United States District Court, W.D. Missouri, Western Division
JAMES KOMOROSKI and GALEN VERHULST, individually and on behalf of those similarly situated, Plaintiffs,
UTILITY SERVICE PARTNERS PRIVATE LABEL, INC. d/b/a SERVICE LINE WARRANTIES OF AMERICA, Defendant.
ORDER GRANTING CLASS REPRESENTATIVE AWARDS AND
ORDERING ADDITIONAL INFORMATION CONCERNING ATTORNEYS'
KAYS, CHIEF JUDGE.
case is a consumer class action. Plaintiffs James Komoroski
and Galen Verhulst (collectively, “Plaintiffs”)
purchased utility warranties from Defendant Utility Service
Partners Private Label, Inc., doing business as Service Line
Warranties of America (“SLWA”), which would
defray the cost to repair and replace the water service line
running into their home. Plaintiffs allege SLWA denied
warranty coverage for legitimate repair claims.
Court granted final approval to the parties' settlement.
Now before the Court is Plaintiffs' Motion for Award of
Attorneys' Fees, Expenses and Class Representative Awards
(Doc. 55). The motion seeks $3, 500 in incentive payments to
the class representatives, and an award of $83, 000 to
Plaintiffs' counsel for legal fees and expenses.
motion is GRANTED IN PART. The Court approves the payments to
the class representatives and orders Plaintiffs' counsel
to provide additional information concerning fees and
expenses. While at first glance the requested fees certainly
appear reasonable, the Court needs the additional information
to conduct a meaningful lodestar analysis.
The Court approves the class representative
Court approves payments of $3, 500 to class representatives
James Komoroski and Galen Verhulst for their service in this
case. Both men made important contributions to this case
which benefitted the class. Although Mr. Verhulst invested
less time, he was integral to the damages subclass. Also,
these payments do not reduce the amount or quality of relief
available to the class, and the amounts are within the range
courts routinely award to class representatives.
See, e.g., In re U.S. Bancorp
Litig., 291 F.3d 1035, 1038 (8th Cir. 2002) (approving
$2, 000 award to five class representatives).
The Court needs additional information to evaluate the
attorneys' fees request.
counsel suggest that a lodestar analysis is the appropriate
method of determining the reasonableness of their fee
request, and the Court agrees. A lodestar calculation is the
product of the reasonable time spent on a matter times a
reasonable rate. City of Burlington v. Dague, 505
U.S. 557, 559 (1992); Dindinger v. Allsteel, Inc.,
853 F.3d 414, 429 (8th Cir. 2017). To make this
determination, a court should know: approximately how much
time was spent on a particular task; who performed that task;
that person's education, skill, and experience (i.e.,
partner, associate, or paralegal); that person's proposed
billing rate; and the billing rate for similar work in the
community where the case was litigated. See Mary Kay
Kane, Federal Practice and Procedure § 2676.2 (3d ed.
April 2017) (listing some of the factors a court may
consider). A list of expenses is also helpful in determining
the reasonableness of the fee request, because in a case
taken on a contingency fee basis, expenses can quantify the
amount of risk counsel have undertaken in the representation.
See Clark v. General Motors, LLC, 161 F.Supp.3d 752,
762 (W.D. Mo. 2015) (noting investing more money in a
contingency fee case exposes counsel to more risk, and so
justifies a higher hourly rate). Expenses can also be an
indirect indicator of how much work has been performed on a
case. For example, attorneys actively engaged in discovery
typically incur deposition and photocopy expenses. See
Id. at 763-64 (noting expenses of less than $5, 000 in
an automotive crashworthiness products-liability case
suggested the attorneys had not spent a great amount of time
on the case).
counsel have provided the Court with a list of cases in which
area courts have approved awards with higher hourly rates
than those apparently sought here,  but only summaries of their
work performed in this case. Counsel report that the total
amount of paralegal and attorney time Horn Aylward &
Bandy, LLC, invested in this case was 219 hours, that the
value of this time was $73, 995, and that their expenses were
included in these fees. They also report that Mr. Norman, of
Norman & Graves, LLC, worked 80.3 hours on the case at a
rate of $400 an hour, and that he was not seeking
reimbursement for any expenses. Counsel have offered,
however, to provide more detailed time records upon request.
Mot. at 8 n.9.
suggest that “when a defendant agrees to pay fees and
costs separately from the benefit for a class, the court
may approve the petition [for attorneys' fees]
without examining counsel's contemporaneous time records,
conducting an intensive inquiry, or consulting a special
master.” Mot. at 8 (emphasis added). Counsel cite a
recent Eighth Circuit decision, In re Genetically
Modified Rice Litigation, 764 F.3d 864, 869 (8th Cir.
2014), for support.
time of the final fairness hearing the Court believed it had
sufficient information to conduct a lodestar analysis and
approve the attorneys' fee request. Upon closer
examination, however, the Court finds the existing record is
inadequate to conduct a lodestar analysis for three reasons.
First, the cited case does not support counsel's
position. In Genetically Modified Rice Litigation
the district court did not simply rely on a summary of time
records and affidavits; it appointed a special master to
review the attorneys' fee request. Rice Litig.,
764 F.3d at 872. This special master then scrutinized the
request, inviting and considering the objections of other
interested parties, which the district court subsequently
addressed. Id. at 871-72. Second, this case is
dramatically different than Genetically Modified Rice
Litigation. That was a complex multidistrict case
involving so many lawyers that the district court could not
meaningfully evaluate their billing records, so the court had
little option but to rely on summaries and affidavits. Also,
there were adverse parties present who were more than willing
to review the records and object to any excesses, so there
was little need for the court to review these bills. By
comparison, the present case is relatively small; the Court
can easily review more detailed records; and, due to the
clear-sailing provision in the settlement agreement, there is
no adverse party here that can serve as the Court's proxy
in reviewing these records. Third, just because a district
court may, in a pinch, approve a request for attorneys'
fees based on a summary of billing records, does not mean it
is a good idea. Reviewing more detailed information will give
the Court a better understanding of the work performed, and
so result in a better decision. It might also give the public
more confidence in the fairness of the court's decision
making, which will hopefully dispel some of the cynicism
surrounding attorneys' fees in class action cases.
the Court directs Plaintiffs' counsel to file: (1)
documentation of the time each individual attorney or staff
member spent on this case (e.g., “6 hours spent
drafting the complaint, ” “0.2 hours organizing
discovery, ” etc.), along with that individual's
hourly billing rate; (2) a detailed list of the expenses
incurred; and (3) the attorneys' fee
agreements. Counsel do not need to supply individual
billing records, although they may do so if that is more
convenient. The Court sees no reason why these records should
be filed under seal, ...