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Henggeler v. Brumbaugh & Quandahl, P.C.

United States District Court, D. Nebraska

February 26, 2014

SHARON K. HENGGELER, On behalf of herself and all others similarly situated; and DAVID RANDALL, on behalf of himself and all others similarly situated; Plaintiffs,
v.
BRUMBAUGH & QUANDAHL, P.C., LLO, KIRK E. BRUMBAUGH, MARK QUANDAHL, LIVINGSTON FINANCIAL, LLC, MIDLAND FUNDING, LLC, d/b/a ENCORE FUNDING, LLC, A Fictitious Name, and LVNV FUNDING, LLC, Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on the plaintiffs' motion for attorney fees and costs, Filing No. 139, and supplemental request for attorney fees, Filing No. 153. This is a class action for violations of the Fair Debt Practices and Collection Act, 15 U.S.C. § 1692, et seq. (hereinafter, "FDCPA" or "the Act"), and the Nebraska Consumer Protection Act ("NCPA"), Neb. Rev. Stat. § 59-1601 et seq.

I. FACTS

The plaintiff class and defendants Brumbaugh & Quandahl, P.C., LLO, Kirk E. Brumbaugh, and Mark Quandahl ("the B&Q defendants") have entered into a Class Action Settlement Agreement ("the Agreement") that resolves this litigation. Filing No. 136, Exhibit ("Ex.") A (Filing No. 136-2 at pp. 1-20). The court has granted the class action settlement preliminary and final approval. Filing Nos. 137 & 155.

The Settlement Agreement provides that "the B&Q Defendants agree to pay reasonable attorney fees and costs as the Court may award for prosecution of a successful action' under 15 U.S.C. § 1692k." Filing No. 136, Settlement at 13 (Filing No. 136-2 at p. 13). The parties further agreed to negotiate the fees in good faith, and the B&Q defendants reserved the right to object to the fees and to appeal any award. Id., Settlement at 14 (Filing No. 136-2 at p. 14). The Agreement also provides that the consideration for settlement is not contingent on the attorney fees, and the attorney fee issue is to be considered separately from the Agreement. Id.

The record shows that, by way of the settlement, the plaintiff class recovered $5, 000 each for class representative and a settlement fund of $20, 000 for distribution to the class.[1] Id. at 11-12 (Filing No. 136-2 at pp. 11-12). Importantly, the plaintiffs obtained injunctive relief-the B&Q defendants agreed to change the collection letters that are the subject of the action. Id. at 11. In exchange, the plaintiffs released their claims against all of the defendants, including Livingston Financial, LLC, Midland Funding, LLC, and LVNV Funding, LLC. Id . at 5.

The court held a fairness hearing on the parties' joint motion for final approval of class settlement on February 6, 2014, and no one appeared at the hearing to object to the class settlement, including its attorney fees provisions. At the hearing, the B&Q defendants orally objected to the plaintiffs' supplemental request for fees, for the same reasons set forth in their earlier opposition to the plaintiffs' motion. See Filing No. 146, Brief in Opposition to Motion for fees.

The plaintiffs request fees in the total amount of $122, 101.00 for work completed through December 12, 2013, and $15, 230.00 for fees from December 13, 2013, to the present, for a total attorney fee of $143, 997.19. Filing No. 153, Index of Evid., Ex. 4, Graph at 1 (Filing No. 153-1 at p. 1).[2]

In support of their motions, the plaintiffs have submitted detailed timesheets. See Filing No. 153, Index of Evid., Ex. 5A (Filing No. 153-3); Ex. 6A (Filing No. 153-5); Ex. 7A (Filing No. 153-3); Filing No. 141, Index of Evid., Ex. 1A (Filing No. 141-2), Ex. 2A (Filing No. 153-4), Ex. 3A (Filing No. 141-6). Mr. Bragg requests $425.00 per hour for his work, which is a reduction from his regular hourly rate of $495.00. Filing No. 141, Index of Evid., Ex. 1, Declaration of O. Randolph Bragg at 15-16 (Filing No. 141-1 at pp. 15-16). Mr. Bragg also requests fees for paralegal Shannon Carter's services at the rate of $125.00 per hour. Id. at 16. Attorneys Car and Reinbrecht request $325.00 and $300.00 per hour, respectively. Id., Ex. 2, Declaration of Pamela Car at 6 (Filing No. 141-3 at p.6); Ex. 3, Declaration of William Reinbrecht at 6 (Filing No. 153-3); The original fee request represents 141.9 hours of work by attorney Bragg; 64.6 hours of work by attorney Car and 141.4 hours of work by attorney Reinbrecht and 4.4 hours of work by paralegal Carter. Filing No. 141, Index of Evid., Ex. 1A (Filing No. 141-2); Ex. 2A (Filing No. 141-4); Ex. 3A (Filing No. 141-6). In their supplemental request, they seek fees for 16.3 hours of work by attorney Bragg, 11.1 hours of work by attorney Car, and 17.95 hours of work by attorney Reinbrecht. Filing No. 153, Index of Evid., Ex. 5A (Filing No. 153-3); Ex. 6A (Filing No. 153-5); Ex. 7A (Filing No. 153-7). Attorneys Bragg, Car and Reinbrecht have also shown they have extensive experience litigating FDCPA and other consumer cases and have achieved similar attorney fees awards in other cases. Filing No. 141, Index of Evid., Exs. 1, 2, and 3.

The plaintiffs further seek reimbursement of $6, 666.19 in costs and expenses. They have shown they incurred expenses for process service, depositions and transcripts, and travel. Filing No. 141, Index of Evid., Ex. 2B (Filing No. 141-2 at p. 25)

The defendants object to the award of fees. See Filing No. 146. They argue that the plaintiffs were not wholly successful and that the fees should be reduced to account for lack of success against the other named defendants. Further, they argue that the hourly rate of $450 per hour for work performed by plaintiffs' Chicago counsel is unreasonable in the local market. They also assert that local counsel's hourly rates are excessive, arguing that a reasonable rate would be no more than $225.00 per hour. They further argue that certain charges are duplicative and/or excessive.

II. LAW

A thorough judicial review of fee applications is required in all class action settlements. In re Diet Drugs, 582 F.3d 524, 537-38 (3d Cir. 2009); Johnson v. Comerica Mortgage Corp., 83 F.3d 241, 246 (8th Cir. 1996) (noting that the district court bears the responsibility of scrutinizing attorney fee requests). Courts utilize two main approaches to analyzing a request for attorney fees: (1) the "lodestar" methodology (multiplying the hours expended by an attorney's reasonable hourly rate of compensation to produce a fee amount that can be adjusted to reflect the individualized characteristics of a given action); and (2) the "percentage of the benefit" approach (permitting an award of fees that is equal to some fraction of the common fund that the attorneys were successful in gathering during the course of the litigation). Johnston, 83 F.3d at 244-45. It is within the court's discretion to decide which method to apply. Id.

Under the FDCPA, in addition to compensatory damages, district courts are empowered to award individual plaintiffs "additional damages" of up to $1, 000 per consumer. 15 U.S.C. § 1692k(a)(1) & (2). In the case of a class action, each named plaintiff can recover compensatory and "additional damages" of up to $1, 000, and "such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to ...


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