Emmet G. Sullivan, United States District Judge.
On April 28, 2011, the Court granted, among other things, plaintiffs' motion for award of attorneys' fees and costs, awarding class counsel at the high end of the range set forth in the 2011 Settlement Agreement between the parties: 8% of the $760 million compensation fund amount, or $60.8 million, pursuant to the following provision:
Settlement Agreement, ECF No. 576-1 at XV.B; Order, ECF No. 606 at 3. Because a compensation fund had been established, the Court made this award pursuant to the common fund doctrine. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1262 (D.C. Cir. 1993)(holding that the "proper measure of [contingent counsel fees in class actions resulting in the creation of a common fund payable to plaintiffs] is a percentage of the [common] fund"). Class counsel provided a lodestar calculation of
Class counsel now seek a supplemental award from interest accrued from the compensation fund based on a lodestar calculation and pursuant to the following provision of the 2015 Addendum to the Settlement Agreement ("Addendum"):
Addendum, ECF No. 824-2 at IV.C. Specifically, class counsel seek $3,220,035.85 in fees and $46,656.50 in additional costs that they contend were not foreseen and therefore not compensated in the prior award. Final Report to Court on Payments from the Keepseagle Settlement Fund and Mot. for Approval of Final Payments Including Suppl. Att'ys' Fees ("Mot. for Att'ys' Fees"), ECF No. 911 at 10, 18. Class counsel also seek an award of $566,537.50 in fees and $6,987.56 in costs for Mrs. Keepseagle's independent counsel, Olsson Frank Weeda Terman Matz PC ("OFW Law"). Id. Mrs. Keepseagle obtained independent counsel after the Court `asked if she would like the opportunity to do so to assist her in her efforts to modify the Settlement Agreement. Id. at 22. Class counsel have provided notice of this request to the class and to the Trustees of the Trust. Id. at 11.
The Addendum was negotiated after the claims process concluded and an unanticipated $380 million remained in the compensation fund for distribution to cy pres beneficiaries. The Addendum was agreed to by class counsel, the government, and Mrs. Keepseagle's counsel, and approved by the Court. See Keepseagle v. Vilsack, No. 99-3119, slip op., 2016 WL 9455764 (D.D.C. April 20, 2016), aff'd, 856 F.3d 1039 (D.C. Cir. 2017).
The government disputes that class counsel is entitled to a supplemental award pursuant to the Settlement Agreement. The government argues that the 8% cap on an award of attorneys' fees and costs was not increased by the Addendum and therefore an additional award is not permitted pursuant to the Settlement Agreement. Def.'s Opp'n to Counsels' Second Fee Pet. (Def.'s Opp'n), ECF No. 912 at 6-8. The Court disagrees. The Addendum clearly contemplates that class counsel and Mrs. Keepseagle's counsel
"When awarding attorneys' fees, federal courts have a duty to ensure that claims for attorneys' fees are reasonable." Swedish Hosp. Corp., 1 F.3d at 1265. "In general, a trial court enjoys substantial discretion in making reasonable fee determinations." Id. at 1271 (citation omitted). "[C]ourts maintain discretion to award supplemental fees to counsel for work performed in relation to the litigation or settlement following counsel's initial fee application." Cassese v. Washington Mut., 27 F.Supp.3d 335, 339 (E.D.N.Y. 2014) (internal quotation marks and citations omitted). Courts have this discretion whether the work for which the supplemental fees are sought was anticipated or not. Pray v. Lockheed Aircraft Corp., 1987 WL 9757, at *1 (D.D.C. Apr. 3, 1987). That said, "it is reasonable to inquire whether any supplemental award of attorney's fees for work performed ... is justified." Goldenberg v. Marriott PLP Corp., 33 F.Supp.2d 434, 440 (D.Md. 1998). "[A] reasonable attorney's fee is one that is adequate to attract competent counsel, but ... that does not produce windfalls to attorneys." Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)(internal quotation marks and citation omitted).
The government argues that an additional award is not reasonable on several grounds: (1) the original award exceeded class counsels' actual and projected fees and costs by nearly $34 million and so the extra fees and costs incurred have been covered by that "cushion"; (2) class counsel was overcompensated for their projected costs when the award was made since the amount of unclaimed funds-$380 million-was so large; and (3) class counsels' original award should have been half of what it was because the settlement amount was twice what it should have been. Def.'s Opp'n, ECF No. 912 at 10-12.
Class counsel responds that: (1) the Court has already rejected the argument that the award was too high when it awarded to the cap; (2) as a factual matter, it was not overpaid for the projected costs; and (3) regarding the amount of unclaimed funds, the settlement amount was fully justified by the damages calculation of plaintiffs' expert, but a variety of factors lead to not all class members being able to, or choosing to, make their claims. Pls.' Reply, ECF No. 914 at 3-6. Class counsel also points out that the government does not contest the reasonableness of the rates or hours in their request. Id. at 5.
Class counsels' supplemental request is neither reasonable nor justified. There is no dispute that this supplemental request is for work and costs that were not contemplated in class counsels' 2011 award request. However, the reason class counsel needed to undertake this work and incur these costs, was because of the magnitude of unclaimed funds. Class counsel object to taking into consideration the magnitude of unclaimed funds because the damages calculation was "fully justified." Pls.' Reply,
The Court agrees with class counsel that its work on the Addendum benefitted the class: It resulted in additional payments to successful claimants and the creation of a Trust to benefit the members of the class. And class counsels' work resulted in this Court approving the Addendum and in that approval being upheld on appeal. However, the Court must still determine whether the supplemental award is reasonable. Here, the $60.8 million awarded exceeded class counsels' actual and projected lodestar fees and costs by approximately $34 million.
Class counsel also seek an award of $566,537.50 in fees and $6,987.56 in costs for OFW Law, which represented Mrs. Keepseagle in her efforts to modify the Settlement Agreement. Mot. for Att'ys Fees, ECF No. 911 at 22. OFW Law was instrumental in negotiating the Addendum, which obtained $77 million in additional payments to class members, a supplemental service award of $100,000 to Mrs. Keepseagle, and created the Trust. See Decl. of Marshall L. Matz in Support of Marilyn Keepseagle's Request for an Award of Att'ys' Fees and Expenses ("Matz. Decl."), ECF No. 911-8 ¶ 9. OFW Law also represented Mrs. Keepseagle in her successful Motion to Modify the Settlement Agreement, in successfully opposing the appeal of this Court's approval of the Addendum to the Court of Appeals for the District of Columbia Circuit, and in successfully opposing petitions of certiorari to the Supreme Court. Id. ¶¶ 6, 7.
In response to class counsels' request for this award, the government reiterates its argument that the Settlement Agreement does not authorize the payment, but makes no other objection. Def.'s Opp'n, ECF No. 912 at 12-13. The Court has rejected that argument. See supra at 61-62. The Addendum specifically provides that OFW Law would be able to "seek an award of attorneys' fees and costs for work involved in establishing the Trust and Modifying the Agreement" payable from the interest accrued from the compensation fund. Addendum, ECF No. 824-2 at IV.C.
Heller v. District of Columbia, 832 F.Supp.2d 32, 37-38 (D.D.C. 2011).
First, the Court must determine whether OFW Law's rates are reasonable based on its review of OFW Law's: (1) billing practices; (2) skill, experience and reputation; and (3) prevailing market rates in the relevant community. Id. at 38. The Court finds OFW Law's rates to be reasonable. The declaration submitted in support of the request attests that the hourly rates are consistent with the usual and customary rates for work performed for non-contingency fee clients and that have been paid by the firm's commercial clients. Matz. Decl., ECF No. 911-8 ¶ 16.
Next, the Court must determine whether the number of hours expended on the litigation was reasonable. See Heller, 832 F.Supp.2d at 38. The evidence supporting the hours worked must "be sufficiently detailed to permit the District Court to make an independent determination whether or not the hours claimed are justified." Id. at 49 (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). The Court finds the number of hours OFW Law expended on the litigation to be justified. OFW Law claims 1,179.1 attorney, law clerk and paralegal hours that "were actually expended, in the exercise of professional judgment, by the lawyers, paralegal staff, and clerks involved in the matter." Matz Decl., ECF No. 911-8 ¶ 15. In support, OFW Law submitted detailed, contemporaneously-made records indicating the amount of time spent on a particular day on the matter and describing the tasks performed. Id. ¶ 13, Ex. B at 29-76. The Court has reviewed these records and, in view of its detailed knowledge of this matter, finds them to be adequately detailed, and the number of hours expended justified. OFW Law seeks a total of $566,537.50 in fees for work performed over two and a half years for the following number of billable hours: Attorney Dillard: 679.8 hours; Attorney Matz: 206.2 hours; Attorney Fried: 79.5 hours; Attorney Tsien: 43.2 hours; Attorney Durkin: 27.2 hours; Law Clerk Chapin: 88.5 hours; Law Clerk Ardalan: 30.3 hour; Attorney Weinreib: 6.5 hours; Paralegal Morgan: 17.9 hours. Id. ¶ 17, Ex. B at 29-76, Ex. C. Appropriately, the bulk of the billable hours are for a junior attorney with three to six years' experience, with the more senior attorneys generally providing a supervisory role. Again, the government has not disputed the reasonableness of the number of hours expended. See generally Def.'s Opp'n, ECF No. 912.
Finally, OFW Law claims $6,987.56 in costs. The Court has compared the types of costs OFW Law claims to the types of costs the Court originally approved for class counsel and finds them to be for the same type of costs, such as telephone charges, transportation charges, postage, duplicating, filing fees, etc. Compare Matz. Decl., ECF No. 911-8, Ex. D
Accordingly, the supplemental motion for an award of attorneys' fees and expenses is