,

the parties indicated,

within four months of

commencement of the litigation, that they believed the case could
be

settled.

Within

another

two

months,

following

media tio n session, a settlement was reached.
notified prospective

class members

9

have

a

one

day

Although some of the

chosen

to

opt

out,

no

objections

were

raised

against

the

settlement. 4

Settlement Administrator (Docket No. 38).
appears

to

have

been

minimal

and

Affidavit

of

Discovery in this case

primarily

dispositive motions were filed by either side.

informal,

and

no

With respect to the

likelihood of success, the Court notes that class counsel have been
involved in litigation over TABS accounts in other jurisdictions,
with varying success.

See e.g.

Mogel v.

UNUM Life Ins.

Co.

of

North America, 547 F.3d 23 (1st Cir. 2008 ) (settlement); Edmonson v.
Lincoln Nat.

Life Ins.

(E.D.Pa. April 01,

Co.,

C.A.

No.

10-4919,

102011 WL 1234889

2011) (defendant's motion for summary judgment

granted); Luitgaren v. Sun Life Ins. Co. of Canada, C.A. No.

09-

11410, 2010 WL 4722269 (D. Mass. Nov. 18, 2010 ) (defendant's motion
for summary judgment pending); Otte ex rel. Estate of Reynolds v.
Life Ins. Co. of North America, C.A. No. 09-11537, 2011 WL2307404
(D. Mass June 10, 2 011) (motion to certify class partially GRANTED,
pending interlocutory appeal); Faber v. Metro. Life Ins. Co ,
F. 3d

98

(2d

Cir.

2011) (dismissal

of

case

by

district

648

court

affirmed)
In the course of this litigation, class counsel indicated to
the Court that the alleged damages were estimated at $5 Million,

4

The Court expressed its great concern at the final hearing
that class counsel apparently neglected to inform the Settlement
Administrator that individuals indicating their wish to opt out
were not to be contacted for a follow-up by telephone, as the Court
had expressly instructed.
10

whereas the Defendants maintained that their profit gained from the
TABS account was limited to $2 Million.

As such,

a $1.9 Million

recovery , or slightly less than 40% of the asserted damages, is not
unusual

as

a

settlement

amount.

The

settlement

payments

are

structured to compensate each individual class member in proportion
to

the

loss

sustained

from

the

Defendants'

TABS

practices.

According to Mutual of Omaha , the TABS practice was discontinued in
May 2009 with respect to new account holders. The
settlement

class

explicitly

advises

current

notice to the

holders

of

TABS

accounts that, in the future, they will not be able to sue Mutual
of Omaha for profits on the TABS account program.
In light of these facts,
factors,

when reviewed against the Grinnell

the Court concludes that this is a good settlement which

was achieved at an arm's length negotiation with the services of a
mediator.

The Court is also satisfied that all of the interested

parties in this case, i.e. the prospective class members, have been
appropriately and properly notified of this action and that they
have been adequately apprised of their rights as beneficiaries and
potential litigants.
(B) Attorneys' Fees
In class action cases,

attorney fees may be awarded from a

common fund created for the benefit of the class.

Fed. R. Civ . P.

23(h) ("In a certified class action, the court may award reasonable
attorney's fees and nontaxable costs that are authorized by law or

11

by the parties' agreement"); United States v. 8.0 Acres of Land,
197 F.3d 24 ,

33

(1st Cir. 1999).

A trial court has considerable

discretion when awarding attorney fees.

Lipsett v.

Blanke,

97 5

F.2d 934 , 937 (1st Cir. 1992); Kargman v. Sullivan, 589 F. 2d 63, 69
(1st. Cir . 197 8) (common fund award "is an equitable award made at
the discretion of the district court"); In re Fidelity/Micron Sec.
Litig., 167 F.3d 735, 737 (1st Cir.1999) (noting that "becaus e each
common fund case presents its own unique set of circumstances,
trial courts must assess each request for fees and expenses on its
own terms ").

The Court takes a quasi-fiduciary role in protecting

the common fund for the benefit of the class in awarding attorney
fees.

Id. at 736-737.
The Court may calculate such an award by using a

lodestar

method and multiplying a reasonable hourly rate by the compensable
hours the attorney worked on the matter or it may base the fees on
a

reasonable

percentage

of

the

fund.

In

re

Thirteen

Appeals

Arising Out of San Juan Dupont Plaza Hotel Fire, 56 F.3d 295, 307,
30 9 (1st Cir . 1995) ("A court arrives at the lodestar by determining
the hours productively spent on the

litigation and multiplying

those hours by reasonable hourly rates"); Hutchinson ex rel. Julien
v.

Patrick ,

636 F.3d 1,

fashioning a fee award,

13

(1st Cir.

2011) (noting that "[w]hen

the district court ordinarily starts by

constructing what has come to be known as the lodestar").

Although

there are some advantages to the percentage of fund method, i.e.

12

"it is less burdensome to administer, it reduces the possibility of
collateral

disputes,

it

enhances

efficiency

throughout

the

litigation, it is less taxing on judicial resources, and it better
approximates the workings of the marketplace,u
Sales

Practices

Litig.,

No.

MDL

Lupron Mktg. and

143001-CV-10861

RGS,

2005

WL

2006833 *3 (D. Mass. Aug. 17, 2005) (citing In re Thirteen Appeals
Arising out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d
at 307,

the Court is also mindful of the mandate to protect the

common fund for the benefit of the 6,800 class members in this
case. In re Fidelity/Micron Sec. Litig., 167 F.3d 736.
While the First Circuit has not established specific factors
to

assess

a

common

fund

fee

request,

circuit have considered the factors

district

courts

in Goldberger v.

in

this

Integrated

Res., Inc., 209 F.3d 43 (2d Cir. 2000), including (1) the time and
labor expended by counsel;
the litigation ;
of

( 2)

the magnitude and complexities of

(3) the risk of the litigation

representation;

(5)

the

requested

fee

... ,
in

(4) the quality

relation

settlement ; and (6) public policy considerations.

to

the

See, e.g.,

In

re Lupron Mktg. and Sales Practices Litig., 2005 WL 2006833 at *3
(considering
benefitted;
attorneys
litigation;

(1)
(2)

the size of the fund and the number of persons
the

involved;

skill,
(3)

experience,

the

and

complexity

(4) the risks of the litigation;

devoted to the case by counsel;

( 6)

13

and

efficiency

of

the

duration

of

the

(5) the amount of time

awards in similar cases; and

(7) public policy considerations , if any . )
In this case , class counsel seek $633 , 333 in attorneys' fees ,
or 33 1/3 % of the total $1.9 Million settlement amount.

Their

total lodestar amount through December 31 , 2011 is $368 , 940 .
additional

amount

of

$50 , 550

is

estimated

matters in February and March 2012 .

for

An

administrative

Counsel assert that a 1.55

multiplier (applied to the anticipated total lodestar of $409 , 357)
is

fair

and

reasonable ,

given

the

significant

complexities and challenges of the litigation,
undertaking it .
When

recovery ,

the

and the risks in

Pltf . 's Mem. 1 (Docket No . 31-1)

considering

particular litigation ,

the

circumstances

and

facts

of

this

the Court comes to the conclusion that a

lodestar approach will result in fair and reasonable compensation
for class counsel .

First , the case settled within weeks , without

any significant discovery 5 •

The complaint was filed in November

2010 ;

the parties participated in a Rule 16 conference in March

2011 ;

and , within 60 days of that conference , the parties reported

that they were ready to settle .
primarily

been

engaged

in

Since then,

preparing

the

the parties have

settlement

documents ,

including perfect i ng the requisite notice to the proposed class
members.

No interrogatories were exchanged , no depositions were

Plaintiffs' counsel disclosed that some of the financial
information pertaining to
the
Defendants
was
obtained by
downloading publicly available statements from the internet. In
addition,
the Defendants apparently provided a
spreadsheet
regarding the interest " spread" re l ated to the TABS accounts.
14

noted,

no

trial

certification,
unopposed.

preparations

which

was

limited

were
to

undertaken,
the

and

settlement

class

only,

was

The only motions filed in this case related to approval

of the settlement and the request for attorneys'

fees,

costs, and

an incentive award for the named plaintiff. The Court also notes
that counsel for the plaintiff has documented spending a total of
7 62

hours

completion

(with
of

an

the

estimate
action)

of

on

a

an

additional

case

that

98

hours

appears

to

until

involve

identical issues addressed in other cases prepared by some of the
same attorneys . Based on the effort expended in these essentially
unopposed proceedings, it would appear that the attorneys will be
sufficiently compensated by receiving their considerable hourly
rates,

which

adequately

reflect

their

expertise

in

similar

litigation.
Second, there is nothing particularly complex about the case,
which

primarily

companies'

raises

the

question

of

whether

the

insurance

practice of "skimming" some of the interest from TABS

accounts constitutes a violation of their fiduciary duties under
ERISA.
Third, although litigation always carries with it a risk of a
less

than

favorable

outcome,

counsel

have

had

some

success

in

bringing similar cases and might have been successful in obtaining
maximum recovery for the class if this case had proceeded to trial.
Counsel also acknowledged that the instant litigation was

15

filed

after

a

similar litigation in Mogel

had already resulted in a

successful settlement.
Fourth,
qualified,

it is evident that counsel are experienced and well

which

is

reflected

in

their

reported billing

rates

varying between $425 and $525 per hour .
Fifth,

with respect to requested fees

amounting to a

full

third of the common fund, this seems to be a significant award to
a select number of attorneys who have brought these cases in a
number of other jurisdictions , in light of the projected award - an
average of $180 - to individual class members.

A common fund of

$1.9 million for estimated losses of $5 million does not constitute
an undeserved windfall to the settlement class, which will receive
less than 40 % of its alleged losses.
Finally,

regarding public policy,

it is appropriate for the

Court to consider counsel fees in class action settlements with
particular

care,

since

the

request

for

settlement

fees

is

not

contested by the Defendants and a percentage of common fund award
may

result

in

an

award

of

attorneys'

fees

far

in

excess

of

compensation at a reasonable billable rate.
For those reasons,
multiply the

lodestar

the Court sees no compelling reason to
figures

with

a

1 . 55

factor.

Therefore,

approval of attorneys ' fees is limited to the compensation for the
actual work performed in this litigation .

Counsel are expected to

provide detailed documentation for any work performed after January

16

1, 2012 in bringing this case to completion.
(C) Reimbursement of Expenses
It

is

well

established

in

the

First

Circuit

that

"in

situations in which expenses are potentially reimbursable, district
courts enjoy wide latitude in shaping the contours of such awards."
In re Fidelity/Micron Sec. Litig., 167 F.3d at 736

(citing In re

Thirteen Appeals-San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d
at 309) .

However, in "common fund" cases, the district court is

called upon to act as a "quasi-fiduciary to safeguard the corpus of
the

fund

for

the

benefit

Fidelity/Micron Sec.

of

Litig.,

the

plaintiff

167 F.3d at 736-37

Niedert, 142 F.3d 1004, 1011 (7th Cir.l998)).
reimbursement
guided

by

is

the

subject to
principle

class."

the Court's

of

In

re

(citing Cook v.

The award of expense

"informed discretion,"

reasonableness

individualized assessment of each request.

and

based

on

an

In re Fidelity/Micron

Sec. Litig., 167 F.3d at 737.
Class counsel in this case seek reimbursement of actual costs
of $10 , 132 . 91 incurred through December 31,
expenses

of

$1,400.00

completion of the case.
of mediation,

incurred

from

2011 , plus estimated

January

1,

2012

The sum represents filing fees,

travel expenses,

to

the

the cost

including airfare and overnight

stays , out -of pocket fees for computerized legal research, printing
and other minor expenses.

A review of class counsel's itemized

expense sheet reveals that the largest line item is the mediator's

17

fee of $3,750 and that travel in this case was limited to class
counsel attending the mediation or participating in a proceeding
before

this

concludes

Court.

that

(Docket

the

No.

expenses

33-1).

related

As

to

this

such,

the

Court

litigation

are

reasonable and that an award of reimbursement is appropriate.
(D)

Incentive Award

Finally,

class counsel seek a $5,000 "incentive award" for

Baptista's involvement in bringing this action.

An incentive

award to a named plaintiff "can be appropriate to encourage or
In re

induce an individual to participate" in a class action.
Puerto Rican Cabotage Antitrust Litig., 4537726 (D.P.R, Sept. 13, 2011).

F.

Supp.2d -,

2011 WL

The purpose of incentive awards

is "t o compensate named plaintiffs for the services they provided
and the

risks

litigation ."

they incurred during the

course

of class

action

In re Lorazepam & Clorazepate Antitrust Litig., 205

F.R.D. 369, 400
According

(D.D.C. 2002).
to

the

declaration

submitted

in

support

of

her

request for an incentive award, Baptista estimates that she spent
approximately
litigation.

15-20

hours

(Docket No. 37)

attending

to

matters

involving

this

She states that she participated in

a meeting with counsel prior to the filing of the complaint and
that she was kept informed by local counsel regarding the progress
of the litigation.

As previously noted, within four months after

commencement of this litigation, the parties were focused entirely

18

on settlement.

Baptista was not required to answer interrogatories

or testify at a deposition.
public

hearing

settlement.

on

When

her

Baptista chose not to attend the sole

motion

viewed

for

final

against

the

approval
average

of

amount

the
of

class
$180

anticipated to be awarded to approximately 6,800 class members,

6

Baptista's limited involvement does not warrant an award that far
exceeds that of other class members.

Accordingly, the Court finds

that an award of $2,000 is adequate compensation for Baptista's
time and effort in this litigation.

Conclusion
For the reasons stated above, the Plaintiffs' motion for final
approval of class settlement agreement is GRANTED; the motion for
approval
herein,
expenses

of
and

attorney's
DENIED

is GRANTED;

fees

and

otherwise;

costs

the

is

motion

GRANTED
for

as

specified

reimbursement

of

and the motion for an incentive award for

Baptista is GRANTED as specified herein, and DENIED otherwise.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
March 14, 2012

6

The Court is mindful that a mathematical average does not
reflect that the individual awards will be based on the profits of
which each class member was deprived. No information was provided
as to the estimated amount of Baptista's alleged loss.
19