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Powers v. The Collection Analyst, Inc.

United States District Court, D. Nebraska

November 26, 2018

LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff,


          Joseph F. Bataillon, Senior United States District Judge.

         This 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 seq.

         I. FACTS

         The 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.

         The 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.

         Defendants 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.

         Further, 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.

         The 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.

         In 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).[1] 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 & 3A.

         Attorneys 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.

         The 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. Id.

         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 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. Id.

         Defendants 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 ...

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