Ikuseghan v. MultiCare Health System, No. 3:2014cv05539 - Document 76 (W.D. Wash. 2016)
Court Description: ORDER granting 65 Motion for Attorney Fees by Judge Benjamin H. Settle.(TG)
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Ikuseghan v. MultiCare Health System Doc. 76 1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 5 JUMAPILI IKUSEGHAN, 6 Plaintiff, 7 v. 8 MULTICARE HEALTH SYSTEM, 9 CASE NO. C14-5539 BHS ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND INCENTIVE AWARD Defendant. 10 11 12 13 14 This matter comes before the Court on Plaintiff Jumapili Ikuseghan’s (“Ikuseghan”) motion for attorneys’ fees, expenses, and incentive award (Dkt. 65). The Court has considered the pleadings filed in support of and in opposition to the motion, oral argument, and the remainder of the file and hereby rules as follows: 15 16 17 18 19 20 I. PROCEDURAL HISTORY On July 7, 2014, Ikuseghan filed a class action complaint against Defendant MultiCare Health System (“MultiCare”), alleging MultiCare violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Dkt. 1. On August 7, 2014, MultiCare moved to dismiss. Dkt. 13. After full briefing, the Court denied MultiCare’s motion. Dkt. 17. 21 22 ORDER - 1 Dockets.Justia.com 1 On May 21, 2015, Ikuseghan moved for class certification, which MultiCare 2 opposed. Dkts. 29, 35. On July 29, 2015, the Court granted class certification and 3 appointed Ikuseghan as class representative and Tousley Brain Stephens PLLC as class 4 counsel. Dkt. 41. 5 On October 15, 2015, MultiCare moved for summary judgment. Dkt. 47. After 6 the motion was fully briefed, the parties agreed to mediate. Dkt. 66, Declaration of Kim 7 Stephens (“Stephens Dec.”) ¶ 9. The parties notified the Court they had reached a 8 settlement on January 20, 2016. Dkt. 61. 9 On February 16, 2016, the parties jointly moved for preliminary approval of the 10 settlement agreement, which the Court granted. Dkts. 62, 64. On March 18, 2016, 11 Ikuseghan moved for final approval of the settlement agreement. Dkt. 67. That same 12 day, Ikuseghan moved for attorneys’ fees, expenses, and an incentive award. Dkt. 65. 13 On March 28, 2016, MultiCare responded, but took no position as to Ikuseghan’s 14 requests. Dkt. 69. 15 On July 25, 2016, the Court held a hearing and approved the final settlement. Dkt 16 74. The settlement creates a $2.5 million fund. Dkt. 73. In the first compensation tier, 17 class members who received one or more robocalls will receive up to $2,500 on a pro 18 rata basis for the first five calls. Id. at 1. If funds remain, the next compensation tier will 19 provide class members who received more than five robocalls with additional 20 compensation up to $500 per call. Id. 21 At the hearing, the Court requested additional briefing on attorneys’ fees. Dkt. 74. 22 On August 1, 2016, Ikuseghan filed a supplemental brief. Dkt. 75. ORDER - 2 1 II. DISCUSSION 2 Ikuseghan seeks an award of $825,000 in attorneys’ fees and $26,986.90 in 3 expenses for class counsel, as well as an incentive award of $15,000 for serving as class 4 representative. Dkt. 65. 5 A. Attorneys’ Fees 6 “While attorneys’ fees and costs may be awarded in a certified class 7 action . . . courts have an independent obligation to ensure that the award, like the 8 settlement itself, is reasonable, even if the parties have already agreed to an amount.” In 9 re Bluetooth Headset Products Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011). In the 10 Ninth Circuit, district courts may award fees in common fund cases like this one under 11 either the lodestar method or the percentage-of-recovery method. Id. at 942. Ikuseghan 12 seeks attorneys’ fees under the percentage-of-recovery method. Dkt. 65 at 12. The Court 13 agrees this method should be used in this case. See In re Bluetooth Headset, 654 F.3d at 14 942. 15 Under the percentage-of-recovery method, courts in the Ninth Circuit “typically 16 calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award . . . .” Id. “The 17 25% benchmark rate, although a starting point for analysis, may be inappropriate in some 18 cases.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048 (9th Cir. 2002). “Selection of 19 the benchmark or any other rate must be supported by findings that take into account all 20 of the circumstances of the case.” Id. Factors that may be relevant to this determination 21 include: “(1) the results achieved; (2) the risk of litigation; (3) the skill required and the 22 quality of work; (4) the contingent nature of the fee and the financial burden carried by ORDER - 3 1 the plaintiffs; and (5) awards made in similar cases.” In re Omnivision Techs., Inc., 559 2 F. Supp. 2d 1036, 1046 (N.D. Cal. 2008). Ultimately, the fee award must be “reasonable 3 under the circumstances.” In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 4 1296 (9th Cir. 1994). 5 Here, the requested attorneys’ fees represent 33% of the settlement fund. 6 Ikuseghan argues district courts frequently grant fee awards of 33% in TCPA class 7 actions. Dkt. 75 at 3. To support this argument, Ikuseghan points to data from seventy8 three TCPA class action settlements compiled by class counsel pursuant to Judge 9 Holderman’s order in Wilkins v. HSBC Bank Nev., N.A., 1:14-cv-0190-JFH, Dkt. 94 10 (N.D. Ill. Nov. 21, 2014). 11 Judge Holderman analyzed the Wilkins data in another TCPA class action, In re 12 Capital One Telephone Consumer Protection Act Litig., 80 F. Supp. 3d 781 (N.D. Ill. 13 2015). In doing so, Judge Holderman determined the base rate for attorneys’ fees in a 14 typical TCPA class action is 30% for the first $10 million recovered. Id. at 804. This 15 Court has also reviewed the Wilkins data specific to the Ninth Circuit, which comprises 16 twenty-five cases. See Wilkins, 1:14-cv-0190-JFH, Dkt. 109-1 at 49–74. By the Court’s 17 calculation, in the Ninth Circuit cases with recoveries of $10 million or less, the median 18 rate for attorneys’ fees is 25% and the mean rate is 26.8%. See Appendix A (collecting 19 cases). These rates correspond with the benchmark rate in this Circuit. 20 Under the circumstances of this case, the Court finds that 30% of the settlement 21 fund represents a fair and reasonable fee award. As the Court noted during the final 22 settlement hearing, class counsel obtained an extraordinarily good result for the class ORDER - 4 1 following an arm’s-length negotiation. Under the approved settlement, class members 2 will receive as much as they would have received had they successfully litigated their 3 claims under the TCPA. See 47 U.S.C. § 227(b)(3) (providing $500 in statutory damages 4 for each violation, and up to treble damages for willful violations). This recovery is 5 significantly superior to other TCPA class action settlements that have been approved in 6 this Circuit and justifies an upward departure from the 25% benchmark rate. See, e.g., 7 Rose v. Bank of Am. Corp., No. 5:11-CV-02390-EJD, 2014 WL 4273358, at *10 (N.D. 8 Cal. Aug. 29, 2014) ($20 to $40 per claimant); Arthur v. Sallie Mae, Inc., No. 10-cv9 00198-JLR, 2012 4075238, at *1 (W.D. Wash. Sept. 17, 2012) (over $100 per claimant); 10 Grannan v. Alliant Law Grp., P.C., No. 5:10-cv-02803-HRL, 2012 WL 216522, at *7 11 (N.D. Cal. Jan. 24, 2012) ($300–$325 per claimant). At the same time, in the Court’s 12 experience, TCPA cases are more straightforward and less factually intensive than 13 products liability or other class actions. Moreover, as explained by Judge Holderman, the 14 base rate for attorneys’ fees in a typical TCPA class action is 30% for the first $10 15 million recovered. See In re Capital One, 80 F. Supp. 3d at 804. Given these factors, the 16 Court awards class counsel $750,000 in attorneys’ fees, which represents 30% of the 17 settlement fund. 1 18 B. Expenses 19 Ikuseghan also seeks reimbursement for the out-of-pocket expenses class counsel 20 incurred during litigation. Dkt. 65 at 7. “The Ninth Circuit allows recovery of pre21 1 The Court is not making a finding that class counsel’s hourly rates are reasonable under 22 the lodestar method. ORDER - 5 1 settlement litigation costs in the context of class action settlement.” Pelletz v. 2 Weyerhaeuser Co., 592 F. Supp. 2d 1322, 1329 (W.D. Wash. 2009) (citing Staton v. 3 Boeing Co., 327 F.3d 938, 974 (9th Cir. 2003)). The Court has reviewed class counsel’s 4 expenses, which total $26,986.90. 2 See Stephens Dec., Ex. 2. After reviewing these 5 records, the Court concludes the requested expenses are reasonable and relevant to the 6 litigation. See Pelletz, 592 F. Supp. 2d at 1329. 7 C. Incentive Award 8 Finally, Ikuseghan seeks an incentive award for serving as class representative. 9 Dkt. 65 at 20–21. Incentive awards “are intended to compensate class representatives for 10 work done on behalf of the class, to make up for financial or reputational risk undertaken 11 in bringing the action, and, sometimes, to recognize their willingness to act as a private 12 attorney general.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). 13 “The trial court has discretion to award incentives to the class representatives.” Pelletz, 14 592 F. Supp. 2d at 1329. Although on the higher end, the Court finds an incentive award 15 of $15,000 is reasonable to compensate Ikuseghan for her contributions as class 16 representative. III. ORDER 17 18 Therefore, it is hereby ORDERED that Ikuseghan’s motion for attorneys’ fees, 19 expenses, and incentive award (Dkt. 65) is GRANTED. The Court awards class counsel 20 21 2 Ikuseghan’s proposed order submitted with her supplemental brief contains an increased amount of expenses, see Dkt. 75-1 at 6, but Ikuseghan did not provide the Court with additional 22 briefing and documentation to support this increase. ORDER - 6 1 $750,000 in attorneys’ fees and $26,986.90 in expenses. The Court also approves a 2 $15,000 incentive award for Ikuseghan. These amounts shall be distributed subject to the 3 terms, conditions, and obligations of the settlement agreement. 4 Dated this 16th day of August, 2016. A 5 6 BENJAMIN H. SETTLE United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 7 1 APPENDIX A 2 Ninth Circuit TCPA Settlement Data Source: Wilkins v. HSBC Bank Nev., N.A., 1:14-cv-0190-JFH, Dkt. 109-1 at 49–74 (N.D. Ill. Dec. 8, 2014). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Case Name and Court Info Adams v. AllianceOne Receivables Mgmt., Inc., No. 3:08-cv-00248JAH (S.D. Cal.) Agne v. Papa John’s Int’l, No. 2:10-cv-01139JCC (W.D. Wash.) Arthur v. Sallie Mae, Inc., No. 2:10-cv-00198JLR (W.D. Wash.) Bellows v. NCO Fin. Sys., Inc., No. 3:07-cv01413-W-AJB (S.D. Cal.) Chesbro v. Best Buys Stores, L.P., No. 2:10cv-00774-RAJ (W.D. Wash.) Clark v. Payless ShoeSource, Inc., No. 2:09cv-00915-JCC (W.D. Wash.) Cubbage v. The Talbots, Inc., No. 2:09-cv00911-BHS ORDER - 8 Total Settlement Recovery $9,000,000 Attorneys’ Fee Award $2,700,000 Attorneys’ Fee Ratio 30% $16,585,000 $2,450,000 15% $24,150,000 $4,830,000 20% $950,000 $299,254 31.5% $4,550,000 $1,137,500 25% $3,809,988 $301,834 7.9% $1,570,000 $400,000 25.5% 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (W.D. Wash.) Ellison v. Steve Madden, Ltd., No. 2:11-cv05935-PSG (C.D. Cal.) Grannan v. Alliant Law Grp., P.C., No. 5:10-cv-02803HRL (N.D. Cal.) Gutierrez v. Barclays Grp., No. 3:10-cv01012-DMS (S.D. Cal.) Hovila v. Tween Brands, Inc., No. 2:09-cv-00491RSL (W.D. Wash.) In re Jiffy Lube Int’l, Inc. Text Spam Litig., No. 3:11-md-02261JM (S.D. Cal.) Kazemi v. Payless ShoeSource, Inc., No. 3:09cv-05142-MHP (N.D. Cal.) Kramer v. Autobytel, Inc., No. 4:10-cv02722-CW (N.D. Cal.) Kwan v. Clearwire Corp., No. 2:09-cv01392-JLR (W.D. Wash.) ORDER - 9 $10,000,000 $1,250,000 12.5% $1,000,000 $250,000 25% $8,184,875 $1,574,000 19.2% $4,500,000 $750,000 16.7% $39,883,585 $4,750,000 11.9% $10,000,000 $1,250,000 12.5% $12,200,000 $3,050,000 25% $6,300,000 $2,900,000 46% 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Lemieux v. Global Credit & Collection Corp., No. 3:08-cv01012-IEG (S.D. Cal.) Lo v. Oxnard European Motors, LLC, No. 3:11-cv01009-JLS (S.D. Cal.) Malta v. Freddie Mac & Wells Fargo Home Mortg., No. 3:10-cv-01290BEN (S.D. Cal.) Meilleur v. AT&T Corp., No. 2:11-cv01025-MJP (W.D. Wash.) Palmer v. Sprint Solutions, Inc., No. 2:09-cv01211-JLR (W.D. Wash.) Pimental v. Google, Inc., No. 4:11-cv-02585YGR (N.D. Cal.) Robles v. Lucky Brand Dungarees, No. 3:10-cv-04846MMC (N.D. Cal.) Sarabi v. Weltman, Weinberg & Reis Co., No. 3:10cv-01777-AJB ORDER - 10 $505,000 $193,884 38.4% $49,100 $12,275 25% $17,100,000 $3,847,500 22.5% $973,905 $750,000 77% $5,500,000 $1,540,000 28% $6,000,000 $1,500,000 25% $9,900,000 $2,400,000 24.2% $1,350,000 (not a common fund) $225,000 16.6% 1 2 3 4 5 6 (S.D. Cal.) Satterfield v. Simon & Schuster, No. 4:06-cv-02893CW (N.D. Cal.) Steinfeld v. Discover Fin. Servs., No. 3:12cv-01118-JSW (N.D. Cal.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 11 $10,000,000 $2,500,000 25% $8,700,000 $2,175,000 25%
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