United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFFS' MOTION FOR
M. LAWSON UNITED STATES DISTRICT JUDGE
September 26, 2019, the Court granted final approval of a
class-wide settlement. One component of that settlement was
the authorization for class counsel to file a motion
requesting the Court to authorize payment of up to $623, 500,
or 29 percent of the settlement fund, for attorney's fees
and costs associated with the action. Counsel filed their
motion under Federal Rule of Civil Procedure 54(d),
see Fed. R. Civ. P. 23(h)(1), and later supplemented
it with additional documentation.
a certified class action, the court may award reasonable
attorney's fees and nontaxable costs that are authorized
by law or by the parties' agreement.” Fed.R.Civ.P.
23(h). “‘When awarding attorney's fees in a
class action, a court must make sure that counsel is fairly
compensated for the amount of work done as well as for the
results achieved.'” Gascho v. Global Fitness
Holdings, LLC, 822 F.3d 269, 279 (6th Cir. 2016)
(quoting Rawlings v. Prudential-Bache Properties,
Inc., 9 F.3d 513, 516 (6th Cir. 1993)). “These two
measures of the fairness of an attorney's award - work
done and results achieved - can be in tension with each
other.” Ibid. “The lodestar method of
calculating fees better accounts for the amount of work done,
whereas the percentage of the fund method more accurately
reflects the results achieved.” Ibid.
(citations and quotations omitted in this and following
citations except as otherwise noted). “To determine the
lodestar figure, the court multiplies the number of hours
‘reasonably expended' on the litigation by a
reasonable hourly rate.” Ibid. “The
court may then, within limits, adjust the lodestar to reflect
relevant considerations peculiar to the subject
litigation.” Ibid. “In contrast, to
employ the percentage of the fund method, the court
determines a percentage of the settlement to award to class
the two methods measure the fairness of the fee with respect
to different desired outcomes, it is necessary that district
courts be permitted to select the more appropriate method for
calculating attorney's fees in light of the unique
characteristics of class actions in general, and of the
unique circumstances of the actual cases before them.”
Ibid. The Court also may elect to “employ
the lodestar method to determine the fairness of the fee,
then . . . cross-check it with the percentage-of-the-fund
calculation.” Id. at 280. “District
courts have the discretion to select the particular method of
calculation, but must articulate the ‘reasons for
adopting a particular methodology and the factors considered
in arriving at the fee.'” Ibid. (quoting
Moulton v. U.S. Steel Corp., 581 F.3d 344, 352 (6th
Cir. 2009)). “Moulton set out the germane
factors, ” which include, “‘(1) the value
of the benefit rendered to the plaintiff class; (2) the value
of the services on an hourly basis; (3) whether the services
were undertaken on a contingent fee basis; (4) society's
stake in rewarding attorneys who produce such benefits in
order to maintain an incentive to others; (5) the complexity
of the litigation; and (6) the professional skill and
standing of counsel involved on both sides.'”
Ibid. (quoting 581 F.3d at 352).
percentage of the fund method is appropriate here for
evaluating the reasonableness of the attorney fee since the
result achieved for the class in terms of the cash payments
to be made from the fund was substantial, and class counsel
undertook the representation on a contingent fee basis and
advanced significant labor and expenses to litigate the case.
And the percentage award requested is appropriate to
compensate class counsel adequately for the risk inherent in
that contingent fee representation. In re Google Referrer
Header Privacy Litig., 869 F.3d 737, 747 (2018)
(“Under the percentage-of-recovery method, the
requested fee was equal to 25% of the settlement fund [which]
was commensurate with the risk posed by the action and the
time and skill required to secure a successful result for the
class, given that class counsel faced three motions to
dismiss and participated in extensive settlement
conducting a percentage of the fund analysis, courts must
calculate the ratio between attorney's fees and benefit
to the class.” Gascho, 822 F.3d at 282.
“Attorney's fees are the numerator and the
denominator is the dollar amount of the Total Benefit to the
class.” Ibid. However, when calculating the
ratio, the Gascho court, in a parenthetical remark,
included “the attorney's fees and . . . costs of
administration” in addition to the payout to class
members. Ibid. That calculation method departs from
traditional norms in non-class-action contingent fee cases,
where the fee is determined by a percentage of the net
recovery. See Hunt v. Hadden, No. 14-10713, 2015 WL
3473680, at *8 (E.D. Mich. June 2, 2015), order vacated
in part on reconsideration, No. 14-10713, 2015 WL
13048812 (E.D. Mich. July 17, 2015). But in class cases,
considerable amounts of litigation expenses must be advanced
by class counsel on behalf of absent potential plaintiffs too
numerous to consult. Therefore, whereas in individual cases,
a client can agree to share in the risk of litigation by
agreeing to pay a share of the expenses from a potential
recovery - or perhaps all of them if there is no recovery -
class counsel does not have that option and must bear the
costs alone on behalf of the class in general. Those
advancement of costs therefore truly benefit the class and
are part of the “Total Benefit.”
case, there is no reverter authorized by the settlement
agreement; all of the net common fund will be distributed to
claimants on a pro rata basis. The settlement also
provides that Bonnier will send every settlement
class member a voucher for a free, one-year subscription to
the Bonnier magazine of his or her choice - even if the class
member did not submit a claim form - and Bonnier will include
disclosure language in informational materials so that the
disclosure is available to consumers before subscribing to
any Bonnier publication. This relief is difficult to value,
but has value nonetheless. That aside, the total benefit to
the class members is the full amount of the common fund, or
$2, 150, 000.
requested attorney's fee is $623, 500. The attorney's
fee thus represents 29% of that denominator, which is within
the range of percentage fees that have been approved in other
Michigan Video Rental Privacy Act (“VPRA”) cases.
E.g., Moeller v. American Media, Inc., No. 16-11367,
ECF No. 42 (E.D. Mich. Sept. 28, 2017) (awarding 35% of fund
as attorney's fees); Halaburda v. Bauer Publishing
Company, LP, No. 12-12831, ECF No. 54 (E.D. Mich. Sept.
26, 2013) (awarding 30% of fund as attorney's fees);
Coulter-Owens v. Rodale, Incorporated, No. 14-12688,
ECF No. 55 (E.D. Mich. Oct. 25, 2016) (awarding 25% of fund
as attorney's fees); Kinder v. Meredith
Corporation, No. 14-11284, ECF No. 81 (E.D. Mich. May
18, 2014) (awarding 35% of fund as attorney's fees).
Twenty-nine percent is both a reasonable and appropriate
attorney's share of the common fund.
requested fee is also less than the full lodestar amount that
the plaintiffs' counsel could charge. The plaintiffs'
counsel seek to recover an aggregate amount of $623, 500
based on a total of 1, 209.9 hours billed by its attorneys at
various hourly rates. The plaintiff submitted itemized
billing records indicating billings by the primary attorneys
who worked on the case that are summarized as follows:
• Gary F. Lynch, partner. 30 years experience. $675.00
per hour. 323.4 hours. $218.295.00 in attorney's fees.
ECF no. 76-1, PageID.987.
• Jamisen A. Etzel, associate. 7 years experience.
$425.00 per hour. 120.6 hours. $51, 255.00 in attorney's
• Kevin Abramowicz, associate. 3 years experience.
$350.00 per hour. 115.8 hours. $40, 530.00 in attorney's
• Derek Markle, associate. 1 year experience. $250.00
per hour. 49.2 hours. $12, 300.00 in attorney's fees.
Ibid . Daniel O. Myers,
partner. 26 years experience. $600.00 per hour. 244.4 hours.
$146, 640 in attorney's fees. ECF No 76-2, PageID.991.
• Robert S. Wood, member. 20 years experience. $700.00
per hour. 292.9 hours. $204, 540.00 in attorney's fees.