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Borges v. Gurstel Law Firm, PC

United States District Court, D. Nebraska

March 28, 2019

TOMAS BORGES, JR., on behalf of himself and all others similarly situated; Plaintiff,
v.
GURSTEL LAW FIRM, PC, and CAVALRY SPV I, LLC, Defendants.

          FINAL ORDER AND JUDGMENT

          Laurie Smith Camp, Senior United States District Judge.

         This matter is before the Court on the Unopposed Motion for Attorney Fees and Approval of Plaintiff's Incentive Award, ECF No. 27, and the Joint Motion to Certify Class for Final Approval of Class Action Settlement, ECF No. 30. On March 28, 2019, the Parties appeared for a Final Fairness Hearing on the proposed class action settlement. No. class members appeared or have otherwise objected to the settlement. For the reasons stated, the Court concludes the Motions should be granted.

         BACKGROUND

         In December 2018, Plaintiff and Defendant entered into a Class Action Settlement Agreement (the “Agreement”), [1] which is subject to review under Fed.R.Civ.P. 23. On December 21, 2018, the Parties filed the Agreement, ECF No. 25-1, together with their Joint Motion for Preliminary Approval of Class Action Settlement Agreement (the “Preliminary Approval Motion”), ECF No. 23. The Parties represent to the Court that on or about December 27, 2018, within ten days of filing the proposed settlement with the Court, Defendant complied with the notice requirements of 28 U.S.C. § 1715.

         On January 10, 2019, the Court granted the Preliminary Approval Motion and entered its Order Certifying Class and Granting Preliminary Approval of Settlement (the “Preliminary Approval Order”), ECF No. 26. Pursuant to the Preliminary Approval Order, the Court, among other things, (i) preliminarily certified (for settlement purposes only) a class of Plaintiff (hereinafter referred to as the “Class Members”) with respect to the claims asserted in this action (“the Lawsuit”); (ii) preliminarily approved the proposed settlement; (iii) appointed Plaintiff Tomas Borges, Jr., as the Class Representative; (iv) appointed O. Randolph Bragg, and Pamela A, Car, and William L. Reinbrecht as Class Counsel for the Class Members; and (v) set the date and time of the Final Fairness Hearing.

         On January 25, 2019, Plaintiff filed an Unopposed Motion for Attorney Fees and Approval of Plaintiff's Incentive Award (the “Motion for Attorney Fees”), ECF No. 27. Plaintiff included a brief and time records for the fees incurred in pursuing the Lawsuit. Plaintiff requested $12, 000 in fees and costs and $3, 500 as an incentive award for the class representative. Defendant agreed to these amounts, as described in the Agreement.

         On March 18, 2019, the Parties filed their Joint Motion for Final Approval of Class Action Settlement (the “Final Approval Motion”). On March 28, 2019, the Parties appeared for the Final Fairness Hearing pursuant to Fed.R.Civ.P. 23 to determine whether the Lawsuit satisfies the applicable prerequisites for class action treatment and whether the proposed settlement is fundamentally fair, reasonable, adequate, and in the best interest of the Class Members and should be fully and finally approved by the Court. The Court took judicial notice of the evidence in the record, including the Parties' representation that class members were notified according to the Court's Preliminary Approval Order.

         No class members appeared at the hearing and no class members otherwise objected to the settlement, as required by the Preliminary Approval Order. Counsel for Plaintiff introduced Exhibit 1, stating that of the 701 identified class members, 699 received notice of the settlement. The Class Administrator was unable to identify two of the potential class members. The Parties have requested final certification of the Settlement Class under Fed.R.Civ.P. 23(b)(3) and final approval of the proposed class action settlement and approval of attorney fees and costs.

         DISCUSSION

         I. Fairness of the Proposed Settlement

         Under Rule 23(e)(1)(C) a proposed settlement must be fair, reasonable, and adequate in the way the Proposed Settlement addresses the interests of all those who will be affected by it. To determine whether the settlement is fair, reasonable, and adequate, the Court must consider (i) the merits of the plaintiff's case, weighed against the terms of the settlement; (ii) the defendant's financial condition; (iii) the complexity and expense of further litigation; and (iv) the amount of opposition to the settlement. Prof'l Firefighters Ass'n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 648 (8th Cir. 2012). The Eighth Circuit has stated:

A strong public policy favors agreements, and courts should approach them with a presumption in their favor. Although a trial court must consider the terms of a class action settlement to the extent necessary to protect the interests of the class, judges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel.

Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1148-49 (8th Cir. 1999) (internal marks and citations omitted).

         All the factors the Court must consider weigh in favor of granting final approval. The Court has considered the law, the Agreement, and all arguments and written submissions made in connection with the matter. No. objections or comments by settlement class members were received, and no class members appeared at the fairness hearing. Based upon the factors it must consider, the Court concludes the settlement is fair, reasonable, and adequate.

         II. Motion for Attorney Fees and Incentive Award

         Plaintiff seeks a total award of $12, 000.00 for attorney fees and costs, as permitted by 15 U.S.C. § 1692k(a)(3) and by the express terms of the Agreement. The Court has conducted as lodestar analysis of the fees requested, see Hensley v. Eckerhart, 461 U.S. 424, 430, 433 (1983), and concludes that the requested fees and costs are reasonable. The negotiated reduction in total fees addresses any concern about work that was unnecessary or duplicative. The Court concludes that the unopposed Motion for Attorney Fees should be granted.

         Plaintiff requests an incentive award, in the amount of $3, 500, to be paid in accordance with the Agreement. The Court finds the incentive award to be fair and reasonable considering the time and effort Plaintiff devoted to the ...


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