United States District Court, D. Nebraska
TOMAS BORGES, JR., on behalf of himself and all others similarly situated; Plaintiff,
GURSTEL LAW FIRM, PC, and CAVALRY SPV I, LLC, Defendants.
FINAL ORDER AND JUDGMENT
Smith Camp, Senior United States District Judge.
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.
December 2018, Plaintiff and Defendant entered into a Class
Action Settlement Agreement (the “Agreement”),
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. §
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
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.
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.
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.
Fairness of the Proposed Settlement
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).
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.
Motion for Attorney Fees and Incentive Award
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
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 ...