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Brianna Lee, et al. v. Victoria's Secret

February 27, 2012

BRIANNA LEE, ET AL.
v.
VICTORIA'S SECRET, LLC



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM

RE: AMENDED PETITION FOR LEAVE TO COMPROMISE MINOR'S ACTION

I. Introduction

Before the Court in this diversity jurisdiction*fn1 civil action is an Amended Petition for Leave to Compromise [a] Minor's Action (ECF No. 35), brought by the 's parents. For the reasons discussed in this Memorandum, the Court will GRANT the Amended Petition, except that counsel's fee will be set at thirty-five percent of the total settlement amount, instead of the forty percent fee he requested.

II. Factual and Procedural Background

The case arose when the minor Plaintiff ("Plaintiff"), then six years old, allegedly slipped on a pair of shorts on the floor in a Victoria's Secret store and hit her chin on a metal clothing rack. Compl. ¶ 7; Ltr. from Dr. Daniel B. Westawski to Atty Gallant (Oct. 5, 2010), Ex. A. The accident caused a severe laceration to her chin and neck, necessitating a trip to the Emergency Room and resulting in a permanent scar, the appearance of which may be improved through steroid injections, laser therapy, or a series of surgeries. Ex. A.

Under the terms of the proposed settlement, Plaintiff's counsel would receive forty percent of the total settlement, plus a small amount for reimbursement of costs.*fn2 Am. Pet. ¶¶ 8, 10. An additional amount would go to the Rawlings Company as reimbursement for medical bills resulting from the accident. Am. Pet. ¶ 6; Am. Proposed Order at 1; Ltr. from Benjamin Jenks to Attny. Scott Gallant (Dec. 12, 2011), Ex. B. Plaintiff would receive the remainder. Am. Proposed Order at 1.

The amount of the requested counsel fees derives from the contingency fee agreement attached to the Amended Petition as Exhibit C. The signature on the contingent fee agreement is illegible, but the Court presumes Plaintiff's mother, Nicole Bloom, or father, Steven Lee, entered into the agreement. The agreement states that counsel "shall receive as compensation for services in the prosecution of this claim Forty Percent (40%) of the funds derived by settlement, suit or verdict." Contingent Fee Agreement, Ex. C.

Plaintiff's parents submitted the original Petition (ECF No. 31), with substantially similar terms to the Amended Petition,*fn3 on November 28, 2011. On December 12, 2011, the Court entered an Order (ECF No. 34) requiring Plaintiff's counsel to provide a Memorandum or Affidavit detailing the reasonableness of the proposed counsel fees.

In response, Plaintiff's counsel submitted a Memorandum arguing that the proposed counsel fee is reasonable in light of the time and effort spent litigating the matter, as well as the favorable result obtained for Plaintiff despite certain issues that arose as to liability. Memo. in Support of Plaintiff's Counsel's Request for Attorney's Fees ("Memo."), ECF No. 36.

On January 18, 2012, the Court sent counsel a letter asking him to detail the number of hours worked and the actual tasks carried out. Ltr. from Court to Counsel (Jan. 18, 2012). Counsel responded with an itemized billing statement on February 1, 2012. Ltr. from Attny. Scott Gallant to Court (Feb. 1, 2012).

III. Discussion

A. Legal Standards Requiring Court Approval of a Minor's Settlement

This Court is charged with an important and inherent duty to protect the interests of minors who appear before it. Nice v. Centennial Area Sch. Dist., 98 F. Supp. 2d 665, 667 (E.D. Pa. 2000). Accordingly, Rule 41.2(a) of the Local Rules of Civil Procedure for the Eastern District of Pennsylvania states that "[n]o claim of a minor . . . shall be compromised, settled, or dismissed unless approved by the court." Subsection (c) states that "[n]o counsel fee, costs or expenses shall be paid out of any fund obtained for a minor . . . as a result of a compromise, settlement, dismissal or judgment unless approved by the court."

Similarly, Pennsylvania Rule of Civil Procedure 2039(a) provides that "[n]o action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor." Subsection (b) states that "[w]hen a compromise or settlement has been so approved by the court, . . . the court, . . . shall make an order approving or disapproving any agreement entered into by the guardian for the payment of counsel fees and other expenses out of the fund created by the compromise . . . ."

The local rule is procedural, and other federal judges applying it have looked to state law to determine the fairness of the proposed settlement. See, e.g. Calvert v. General Acc. Ins. Co., 2000 WL 124570, at *5 n.2 (E.D. Pa. 2000) and Nice, 98 F. Supp. 2d at 669. See also Bradley v. GMAC Ins. Co., 320 Fed. Appx. 125, 127 (3d Cir. 2008) ("Bradley II") (non-precedential) (upholding district court's order reducing attorney fees to be subtracted from minor's settlement after applying the factors set forth in Pa. R. Civ. P. 1716); ...


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