1 John Heenan Benjamin R. Bingham BISHOP & HEENAN Bingham & Lea PC 1631 Zimmerman Trail 319 Maverick St. Billings, MT 59102 San Antonio, TX 78212 T: (406) 839-9091 T: (210) 224-1819 F: (406) 839-9092 F: (210) 224-0141 [email protected][email protected]Admitted Pro Hac Vice Keith J. Keogh Keogh Law LTD 55 W. Monroe St. Suite 3390 Chicago, IL 60603 T: (312) 726-1092 F: (312) 726-1093 [email protected]Admitted Pro Hac Vice Attorneys for Plaintiff and the Class IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION JOEL HAGEMAN, on behalf of ) Case No. CV-13-50-DLC-RWA himself and all others similarly ) situated, ) ) Plaintiff, ) ) APPLICATION FOR AWARD OF v. ) ATTORNEY’S FEES AND ) INCENTIVE AWARD AT&T MOBILITY LLC, ) ) Defendant. ) Pursuant to the Settlement Agreement, the Court’s Preliminary Approval Order (Dkt. #57), and Rule 23(h), F.R.Civ.P., Class Counsel hereby apply for an Case 1:13-cv-00050-DLC-RWA Document 60 Filed 01/05/15 Page 1 of 22
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award of attorney’s fees in the amount of one-third of the Settlement Fund ($15
million) and for an incentive award to the class representative in the amount of
$20,000.
Pursuant to Local Rule 7.1, Plaintiff advises that Defendant does not oppose
this Application. The requested attorney’s fees and incentive award are included in
the proposed order granting final approval which has been filed with the Court
along with the Unopposed Motion for Final Approval.
In support of this application, Class Counsel shows the following:
SUMMARY OF APPLICATION
The most important factor in determining what is a reasonable fee to be paid
from a common fund is the results achieved.1 The result achieved in this case is
extraordinary. This is the largest recovery per class member in the 25 year history
of the Telephone Consumer Protection Act2 (“TCPA”). The $45 million settlement
fund is for only about 16,000 thousand class members, a vast difference from other
TCPA cases with similar settlement funds but which are to be distributed to
millions of class members.3 Because of the incredible results achieved, Class
1In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) (Foremost among
factors considered in setting a reasonable fee “is the benefit obtained for the class”); Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983) ("the most critical factor [in determining an appropriate
attorneys' fee] is the degree of success obtained"); Vizcaino v. Microsoft Corp. 290 F.3d 1043,
1049 (9th Cir. 2002). 2 47 U.S.C. 227 et seq. entitled Restrictions on the Use of Telephone Equipment. 3 See Page 11, infra, summarizing largest TCPA settlements and showing that they all involve
classes with millions of members.
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Counsel respectfully requests their one-third contingency fee. Under the
circumstances of this case, an award of one-third of the fund is abundantly
reasonable because:
•This is a large settlement for a relatively small class-- individual class
members will receive up to $500 per call made, and most claimant have numerous
calls;
•This settlement, unlike every other major TCPA settlement, pays claimants
on a per call basis, not a per capita basis;
•Not a penny of the $45 million fund will revert to the Defendant; all money
will go to the claimants, to Class Counsel, or to a charity if there remain
undistributed funds;
•There is no attorney’s fee provision under the TCPA. Thus, a contingency
fee is the norm for an attorney to prosecute a TCPA case, be it individual or class
action. The one-third fee requested here is not expected to take away from the
class members’ recovery any more than if they successfully pursued their own case
on an individual basis, and in all likelihood, they will fare better with this
settlement than they ever could have by hiring an attorney to prosecute their case
individually;
•The settlement was reached only after full class discovery, review of over
40,000 pages of documents, depositions of parties and experts, exchange of expert
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reports, exchange of lengthy mediation memorandums, mediation before a retired
U.S. Magistrate Judge mediator versed in the nuances of the TCPA, followed by
three more months of post-mediation negotiation;
•The Class supports the settlement (no objections or opt-outs as of the date
of filing).
•The Class supports the fee requests (no objections or opt-outs as of the date
of filing)
•A one-third contingent fee is consistent with Ninth Circuit precedent as
well as TCPA and common-fund cases throughout the nation, and also reflective of
and consistent with the marketplace for contingent fee lawyers handling TCPA
cases.
LEGAL AUTHORITY
1. The Requested Fee is Presumptively Reasonable and Resulted from
Arm’s Length Negotiations.
“A request for attorney’s fees should not result in a second major litigation.
Ideally, of course, litigants will settle the amount of the fee.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). While the Court must perform its own
evaluation to verify that the requested fee is reasonable and not the product of
collusion, it should give weight to the judgment of the parties and their counsel
where the fees were agreed to through arm’s length negotiations after the parties
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agreed on the other key settlement terms. See, e.g., In re Apple Computer, Inc.
Derivative Litig., 2008 U.S. Dist. LEXIS 108195, at *12 (N.D. Cal. Nov. 5, 2008).
Here, Class Counsel negotiated with ATTM to reach an agreed fee amount
that was reasonable in light of the benefits achieved for the class and applicable
legal principles, and did so only after they reached agreement on the other key deal
terms. Heenan Decl., ¶ 9. Further, the fee amount, like the settlement itself, was
agreed upon with the experience of an experienced former federal Magistrate
Judge and mediator, Judge Morton Denlow. Judge Denlow’s involvement
provides “independent confirmation that the fee was not the result of collusion or a
sacrifice of the interests of the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011,
1029 (9th Cir. 1998). Consequently, in view of the fact that ATTM does not
oppose Class Counsel’s fee request, and the fact that its acquiescence came in the
context of a mediation with a skilled mediator, the Court should consider Class
Counsel’s fee request presumptively reasonable.
2. The Percentage-of-the-Fund Method should be Applied in this Case.
The Ninth Circuit has approved both the “percentage of the fund” method
and “lodestar method” for calculating a reasonable attorneys' fee award in common
fund cases, with the method depending on the circumstances of the case. The
district court has discretion in common fund cases to choose either method. In re
Mercury Interactive Corp., 618 F. 3d 988, 992 (9th Cir. 2010). Whichever method
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is chosen and applied is subject to an ‘abuse of discretion” review standard. The
only requirement is that the court conclude that the fee awarded is reasonable given
all the facts and circumstances of the case. In re Bluetooth Headset Prods. Liab.
Litig. 654 F.3d 935, 942 (9th Cir. 2011).
The Ninth Circuit has clarified that the "lodestar method"4 is most
appropriate in class actions brought under fee-shifting statutes where the prevailing
party is by statute entitled to recover attorney’s fees. Id. at 941. In cases without a
fee-shifting provision such as this one, however, the lodestar method has been
criticized widely and for a long period of time. In the Report of the Third Circuit
Force concluded that the lodestar method was a "cumbersome, enervating, and
often surrealistic process of preparing and evaluating fee petitions that now plagues
the Bench and Bar. . . ." The Ninth Circuit has likewise recognized that the
lodestar method "creates incentives for counsel to spend more hours than may be
necessary on litigating a case so as to recover a reasonable fee, since the lodestar
method does not reward early settlement." Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1050, fn.5 (9th Cir. 2002).
4 The lodestar figure is calculated by multiplying the number of documented hours the prevailing
party reasonably expended on the litigation by a reasonable hourly rate for the region and for the
experience of the lawyer. Id.
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In addition to its tendency to promote inefficiency and burden courts and
their staffs, the use of the lodestar method often delays payments to class members
with no real offsetting benefit to them—i.e. with no real reduction in fees. The
Court in In re Activision Securities Litig., 723 F. Supp. 1373, 1375-1379 (N.D. Cal.
1989) surveyed and compared fees awards from numerous cases using both the
lodestar and the percentage of the fund methods and found that, regardless of
which method is used, the fee “almost always hovers around 30% of the fund
created by the settlement” . Id at 1375. Likewise Newberg states: “Empirical
studies show that, regardless whether the percentage method or the lodestar
method is used, fees awards in class action average around one-third of the
recovery”. 4 NEWBERG ON CLASS ACTIONS §14:6 at 1-2 (4th Ed.).
Conversely, “[W]here both the class and its attorneys are paid in cash, this
task [of awarding fees] is fairly effortless. The district court can assess the relative
value of the attorneys' fees and the class relief simply by comparing the amount of
cash paid to the attorneys with the amount of cash paid to the class. The more
valuable the class recovery, the greater the fees award.” In re HP Inkjet Printer
Litig. 716 F.3d 1173, 1178 (9th Cir. 2013). Further, because it relies on incentives
that promote efficiency and yokes together the interests of the class and its
attorneys, the percentage of the fund method has been described as “self-
regulatory” and “self-policing” and frees the courts to do other business. Coffee,
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John C. Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic
Theory for Private Enforcement of Law through Class and Derivative Actions, 86
Colum. L. Rev. 669, 724-25 (1986).
Because of the burdens of the lodestar approach and the benefits of the
percentage of the fund method, about 90% of all courts employ the percentage of
the fund method when awarding fees from a common fund.5 The practice is the
predominant in the Ninth Circuit as well. See Omnivision, 559 F. Supp. 2d 1036,
1046 (N.D. Cal. 2009) (“Use of the percentage method in common fund cases
appears to be dominant”); Vizcaino, 209 F.3d at 1050 (“the primary basis of the fee
award remains the percentage method.) Elliot v. Rolling Frito-Lay 2014 U.S. Dist.
LEXIS at * 25 (S.D. Cal. 2014) (percentage of the common fund method is the
“typical” method of awarding fees in the Ninth Circuit).
For these reasons, Class Counsel submits that the Court should use the
standard percentage-of-the-fund method to determine the award of attorney’s fees
in this action.6
5 Eisenberg & Miller, Attorneys’ Fees and Expenses in Class Action Settlements, p.20 (from
2003 to 2008 only 9.6% of courts in common fund cases awarded fees using lodestar method).
6 The Ninth Circuit has suggested that in some cases, primarily “mega-fund” cases where the size
of the fund is simply the product of an extremely large class and a percentage of the fund might
result in a windfall for the attorneys at the expense of the class, the trial court may exercise its
option to cross-check the fee request by applying the lodestar method in order to arrive at a
reasonable fee. Bluetooth 652 F.3d at 943-3; Vizcaino, 290 F. 3d at 1047-8. However, the
lodestar cross check is optional and need not be performed where plaintiff's counsel achieves a
significant result through an early settlement. See Glass v. UBS Financial Services, Inc. 2007
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3. Class Counsel’s Fee Request is Abundantly Fair and Reasonable under
the Percentage-of-the-Fund Method.
In common fund cases, the Ninth Circuit has suggested a “benchmark” of
25% as a starting point for analysis. Vizcaino, 290 F.3d at 1048. However, courts
in the Ninth Circuit frequently award a percentage of the fund that is higher than
the 25% benchmark. Omnivision, 559 F.Supp. 2d at 1047. In fact, the fee awarded
exceeds the 25% benchmark in most common fund cases. See Lopez v.
Youngblood, 2011 U.S. Dist. LEXIS 99289, at *12 (E.D. Cal. Sept. 1, 2011) (fees
in common fund cases average 32% or 34.64%); Omnivision, supra at 1047 (“This
court's review of recent reported cases discloses that nearly all common fund
awards range around 30%”); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379
(9th Cir. 1995) (affirming fee award equal to 33% of fund); Romero v. Producers
Diary Foods, Inc., 2007 U.S. Dist. LEXIS 86270 ("Empirical studies show that,
U.S. Dist. LEXIS 8476, (N.D. Cal. 2007) (declining to conduct a lodestar cross check, and
approving a request for fees based on the percentage of recovery method); Rankin v. American
Greetings, Inc., 2011 U.S. Dist. LEXIS 72250 *4 (E.D. Cal. July 5, 2011) (lodestar cross check
not necessary); Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, at *31 (E.D. Cal. Sept. 1,
2011) (“A lodestar cross-check is not required in this circuit, and in a case such as this [all cash
fund], is not a useful reference point.”); Craft v County of San Bernadino, 624 F. Supp. 2d 1113,
1122 (C.D. Cal. 2008) (“A lodestar cross check is not required in this circuit.”) In re
Manufacturers Life Insurance, 1009 U.S. Dist. LEXIS 23217 at *34 (S.D. Cal. 1998) (lodestar
analysis was unnecessary and attorney's fee was reasonable solely on percentage-recovery
method because “the touchstone is whether the fee is "reasonable under the circumstances.")
Because Class Counsel is seeking their fee under the percentage-of-the-fund method, and in view
of the result achieved and other attendant factors, submit that a lodestar “cross-check” is
unwarranted. Class Counsel is of course prepared to submit their lodestar for cross-check if
requested.
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regardless whether the percentage method or the lodestar method is used, fee
awards in class actions average around one-third of the recovery" citing 4
Newberg, NEWBERG ON CLASS ACTIONS § 14.6 (4th ed. 2007)); In re Mego,
213 F. 3d 457, 463 (9th Cir. 2000) (affirming award of one-third of common fund);
Vandervort v. Balboa Capital Corp. 8 F. Supp. 3d 1200, 1210 (C.D. Cal. 2014)
(awarding 1/3 of fund in TCPA class action); Bellows v. NCO Financial Sys. Inc.,
2009 U.S. Dist. LEXIS 273 at *4-5 (S.D. Cal. Jan. 5, 2009) (awarding 31.6% of
TCPA settlement fund).
This is not a fee shifting case-- the TCPA has no attorney’s fees provision.
Nor is this a “mega-fund” case where the size of the settlement fund is merely a
function of the size of the class; there are only about 16,000 class members here.7
This is not a case where awarding fees of 1/3 of the fund will unfairly tax or erode
the relief to class members. Quite to the contrary, the class members are getting
outstanding relief better than what they could have achieved had they hired
individual lawyers to prosecute their individual cases.
When awarding a fee from the fund, the Ninth Circuit has suggested a non-
exclusive list of factors to consider. The first and most important factor is the
results achieved. The Court may also consider: the risks of litigation; the skill
7Although “mega-fund” has no precise definition, it is generally considered to be in excess of
$100 million. In re AT&T Mobility Wireless Data Services Sales Tax Litig., 792 F. Supp. 2d
1028, 1032 (N.D. Ill. 2011).
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required and the quality of work; the contingent nature of the fee; the burdens
carried by class counsel; and the awards made in similar cases. Vizcaino, supra at
1048-50. All of these factors overwhelmingly support the requested 1/3 fee here.
•The Result Achieved Here is Exceptional.
The settlement requires AT&T to pay $45 million into a non-reversionary
common fund out of which class member claimants will receive their pro rata
share of cash payment. No money will revert to the Defendant.
Importantly, class members will be compensated on a per call basis, not a per
person basis like many other TCPA settlements. This is important because the
TCPA contemplates statutory damages on a per call basis; the more calls received,
the larger the damages warranted.
The per call settlement achieved in this case is spectacular, as depicted in
this table below comparing this case to the largest TCPA settlements against major
company defendants:
CASE # of CLASS
MEMBERS
SETTLEMENT
AMOUNT
AVG. RECOVERY
PER CLASS
MEMBER
Hageman v. ATTM 16,000 $45,000,000 $15,000-$17,0008
Capital One9 16 million $75,500,000 $20-$40
HSBC10 10 million $40,000,000 $20-$40
Chase Bank11 7 million $34,000,000 $20-$40
8 Based on current claims filing information, claim deadline is Jan. 19, 2015. 9 In re Capital One TCPA Litigation, 12-cv-10064 (MDL No. 2416) (N.D. Ill. Doc.#951) 10 Wilkins v. HSBC 14-cv-190 (N.D. Ill, 2014 pending) 11 Connor v. JPMorgan Chase, et al, 10-cv-1284 (S.D. Cal.)
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Bank of America12 7 million $32,000,000 $22-$45
Sallie Mae13 8 million $24,000,000 $110
Wells Fargo14 5.8 million $17,100,000 $84
Discover15 8 million $8,700,000 $47
In addition to the outstanding montetary relief, ATTM has agreed to
continue to implement procedures to reduce the prospects that it might call cellular
telephone numbers through the use of an automated dialing system in the absence
of consent. Essentially, ATTM has taken action to ensure that the calls which
plagued the class members here do not occur again.
As set forth, the results achieved is the most important factor in considering
whether a fee is reasonable. Here, the results for the class are objectively
outstanding and better frankly than any of the individual class members could have
achieved on their own. Class Counsel’s requested 1/3 fee is warranted in view of
the exceptional result achieved for the class.
•The Risk of Litigation was Substantial.
There are substantial risks in high-stakes litigation such as this. At the time
this case was filed, ATTM and its defense counsel in this case, Mayer Brown, had
just been the victors at the United States Supreme Court in one of the worst set-
12 Rose v. Bank of America, 2014 U.S. Dist Lexis 121641 ((N.D. Cal. Aug.29, 2014);11-cv-
02390 (N.D. Cal. Dkt. 59) 13 Arthur v. Sallie Mae, 10-cv-00198 (W.D. Wa. 2012) 14 Malta v FHLMA, et al, 10-cv-01290 (S.D. Cal.) 15 Steinfeld v. Discover Fin. Svcs. 12-cv-01118 (N.D. Cal.)
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backs for consumers in history. AT&T Mobility v. Concepcion 563 U.S. 321
(2011) (upholding ban on class arbitration in consumer cases).
At the time this case was filed, courts had refused to certify numerous TCPA
class action cases, or dismissed them, or de-certified them after initial certification.
See, e.g. Southwell v. Mortgage Investors Corp. of Ohio, 2014 U.S. Dist. LEXIS
112362 (W.D. Wash. Aug. 12, 2014) (denying motion for class certification);
Balschmiter v. TD Auto Fin. LLC, 2014 U.S. Dist. LEXIS 163771 (E.D. Wis. Nov.
20, 2014); Jamison v. First Credit Servs., Inc., 2013 WL 1248306, at *15-17 (N.D.
Ill. Mar. 28, 2013) (upholding denial of certification of TCPA class). Separately,
Courts across the country were also routinely “staying” TCPA cases on the basis
that the FCC had “primary jurisdiction” to interpret certain provision of the TCPA.
At the time this case was filed, there were only two known plaintiffs, and
only one of them lasted the duration of the case. A single plaintiff creates a risk of
dismissal or failure to achieve certification due to possible lack of the typicality
and adequacy requirement of Rule 23. See, e.g. Labou v. Cellco Partnership dba
Verizon, 2014 WL 824225 (E.D. Cal. March 3, 2014).
At the outset, Class Counsel had no idea whether there would be an
ascertainable class, much less what the scope would be. The only thing Class
Counsel knew when they filed this case was that their adversaries were formidable
and that this case would by no means be easy. In the face of these risks, the case
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was filed and prosecuted diligently. Over 40,000 pages of documents and
numerous spreadsheets were produced, both parties had their experts prepare
reports based on the class data available, the parties were deposed, plaintiff’s
expert was deposed and many hours were expended before Class Counsel could
confirm that this was a case where class certification might be achieved if the case
were not dismissed or stayed.
As in all class cases though, certification is only the first step of what can be
much more litigation. Interlocutory appeals are common in class action cases, and
the class and class counsel remain at risk during the lengthy appellate time period.
Even if Plaintiff prevailed on interlocutory appeal, the case is not over. A trial
result is not assured, and if tried, the losing party is almost certainly going to
appeal. Such are the risk in any litigation, but in a national class action such as this
one concerning a statute interpreted by courts and the FCC in varying degrees of
non-conformity, with a moneyed Defendant with a proven record of “making its
point”, the ordinary risk are greatly magnified. See Fulford v. Logitech, Inc., 2010
U.S. Dist. LEXIS 29042, at *8 (N.D. Cal. Mar. 5, 2010) (“[L]iability and damages
issues—and the outcome of any appeals that would likely follow if the Class were
successful at trial—present substantial risks and delays for class member
recovery.”). The risks which Class Counsel undertook in prosecuting this case
were real and substantial, and warrant the requested 1/3 contingency fee.
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•The Prosecution of this Case Required Skill and Hard Work.
The TCPA is a complex statute, not necessarily for what it says, but for what
it means in an era of rapidly changing technology. Courts and parties cannot agree
on the meaning of “automatic telephone dialing system” as used in the TCPA and
have turned to the FCC for interpretation. See, e.g., Marks v. Crunch San Diego,
LLC, 2014 U.S. Dist. LEXIS 152923 (Oct. 23, 2014) at *6-13 (parsing the meaning
of “automatic telephone dialing system” in granting defendant’s motion for
summary judgment because defendant’s web-based platform required “human
curation and intervention”). Among other arcane issues and statutory
interpretations, parties regularly dispute whether “robo-calls” have to connect or
only be attempted to give rise to TCPA liability. See, e.g., Satterfield v. Simon &
Schuster, 569 F.3d 946, 953-54 (9th Cir. 2009) (holding that “to make any call” in
§227(b)(1)(A) means “to communicate with or try to get into communication with
a person by telephone.”)
The “prosecution and management of a complex national class action
requires unique legal skills and abilities.” Omnivision, 559 F. Supp. 2d at 1047
(citation omitted). As the Court is aware, Mr. Heenan is a small firm practitioner.
In order to prosecute and manage this case properly, Mr. Heenan involved lawyers
he knew and trusted through work on previous consumer cases. Heenan Decl., ¶ 7.
Specifically, Mr. Bingham is a skilled class action litigator who has worked with
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Mr. Heenan in the past to achieve successful results for consumers. See, e.g., Cole
v. Portfolio Recovery Associates, LLC, CV-08-36-GF-RKS (multi-million
settlement on behalf of victims of debt collection misconduct). Mr. Keogh is one of
the nation’s foremost TCPA and consumer lawyers. He has prosecuted numerous
TCPA cases on an individual basis and as class actions since early 2002, has
presented at numerous national and local conferences on the TCPA, and has met
with the FCC on several occasions to discuss TCPA interpretation by the agency.
See Keogh Decl.
The result of counsels’ efforts is this record-setting settlement. The
prosecution of this case required both skill and hard work, and in view of the
success achieved, demonstrates the reasonableness of the 1/3 fee request.
•The Contingent Nature of the Fee and the Burdens Carried by Class
Counsel Warrants the Requested 1/3 Fee.
For any Plaintiff’s firm to bring a national class action against one of
America’s largest companies requires substantial commitment of time and
resources in the face of significant risks of loss and/or delay. In this case, Class
Counsel is comprised of three small firms with an aggregate total of seven lawyers,
only three of whom worked on the case to any significant extent. (By comparison,
AT&T’s counsel is a 1,500 lawyer law firm.16)
16 See http://en.wikipedia.org/wiki/Mayer_Brown.
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