NITZA I. QUIÑONES ALEJANDRO, District Judge.
Before this Court is a motion for final approval of class action settlement filed by Plaintiff Violet P. Blandina ("Plaintiff")
On March 5, 2013, Plaintiff, on behalf of herself and all others similarly situated, filed a complaint against Defendants Midland Funding, LLC, and Midland Credit Management, Inc. ("Defendants"), alleging that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a, et seq. ("FDCPA"), when sending Plaintiff, and other individuals similarly situated, a form collection letter that allegedly misrepresented that interest was accruing on a debt owed when, in fact, it was not. The case was filed as a class action seeking statutory damages. Defendants deny these allegations and that they violated the FDCPA.
Following discovery and an unsuccessful private mediation, the parties filed extensive briefing on both the summary judgment and class certification issues. On December 4, 2014, this Court granted Plaintiff's motion for partial summary judgment, in part, ruling that Defendant Midland Credit Management, Inc. had violated the FDCPA by falsely representing the total amount of debt sought to be collected. [ECF 54]. This Court denied Plaintiff's motion as to Defendant Midland Funding, LLC, however, since genuine issues of material fact existed regarding Midland Funding, LLC's liability. [ECF 54].
By Memorandum Opinion and an accompanying Order dated December 23, 2014, this Court granted Plaintiff's motion for class certification, finding the Class to be:
[ECF 56, 57]. Thereafter, on February 2, 2015, this Court granted Defendants' motion in limine to determine available statutory damages, [ECF 42], and held that the Class, as certified, would be limited to a total maximum statutory damages award of $500,000.00. [ECF 60, 61].
On April 17, 2015, at the parties' request, this Court referred the matter to United States Magistrate Judge Lynne A. Sitarski for a settlement conference, which was scheduled to be held on June 16, 2015. [ECF 69, 72]. Prior to the settlement conference, the parties reached an interim agreement, and the settlement conference was cancelled. [ECF 73]. On August 21, 2015, Plaintiff filed a motion for preliminary approval of class action settlement and notice to class. [ECF 79]. By Order dated September 23, 2015, this Court preliminarily approved the parties' class action settlement, and scheduled a hearing for final approval for February 24, 2016. [ECF 80]. At the parties' request, the final approval hearing was subsequently rescheduled for March 28, 2016. [ECF 83].
The proposed class action settlement agreement contains the following material terms:
Notice of these material terms was provided to all potential Class Members pursuant to procedures stipulated in the preliminarily approved class action settlement. As of the date of the final approval hearing, no objections had been lodged to any of the proposed class action settlement's terms.
When granting final approval of a class action settlement, a district court must hold a hearing and conclude that the proposed settlement is fair, reasonable and adequate. See Fed. R. Civ. P. 23(e)(2); Sullivan v. DB Invs., Inc., 667 F.3d 273, 295 (3d Cir. 2011); In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir. 2009). Although there is a strong judicial policy in favor of voluntary settlement agreements, Pennwalt Corp. v. Plough, 676 F.2d 77, 79-80 (3d Cir. 1982), courts are generally afforded broad discretion in determining whether to approve a proposed class action settlement. Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir. 1995). "The law favors settlement particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation." In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab., 55 F.3d 768, 784 (3d Cir. 1995). In addition to conservation of judicial resources, "[t]he parties may also gain significantly from avoiding the costs and risks of a lengthy and complex trial." Id.
In Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), the Third Circuit Court of Appeals set forth factors (often called the "Girsh factors") a district court should consider when reviewing a proposed class action settlement. The Girsh factors are:
In re Ins. Brokerage Antitrust Litig., 579 F.3d at 258 (citing Girsh, 521 F.2d at 157). However, no one factor is dispositive. Hall v. Best Buy Co., 274 F.R.D. 154, 169 (E.D. Pa. 2011).
In Krell v. Prudential Ins. Co. of Am. (In re Prudential), 148 F.3d 283 (3d Cir. 1998), the Third Circuit Court identified additional nonexclusive factors (the "Prudential factors") for courts to consider for a "thorough going analysis of settlement terms." See also In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 350 (3d Cir. 2010). These Prudential factors often overlap with the Girsh factors, and include:
In re Pet Food, 629 F.3d at 350. Only the Prudential factors relevant to the litigation in question need be addressed. In re Prudential, 148 F.3d at 323-24.
With these principals in mind, this Court will consider each of the Girsh factors and only the relevant Prudential factors in its review of the proposed class action settlement.
Needless to say, had the settlement not been reached, this matter would have proceeded to trial on the issues of liability of Defendant Midland Funding, LLC and a determination of damages, if any. The continued prosecution of Plaintiff's claims against Defendants would have required significant additional expense to the Class and a substantial delay before any potential recovery. Further, no matter the outcome of a trial, it is likely that one or all of the parties would have appealed, leading to further litigation costs and delay in any realized recovery. Thus, the avoidance of unnecessary expenditure of time and resources benefits all parties, and weighs in favor of approving the settlement. See In re Gen. Motors, 55 F.3d at 812 (concluding that lengthy discovery and potential opposition by the defendant were factors weighing in favor of settlement).
"The Third Circuit has looked to the number of objectors from the class as an indication of the reaction of the class." In re Certainteed Corp. Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 485 (E.D. Pa. 2010) (citing In re Cendant Corp. Litig., 264 F.3d 201, 234-35 (3d Cir. 2001)). "Courts have generally assumed that `silence constitutes tacit consent to the agreement.'" In re Gen. Motors, 55 F.3d at 812 (quoting Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1313 n. 15 (3d Cir. 1993)). A low number of objectors or opt-outs is persuasive evidence of the proposed settlement's fairness and adequacy. Serrano v. Sterling Testing Sys., Inc., 711 F.Supp.2d 402, 415 (E.D. Pa. 2010) (citing In re Cendant, 264 F.3d at 234-35).
Here, Defendants identified 132,737 individuals who meet the Class definition. Those individuals identified as potential Class members were mailed notices and Class forms. After tracing and re-mailing notices that were initially returned as undeliverable, a total of 119,915 (or 90.34%) of the 132,737 notices were successfully mailed to potential Class members. As of the date of the final approval hearing held on March 28, 2016, no Class member had exercised the right to opt out or had objected to the proposed settlement. Consequently, this factor is persuasive evidence of the fairness and adequacy of the proposed settlement, and weighs in favor of a final approval. See In re Cendant, 264 F.3d at 234-35 (finding that a low number of objectors and opt-outs strongly favors approval of the settlement).
The third Girsh factor "captures the degree of case development that class counsel [had] accomplished prior to settlement. Through this lens, courts can determine whether counsel had an adequate appreciation of the merits of the case before negotiating." In re Cendant, 264 F.3d at 235. When evaluating this third Girsh factor, courts must evaluate the procedural stage of the case at the time of the proposed settlement to assess whether counsel adequately appreciated the merits of the case while negotiating. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004). "[C]ourts generally recognize that a proposed class settlement is presumptively valid where ... the parties engaged in arm's length negotiations after meaningful discovery." Cullen v. Whitman Med. Corp., 197 F.R.D. 136, 144-45 (E.D. Pa. 2000). Settlements reached following discovery "are more likely to reflect the true value of the claim." Boone v. City of Phila., 668 F.Supp.2d 693, 712 (E.D. Pa. 2009) (citing Bell Atl. Corp., 2 F.3d at 1314).
As set forth above, this case has been actively litigated from its commencement. Prior to reaching a settlement, the parties participated in unsuccessful private mediation, and engaged in extensive discovery, including the deposition of Plaintiff and Defendants' corporate representative. The parties also engaged in extensive briefing on the issues of class certification, summary judgment, and statutory damages. As a result of the extensive proceedings that preceded the parties' settlement, the parties had ample opportunity to identify and grasp the strengths and weaknesses of each party's case. Consequently, this Court finds that this factor weighs in favor of approval.
This Girsh factor weighs the likelihood of ultimate success against the benefits of an immediate settlement. The existence of obstacles, if any, to the plaintiff's success at trial weighs in favor of settlement. In re Warfarin, 391 F.3d at 537; In re Prudential, 148 F.3d at 319.
In this case, after considering the parties' cross-motions for summary judgment, this Court determined as a matter of law that Defendant Midland Credit Management, Inc., was liable to Plaintiff for violating the FDCPA. The Court left for trial, however, the issue of Defendant Midland Funding, LLC's liability. Defendant Midland Funding, LLC, has denied any liability throughout this litigation. While Plaintiff has already established liability as to Defendant Midland Credit Management, Inc., the proposed settlement avoids the risk that Defendant Midland Funding, LLC, is found not liable. Thus, this Court finds that this factor either weighs in favor of approval or is neutral in its effect.
This factor "attempts to measure the expected value of litigating the action rather than settling it at the current time." In re Cendant, 264 F.3d at 238-39. In this case, Plaintiff and the members of the Class were seeking, but were not guaranteed, the maximum possible award of statutory damages under the FDCPA, 15 U.S.C. § 1692k(a)(2)(B)(ii). Under this section, the most Plaintiff could recover for the Class at trial would be $500,000.00. However, simply prevailing on liability would not have necessarily resulted in an award to the Plaintiff and the Class in the maximum allowable amount. Any potential award would have taken into account various factors in determining the appropriate statutory damage award, such as the frequency and persistence of noncompliance, the nature of noncompliance, the resources of Defendants, the number of persons adversely affected and the degree to which the noncompliance was intentional. See 15 U.S.C. § 1692k(b)(2). Consequently, there is no certainty that Plaintiff would have achieved the maximum statutory damages recoverable had she prevailed on the merits. In light of this uncertainty as to the amount of any potential damages award, the settlement amount of $350,000.00 is a good result. Accordingly, this factor weighs in favor of approval.
Because "the prospects for obtaining certification have a great impact on the range of recovery one can expect to reap from the [class] action," In re Gen. Motors, 55 F.3d at 817, this factor measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial. This case was certified as a class action on December 23, 2014. [ECF 56, 57]. Though a district court retains the authority to decertify or modify a class at any time during the litigation if it proves to be unmanageable, In re Prudential, 148 F.3d at 321, the risk of decertification here is no more substantial than the risk in any class action. Therefore, this factor is neutral.
This factor considers "whether the defendants could withstand a judgment for an amount significantly greater than the settlement." In re Cendant, 264 F.3d at 240. The parties have represented that Defendants are able to withstand a judgment greater than the $350,000.00 proposed settlement amount. Because the parties have agreed to a settlement amount relatively close to the maximum statutory damages permitted, however, this Court finds that this factor is neutral.
The last two Girsh factors, often considered together, evaluate whether the settlement represents a good value for a weak case or a poor value for a strong case. In re Warfarin, 391 F.3d at 538. In order to assess the reasonableness of a settlement in cases seeking monetary relief, "the present value of the damages plaintiffs would likely recover if successful, appropriately discounted for the risk of not prevailing, should be compared with the amount of the proposed settlement." In re Prudential, 148 F.3d at 322.
In light of the questions of fact and law present in this litigation, the value of the proposed settlement substantially outweighs the mere possibility of future relief. Here, the Class is receiving a settlement amount that approximates the maximum statutory damages that could have been realized if Plaintiff ultimately prevailed at trial. The expense of a trial and use of the parties' resources would have been substantial, especially in conjunction with the post-trial motions and appeals that would have likely followed any trial on the merits. Thus, a settlement is advantageous to all parties. Therefore, these factors weigh in favor of approval.
This case was settled at a mature point in the proceedings. Most of the pretrial discovery had been completed and, as such, the litigants were in a position to fully evaluate the strengths, weaknesses, and merits of their case. The advanced development of the record weighs in favor of approval. See Chakejian v. Equifax Info. Servs., LLC, 275 F.R.D. 201, 215 (E.D. Pa. 2011) (finding settlement reasonable where underlying substantive issues were "mature in light of the experience of the attorneys, extent of discovery, posture of case, and mediation efforts undertaken.").
This factor weighs in favor of approval since no one opted out and, as stated, the proposed class action settlement agreement obtains an amount approximating the maximum statutory damage award available to the Class.
As part of the Class notice process approved by this Court, by notice sent out on November 6, 2015, Class members were given the opportunity to opt out by January 18, 2016. No member of the Settlement Class opted out by the date of the fairness hearing. Therefore, this factor weighs in favor of approval.
As part of the Class notice process approved by this Court, Class members were advised that Plaintiff would seek an award of attorneys' fees of no more than $245,000.00, separate and apart from the settlement fund. No potential member of the Class objected to such an award. Moreover, for the reasons discussed in greater length below, the attorneys' fees and expenses sought and agreed to in this case are reasonable. Thus, this factor weighs in favor of approval.
Class Counsel has retained, and this Court has approved, Dahl Administration ("Dahl") as the claims administrator. Dahl, a nationally-recognized firm that has provided notice and claims administration services for various class actions, has experience administering class action settlements such as this and will be supervised by Class Counsel. Dahl will evaluate all claims received to determine whether they are reasonable, valid, and payable from the Settlement Fund. The claims processing procedures in place are fair and reasonable. This factor supports approval of the settlement.
In summary, in light of the presumption of fairness that attaches to the settlement, see In re Warfarin, 391 F.3d at 539, and upon consideration of each of the Girsh factors and the relevant Prudential factors, this Court finds that the proposed class action settlement is fair and reasonable.
As compensation for their legal services and efforts, Class Counsel have requested this Court to approve the portion of the settlement which provides for reimbursement of attorneys' fees and expenses in the amount of $245,000.00. This is an amount contemplated and agreed to in the settlement agreement, and disclosed to Class members. As noted above, the notice provided to potential Class members expressly informed them that Class Counsel would apply for an award of attorneys' fees in an amount not to exceed $245,000.00. To date, no Class member has objected to the settlement or to the requested fee, which evidences both a satisfactory result and a reasonable fee. In support of their request for fees and reimbursement of costs and expenses, counsel rely upon two declarations of counsel summarizing their time and the expenses incurred on behalf of the Class. (See Decls. of David A. Searles and Carlo Sabatini).
Federal Rule of Civil Procedure 23(h) provides "[i]n 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." Plaintiff and Class Counsel, as the prevailing party, seek approval of an award of attorneys' fees and reimbursement of litigation expenses in accordance with the terms of the Class Action Settlement Agreement and the fee shifting provision of the FDCPA, 15 U.S.C. § 1692k(a)(3). The Third Circuit Court of Appeals has held that fees are mandated under the FDCPA and that the district court should determine what constitutes reasonable attorneys' fees in accordance with Supreme Court precedent for such fees. See Graziano v. Harrison, 950 F.2d 107, 113-14 (3d Cir. 1991) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983)).
There are two methods of calculating attorneys' fees in class actions — the lodestar method and the percentage of recovery method. In re Prudential, 148 F.3d at 332-33. The lodestar method is more commonly applied in statutory fee-shifting cases. Id. Because the FDCPA is a fee-shifting statute, which the Third Circuit has interpreted as requiring an award of attorneys' fees to the prevailing party, see Graziano, 950 F.2d at 113-14, this Court will apply the lodestar method in determining the reasonableness of the requested award of attorneys' fees.
Under the lodestar method, a court begins the process of determining the reasonable fee by calculating the "lodestar;" i.e., the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433; see also McKenna v. City of Phila., 582 F.3d 447, 455 (3d Cir. 2009). Once the lodestar is determined, the court must then determine whether additional adjustments are appropriate. McKenna, 582 F.3d at 455.
A reasonable hourly rate in the lodestar calculation is "[g]enerally . . . calculated according to the prevailing market rates in the relevant community," taking into account "the experience and skill of the . . . attorney and compar[ing] their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The prevailing market rate is usually deemed reasonable. Pub. Interest Research Grp. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).
As revealed by the Declarations of counsel submitted with Plaintiff's attorneys' fee request, the hourly rates for the firms of Class Counsel are well within the range of what is reasonable and appropriate in this market. That is, the hourly charged rates for the attorneys in the firm are the same as the regular current rates charged for their services in standard non-class matters, including contingent and non-contingent matters. There has not been any alteration or deviation from the firm's hourly rates to account for the added complexity or increased risk factors of this action. The attorneys concentrate their practice in the area of consumer class action litigation, and their hourly rates are also within the range charged by attorneys with comparable experience levels for consumer class action litigation of a similar nature. See, e.g., Barel v. Bank of Am., 255 F.R.D. 393, 403-04 (E.D. Pa. 2009).
"In calculating the second part of the lodestar determination, the time reasonably expended," a district court should "review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary." Pa. Envtl. Def. Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir. 1998). As noted in Hensley, lawyers are required to use judgment when billing their clients so as not to bill clients for "excessive, redundant, or otherwise unnecessary" hours. Id. at 434. Likewise, "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. at 434 (citations omitted). Ultimately, district courts have "substantial discretion in determining what constitutes . . . reasonable hours." Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001).
In the two Declarations of counsel, each Class Counsel included a detailed summary of the hours worked by the partners, associates, and professional support staff involved in this litigation. These summaries were prepared from contemporaneous, daily time records regularly prepared and maintained by the respective firms. After reviewing the Declarations and the attached supporting documentation, it appears that neither counsel is requesting compensation for any time that was "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434.
Having found the hourly rates and hours expended reasonable, the lodestar for Plaintiff's attorneys is $321,340.00, reflecting 743.2 hours of attorney and paralegal time. Counsel have also submitted documentation showing reasonable expenses in the amount of $10,715.22. Class Counsel are requesting a sum of $245,000.00 in attorneys' fees and costs, an amount substantially less than the calculated reasonable lodestar amount. Further, this Court has also considered the fact that Class Counsel took this matter on a contingency basis, see Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973), there were no objections to the amounts requested by any potential or actual Class Members, see Perry v. FleetBoston Fin. Corp., 229 F.R.D. 105, 124 (E.D. Pa. 2005), and that through the settlement, Class Counsel has obtained for the Class members an amount approximating the maximum statutory damage award permitted. Further, Defendants have agreed to pay this amount in attorneys' fees and costs, separate and apart from the settlement fund. Therefore, under the circumstances noted, this Court approves the request for attorneys' fees and costs.
Class Counsel also seek approval of a $5,000.00 individual settlement award for Plaintiff Violet P. Blandina, for her willingness to undertake the risks and the burden of this litigation. "Incentive awards are not uncommon in class action litigation. . . ." Cullen v. Whitman Med. Corp., 197 F.R.D. 136, 145 (E.D. Pa. 2000). These payments "compensate named plaintiffs for `the services they provided and the risks they incurred during the course of class action litigation.'" Bredbenner v. Liberty Travel, Inc., 2011 WL 1344745, at *22 (D.N.J. Apr. 8, 2011). Incentive awards also "`reward the public service' of contributing to the enforcement of mandatory laws." Id. (quoting In re Cendant, 232 F. Supp. 2d at 344).
This Court recognizes that there would be no benefit to Class members if the Class representative had not stepped forward and prosecuted this matter to the current resolution. In doing so, Ms. Blandina devoted time and energy to the litigation, including reviewing documents, sitting for a deposition and consulting with counsel, as needed. The requested $5,000.00 is well within the range of awards made in similar cases. See Barel, 255 F.R.D. at 402-03 (awarding $10,000.00 individual award); McGee v. Continental Tire North Am., Inc., 2009 WL 539893, at *18 (D.N.J. Mar. 4, 2009) (awarding $3,500.00 individual award). Class Members were notified that Class counsel would request an award for Ms. Blandina in this amount and no Class member objected. Accordingly, the Court approves the individual award of $5,000.00 to Ms. Blandina.
For the reasons stated herein, this Court grants final approval of the proposed class action settlement, awards Class Counsel reasonable attorneys' fees and the reimbursement of expenses in the total amount of $245,000.00, and awards the sum of $5,000.00 to the Class Representative, Violet P. Blandina. An Order consistent with this Memorandum Opinion follows.
