Lieberman, Brett v. Portage County et al

Filing 138

ORDER that plaintiff Brett Lieberman is directed to supplement his motion for final approval of the class settlement no later than February 22, 2021. Signed by District Judge James D. Peterson on 2/10/2021. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRETT LIEBERMAN, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
PORTAGE COUNTY, MIKE LUKAS,
CORY NELSON, and DALE BOETTCHER,
Defendants,

ORDER
18-cv-450-jdp

and
WISCONSIN COUNTY
CORPORATION,

MUTUAL

INSURANCE

Intervenor-Defendant.

Plaintiff Brett Lieberman has filed an unopposed motion for final approval of a class
settlement. Dkt. 135. But a preliminary review of the motion reveals three flaws, two of which
the court flagged in a previous order. See Dkt. 132.
First, the motion isn’t framed around the factors listed in Federal Rule of Civil
Procedure 23(e)(2), which was amended in 2018. Instead, plaintiffs rely on an outdated
standard from Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312
(7th Cir. 1980). The Armstrong factors overlap substantially with Rule 23(e)(2), but they are
not the same. So Lieberman will need to file a supplement that addresses the Rule 23(e)(2)
factors.
Second, in arguing that their request for attorney fees is reasonable, plaintiffs say that
their request fees are approximately 45 percent of the total settlement fund. But plaintiffs’

percentage is based on an assumption that the settlement fund includes administrative costs,
which is incorrect. “The ratio that is relevant to assessing the reasonableness of the attorney’s
fee that the parties agreed to is the ratio of (1) the fee to (2) the fee plus what the class members
received.” Redman v. RadioShack Corp., 768 F.3d 622, 630 (7th Cir. 2014). Costs “should
not . . . be[] included in calculating the division of the spoils between class counsel and class
members.” Id. So Lieberman must file a supplement to his fee request, using the appropriate
ratio to argue the reasonableness of counsel’s fees.
Third, counsel for Lieberman did not include their billing records with their fee petition,
as required by this court’s procedures. See Dkt. 23, at 39 (“A party should include the following
in its request for fees and costs: . . . 2. Contemporaneous logs, with separate entries for the
hours spent on specific tasks. Each entry should indicate who performed the work and give a
description of the task.”). Counsel should provide those logs to the court now. If counsel
believes that the records include confidential information, plaintiffs may file the logs under
seal.

ORDER
IT IS ORDERED that plaintiff Brett Lieberman is directed to supplement his motion
for final approval of the class settlement no later than February 22, 2021.
Entered February 10, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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