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Williams v. Naples Hotel Group, LLC

United States District Court, M.D. Florida, Orlando Division

July 29, 2019




         This cause comes before the Court for consideration without oral argument on the following motion:


FILED: April 30, 2019

THEREON it is RECOMMENDED that the motion be GRANTED in part.


         On February 13, 2018, Plaintiffs filed a Class Action Complaint in state court, asserting claims against Defendant under the Fair Credit Reporting Act (FCRA) on behalf of themselves and on behalf of a proposed class of similarly situated individuals. Doc. 2. Defendant removed this action to this Court on March 20, 2018. Doc. 1. Following removal, the parties engaged in limited motion practice, but engaged in “extensive settlement negotiations, ” culminating in the parties filing a Joint Notice of Class Action Settlement on August 2, 2018. See Docs. 33; 42 at 1-2.

         On October 10, 2018, the parties filed their Amended Joint Motion for Preliminary Approval of Settlement and Notices to Settlement Class, to which the parties attached their proposed notice of settlement (the Notice) and their proposed settlement agreement and release (the Settlement). Docs. 36; 36-1. The Settlement provides that Defendant shall pay $106, 000.00 to resolve this case (the Common Fund). Docs. 36-1 at 4. The Court granted this motion and the parties subsequently filed a Joint Motion for Final Approval of Class Action Settlement. Docs. 38; 41. After conducting a fairness hearing, the Court granted the parties' Joint Motion for Final Approval of Class Action Settlement, finding that the Notice was adequate and approving the Settlement. Docs. 43; 44.

         On April 30, 2019, Plaintiffs filed an Unopposed Motion for Attorneys' Fees and Costs and Class Representative Service Awards. Doc. 42 (the Motion). Plaintiffs seek an award of the following amounts to be paid from the Common Fund: (1) attorney fees in the amount of $31, 800.00 - i.e., 30% of the Common Fund; (2) settlement administration expenses not to exceed $10, 000; and (3) a total of $7, 000.00 in service awards - $3, 500.00 to Plaintiff Kenyatta Williams and $3, 500.00 to Shawana Sanders.[1] Doc. 42. The Motion is ripe for consideration.


         I. Attorney Fees

         “Attorneys who represent a class, and achieve a benefit for the class members, are entitled to be compensated for their services.” Ressler v. Jacobson, 149 F.R.D. 651, 652-53 (M.D.Fla.1992) (citations omitted). “When the parties to a class action reach a settlement agreement whereby a ‘common fund' is created for the benefit of the class, an award of attorneys' fees is governed by the common fund doctrine. Cooper v. Nelnet, Inc., 6:14-cv-314-Orl-37DAB, 2015 WL 4623700, at *1 (M.D. Fla. July 31, 2015) (citations omitted). Pursuant to this doctrine, attorney fees “awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class.” Muransky v. Godiva Chocolatier, Inc., 922 F.3d 1175, 1194-95 (11th Cir. 2019) (citation and internal quotations marks omitted). But the amount of this award is subject to court approval. Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991) (citing Fed.R.Civ.P. 23(e)).

         “The majority of common fund fee awards fall between 20% to 30% of the fund.” Camden I, 946 F.2d at 774 (citation omitted). The Eleventh Circuit Court of Appeals has referred to 25% of a common fund as a “benchmark attorney's fee award that may be adjusted in accordance with the individual circumstances of each case.” Muransky, 922 F.3d at 1195 (citation omitted); see also Lamones v. Human Resource Profile, Inc., 2018 WL 8578301, *2 (M.D. Fla. Aug. 2, 2018) (similar) (citation omitted), report and recommendation adopted, 2018 WL 8578302 (M.D. Fla. Nov. 5, 2018); Cooper, 2015 WL 4623700, at *1 (similar) (citation omitted). When determining whether this benchmark should be adjusted, courts should consider the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See, e.g., Muransky, 922 F.3d at 1195 (citation omitted); Lamones, 2018 WL 8578301, *2 (citation omitted); Cooper, 2015 WL 4623700, at *1 (citation omitted). The twelve Johnson factors are as follows:

(1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability of the case”; (11) the nature and the length of the professional relationship with the client; and (12) awards in similar cases.

Camden I, 946 F.2d at 772 n.3 (citation omitted). In addition, the Court should consider other class-settlement specific factors, such as “the time required to reach a settlement, whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by counsel, any non-monetary benefits conferred upon the class by the settlement, and the economics involved in prosecuting a class action.” Id. at 775. The Court should also consider any other factors unique to the particular case before the court that would be relevant to the court's consideration. See id. at 775. “[T]he district court should articulate specific reasons for selecting the percentage upon which the attorneys' fee award is based[, ] . . . should identify all factors upon which it relied[, ] and [should] explain how each factor affected its selection of the percentage of the fund awarded as fees.” Id. at 775; see also Cooper, 2015 WL 4623700, at *1 (similar) (citation omitted).

         Here, class counsel requests an award of attorney fees in the amount of 30% of the settlement fund. Doc. 42. Thus, the undersigned will consider the foregoing factors to determine whether an enhancement of the benchmark fee award is warranted in this case.

         1. The Time and Labor Required; The Time Required to Reach a Settlement

         “Although the hours claimed or spent on a case should not be the sole basis for determining a fee, ... they are a necessary ingredient to be considered.” Johnson, 488 F.2d at 717. Here, Plaintiffs argue, in conclusory fashion, that Class Counsel spent significant time prosecuting this action. Doc. 42. The only supporting document Plaintiffs provided in support of their conclusory statement is the declaration of Marc R. Edelman, who declared that he spent approximately sixty hours in this case and that he anticipates spending an additional ten hours in this case before the matter is concluded. Doc. 42-1. But Plaintiff provided no detailed declarations or billing records in support of their argument. “As courts have noted in similar cases, ‘[t]he vague assertions in Class Counsel's declarations and the lack of detail in their billing records make it difficult to determine the reasonableness of the hours expended in this litigation.'” Gibbs v. Centerplate, Inc., 2018 WL 6983498, at *6 (M.D. Fla. Dec. 28, 2018) (citation omitted), report and recommendation adopted, 2019 WL 1093441 (M.D. Fla. Jan. 7, 2019). Regardless, the undersigned does not find that a total of seventy hours warrants an upward adjustment from the benchmark.

         In addition, the undersigned notes that it took the parties less than seven months to reach a settlement in this case. The undersigned further notes that, during that time, the parties did not engage in any significant motion practice. Also, there ...

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