United States District Court, D. Nebraska
CURTIS KLUG, individually and on behalf of all others similarly situated; LAWRENCE NOVER, and NELS ROE, Plaintiffs,
WATTS REGULATOR COMPANY, Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court on the plaintiffs' motion,
individually and on behalf of the Settlement Class, for
attorney fees and costs, Filing No. 141. This is a
products liability class action. The parties entered into a
Settlement agreement. Filing No. 71-3.
December 7, 2016, the court entered its Order Granting
Preliminary Approval of Class Action Settlement;
Certification of Settlement Class; and Approval of Form and
Content of Proposed Notice (“Preliminary Approval
Order”). Filing No. 138. The Final Fairness
Hearing was held on April 12, 2017, during which the court
heard plaintiffs' Motion for Final Approval of Class
Action Settlement (“Motion for Final Approval”)
and plaintiffs' Motion for Attorneys' Fees and Costs.
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 attorneys'
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.
percentage-of-recovery methodology has been approved in
common-fund settlement class action cases. See,
e.g., In re U.S. Bancorp Litig., 291 F.3d 1035,
1038 (8th Cir. 2002) (approving an award of 36% of the
settlement fund); Petrovic v. Amoco Oil Co., 200
F.3d 1140, 1157 (8th Cir. 1999) (approving award of 24% of
monetary compensation to the class). To recover fees from a
common fund, attorneys must demonstrate that their services
were of some benefit to the fund or that they enhanced the
adversarial process. In Re U.S. Bancorp Litig., 291
F.3d at 1038.
awarding attorneys' fees, District Courts are guided by
the following twelve factors: (1) the time and labor
required; (2) the novelty and difficulty of the questions;
(3) the requisite skill required to perform the legal service
properly; (4) preclusion of other employment by the attorney
due to case acceptance; (5) customary fee for similar work in
the community; (6) whether the fee is fixed or contingent;
(7) the limitations imposed by client or circumstances; (8)
amount involved and results obtained; (9) the attorneys
reputation, experience and ability; (10) the case's
undesirability; (11) nature and length of the professional
relationship with the client; and (12) awards in similar
cases. Johnson v. Georgia Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974).
awards to representative plaintiffs encourage members of a
class to become class representatives and reward individual
efforts taken on behalf of a class. Cook v. Niedert,
142 F.3d 1004, 1016 (7th Cir. 1998) (awarding incentive award
of $25, 000).
court has considered the parties' submissions. The
plaintiffs have shown that the law firms of Berger &
Montague, Greg Coleman Law PC, Cafferty Clobes Meriwether
& Sprengel LLP, and McCuneWright LLP (“Class
Counsel”) represented them as well as the plaintiffs in
the companion class action case of Sharp v. Watts,
No. 8:16-cv-200. See Filing No. 142-1,
Declaration of Shanon J. Carson at 2. Class Counsel worked
together to divide assignments equally, avoid duplication of
effort and accomplish all tasks in the most efficient manner
possible. Id. They have also shown that as of
February 6, 2017, the total number of recorded hours spent on
the two cases by all Class Counsel is approximately 3, 544
hours at rates ranging from $200.00 per hour to $900 per hour
for twenty attorneys and two paralegals resulting in a
lodestar amount of $2, 253, 341.20. This work was reasonable
and necessary to the prosecution and settlement of this case.
The hourly rates for the partners, associates and
professional staff who worked on the litigation are in line
with the rates of attorneys with similar expertise and
experience would charge in non-contingent matters.
result of counsel's efforts and extensive arms-length
negotiations, the parties settled both cases-the Klug case
for $4 million and the Sharp case for $10 million, for a
Global Settlement Amount of $14 million. Counsel achieved an
extremely successful recovery that confers a substantial
benefit to the settlement class. Many of the claims were far
too small for individual Class Members or attorneys to pursue
individually against a large, national company like Watts.
Counsel are nationally recognized in product liability class
actions. Plaintiffs have shown Class Counsel achieved an
extremely successful recovery that confers a substantial
benefit to the settlement class.
record shows Class Counsel assumed a risk in filing and
litigating these cases. Class Counsel took these cases on a
fully contingent basis, investing time, effort and money with
no guarantee of any recovery. Class Counsel also proceeded
knowing that there was a chance that Watts would prevail and
that, even if plaintiffs prevailed, the case would likely
take years to resolve. This case involved a substantial
amount of work to bring it to a successful conclusion.
plaintiffs' request a fee of 30% of the award, which is
within the amount that courts typically award in similar
cases. The parties disclosed in the settlement Agreement and
notices that the plaintiffs would seek attorney fees in an
amount to be approved by the court. Filing No. 71-3,
Settlement Agreement. The contingent fee is not out of line
in comparison to the lodestar amount. There have been no
objections to the Settlement agreement or the motion for