Opinion
Civil Action No. 3:01-CV-1754-L
December 11, 2003
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs' Motion for Class Certification and Final Approval of Settlement Agreement and for an Award of Attorney's Fees and Expenses, filed June 2, 2003. Having considered the parties' written submissions, the arguments of counsel at the hearing, and the applicable law, the court hereby overrules Dorothy Mack's objections to the proposed settlement agreement, attorney fees, cy pres award, and settlement class certification; overrules Michael Matthews's objections to the proposed settlement agreement; and grants Plaintiffs' Motion for Class Certification and Final Approval of Settlement Agreement and for an Award of Attorney's Fees and Expenses.
In addition to Plaintiffs' Motion for Class Certification and Final Approval of Settlement and for Attorneys' Fees and Expenses, the court also has before it the following written submissions: (1) Dorothy Mack's Memorandum in Objection to Proposed Settlement Agreement, Attorney Fees, Cy Pres Award and Settlement Class Certification, filed September 19, 2003; (2) Plaintiffs' Motion for an Award of Attorney's Fees and Expenses, filed October 8, 2003; (3) Declaration of Gary Peller in Support of Plaintiffs' Motions for Class Certification and Final Approval of Settlement and for an Award of Attorney's Fees and Expenses, filed October 8, 2003; (4) Appendix of Materials Submitted by Plaintiffs in Support of Motion for Final Approval, filed October 8, 2003; (5) Declaration of Jeremy T. Rosenblum, filed October 8, 2003; (6) Declaration of Lonna Schulz, filed October 8, 2003; (7) Declaration of Mike Briskey, filed October 8, 2003; (8) Declaration of Russell Jackson Drake, filed October 8, 2003; (9) Declaration of Michael Matthews in Objection to Proposed Settlement Agreement, filed October 9, 2003; (10) Defendants' Supplemental Brief in Support of Final Approval of Settlement, filed October 14, 2003; (11) Objector Dorothy Mack's Supplemental Memorandum in Response to Plaintiffs' Brief in Support of Settlement, filed October 14, 2003; (13) Plaintiffs' Brief in Support of Motion for Class Certification and Final Approval of Settlement, filed October 15, 2003; and (14) Plaintiffs' Supplemental Memorandum of Law in Support of Motion for an Award of Attorney's Fees and Expenses, filed October 28, 2003. The court is also in receipt of letters from Mr. Devon J. Munro, counsel for objector Dorothy Mack, dated October 17, 2003, and from Mr. Gary Peller, co-Lead Class Counsel for Plaintiffs, dated October 24, 2003.
I. Background
This is a putative class action lawsuit brought on behalf of a nationwide class of borrowers who applied for and obtained "payday loans" at various check cashing stores owned by Defendant ACE Cash Express, Inc. ("ACE") between January 1, 2000 and December 31, 2002 (the "Class Period"). Lead Plaintiffs Beverly Purdie ("Purdie"), Rufus Patricia Brown, and Gina Johnson (collectively "Plaintiffs") contend that during the Class Period, ACE along with Defendant Goleta National Bank ("Goleta") exploited economically venerable, low-income consumers, such as Plaintiffs, by charging and collecting exorbitant interest rates on their payday loans in violation of various federal and state laws.
"Payday" loans are short-term consumer loans that are made for a term of up to two-weeks, or a typical consumer's pay period.
Plaintiff Purdie initially brought this lawsuit on September 6, 2001 against Defendant ACE and four of its officers as a class action, alleging violations of federal and state laws, including the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(a), (c) (d), the Truth in Lending Act ("TILA"), 15 U.S.C. § 1602 et seq., the Electronic Funds Transfer Act ("EFTA"), 15 U.S.C. § 1693 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., state statutes regulating small loans, the Texas Deceptive Trade Practices Act and other state consumer protection laws. On October 4, 2001, Purdie filed an amended complaint, adding Goleta as a Defendant. On December 11, 2001, Purdie filed her second amended complaint, asserting claims against ACE and Goleta for violations of RICO, and the anti-usury and small loan laws of Texas and other states. Purdie also asserted a common law claim of unjust enrichment. Thereafter, on January 18, 2002, Defendants filed a motion to dismiss the Second Amended Complaint. On October 29, 2002, the court granted Defendants' motion to dismiss, and dismissed Purdie's complaint with prejudice, because Purdie failed to sufficiently plead the existence of a RICO enterprise that was distinct from Defendants' predicate acts of the collection of unlawful debt. The court also dismissed Purdie's state law claims.
On November 13, 2001, Purdie moved the court to vacate its judgment and for leave to file an amended complaint. On June 13, 2003, the court granted Purdie's motions, and vacated its order and judgment of October 29, 2002, and permitted Purdie to file her Third Amended Complaint. The Third Amended Complaint names Purdie, Brown and Johnson as Plaintiffs, and asserts claims against Defendants ACE and Goleta under federal law for violations of RICO; EFT A; and under state law for unjust enrichment. Plaintiffs also assert claims solely against Goleta for violation of the National Bank Act, 15 U.S.C. § 85, and solely against ACE for violations of the anti-usury and small loan laws of Texas and other states.
In October 2002, the parties entered into a settlement agreement. The proposed settlement includes both injunctive and monetary relief. Specifically, Defendants have agreed to establish a settlement fund of $11 million, pay out a minimum of $2.5 million in cash to the Class, and forgive another $52 million in debt incurred by class members. The debt relief is significant, particularly in light of the fact that class members have informed Class Counsel that the continued collection efforts for unpaid loans are an enormous source of strain and stress. In addition, ACE has agreed to substantial restrictions on its future lending activities, including an agreement not to associate with other banks to avoid state usury caps by the assertion of federal preempton rights in most states in which ACE does business. ACE has also agreed to cease collection practices that Class members have stated are most harmful to them, such as the repeated debiting of their bank accounts in the collection process. Under the settlement agreement, ACE is limited to three such debits, and it must conspicuously disclose this potential collection practice to borrowers in their original loan papers, along with notifying borrowers that they may incur bank fees in connection with such collection attempts. ACE has also agreed to suppress any credit reporting it made in connection with collection of loans to Class members. The settlement agreement provides that Goleta will not make any payday loans, and ACE will not assist Goleta in making payday loans, for a two-year period beginning after the settlement is approved by the court and the time for any and all appeals has expired. Finally, the settlement agreement provides that in the event the sum of the payments to Class Members and the cost of mailed notices to Unpaid Debt Class Members is less than $2.5 million, ACE and Goleta will make a cy pres payment to consumer advocacy organizations in an amount equal to $2.5 million minus that sum.
On June 13, 2003, the court issued a Preliminary Approval Order in which it provisionally certified this litigation as a class action; provisionally certified Plaintiff Beverly Purdie as Class Representative; provisionally certified Professor Gary Peller, David J. Marshall, Russell Jackson Drake, Charlene P. Ford, James McMillen, Stephen Gardner and Deborah M. Zuckerman as Class Counsel; granted preliminary approval of the proposed settlement, the proposed notices and method of providing notice; and set this matter for a fairness hearing. On October 15, 2003, the court held a fairness hearing in this case, and advised the parties that it would defer ruling on Plaintiffs' motions, for class certification, final approval of the parties' proposed settlement, and request for attorney's fees and expenses until after it received all supplemental briefing that the parties intended to file. Plaintiffs now seek certification of the Class, final approval of the proposed settlement, and an award of attorney's fees. Two prospective Class Members, Dorothy Mack and Michael Matthews, have filed objections to the proposed settlement.
II. Plaintiffs' Motions
A. Class Certification and Final Approval of the Proposed Settlement
1. Class Certification — Fed. Civ. P. 23(b)
To certify this litigation as a class action, the court must find that the putative Class meets the four requirements found in Rule 23(a), and that it also fits within one of the categories of Rule 23(b). See Fed.R.Civ.P. 23(a) and (b). The decision to certify a class action is within the discretion of the court. See James v. City of Dallas, 254 F.3d 551, 562 (5th Cir. 2001), cert. denied, 534 U.S. 1113(2002).
a. Rule 23(a) Requirements
There is no dispute that Plaintiffs have satisfied the requirements of Rule 23(a). First, Plaintiffs have met the requirement of "numerosity." "To satisfy the numerosity prong, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members." James, 254 F.3d at 570. Plaintiffs have presented evidence establishing that the putative Class consists of approximately 606,503 individuals, 413,921 of whom have been classified as "Paid Debt Class Members," that is, persons who had paid their loans in full by the date of the court's preliminary approval order. The remaining 192,582 individuals have been classified as "Unpaid Debt Class Members," that is, those persons who had unpaid and overdue loans outstanding as of the date of the preliminary approval order. Given the size of the alleged class of borrowers, the court finds that joinder of all members would be impracticable.
Rule 23(a) requires that "(1) the class be so numerous that joinder of all members is impracticable [numerosity], (2) there be questions of law or fact common to the class [commonality], (3) the claims or defenses of the representative parties be typical of the claims or defenses of the class [typicality], and (4) the representative parties fairly and adequately protect the interests of the class [adequacy]. "James, 254 F.3d at 569.
To satisfy the "commonality," requirement, Plaintiffs must allege that there exist "questions of law or fact common to the class." James, 254 F.3d at 570. Here, the members of the putative class share a common factual circumstance of having obtained payday loans that were originated, serviced and collected in a uniform manner according to policies and procedures implemented by Defendants on a nationwide basis. Moreover, all claims that could be asserted by Class members based on the application of state usury laws turn on whether the National Bank Act preempts the application of state usury laws to the payday loan transactions. The court finds sufficient commonality in the putative class to satisfy this requirement.
Plaintiffs have also satisfied the typicality requirement, which requires that the claims or defenses of the parties be typical of the claims or defenses of the class. See Fed.R.Civ.P. 23(a); James, 254 F.3d at 571. Typicality "focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent." James, 254 F.3d at 571 (citations omitted). In this case, Plaintiffs, like all Class Members, obtained one or more payday loans that ACE and Goleta issued on nearly identical terms through ACE locations nationwide. In addition, their claims, like those of all Class Members, arise from the nationally uniform interest rates that Defendants charged on those loans. The court finds that the typicality requirement has been met.
Finally, Plaintiffs have satisfied the fourth requirement — that the representative parties will fairly and adequately protect the interests of the Class. See Fed.R.Civ.P. 23(a); James, 254 F.3d at 571. It is undisputed that Plaintiffs are mature, conscientious, and intelligent individuals who understand the basic issues involved in this litigation and their responsibilities as Class Representatives to adequately and fairly represent and protect the interest of absent Class Members. Based on the information before it, and the absence of any evidence showing a conflict of interest between Plaintiffs and the prospective Class, the court determines that Plaintiffs can adequately represent the members of the putative class.
b. Rule 23(b)(3) Requirements
As stated before, in addition to finding that the Class satisfies the requirements of Rule 23(a), the court must also find that the Class fits within one of the categories set forth in Rule (23)(b). Plaintiffs contend that this case falls within the third category set forth in Rule 23(b)(3). "To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must `predominate over any questions affecting only individual members'; and class resolution must be `superior to other available methods for the fair and efficient adjudication of the controversy.'" Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997).
To meet the predominance requirement, Plaintiffs must show that issues "that are subject to generalized proof and thus applicable to the class as a whole . . . predominate over those issues that are subject only to individualized proof." Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. 1982). Given the standardized nature of the payday loan transactions and the uniform manner in which Defendants made, processed and collected on the loans, and that few variations exist in the claims or the factual bases underlying the claims and the legal claims and theories asserted, the court finds that the factual and legal issues in this case would be subject to generalized proof applicable to the entire class, and that such issues predominate over any issue that may be subject only to individualized proof. Because common questions of law and fact predominate over questions affecting only individual members of the class, the court concludes that the predominance requirement is satisfied. Moreover, considering the overall circumstances of the case, the court finds that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. The record reflects that many of the affected borrowers may be unaware of a violation of their rights and that any individual claim that they may have would be for relatively small amounts of money, making the likelihood of individual litigation unlikely. In "small-stakes cases," class actions suits are the best, and perhaps only, way to proceed. See Henry v. Cash Today, Inc., 199 F.R.D. 566, 573 (S.D. Tex. 2000) (citation omitted).
For the reasons herein stated, the court finds that Plaintiffs have met the standards for class certification under Fed.R.Civ.P. 23(a) and (b). Accordingly, the court certifies this litigation as a class action.
2. Class Settlement
Rule 23 governs the settlement of class actions. A class action may not be dismissed or compromised without the court's approval. See Fed.R.Civ.P. 23(e). Before the court may approve a settlement, it must find that the proposed settlement is fair, adequate and reasonable and is not the product of collusion between the parties. Ruiz v. McKaskle, 724 F.2d 1149, 1152 (5t Cir. 1984); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). In addition, the court must assess the reasonableness of the attorney's fees proposed in the settlement agreement. See Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844, 849-50 (5th Cir. 1998). In determining whether a settlement is fair, adequate and reasonable, the court considers the following six factors: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense and likely duration of litigation; (3) the stage of the proceedings and the actual amount of discovery completed; (4) the probability of Plaintiffs' success on the merits (or, the factual and legal obstacles prevailing on the merits); (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants, including class counsel, class representative, and the absent class members. Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983); Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir.), cert. denied, 459 U.S. 828 (1982). When considering these factors, the court should keep in mind the strong presumption in favor of finding a settlement fair. See Cotton, 559 F.2d at 1331 ("Particularly in class action suits, there is an overriding public interest in favor of settlement.") (citation omitted). Having considered all of the Reed factors in light of the circumstances of this case, the court determines that the proposed settlement is fair, reasonable and adequate to the members of the Class.
Insofar as the first factor, the parties contend that the settlement was not the product of fraud or collusion. Ms. Dorothy Mack, one of the objectors, disagrees, contending that collusion may be inferred because the proposed settlement was negotiated in suspect and unfair circumstances. First, she contends that at all relevant times during the negotiation of the settlement, Purdie's action and her rights of action were defunct, having been dismissed with prejudice and without any class certification, and having no realistic hope of revival on the merits. Second, she contends that, even after the dismissal, Purdie and her counsel, still purporting to represent the Class, entered into settlement negotiations with ACE in which they bartered away the rights of the many thousands of unaware Class Members for an illusory payoff. She contends that this was done entirely outside the supervision of the court, without substantive participation from counsel for other class plaintiffs across the nation, and without any valid legal proceeding as a vehicle. Ms. Mack's argument while long on speculation is short on evidentiary support. The record demonstrates that the negotiations leading up to the settlement occurred over a period of seven months; that they were conducted at arms-length; and that they involved extensive bargaining on both sides. Moreover, while it is true that the court initially dismissed this action because of deficiencies in Purdie's pleadings, it subsequently vacated its judgment, and allowed Purdie to file an amended complaint to correct those deficiencies. Plaintiffs' Third Amended Complaint differs from Purdie's Second Amended Complaint, and arguably contains allegations sufficient to state claims under federal and state law. The record also demonstrates that, contrary to Ms. Mack's contention, the parties were engaged in settlement negotiations prior to the court's dismissal of this action, and Purdie's motion to vacate or alter the court's judgment was pending throughout much of the negotiation period. In addition, there was no guarantee that the court would have allowed Purdie to amend her complaint, and Class Counsel could have continued to press Purdie's claims and those of the putative class through other viable options, including the filing of additional class actions in state court in Texas and other jurisdictions. Although the parties were under no obligation to proceed, they continued settlement negotiations in an attempt to resolve this dispute. Lastly, Class Counsel informed counsel for other plaintiffs with pending litigation, as well as the court, of their ongoing efforts to settle this action. As Ms. Mack offers nothing more than pure speculation that the parties' settlement was the product of collusion, the court finds her contention unpersuasive. There is no evidence in the record that the proposed settlement was the product of fraud or collusion; therefore, the court finds that this factor weighs in favor of approving the settlement.
The second and third Reed factors also weigh in favor of approving the settlement because of the complexity, expense, and likely duration of the litigation, as well as the stage of the proceedings and the amount of discovery completed. There is no dispute that this litigation is factually and legally complex. There is also no dispute that at the time settlement was achieved, the parties had engaged in extensive discovery. Both parties had served and responded to written discovery. In addition, Plaintiffs had taken six depositions, including the depositions of two ACE store employees, the two top Goleta officials responsible for the joint payday loan program, and two officials of the Maryland Department of Financial Institutions who had personally investigated the ACE-Goleta payday lending practices. Plaintiffs had also conducted third-party discovery through the issuance of subpoenas on fourteen entities that possessed discoverable information concerning their claims. If the settlement is not approved, the parties anticipate conducting further discovery, which would include Plaintiffs taking several more depositions. Moreover, several fundamental issues in the case remain in dispute, including, which defendant was the true lender for the payday loans at issue and whether the provisions of the National Bank Act preempting state interest rate ceilings should apply in this case. Resolution of these questions through a trial and, ostensibly, an appeal, would be burdensome and costly. Further, given the age of the case and its current posture, litigation would in all likelihood last well into the future. Based on the foregoing, the court concludes that the complexity, expense, likely duration of the litigation, and the amount of discovery that remains all favor approving the settlement.
The fourth and fifth Reed factors require the court to consider the factual and legal obstacles to Plaintiffs' ability to prevail on the merits and their possible range of recovery. In determining the probability of Plaintiffs' success on the merits, the court must compare the terms of the settlement with the likely rewards the class would have received following a successful trial of the case. See Reed, 703 F.2d at 172. The court, however, is not to decide the issues or try the case to assess this factor, because, "the very purpose of the compromise is to avoid the delay and expense of such a trial." Id. (citation omitted). Plaintiffs face significant factual and legal obstacles to prevailing on the merits. One significant obstacle that Plaintiffs would have to overcome is Defendants' preemption defense under the National Bank Act, especially in light of the finding by the Office of the Comptroller of the Currency ("OCC") that the types of loans at issue were made by the bank. The OCC's finding could negate a key fact that the court would have to make in order for Plaintiffs to prevail on their RICO and state law claims. Based on the foregoing, the court finds that Plaintiffs face significant risks in the litigation, making settlement desirable.
With respect the range of recovery, if Plaintiffs were to prevail at trial, they would be entitled to an injunction against Defendants' lending practices, restitution of wrongfully collected interest, and the possible doubling of such damages under RICO or the National Bank Act. According to Class Counsel, the damages suffered by the class, which includes the amount of wrongfully collected interest, is $82 million. As ACE's net worth is only $78,000, it is unlikely that Plaintiffs would be able to recover the maximum amount of damages. The proposed settlement provides various forms of injunctive relief similar to those to which Plaintiffs would be entitled upon prevailing at trial. The monetary payments to Class Members who have repaid their loans will range from $7.50 to $45.00, depending on how much they paid to finance their loans. In addition, Class Members who have not repaid their loans will have their loans forgiven; and this amount totals approximately $50 million. While Class Members will receive considerably less in monetary damages than they would were they to prevail at trial, the court believes that this compromise is reasonable given the risks and uncertainty they would face if the case were to proceed to trial, the potential difficulty of recovering any judgment in bankruptcy proceedings, and the extent of injunctive relief and forgiveness of debt included in the proposed settlement.
Finally, the court finds that the opinions of Class Counsel, the Class Representatives, and absent Class Members weigh in favor of approving the settlement. Counsel for both Plaintiffs and Defendants concur that the settlement is fair. Further, the parties provided notice of the settlement in accordance with this court's order. Aside from the objections of Ms. Mack and Mr. Matthews, no other Class Members objected to the proposed settlement in writing or at the October 15, 2003 hearing. The court determines that this factor weighs in favor of approving the settlement.
Ms. Mack contends that notice to the class members was insufficient; however, the record demonstrates that the notices were made in accordance with this court's order. The court preliminarily approved the type, manner and method of distribution of the notices. That every member of the class may not have read or understood the notice does not mean that the notice process was unfair or unreasonable. The record demonstrates that the settlement administrator mailed notices in plain, simple language to all known members of the class; that ACE posted a form of notice prominently in all of its stores in the form of a large, clear written poster, in both English and Spanish, and made available to customers exact copies of the mailed notices; and that notice was published in a nationally distributed newspaper, USA Today. The record further reflects that over 13% of the Paid Debt Class Members had submitted claims as early as October 3, 2003, prior to the fairness hearing. Based on the record before it, the court is convinced that the notice procedures are fair, adequate and reasonable.
Although the court has not addressed each objection raised by Ms. Mack and Mr. Matthews, it has considered them, and considering all circumstances, determines that the objectors have failed to establish that the settlement is unfair, unreasonable, or inadequate. The court therefore overrules their objections.
3. Incentive Compensation to Plaintiffs
The proposed settlement provides that Defendants will pay a total amount of $16,665 from the $11 million fund in combined incentive payments to each of the named Plaintiffs for their assistance during litigation. Courts in this circuit have recognized and approved incentive awards for class representatives. See, e.g., Carrabba v. Randalls Food Markets, Inc., 191 F. Supp.2d 815, 835 (N.D. Tex. 2002) (recognizing practice of awarding incentive awards); In re Granada Partnership Sec. Litig., 805 F. Supp. 1236, 1247 (S.D. Tex. 1992) (granting request for incentive award of $5,000 to representative class action plaintiffs). There is no dispute that the named Plaintiffs actively participated in the litigation. Plaintiffs met with Class Counsel from time to time to assist in the prosecution of their cases, responded to discovery, assisted in the investigation of Defendants' payday lending practices, and evaluated various settlement proposals over the course of the negotiations. Plaintiffs' commitment undoubtedly led to the proposed settlement fund and thus substantially benefited the class. The court therefore approves the combined incentive award of $16,665 to Plaintiffs Purdie, Brown and Johnson.
For the reasons herein stated, the court determines that the proposed settlement of this class action is fair, adequate, and reasonable, and that the proposed settlement should be approved. The court next considers Plaintiffs' request for an award of their attorney's fees and expenses.
C. Motion for Attorney's Fees and Expenses
Plaintiffs seek an award of attorney's fees and expenses in the total amount of $2.1 million for the work they have performed in the prosecution and settlement of this litigation. To comply with Rule 23(e), the court must thoroughly review the attorney's fees agreed to by the parties in the proposed settlement agreement. See Strong, 137 F.3d at 849-50.
This circuit uses the "lodestar method" to calculate attorney's fees. Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir. 1992). In class action suits, where a fund is recovered and fees are awarded by the court from the fund, the Supreme Court has indicated that computing fees as a percentage of the common fund recovered is the proper approach. Blum v. Stenson, 465 U.S. 886, 900 n. 16 (1974). Although the Fifth Circuit has yet to adopt the percentage-of-recovery method in computing attorney's fees in common fund cases, Longden, 979 F.2d 1095, 1099 n. 9 (5th Cir. 1992), it seemed to imply in Strong that the lodestar approach is better when there is no common fund. Strong, 137 F.3d at 850 ("We note that several courts have advocated the use of the lodestar method in lieu of the percentage of fund method precisely in the situation where the value of the settlement is difficult to ascertain, reasoning that there is a strong presumption that the lodestar is a reasonable fee.") In this case, Class Counsel neither request a percentage of the recovery nor the lodestar; rather, they request a flat fee of $2.1 million. The court determines that regardless whether the percentage method or the lodestar method is used, the fee award requested in this case is reasonable given the excellent benefits conferred upon the class as a result of the legal services provided by Class Counsel, the complex nature of the litigation, the risks involved, the quality of work performed, and the efficient manner in which this litigation was resolved, especially when compared to the percentages customarily found in standard contingency fee arrangements or awarded in class action lawsuits.
In assessing attorney's fees, the court considers the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996); Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987). The court's Johnson analysis need not be meticulously detailed; however, it must articulate and clearly apply the Johnson criteria. Riley, 99 F.3d 757, 760 (citations omitted). The Fifth Circuit has instructed that the court should consider the twelve Johnson factors in the following framework: it should (1) ascertain the nature and extent of the services supplied by the attorney; (2) determine the value of the services according to the customary fee and the quality of the work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance in the petitioner's case. See Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990). The product of the first two steps is the "lodestar." Id. Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson. Riley, 99 F.3d at 760. The court must be careful not to "double count" a Johnson factor already considered in calculating the lodestar when it determines any necessary adjustments. Von Clark, 916 F.2d at 258 (citation omitted). The court, however, should pay "special heed" to Johnson criteria regarding the time and labor involved; the customary fee; the amount involved and the results obtained; and the experience, reputation, and ability of counsel. Id. The party seeking attorney's fees must present adequately documented time records to the court. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). In addition, Plaintiffs bear the burden of producing satisfactory evidence that the requested rate is reasonable, Von Clark, 916 F.2d at 259, which may include affidavits, declarations or evidence that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984).
The twelve factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions, (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 length of the professional relationship with the client, and (12) awards in similar cases. Cobb v. Miller, 818 F.2d 1227, 1231 n. 5 (5th Cir. 1987) (citing Johnson, 488 F.2d at 717-19).
Plaintiffs' Counsel has submitted documentation of the total hours expended and the legal rates charged in this case. According to these records, Class Counsel spent 4,877.95 attorney hours in this case, at rates ranging between $200 and $550 per hour based on their level of experience and expertise in federal class action litigation. Law clerks and paralegals spent 1,083.3 hours, at rates ranging between $75 and $125 per hour. Class Counsel has reviewed the hours submitted by each of Plaintiffs' attorneys to ensure they reflect a reasonable time expended for tasks that furthered the interests of the class members in this litigation, and that the hourly fees requested by those attorneys reflect reasonable market rates in light of the experience, qualifications, and expertise of each attorney. Class Counsel has further submitted the Declarations of Gary Peller and Marc Stanley, who are competent to present an opinion concerning the issue of attorney's fees. Based on the Declarations of Gary Peller and Marc Stanley, as well as this court's knowledge of the hourly rates charged by attorneys in the Dallas legal community with the same or comparable experience, skill and expertise as Class Counsel, the court concludes that the hourly rates submitted are within the range of rates charged for legal work of similar complexity. Based on the figures submitted by Class Counsel, the resulting lodestar is $2,048,810.
The court has considered the twelve Johnson factors and determines that an adjustment of the lodestar is not warranted, and that the fee requested is reasonable under the circumstances of this case. The first six factors militate toward a finding that the requested fee is reasonable. First, Class Counsel and its legal staff have together spent close to 6,000 hours in the prosecution and settlement of this litigation. Class Counsel has undertaken an extensive factual investigation, exhaustive legal research into a range of issues, and engaged in extensive written discovery, including discovery disputes with both Defendants and third parties, and deposed six witnesses. Class Counsel has also analyzed thousands of documents in preparing this case for trial, working with experts in the area of banking, banking law and forensic accounting. Based on the volume of work and work product, the hours spent by Class Counsel are reasonable and warranted. Second, the issues presented in this litigation are both novel and complex, and involve legal issues of federalism, banking regulation, state consumer protection interests, and lending law. Third, the litigation required considerable skill and expertise to adequately master complex facts and develop viable legal theories, as well as respond to Defendants' legal and factual defenses. Fourth, Class Counsel devoted time and expense to this litigation that could have been devoted to other matters. Fifth, the "customary fee" in a class action lawsuit is typically contingent, since it is often the case that no individual plaintiff has a large enough monetary stake in the litigation to justify charging on an hourly basis. See Ressler v. Jacobson, 149 F.R.D. 651, 654 (M.D. Fla. 1992). Although the court finds that the rates charged by several of the attorneys are at the high end of the ordinary and customary market rates charged for legal work of similar complexity, it will accept them because the requested fee amount is within the range of fees typically recovered in cases of this nature. In class action lawsuits, courts often apply a percentage of the common fund analysis and award attorney's fees in the range from twenty-five percent (25%) to thirty-three and thirty-four one-hundredths percent (33.34%). Shaw v. Toshiba Info. Sys., Inc., 91 F. Supp.2d 942, 972 (E.D. Tex. 2000). In "mega-fund" cases, courts typically award attorney's fees in the amount of fifteen percent (15%)or more of the recovery. Id. Here, the cash amount of the class settlement is $11 million, and the requested fee award is approximately 20% of the settlement fund, which is less than the percentage usually awarded in cases of this nature. It is also notable that Class Counsel will incur additional expenses and attorney's fees in the administration of the settlement; however, the total amount of attorney's fees and costs that may be recovered is limited to $2.1 million. Sixth, this litigation was undertaken on a purely contingent basis, which means that had Class Counsel recovered nothing for the class, they would have received no compensation at all. Class Counsel invested considerable time and expense in pursuing this action without compensation for more than two years, and given the substantial risks involved, the court finds that requested fee justifiable. Factors seven and eleven are not relevant in the context of this litigation. For reasons previously discussed, the remaining factors, eight, nine, ten and twelve, also weigh in favor of finding that the requested fee is reasonable.
As previously stated, the lodestar here is $2,048,810. The lodestar plus the requested expenses of $63,751.85 equals $2,112,561.80, which exceeds the requested total award amount of $2.1 million, In addition, the lodestar does not include the $125,000 that Class Counsel has agreed to pay towards attorney's fees in related cases, or the time and expenses Class Counsel will incur in the future in the administration and monitoring of the settlement. Moreover, as stated before, the requested fee is approximately 20% of the settlement fund, which is less than the amount of awards typically awarded in cases of this nature. Given the overall circumstances, the court determines that the requested award, which includes both attorney's fees and expenses, in the amount of $2.1 million is fair, just and reasonable. The court grants Plaintiffs' request for attorney's fees and expenses.
Ms. Mack's objections to Plaintiffs' request for attorney's fees are overruled.
III. Conclusion
For the reasons herein stated, Objectors Dorothy Mack's and Michael Matthew's objections are overruled; and Plaintiffs' Motion for Class Certification and Final Approval of Settlement and for an Award of Attorney's Fees and Expenses is granted. The court will issue its judgment in this case by separate document pursuant to Fed.R.Civ.P. 58.