United States District Court, D. Nebraska
LAURA POWERS, on behalf of herself and all others similarly situated; NICHOLE PALMER, AND JASON PALMER, Plaintiffs,
CREDIT MANAGEMENT SERVICES, INC., Defendant.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on the plaintiff's Unopposed
Motion for Approval of Plaintiffs' Incentive Awards,
Attorneys' Fees and Costs (Filing No. 217). This is a
class action for violations of the Fair Debt Practices and
Collection Act (“FDPCA”), 15 U.S.C. § 1692
et seq. and the Nebraska Consumer Protection Act
(“NCPA”), Neb. Rev. Stat. § 59-1601 et
seq. The plaintiffs request fees in the negotiated
amount of $315, 000 and costs in the amount of $3, 112.29.
They also seek an award in the amount of $7000 to each
plaintiff for service as class representatives.
parties have entered into a Class Settlement Agreement
(“Agreement”) that resolves this litigation,
including payment of plaintiffs' costs and attorney fees
(Filing No. 207-1). In the Agreement, the parties agree to
attorney fees of $315, 000. This amount is separate from and
in addition to the payments to the class members. Class
members received notice of the plaintiffs intention to
request approval of attorney fees and of the amount requested
(Filing No. 207-4, Ex. 1B(b), Website Notice). The defendants
do not oppose the plaintiffs' motion. Further, the
defendants acknowledge in the Agreement that the plaintiffs
are prevailing parties in this litigation.
Agreement, the defendants have agreed to pay statutory
damages of $198, 000 to the Class, as defined in the
Court's Final Order Approving Class Settlement, and $7,
000 each to Laura Powers, Nichole Palmer, and Jason Palmer
for service as class representatives. The plaintiffs
represent to the Court that plaintiffs' counsel received
and reviewed the defendants' net worth documentation in
negotiating the settlement. Based on the defendants'
representations, it is the parties' understanding that
the amount designated for the FDPCA component of the
settlement represents the maximum amount of statutory FDPCA
damages available. The defendants also agreed to pay all
administrative expenses of the settlement. Also, the
defendants agreed to stop using the county court complaints
at issue in Nebraska in the future.
plaintiffs have shown the negotiated fee amount represents
substantial reductions in both the usual hourly rate and time
actually spent on the case by plaintiffs' counsel. The
plaintiffs represent that the attorney fee figure reflects a
discount of $61, 117.79 from counsels' lodestar amount of
Court held a fairness hearing on the parties' Joint
Motion for Final Approval of Class Settlement and objections
thereto, and on lead plaintiffs' Motion for Approval of
Plaintiffs' Incentive Awards, Attorneys' Fees and
Costs on November 23, 2016. The Court overruled two
objections (Filing No. 213 and 221) to the class settlement.
The Court has approved the settlement. There were no
objections to the amount of attorney fees or to the incentive
Court has reviewed the documents filed in support of the
plaintiffs' motion for fees (Filing Nos. 219-1 through
219-10). The plaintiffs have shown that attorney O. Randolph
Bragg has expended a total of 137.1 hours through November 2,
2016, at the hourly rate of $375 per hour and his paralegal,
Shannon Carter, expended a total of .5 hours on this
litigation at the rate of 62.50 per hour. (Filing No. 219-1,
Declaration of O. Randolph Bragg). Attorney Pamela A. Car
expended a total of 373 hours on the litigation through
November 2, 2016 at the rate of $350 per hour (Filing No.
219-4, Declaration of Pamela Car). The plaintiffs'
attorney William L. Reinbrecht expended 593.8 hours of work
at the rate of $325 per hour (Filing No. 219-6, Declaration
of William L. Reinbrecht). Also, plaintiffs have shown they
incurred a total of $3, 112.29 in compensable expenses for
filing fees, photocopies, and depositions.
Bragg, Reinbrecht and Car have also shown they have extensive
experience litigating consumer cases and have achieved
similar awards in other cases. Further, counsel have shown
they reduced the hours billed where appropriate. The
plaintiffs have shown that, as class representatives, they
assisted counsel in gathering information and documents, and
they attended hearings and depositions, and expended other
efforts over the lengthy course of this litigation.
Court is familiar with the litigation. There has been
extensive discovery, significant motion practice and
briefing, an interlocutory appeal to the Eighth Circuit Court
of Appeals followed by a remand and additional motions for
summary judgment. The parties vigorously prosecuted and
defended their respective positions. Also, the record shows
that the parties engaged in extended arms-length negotiations
FDPCA “does contemplate an award of costs and ‘a
reasonable attorney's fee as determined by the court'
in the case of ‘any successful action to enforce the
foregoing liability.'” Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,
598 (2010) (quoting 15 U.S.C. § 1692k(a)(3)). Courts
have discretion in calculating reasonable attorney fees under
the statute. Id. at 598 & n.16; see,
e.g., Tolentino v. Friedman, 46 F.3d 645,
651 (7th Cir. 1995) (holding that the award of attorney fees
to plaintiffs for a debt collector's violation of
“any provision” of the FDPCA is mandatory);
Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d
22, 28 (2d Cir. 1989) (concluding the award of attorney fees
to a successful plaintiff in an FDPCA action is mandatory);
Carroll v. Wolpoff & Abramson, 53 F.3d 626,
628-29 (4th Cir. 1995) (deciding an award of attorney fees
under the FDPCA is mandatory in the absence of bad faith
conduct on the part of the plaintiff); but see Johnson v.
Eaton, 80 F.3d 148, 150-152 (5th Cir. 1996)
(“attorney's fees . . . are only available [under
§ 1692k] where the plaintiff has succeeded in
establishing that the defendant is liable for actual and/or
additional damages”; this reading “will deter
suits brought only as a means of generating attorney's
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); Johnston v. Comerica Mortg.
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 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.
a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee.” Hensley
v. Eckerhart, 461 U.S. 424, 435 (1983) (stating that
“[n]ormally this will encompass all hours reasonably
expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be
justified.”). Although there is no precise formula for
determining a reasonable fee, the district court generally
begins by calculating the lodestar-the attorney's
reasonable hourly rate multiplied by the number of hours
reasonably expended. Id. at 433-37; Marez v.
Saint-Gobain Containers, Inc., 688 F.3d 958, 965 (8th
Cir. 2012). The standards set forth in Hensley are
generally applicable in all cases in which Congress has
authorized an award of fees to a “prevailing
party.” Hensley, 461 U.S. at 433 n.7. In
assessing attorney fees, the district court should consider
the twelve factors set forth in Johnson v. ...