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Lobur v. Parker

United States Court of Appeals, Second Circuit
May 24, 2010
378 F. App'x 63 (2d Cir. 2010)

Summary

affirming denial of incentive award to objectors who expended “minimal effort,” despite their having contributed to “an improvement to the distributional fairness” of the settlement

Summary of this case from Dewey v. Volkswagen of Am.

Opinion

Nos. 09-3195 (L), 09-3766 (XAP).

May 24, 2010.

Apple From the United States District Court for the Eastern District of New York, Glasser, J.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be, AFFIRMED.

Daniel W. Anderson, The Anderson Law Firm, Tampa, Florida (A. Anderson B. Dogali, Forizs Dogali, P.L., Tampa, Florida, on the brief), for Objectors-Appellants-Cross-Appellees.

Daniel Hume, Kirby McInerney LLP, New York, New York, (George W. Sampson, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; Jonathan W. Cuneo and Michael G. Lennett, Cuneo Gilbert LaDuca LLP, Washington, D.C.; James M. Beaulaurier, Law Office of James M. Beaulaurier, Seattle, Washington, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

PRESENT: JON O. NEWMAN, WALKER, Circuit Judges.

The Honorable Gerard E. Lynch, originally a member of the panel, recused himself from this case. The remaining two members of the panel, who are in agreement, decide this case in accordance with Second Circuit Internal Operating Procedure ("IOP") E(b).


SUMMARY ORDER

Objectors-Appellants-Cross-Appellees Richard and Sharon Lobur appeal from a final judgment by the United States District Court for the Eastern District of New York (Glasser, J.), entered July 16, 2009, granting the Loburs' request for attorneys' fees, but in an amount less than that requested, and denying an incentive award to the Loburs for their role as objectors to the underlying class settlement. The Loburs argue that the district court abused its discretion by 1) failing to apply the correct legal standard, as stated in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), to their request for attorneys' fees; 2) failing to reasonably account for the benefits to the class conferred by through their counsel's efforts; and 3) failing to grant their request for an incentive award. The Plaintiffs-Appellees-Cross-Appellants cross-appeal the district court's award of any amount of attorneys' fees to the Loburs' counsel. We assume the parties' familiarity with the facts and the record of the prior proceedings, which we reference only to the extent necessary to explain our decision.

This Court "will not overturn a district court's award of attorneys' fees absent an abuse of discretion, such as a mistake of law or a clearly erroneous factual finding." In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir. 2008) (internal quotation marks omitted). A district court may calculate a reasonable attorney fee using either the "lodestar" or the "percentage of the fund" method, see Goldberger, 209 F.3d at 47, 50, but must be guided in its determination by the traditional criteria for awarding attorneys' fees, including "`(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation . . .; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.'" Id. at 50 (quoting In re Union Carbide Corp. Consumer Prod. Bus. Sec. Litig., 724 F.Supp. 160, 167-68 (S.D.N.Y. 1989) (alteration in original)).

The district court determined that the fee award for the Loburs' counsel was best assessed under the lodestar method. Though the district court did not mechanically address each of the Goldberger factors as it had in assessing class counsel's fee request, in assessing the Loburs' request for attorneys' fees, the district court based its decision regarding the Loburs' counsel on the Goldberger factors that account for counsel's time and labor expended on the objections, the magnitude and complexity of the Loburs' intervention in the class settlement, and the risks of participating in shaping the class settlement. Based upon a review of the summary of hours billed by the Loburs' counsel and its consideration of the Goldberger factors, the district court reasonably concluded that the requested fee award of $861,652, based on a lodestar amount of $195,830 with a 4.4 multiplier, was excessive. The district court's decision to base its award on a reduced number of hours, cutting the 418.5 hours of work claimed by the Loburs' counsel (and, hence, the lodestar) by half, was a reasonable means of tailoring the fee award so as to more accurately reflect a reasonable value of the time and effort contributed by the Loburs' counsel with respect to the class settlement. Moreover, the district court's decision not to apply a multiplier to the reduced lodestar, thereby settling on a total of $97,91-5 in fees awarded to the Loburs' counsel, was not an abuse of discretion in light of the district court having already accounted for counsel's efforts and contributions to the class settlement in arriving at a reasonable number of hours exerted on the objections. Cf. Perdue v. Kenny A, ___ U.S. ___, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010) ("[T]here is a `strong presumption' that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.").

We review a district court's grant or denial of incentive awards for the abuse of discretion. See Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 408 (7th Cir. 2000). In this case, the district court reasonably determined that the minimal effort and risk to the Loburs in participating as objectors to the class settlement did not warrant an incentive award.

Finally, though the Loburs' objections arguably resulted in no increase in the class settlement's value, the district court reasonably found that their participation did result in an improvement to the distributional fairness of the class settlement. Thus, the argument advanced by class counsel on cross-appeal that the award of any attorneys' fees to the Loburs' counsel was erroneous due to a lack of any contribution on their part is without merit. As noted above, the district court assessed the Loburs' efforts using the Goldberger factors and arrived at a reasonable fee award.

We have carefully considered all of the parties' other arguments and found them to be without merit.

For the foregoing reasons, the judgment of the district court is hereby affirmed.


Summaries of

Lobur v. Parker

United States Court of Appeals, Second Circuit
May 24, 2010
378 F. App'x 63 (2d Cir. 2010)

affirming denial of incentive award to objectors who expended “minimal effort,” despite their having contributed to “an improvement to the distributional fairness” of the settlement

Summary of this case from Dewey v. Volkswagen of Am.
Case details for

Lobur v. Parker

Case Details

Full title:Richard LOBUR, Sharon Lobur, Objectors-Appellants-Cross-Appellees, v…

Court:United States Court of Appeals, Second Circuit

Date published: May 24, 2010

Citations

378 F. App'x 63 (2d Cir. 2010)

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