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Tripp v. Berman & Rabin P.A.

United States District Court, D. Kansas

May 25, 2017

MARY TRIPP, Plaintiff,


          Daniel D. Crabtree United States District Judge

         This matter comes before the court on plaintiff and the class's Motion for Attorney Fees and Reimbursement of Expenses and Costs. Doc. 80. Defendants filed a Response (Doc. 83), and plaintiff and the class replied (Doc. 86). The court grants the Motion, in part, as explained below.

         I. Background

         On January 9, 2017, the court entered an order granting plaintiff's Motion for Final Approval for Class Settlement (Doc. 82). This settlement resolved plaintiff's lawsuit to remedy the defendants' alleged violation of the Fair Debt Collection Practices Act (“FDCPA”). Plaintiff alleged that Velocity Investments, LLC, and the law firm it hired to collect their debts, Berman & Rabin, LLC, violated the FDCPA by sending plaintiff and other Kansas residents a form debt collection letter that did not specify the amount of debt it sought to collect. Plaintiff filed this lawsuit after defendants filed a collection suit against her in Kansas state court. Defendants removed the case to this court in December 2014. Discovery ensued. The parties litigated class certification, and the court certified the class on September 29, 2015. The parties soon settled.

         Over the next month or so, class counsel negotiated and drafted the required settlement papers. This work included drafting a settlement agreement, a short notice form to mail to class members, a claim form, and a longer settlement notice to post on class counsel's website. Class counsel also prepared a motion seeking preliminary approval of the settlement, and the court granted it on July 6, 2016.

         Next, class counsel prepared for the final settlement approval hearing. This court held the hearing on December 15, 2016. And, on January 9, 2017, the court approved the final settlement. The final settlement required defendants to pay $8, 500 to the Claims Administrator. The Claims Administrator will pay $2, 000 to plaintiff and distribute the rest pro-rata to the class members submitting valid, timely claims.

         The FDCPA caps the statutory damages recoverable for successful plaintiffs. See 15 U.S.C. § 1692k(a)(2)(B)(i) (capping the named plaintiff's damages at the lesser of $500, 000 or 1% of the debt collector's net worth); see also § 1692k(a)(2)(B) (limiting the class members' damages to their pro rata share of the lesser of $500, 000 or 1% of the debt collector's net worth). In short, the parties' settlement agreement awarded plaintiff and the class more than they would have recovered under the maximum statutory damages.

         The FDCPA provides that in a successful action, the court should award reasonable attorneys' fees in relation to the work and costs expended. Plaintiff and the class are prevailing parties, and class counsel now seeks $103, 965.00 in fees[1] and $1, 406.68 in costs.

         II. Legal Standard

         Fed. R. Civ. P. 23(h) provides: “In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement.” The FDCPA mandates reasonable attorney fees for successful litigants. 15 U.S.C. § 1692(k). The district court has broad authority over awards of attorney fees. Law v. Nat'l Collegiate Athletic Ass'n, 4 F. App'x 749, 751 (10th Cir. 2001). “A determination of a reasonable attorney's fees award begins with calculating the ‘lodestar, ' that is, ‘the reasonable number of hours spent on litigation multiplied by a reasonable hourly rate.'” Weaver v. JTM Performant Recovery, Inc., No. 13-cv-2408-JTM, 2014 WL 4843961, at *4 (D. Kan. Sept. 29, 2014). The party requesting attorney fees bears the burden to prove the amount of hours spent on the case and the appropriate hourly rates. United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir. 2000). “The focus must be on the ‘prevailing market rate in the relevant community.'” Id. (quoting Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998)). Indeed, the Tenth Circuit has held that a “district court abuses its discretion when it ignores the parties' market evidence and sets an attorneys hourly rate using the rates it consistently grants.” Id.

         “Once an applicant has met this burden, the lodestar figure is presumed to be a reasonable fee.” Weaver, 2014 WL 4843961, at *4 (citing Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998)). But, the court may adjust the lodestar “to account for the factors set forth in the Kansas Rules of Professional Responsibility.” Id. (citing Davis v. Miller, 7 P.3d 1223, 1236 (Kan. 2000)). These eight factors consist of the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent.

Id. (citing Kan. R. Prof'l Conduct, 1.5(a)); see also Sheldon v. Vermonty, 237 F.Supp.2d 1270, 1279 (D. Kan. 2002). With this standard in mind, the court analyzes plaintiff and class counsel's request for $103, 965.00 in attorney fees and $1, 406.68 in costs.

         III. Analysis

         A. Calculating the Lodestar Amount

         Class counsel calculates their proposed fee using the hours and rates described in declarations from Keith Keogh and A.J. Stecklein, two of the lead attorneys on plaintiff's side of the caption. Doc. 81 at 7; see also Doc. 80-3, Doc. 80-4. Defendants oppose the figures used to reach class counsel's proposed fee for a variety of reasons. These conflicting positions and the arguments advanced for each one are discussed in the following analysis.

         1. Hours incurred by class counsel

         “Counsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998). As support for their requested fee, class counsel submitted declarations from Mr. Keogh and Mr. Stecklein. Doc. 80-3, Doc. 80-4. Mr. Keogh and Mr. Stecklein attached detailed billing records to their declarations. The records identify, specifically, the hours class counsel devoted to the case, as well as law clerks, associates, and paralegals, the specific tasks each completed for the case, and the number of hours they devoted to each task. See Doc. 80-3 at 28-66; Doc. 80-4 at 7-10.

         Defendants contend class counsel's hours reflect hours spent on unnecessary, duplicative, and excessive tasks. Defendants assert class counsel has failed to exercise “billing judgment.” Case, 157 F.3d at 1250. “Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended.” Id. Defendants' Opposition discusses where it believes class counsel has failed to “winnow[ ] the hours.” The court addresses each challenge presented by defendants' arguments.

         a. Excessive Billing Entries

         Defendants assert class counsel's billing records reflect that Mr. Keogh billed 3.3 hours for tasks that were “unnecessary and excessive.” Doc. 83 at 5. Specifically, defendants contend Mr. Keogh billed excessive hours: (1) reviewing emails between Mr. Hilicki, a paralegal, and Mr. Stecklein (0.8 hours); (2) drafting or reviewing emails about defendants' motion for an extension of time to file their Response to class counsel's Motion to Compel Fees (0.7 hours); (3) reviewing emails about Mary Tripp's notice (0.3 hours); (4) reviewing emails about a credit charge pertaining to costs of mailing class member notices (0.3 hours); reviewing emails about the local rules for filing a Motion to Compel (0.5 hours); and, (5) reviewing emails from the counsel and court clerk about setting a conference call (0.7 hours). See Doc. 83 at 5-7; see also Doc. 80-3 at 32-33, 35-36. These challenges total 3.3 of the 59.8 hours Mr. Keogh incurred in the case.

         The only excessive entries defendants identify are those involving Mr. Keogh's email activities. But Mr. Keogh represents that he removed the 42.9 hours he spent reviewing all emails-including the 3.3 hours that defendants challenge here-from the total hours used to calculate the lodestar figure. Doc. 80-3 at 5 (Keogh Dec. ¶ 11). Mr. Keogh also asserts that the remaining 16.9 hours for which he seeks compensation consists of necessary activities “such as communicating with [d]efendants' counsel, drafting the proposed protective order the Court entered, analyzing [d]efendants' net worth data, preparing for and attending a conference with the [c]ourt, communicating with co-counsel about case strategy and legal issues, and giving input into briefs.” Doc. 86 at 3. Class counsel's records on these entries are meticulous, and defendants challenged none ...

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