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Robert Alexander and James v. Washington Mutual

December 4, 2012


The opinion of the court was delivered by: O'neill, J.


Now before me for decision is an unopposed motion for an award of attorneys' fees, litigation costs and case contribution award for representative plaintiff (Dkt. No. 96).*fn1 After reviewing the motion and holding a final fairness hearing on November 27, 2011 at which no one appeared to object on behalf of the class I will grant the unopposed motion.

Class counsel request an award of attorneys' fees in the amount of $1,200,000 and reimbursement of litigation expenses in the sum of $33,078.33, for a total amount of $1,222,078.33 to be paid from the Settlement Fund. In addition, representative plaintiff requests that he be awarded a case contribution award in the amount of $2,500 in recognition of his service to this action. Awarded amounts are to be paid from the settlement fund and in accordance with the terms of the settlement agreement.

I. Attorneys' Fees

"Class counsel in a class action who recovers a common fund for the benefit of persons other than himself or a client is entitled to a fair and reasonable award of attorneys' fees from the fund as a whole." In re Am. Investors Life Ins. Co. Annuity Mktg.and Sales Practices Litig., 263 F.R.D. 226, 234 (E.D. Pa. 2009), citing Boeing Co. v. Van Gemert, 444 U.S. 472, 278 (1980). Application of the common fund doctrine "prevent[s] . . . inequity by assessing attorney's fees against the entire fund, thus spreading fees proportionately among those benefitted by the suit." Boeing, 44 U.S. at 478. The Court of Appeals for the Third Circuit generally favors the percentage-of-recovery method for fee calculation in common fund cases. See, e.g. In re Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009) (citation omitted) ("In common fund cases such as this one, the percentage-of-recovery method is generally favored."). Applying this method, lead class counsel request $1.2 million of the $4 million settlement fund, which amounts to 30% of the total recovery.

A. Analysis under the percentage-of-recovery method

The Court of Appeals requires consideration of the following factors in determining a reasonable fee award in common fund cases:

(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; (7) the awards in similar cases. Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000). I should also consider:

(8) the value of benefits attributable to the efforts of class counsel relative to the efforts of other groups, such as government agencies conducting investigations, (9) the percentage fee that would have been negotiated had the case been subject to a private contingent fee arrangement at the time counsel was retained, and (10) any innovative terms of settlement.

Sullivan v. DB Investments, Inc., 667 F.3d 273, 331 (3d Cir. 2011) (internal quotation and citations omitted). These factors "need not be applied in a formulaic way . . . and in certain cases, one factor may outweigh the rest." Gunter, 223 F.3d at 195 n.1. District courts must "engage in robust assessments of the fee award reasonableness factors when evaluating a fee request." In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 302 (3d Cir. 2005). After such a consideration, I find that these factors weigh in favor of approving the attorneys' fee petition in this case.

1. The size of the fund and the number of beneficiaries

The value of the benefit obtained for the class is an important factor in determining whether the requested fee is reasonable. See Hensley v. Eckerhart, 461U.S. 424, 436 (1983). The Settlement Agreement establishes a common fund of $4 million and notice has been disseminated to 42,584 class members. In light of the risks faced in this litigation, counsels' efforts have resulted in a substantial recovery on behalf of the class members. I find that this factor favors the requested fee award.

2. The presence or absence of substantial objections by class members

No objections have been filed in this matter. This factor therefore favors the award of ...

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