United States District Court, D. Nebraska
LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff,
THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants.
MEMORANDUM & ORDER
F. Bataillon, Senior United States District Judge.
matter is before the Court on the plaintiff's unopposed
motion for approval of plaintiff's incentive award &
damages and plaintiff's attorneys' fees and costs,
Filing No. 33. 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
“Act”), and the Nebraska Consumer Protection Act
(“NCPA”), Neb. Rev. Stat. § 59-1601 et
parties have entered into a Settlement Agreement that
resolves this litigation. See Filing No. 27-1, Index of
Evid., Ex. 1, Settlement Agreement. Defendants agree to pay
the class a total of $30, 000 to settle the FDCPA and NCPA
claims. That sum will be divided among all class members. If
approved by the Court, each class member will be sent a
payment calculated as set forth in the Settlement Agreement.
In the agreement, the defendants agree not to oppose a grant
of statutory damages and incentive award to the plaintiff and
agree to pay an award up to $4, 000.00 if authorized by the
Court. Id. at 12-13. Defendants also agree not to
oppose plaintiff's costs, expenses, and attorneys'
fees request in an amount not to exceed $28, 500.00.
Id. Notice of this agreement has been provided to
the class. Filing No. 36, Affidavit of John C. Ochoa.
plaintiff requests an award of fees in the amount of $28,
500.00. This figure represents a discount of $5, 249.37 from
counsels' final total for work necessary to complete this
case. Plaintiff has shown that the fees and costs to finish
the case will amount to $33, 749.37. Filing No. 33, Motion at
3. Counsels' itemizations of hours do not include time
required to complete this case after July 23, 2018, but a
conservative statement of work required to finish has been
provided to the court. Id.
agree that the plaintiff class is the prevailing party in
this litigation for purposes of the fee award. Filing No.
27-1, Ex. 1, Settlement Agreement at 13. Defendant will not
oppose payment of $4, 000.00, representing statutory damages
of $1, 000.00 pursuant to the FDCPA, $1, 000.00 pursuant to
the NCPA, and a class representative fee of $2, 000.00, to
Ms. Powers as statutory damages and services as class
representative. Id. at 12.
the defendants agree not to attempt to collect attorneys'
fees pursuant to Neb. Rev. Stat. § 25-1801 on cases
currently pending in Nebraska, including cases which are
fully litigated but a balance due remains unpaid, for alleged
unpaid medical or dental accounts belonging to any class
members. Filing No. 27-1, Ex. 1, Settlement Agreement at 12.
Defendants also agree to pay the costs of class
administration and of class notice. Id. at 6, 13-14.
The parties successfully negotiated the amount the
plaintiff's attorneys' fees and costs in the amount
of $28, 500.00. Id. at 5, 12-13. This amount is
separate from and in addition to the amounts paid to the
plaintiff and the class. Id. The plaintiff has shown
that counsel received and reviewed the defendants' net
worth documentation and the class settlement is the maximum
recovery allowed under the FDCPA. Id. at 4-5. The
Court will hold a fairness hearing on the parties' joint
motion for final approval of class settlement on December 20,
2018. No. objections to the settlement have been filed.
court is familiar with the litigation. On July 19, 2018, the
Court entered an Order Preliminarily Certifying Class and
Granting Preliminary Approval of Settlement. Filing Nos. 30
& 31. The record shows that written discovery has taken
place. The parties conducted extensive negotiations and
exchanged relevant and necessary information for reaching a
fair and reasonable settlement.
support of its motion, plaintiff has shown that attorney O.
Randolph Bragg expended 28.6 hours at the rate of $400.00 per
hour through July 23, 2018, on behalf of the plaintiff ($11,
440.00). Mr. Bragg's lodestar includes no time
for his work on fee application and supporting brief.
See Filing Nos. 35-1 and 35-2, Exs. 1 & 1A.
Attorney Pamela A. Car has shown she expended a total of
expended a total of 9.15 hours on behalf of the plaintiff
through July 23, 2018 (with her time reduced in the exercise
of billing discretion to eliminate time for all duplicated
tasks and meetings attended by co-counsel) at the rate of
$275.00 per hour ($3, 431.25). Filing Nos. 35-3 & 35-4,
Exs. 2 & 2A. The plaintiff seeks fees for 31.25 hours of
work at the rate of $350.00 per hour for work performed by
attorney William L. Reinbrecht ($10, 937.50) and $440.62 in
reimbursable expenses. Filing Nos. 35-5 & 35-6, Exs. 3
Bragg, Car, and Reinbrecht have also shown they have
extensive experience litigating consumer cases and have
achieved similar awards in other cases. See Erickson v.
Credit Bureau Services, Inc., 2013 WL 672281 (D. Neb.,
Feb. 22, 2013); Henggeler v. Brumbaugh & Quandahl,
P.C., LLO, 2014 WL 793544 (D. Neb., Feb. 26, 2014);
Mazur v. Nat'l Account Syst. of Omaha, LLC,
8:14CV84, Filing No. 41, p.6 ¶8 (D. Neb. Dec. 14, 2014).
Further, counsel have shown that they reduced the hours
billed where appropriate. Also, counsel represent that the
combined billable attorney time required for the present
motion is five hours at the average rate of $375.00, which
totals $1, 875.00, and a conservative estimate of time
necessary to conclude the matter is twenty hours, totaling
$5, 625 at the same average rate.
plaintiff, Laura Powers, seeks approval of a payment of $4,
000.00 for statutory damages and for her service as class
representative. Filing No. 35-7, Ex. 4. She states that she
has kept himself informed of the progress of the case,
reviewed materials sent to her by counsel, discussed the case
with counsel, taken time off work to confer with counsel and
provide documents, and submitted declarations in the case.
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
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'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).
Comerica Mortg., 83 F.3d at 244-45. It is within the
court's discretion to decide which method to apply.
who violate the FDCPA are liable for the plaintiff's
attorney's fees and costs. Marx v. General Revenue
Corp., 133 S.Ct. 1166, 1176 (2013); 15 U.S.C. §
1692k(a)(3); Zagorski v. Midwest Billing Servs.,
Inc., 128 F.3d 1164, 1166 (7th Cir. 1997) (per curiam)
(“[T]he award of attorney's fees to plaintiffs for
a debt collector's violation of ‘any provision'
of the FDCPA is mandatory.”); Hennessy v. Daniels
Law Office, 270 F.3d 551, 553 (8th Cir. 2001). The FDCPA
mandates an award of attorney's fees as a means of
fulfilling Congress's ...