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Padberg v. Dish Network L.L.C

United States District Court, W.D. Missouri, Central Division

April 30, 2018

MIKE PADBERG, individually and on behalf of all others similarly situated, Plaintiff,
v.
DISH NETWORK L.L.C, a Colorado limited liability corporation, Defendant.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Pending before the Court is Plaintiff's motion for award of attorneys' fees, expenses and class representative incentive award, Doc. 495. In light of the motion, the Court reopens the case. For the reasons set forth in Plaintiff's motion, and based upon the findings set forth below, Plaintiff's motion is granted.

         1. On January 23, 2018, the Court entered its Order granting preliminary approval of the Parties' Settlement Agreement in this cause. Doc. 488. The Settlement Agreement was the product of extensive negotiations and multiple settlement conferences with Magistrate Judge John T. Maughmer following nearly seven (7) years of adversarial litigation involving, inter alia, multiple dispositive motions, amended pleadings, extensive fact and expert discovery, certification, Daubert hearings, a jury trial, extensive post-trial motions, and an interlocutory appeal to the Eighth Circuit in a related case, Stokes v. DISH Network L.L.C., No. 2:14-cv-04338-NKL (“Stokes”), which has application to this Action, and has resulted in the filing of Plaintiff's Second Amended Class Action Complaint (“SAC”).

         2. The Settlement Agreement provides substantial injunctive relief requiring DISH to modify its Digital Home Advantage Plan Agreement (the “DHA Plan Agreement”), and any successor agreements, for a period of two years, to prominently disclose, above the customer's signature, the rights of DISH to change its programming during the term of the DHAP. The Settlement Agreement also requires that this disclosure be initialed by the customer. Doc. 486-1, § 2.1.

         3. The Settlement Agreement also provides monetary relief for Class Members, including: (A) monetary relief and credits for Class Members who are current and former AT120 Customers, paid from a $2, 700, 000 Settlement Fund to be established by DISH, Doc. 486, §§ 2.4, 6.2; and (B) credits for Class Members who are current and former non-AT120 Customers, to be provided by DISH separate from the Settlement Fund. Doc. 486-1, § 2.5.

         4. The Settlement Agreement provides that Class Counsel shall submit to this Court an application for attorneys' fees, costs and expenses (“Application”), in an amount equal to the “Settlement Fund Remainder, ” which is the money remaining in the Settlement Fund after the Claims Administrator has first tendered: (A) monetary relief and credits to AT120 Class Members pursuant to §§ 2.4 and 6.2; (B) payment of any service award to plaintiff Mike Padberg, pursuant to § 2.9; (C) reimbursement to Dish for its costs associated with emailing Class Notice to non-AT120 Class Members, not to exceed $15, 000, pursuant to §§ 3.1(a) and 6.1; (D) the Settlement Administrator has been reimbursed for certain costs, pursuant to §§ 3.1(b), 3.1(c), 3.2 and 3.4.

         5. On March 9, 2018, Plaintiff filed his Application and posted a copy of the Application to the Settlement Website.[1]

         6. Defendant DISH Network L.L.C. does not oppose Plaintiff's Application.

         7. The Court-ordered deadline for Class Member objections is April 23, 2018. No. Class Member has objected to Plaintiff's Application.

         8. Under the terms of this proposed settlement, the Court finds that the proposed fee structure is permissible, appropriate, and does not create a conflict of interest because the Settlement makes Class Counsel's pecuniary interests subordinate to those of the class members. Class Counsel have no ability to affect or alter class member claims and no right to review and/or approve class member claims, which is being administered by the Settlement Administrator, Dahl Administration. In sum, the Court does not find the structure of the proposed attorney fee to be unreasonable or unfair to Class Members.

         9. The Court also finds that an attorney fee award is appropriate pursuant to Federal Rule of Civil Procedure 23(h) because a fee is specifically allowed by the parties' settlement agreement. The lodestar approach is the appropriate metric to measure the reasonableness of the attorney fee award in this case. Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 244-245 (8th Cir. 1996).

         10. In determining the reasonable number of hours expended by Class Counsel, the Court is satisfied with relying on summaries and affidavits of counsel. In re Genetically Modified Rice Litig., 764 F.3d 864, 871 (8th Cir. 2014) (citing In re Diet Drugs, 582 F.3d 524, 539 (3d Cir. 2009)); Pollard v. Remington Arms Co., 320 F.R.D. 198 (W.D. Mo. Mar. 14, 2017). The Court notes that this case has been heavily litigated since early 2011. As noted in Plaintiff's Application, this nationwide class case was filed more than seven years ago and has required:

• Early and extensive dispositive motion briefing and ...

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