In re Southern Ohio Correctional Facility

175 F.R.D. 270, 1997 U.S. Dist. LEXIS 12556, 1997 WL 523139
District Court, S.D. Ohio·Decided July 24, 1997·No. No. C-1-93-436·Published·Cited by 26 cases

Opinion

[272]*272ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Plaintiffs’ Motion for Attorneys’ Fees (doc. 285), Defendants’ Response (doc. 314), Plaintiffs’ Supplemental Memorandum in Support of Request for Incentive Awards (doc. 338), Defendants’ Memorandum in Opposition to Incentive Awards (doc. 337), and Defendants’ Motion to Supplement the Record regarding the Request for Incentive Awards (doc. 356).

BACKGROUND

The Court recently approved the Settlement 1 of this prisoner civil rights class action relating to the April, 1993 riot at the Southern Ohio Correctional Facility (“SOCF”), a maximum security prison located in Lucas-ville, Ohio. (doc. 332). Essentially, the Settlement provides for an agreement on eleven (11) issues that serve to “maintain or improve the quality of inmate life” and establishes a $4.1 million common fund, from which inmate damage claims and attorneys’ fees and expenses will be paid. This Court approved the Settlement upon a finding that it was fair, reasonable, and adequate in all respects, (doc. 332).

The issue presently before the Court concerns the portion of Class Counsel’s application for attorneys’ fees and expenses in which Class Counsel requests an award of $25,000 to each of the named Plaintiffs, Darrin Morris and Eugene Adams, as an “incentive award.”2 “Incentive awards” are allotments awarded to class representatives in class action litigation which are over and above the amount they would be entitled to as class members. In our Order approving the Settlement, we awarded Class Counsel $1,658,-613.41 for their fees and expenses, and we reserved decision on this issue.

Class Counsel has requested that the class representatives, Mr. Morris and Mr. Adams, each be awarded $25,000 for their assistance during the course of the litigation. In support of this request, Class Counsel points out that the named Plaintiffs served as leaders of the class action since the appointment of Class Counsel by keeping other inmates informed of the progress of the case, studying the developments of the case, conferring with counsel as to strategy, and enduring inmate and guard harassment.

Defendants vehemently object to the granting of incentive awards to the two named Plaintiffs. They argue that such an award would violate the Settlement agreement. They also contend that incentive awards are not recoverable as a litigation “expense” and are inappropriate in this case.

DISCUSSION

1. INCENTIVE AWARDS GENERALLY

We begin our analysis by noting that incentive awards are not uncommon in class action litigation and particularly where, as here, a common fund has been created for the benefit of the entire class. Courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Thornton v. East Texas Motor Freight, 497 F.2d 416, 420 (6th Cir.1974) (approving theory behind incentive awards in Title VII class action); Day v. NLO, Inc. (“Fernald II”) No. C-1-90-067 (doc. 580, at 4-5) (S.D.Ohio 1995) (granting incentive awards from a settlement [273]*273fund); In re: Fernald Litig. (“Fernald I”), No. C-1-85-149 (doc. 1396, at 3-4) (S.D.Ohio 1994); Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250-51 (S.D.Ohio 1991) (approving $50,000 to each of the six class representatives from a common fund); In re Dun & Bradstreet Credit Serv. Customer Litig., 130 F.R.D. 366, 373-74 (S.D.Ohio 1990) (approving incentive awards in the amounts of $35,000 and $55,000 to five class representatives from a common fund).3

Such compensation to the named plaintiffs is typically justified where the named plaintiffs expend time and effort beyond that of the other class members in assisting class counsel with the litigation, such as by actively reviewing the case and advising counsel in the prosecution of the case, or where the named plaintiffs faced the risk of retaliation or threats as a result of their participation as class representatives. See, e.g., In re Dun & Bradstreet Credit Serv. Customer Litig., 130 F.R.D. at 374 (granting incentive award in part because class representatives “spent a great deal of time and were very active in reviewing the ease and acting as advisors to Class counsel in the prosecution and settlement of this case”); Genden v. Merrill Lynch, Pierce, Fenner & Smith, 700 F.Supp. 208, 210 (S.D.N.Y.1988) (approving compensation to named plaintiff who also happened to be an attorney for his consultative services as a client during both the investigative and litigation phases of the action); Bogosian, 621 F.Supp. at 32 (approving compensation to named class representatives for their “valuable consultative assistance to plaintiffs’ counsel”); White, 822 F.Supp. at 1406-07 (approving awards to class representatives in part because they “took substantial risks to step forward” given the defendants’ history of retaliation against the class members); 1 Alba Conte, Attorney Fee Awards, § 2.25 at 94 (2d ed.1993) (stating that “[sjeveral courts have now recognized that representatives who do in fact perform these valuable services [e.g., as experts or consultants] are entitled to receive appropriate reimbursement for their efforts.”); Manual for Complex Litigation, § 30.41 at 236, n. 86 (2d ed. 1985) (“Modest compensation may sometimes be merited for extra time spent by the class representatives in meeting with class members, gathering discovery materials on behalf of the class, and similar efforts.”).

Defendants argue that incentive awards are inappropriate because the named plaintiffs in a class action are not entitled to preferential allocation from a common settlement fund. It is not always improper, however, for the class representatives to receive an award of a different amount as compared to the other class members. Thornton, 497 F.2d at 420 (recognizing propriety of rewarding class members who actively protested discrimination); In re Jackson Lock-down/MCO Cases, 107 F.R.D. 703, 710 [274]*274(E.D.Mich.1985) (approving preferential treatment to named plaintiffs over the other class members in part because they stepped forward to bring lawsuit and faced fear of retaliatory practices); Manual for Complex Litigation, § 30.41 at 236. In fact, compensation for class representatives for their services provided over and above those of a regular class member is not improper preferential treatment which would preclude a finding that a class action settlement is fair. Id., § 30.41 at 236.

II. INCENTIVE AWARDS AS REIMBURSABLE LITIGATION EXPENSES

Prior to the Fairness Hearing, Defendants filed an Emergency Motion for Expedited Disposition asking the Court to rule on their objection to the inclusion of the request for incentive awards in Class Counsel’s fee application. In our Order denying Defendants’ Motion, we stated that incentive awards can properly be characterized as a litigation expense. Defendants have challenged our reasoning.

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In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 1997 U.S. Dist. LEXIS 12556, 1997 WL 523139 (S.D. Ohio 1997).

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