Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nakamura v. Wells Fargo Bank, National Association

United States District Court, D. Kansas

May 21, 2019

JIN NAKAMURA, Plaintiff,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, d/b/a WELLS FARGO DEALER SERVICES, INC., Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on the Class Representative's Motion for Approval of Attorneys' Fees and Reimbursement of Expenses (“Fee Request”). Doc. 138. Defendant Wells Fargo Bank, National Association d/b/a Wells Fargo Dealer Services, Inc., has not opposed the Fee Request. Nor has any Class Member filed an objection to the Fee Request or Settlement. The court has considered all submissions and evidence, and now grants the Fee Request. The court orders defendant to pay Class Counsel's attorneys' fees in the amount of $1, 691, 250 and to reimburse Class Counsel for litigation expenses of $78, 209.59 as set forth in the Settlement Agreement. The court explains its reasoning, below.

         AWARD OF ATTORNEYS' FEES

         1. Under Federal Rule of Civil Procedure 23(h), “the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement.” Fed.R.Civ.P. 23(h). The court finds that the attorneys' fees requested here are reasonable and authorized by the parties' agreement.

         2. The Fee Request is authorized by the Settlement Agreement, which the court has approved in a separate order. Under the Settlement Agreement, defendant agreed to pay $5, 125, 000 to the Settlement Class (the “Gross Settlement Fund”). Defendant also agreed to pay, separate and apart from the Gross Settlement Fund, Class Counsel's attorneys' fees in an amount up to 33% of the Gross Settlement Fund. See Doc. 127-1 at 14 (Settlement Agreement at ¶¶ VI.A. & B). Class Representative has requested Class Counsel attorneys' fees in the amount of $1, 691, 250, which is 33% of the Gross Settlement Fund.

         3. Both Rule 23(h) and case authorities establish that the standard for setting the fee award is reasonableness. See Brown v. Phillips Petroleum Co., 838 F.2d 451, 453 (10th Cir. 1988); Fed.R.Civ.P. 23(h) advisory committee's note to 2003 amendment (providing that “reasonableness” is the customary measurement for common-fund fees). The Settlement Agreement provides for defendant to pay fees based on a percentage of the Gross Settlement Fund. For that reason, the court looks to common-fund cases to assess the reasonableness of the Fee Request under Rule 23(h).

         4. The court considers the reasonableness of the Fee Request under federal law because this court's jurisdiction was invoked under 28 U.S.C. § 1331.[1] The Tenth Circuit prefers the percentage of the fund method in determining the award of attorneys' fees in common-fund cases. See, e.g., Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P., 888 F.3d 455 (10th Cir. 2017); Gottlieb v. Barry, 43 F.3d 474, 483 (10th Cir. 1994); Brown, 838 F.2d at 454. This methodology calculates the fee as a reasonable percentage of the value obtained for the benefit of the class. See Brown, 838 F.2d at 454.

         5. The court analyzes the reasonableness of the Fee Request under the Johnson factors. See Id. at 454-55 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). Not all Johnson factors will apply in every case. See Id. at 453. Addressing each applicable factor by order of importance, the court concludes that the Fee Request is reasonable.

         6. Results obtained (factor 8).

         The court finds that the result obtained deserves greater weight than the other Johnson factors. See Id. at 456 (holding this factor may be given greater weight when “the recovery [is] highly contingent and that the efforts of counsel were instrumental in realizing recovery on behalf of the class.”); see also Farrar v. Hobby, 506 U.S. 103, 114 (1992) (“[T]he most critical factor in determining the reasonableness of a fee award is the degree of success obtained.”) (quotations omitted). Here, Class Counsel achieved a significant cash recovery of $5, 125, 000 for the Settlement Class despite the existence of serious disputes as to liability. There are no claim forms to fill out, and Settlement Class members do not have to take any action whatsoever to receive their money. The fact that no member of the Settlement Class elected to be excluded from the Settlement or objected to the Settlement bolsters the court's confidence in the results Class Counsel has obtained. Mr. Nakamura, Class Counsel, and the mediator support the Settlement as fair, reasonable, and adequate. See Doc. 140-5 at 3 (Nakamura Decl. ¶ 17[2]); Doc. 140-1 at 14 (Joint Counsel Decl. ¶ 45); Doc. 129; Doc. 140-2 at 4 (Layn Phillips Decl. ¶¶ 14-15). The court agrees. In light of the results Class Counsel obtained for the Settlement Class, the court finds the Fee Request is reasonable.

         7. Customary fee (factor 5), whether fee is fixed or contingent (factor 6), and awards in similar cases (factor 12).

         “Class actions typically involve a contingent fee arrangement because it insulates the class from the risk of incurring legal fees and shifts that risk to counsel.” Nieberding v. Barrette Outdoor Living, Inc., 129 F.Supp.3d 1236, 1250 (D. Kan. 2015) (citing Freebird, Inc., 2013 WL 1151264, at *4). Mr. Nakamura and Class Counsel negotiated a contingent-fee agreement whereby Mr. Nakamura agreed that Class Counsel would be compensated 40% of any recovery obtained for the class as a result of settlement or judgment. Doc. 140-1 at 13 (Joint Counsel Decl. ¶ 43). This agreed-upon fee supports the reasonableness of the Fee Request of 33%. See Nieberding, 129 F.Supp.3d at 1250 (percentage in representation agreement between plaintiff and counsel “provides some market context suggesting that a fee award in this range is a reasonable one”).

         8. In Nieberding, this court recognized a fee award of one-third of the common fund was “well within the range typically awarded in class actions.” Id. Since 2015, however, class actions have become more complex and riskier for counsel willing to prosecute them. This increased complexity and risk has led to requests for higher percentages of the common fund obtained for the benefit of the class.

         9. In recent years, some courts in the Tenth Circuit have awarded fees based on 40% of the common fund. See, e.g., Order Awarding Attorneys' Fees, Reimbursement of Litigation Expenses, and Case Contribution Award, Cecil v. BP Am. Prod. Co., No. CIV-16-410-KEW (E.D. Okla. Nov. 19, 2018) (No. 260) (awarding 40% fee on $147 million cash component of the class settlement); Chieftain Royalty Co. v. XTO Energy Inc., No. CIV-11-29-KEW, 2018 WL 2296588, at *7 (E.D. Okla. Mar. 27, 2018) (citing Order Awarding Attorneys' Fees, Reirdon v. XTO Energy Inc., No. CIV-16-87-KEW (E.D. Okla. Jan. 29, 2018) (Doc. 124) (awarding 40% fee on cash component of the settlement)); Chieftain Royalty Co. v. QEP Energy Co., No. CIV-11-212-R, 2013 WL 12090676, at *3 (W.D. Okla. May 31, 2013) (awarding a fee of $46.5 million, which represented approximately 39% of the cash portion of a $155 million settlement); see also Doc. 140-2 (Declaration of Layn R. Phillips, Hitch Enters., Inc. v. Cimarex Energy Co., No. CIV-11-13-W, at ¶ 19 (W.D. Okla. Dec. 28, 2012) (opining an attorneys' fee in the range of 33.33% to 40% along with the value for reimbursement of litigation expenses was reasonable and in line with amounts approved by courts in the Tenth Circuit as being fair and reasonable)); Doc. 140-3 (Declaration of Geoffrey P. Miller, Chieftain Royalty Co. v. XTO Energy, Inc., No. CIV-11-29-KEW, at ¶ 57 (E.D. Okla. Feb. 23, 2018) (“[A]n attorneys' fee of 40% is in line with awards in both federal and state courts in the Tenth Circuit . . .”)); Doc. 140-4 (Declaration of Steven S. Gensler, Cecil v. BP Am. Prod., Inc., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.