United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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.
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.
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.
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
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.
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
and $1, 406.68 in costs.
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.”
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.
Calculating the Lodestar Amount
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.
Hours incurred by class 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.
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.
Excessive Billing Entries
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.
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