In re Eastman Kodak Erisa Litigation

213 F. Supp. 3d 503, 2016 WL 5746664, 2016 U.S. Dist. LEXIS 137744
CourtDistrict Court, W.D. New York
DecidedOctober 4, 2016
DocketMASTER FILE NO. 12-CV-6051L
StatusPublished
Cited by8 cases

This text of 213 F. Supp. 3d 503 (In re Eastman Kodak Erisa Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Eastman Kodak Erisa Litigation, 213 F. Supp. 3d 503, 2016 WL 5746664, 2016 U.S. Dist. LEXIS 137744 (W.D.N.Y. 2016).

Opinion

[505]*505DECISION AND ORDER: ATTORNEY FEE REQUEST

DAVID G. LARIMER, United States District Judge

Plaintiffs brought this class action (consolidated from several separately-filed eases) against Eastman Kodak and other defendants alleging violations of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Plaintiffs generally allege that the defendants, fiduciaries of the Eastman Kodak Employees’ Savings and Investment Plan (the “Plan”), breached their ERISA-mandated duties through imprudent management, oversight and administration of the Plan.

The operative complaint—an Amended Complaint reflecting the consolidation of seven separately-filed actions—was filed September 14, 2012 (Dkt. #48). Defendants filed motions to dismiss the complaint on October 29, 2012, which were thoroughly briefed and argued. The Court denied those motions on December 17, 2014 (Dkt. #75), and the parties com[506]*506menced discovery in or about February 2015, which included exchanges of interrogatories and requests for admissions, some exchanges of documents, and motions to compel. In December 2015, the parties agreed to formal mediation to attempt to resolve the matter, and after just one day of mediation which took place in February 24, 2016, the parties reached an agreement to settle the case in its entirety. On April 22, 2016, the parties executed a Settlement Agreement memorializing its terms. The parties now move for approval of the settlement (Dkt. #125), which the Court has granted by a separate order, and for an award of attorney fees for plaintiffs’ counsel, representing 30% of the common fund, plus costs, expenses, and class representative awards. (Dkt. #126).

For the reasons set forth below, 'the Court grants plaintiffs’ counsel a reduced award of attorneys’ fees of 25% of the common fund, for a total of $2,425,000.00, plus the requested costs and expenses (which the Court finds are reasonable) in the amount of $119,100.88 and class representative awards of $5,000.00 for each of the class representatives.

DISCUSSION

ERISA Section 502(g) provides that the Court in its discretion may allow “reasonable attorney’s fees and costs ... to either party.” 29 U.S.C. § 1132(g)(1). Where, as here, a party has achieved some degree of success on the merits, the Court may conclude that an award of attorneys’ fees is appropriate. See Donachie v. Liberty Life Assurance Co. of Boston, 745 F.3d 41, 46 (2d Cir.2014). Given the measure and speed of plaintiffs success in this matter and the efforts expended by counsel toward that end, the Court finds that an award of attorneys’ fees is appropriate here, and turns to the question of whether the amount requested—2.91 million dollars, representing approximately 30% of the $9.7 million common fund—is reasonable.

While there is no precise rule or formula for making that determination, courts in the Second Circuit generally rely on a standard of “presumptive reasonableness” in assessing fees. See generally Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008). The presumptively reasonable fee “boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir.2009) (internal quotation marks omitted).

In determining a reasonable fee, the Court is free to rely on a percentage of recovery determination, and/or to employ the lodestar method (multiplying the attorneys’ billable hours by their reasonable billable rate). However, the recent “trend in the Second Circuit has been to apply the percentage-of-recovery method and loosely use the lodestar method as a baseline or cross check.” Mendes-Garcia v. 77 Deerhurst Corp., 2014 U.S. Dist. LEXIS 188290 at *15 (S.D.N.Y.2014) (internal quotation marks omitted).,

Factors relevant to a determination of the reasonable fee under both the lodestar and percentage of recovery methods include: (1) the time and labor expended by counsel; (2) the size and complexity of the matter; (3) the risks involved in the litigation; (4) the quality of representation; (5) the relationship between the requested fee and the settlement; and (6) considerations of public policy. See e.g. Simmons, 575 F.3d 170 at 184; Goldberger v. Integrated Res., Inc. 209 F.3d 43, 47 (2d Cir. 2000). Insofar as counsel’s hourly rate is concerned, case law “contemplates a case-[507]*507specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel,” and may “include judicial notice of the rates awarded in prior eases and the court’s own familiarity with the rates prevailing in the district.” Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 59 (2d Cir.2012). Determination of the presumptively reasonable rate also generally involves application of the “forum rule,” which provides that courts “should generally use the [current] hourly rates employed in the district in which the reviewing court sits.” Simmons, 575 F.3d 170 at 174.

The fee applicant bears the burden of establishing the appropriate fee, and in considering evidence submitted in support of the fee, the Court is obligated to exclude expenditures of time and manpower that are not “reasonable,” such as efforts that proved excessive, redundant, unnecessary or unsuccessful. Severstal Wheeling, Inc. v. WPN Corp., 2016 WL 1611501, at *3, 2016 U.S. Dist. LEXIS 53563 at *10-*11 (S.D.N.Y.2016).

ERISA class actions are complex by nature. There are risks involved for all. I also recognize that class counsel in this case have demonstrated expertise in this type of litigation. That experience may well have contributed to the relative promptness in concluding the settlement.

Nevertheless, the Court concludes that the requested 30% fee request is excessive in light of the circumstances of this case. The litigation activities were relatively modest. That is a factor. There are now a large number of attorneys seeking compensation. Six large firms, contributing at least thirty attorneys and nine paralegals, seek full compensation. The hours the attorneys claim to have spent, at very high hourly billing rates, exceed what the Court finds to be reasonable.

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213 F. Supp. 3d 503, 2016 WL 5746664, 2016 U.S. Dist. LEXIS 137744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eastman-kodak-erisa-litigation-nywd-2016.