United States District Court, N.D. Mississippi, Oxford Division
ROBERT K. HILL, et al. PLAINTIFFS
HILL BROTHERS CONSTRUCTION COMPANY, INC., et al. DEFENDANTS
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
matter arises on Plaintiffs' Motion for Attorneys'
Fees, Expenses and Incentive Payments to Class
Representatives . Parties to this action reached a
settlement on March 23, 2017, which the Court approved after
ensuring party compliance with Federal Rule of Civil
Procedure 23 and the Class Action Fairness Act. After
substantial briefing on Counsels' request for an award of
fees, the Court held a Fairness Hearing held on August 15,
2017 regarding final approval of the settlement, which
included extensive oral argument on the issue of the fee
award. The Court has carefully reviewed the record relating
to the fee award issue, and finds as follows.
exception to the American Rule that parties to a lawsuit
generally pay their own expenses no matter which prevails-is
the creation of a common fund for the benefit of a plaintiff
class from which the court can award plaintiffs'
attorneys' fees. Alyeska Pipeline Serv. Co. v.
Wilderness Soc'y, 421 U.S. 240, 247-67, 95 S.Ct.
1612, 44 L.Ed.2d 141 (1975). Under the common fund approach,
the fee is taken from the common fund, diminishing the amount
ultimately to be distributed to the plaintiff class members,
i.e., “the plaintiff class pays its attorneys by
sharing its recovery with them.” See, e.g., Skelton
v. General Motors Corp., 860 F.2d 250, 251- 53 (7th Cir.
purpose of the “common fund doctrine, ” or
“equitable fund doctrine, ” is “to avoid
the unjust enrichment of those who benefit from the fund . .
. who otherwise would bear none of the litigation
costs.” Report of the Third Circuit Task Force:
Court Awarded Attorney Fees,  108 F.R.D. 237, 250 (1986)
(“based on the equitable notion that those who have
benefited from the litigation should share its
costs.”). See also Trustees v. Greenough, 105
U.S. 527, 26 L.Ed. 1157 (1881) (in accord with traditional
practice in courts of equity, a litigant or an attorney who
recovers a common fund for the benefit of persons other than
himself or his client is entitled to a reasonable
attorney's fee from the fund as a whole); Boeing Co.
v. Van Gemert, 444 U.S. 472, 478-79, 100 S.Ct. 745, 62
L.Ed.2d 676 (1980) (same); Skelton, 860 F.2d at 252
(the common fund doctrine is based on the idea that not one
plaintiff, but all “those who have benefited from
litigation should share its costs”).
certified class action, the court may award reasonable
attorney's fees and nontaxable costs that are authorized
by law or by the parties' agreement. Federal Rule of
Civil Procedure 23(e)(2) requires that the district court,
when asked to approve a proposed settlement that would bind
class members, to hold a hearing and determine whether the
settlement “is fair, reasonable and adequate.” As
part of its duty to independently review and approve class
action settlement agreements under Federal Rule of Civil
Procedure, the district court “must assess the
reasonableness of the attorneys' fees” and ensure
that they are “divided up fairly among plaintiffs'
counsel.” Strong v. BellSouth Telecommunications,
Inc., 137 F.3d 844, 849 (5th Cir. 1998); In re High
Sulfur Content Gasoline Products Liability Litigation,
517 F.3d 220, 227-28 (5th Cir. 2008).
traditional methods employed by courts for determining an
attorneys' fees award in common fund class action cases
are (1) the percentage of the settlement fund (or contingent
fee) method and/or (2) the lodestar method (multiplying the
number of hours reasonably expended by a reasonable hourly
rate and then analyzing whether an enhancement or reduction
is required based on the factors set out in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974)). Strong, 137 F.3d at 850; Von Clark
v. Butler, 916 F.2d 255, 258 (5th Cir. 1990). The United
States Supreme Court has held that the application of the
percentage method is proper for determination of a reasonable
fee award in common fund cases. Blum v. Stenson, 465
U.S. 886, 900 n.16, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
Furthermore, in Union Asset Mgmt. Holding A.G. v. Dell,
Inc., 669 F.3d 632 (5th Cir. 2012), the Fifth Circuit
“endorse[d] the district courts'. . . use of the
percentage method” when calculating attorneys' fees
in common fund class action cases, condoning district
courts' practice of blending the
Johnson reasonableness factors to ensure
fairness. Id. at 643.
that many courts in this Circuit use this method when
calculating attorneys' fees in common fund class action
cases, Class Counsel requests that this Court award 33% of
the common fund. See Union Asset Mgmt. Holding A.G.,
669 F.3d at 643; see also Bethea v. Sprint Commc'ns
Co., 2013 WL 228094, *3 (S.D.Miss. Jan. 18, 2013)
(“adopt[ing] the percentage-of-the-fund approach”
to calculate attorneys' fees in a common fund class
action case). This court has substantial discretion in
determining the appropriate fee percentage. However, awards
commonly fall between a lower end of 20% and an upper end of
50%. In re Catfish Antitrust Litig., 939 F.Supp.
493, 503 (N.D. Miss. 1996). In the interest of ensuring
fairness, the Court cross checks this award with the
Johnson factors as follows.
Fifth Circuit has explained that of the Johnson
factors, the court should “give special heed to the
time and labor involved, the customary fee, the amount
involved and the result obtained, and the experience
reputation and ability of counsel.” Migis v. Pearle
Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998)
(citing Von Clark, 916 F.2d at 258 (5th Cir. 1990)).
Prosecuting and settling the claims in the case at bar
demanded considerable time, skill and labor. Class Counsel
expended almost 2, 000 documented hours in this case and
vigorously prosecuted this matter for over three years.
Counsel worked with experts, researched complex ERISA issues,
reviewed extensive discovery, responded to and drafted
various motions, and even drafted and issued class notice in
an interest to compel efficiency and to control costs.
Furthermore, the complexity of the issues in this case
require a high degree of legal skill, as ERISA is a niche
practice. Similarly, in establishing class certification, the
commonality and typicality requirements remain ever
challenging, and seeking class certification in this matter
was and would continue to be challenging based on the
criteria set forth in Federal Rule of Civil Procedure 23(a).
Class Counsel attests that litigation of this matter required
such dedication of time and effort that it was precluded from
accepting other cases. As to the customary fee and whether
the fee is fixed or contingent, the Court notes that the fee
requested falls within the customary norm, which is between
20-50%. Though the Court does not enhance the lodestar based
on the fact that the fee was contingent, it notes that
Plaintiffs were on notice of the customary fees based on
their contingency agreement with Class Counsel. Public policy
concerns such as ensuring the continued availability of
experienced and capable counsel to represent classes of
injured plaintiffs holding small individual claims-support
the requested fee. It was uncontroverted that the time spent
on the action was time that could not be spent on other
matters, and thus this factor supports the requested fee, as
United States Supreme Court and the Fifth Circuit have
consistently held that the eighth factor, the amount involved
and the results obtained, is “the most critical factor
in determining the reasonableness of a fee award.”
Farrar v. Hobby, 506 U.S. 103, 114, 121 L.Ed.2d 494,
113 S.Ct. 566 (1992). Though the Court dismissed
Plaintiffs' first two claims, Class Counsel's efforts
in this litigation and mediation resulted in the Class
Settlement Agreement providing a substantial settlement fund
of $850, 000.00. Therefore, the results obtained indicate
that the requested fee is reasonable.
the ninth through twelfth factors, according to Class
Counsel's declarations, each attorney has substantial
experience in prosecuting class actions and the Court notes
that each attorney maintains an excellent reputation
consistent with their skill and ability. Class Counsel
describes its longstanding relationship with Plaintiffs as a
neutral factor, but the length of the relationship in this
matter is extensive. Though this case would not be described
as undesirable, this matter has been pending before the Court
for over three years. Finally, district courts within the
Fifth Circuit typically award class counsel one-third of the
common fund as an attorney fee. See Jenkins v. Trustmark
Nat'l Bank, 300 F.R.D. 291, 307 (S.D.Miss.
2014)(where the Court awarded 33% of a $4, 000, 000.00 fund
as attorneys' fees); In re Shell Oil Refinery,
155 F.R.D. 552, 575 (E.D. La. 1993) (awarding 1/3 in fees
from a settlement fund of $170, 000, 000); Kleinman v.
Harris, Civil Action No. 3:89-CV-1869-X (N.D. Tex. 1993)
(collecting cases and approving fee of approximately
one-third of benefit achieved of $1, 170, 000). Thus, the
final factor weighs in Class Counsel's favor as well.
Therefore, the Court similarly finds Class Counsel's
request for one-third of the attorneys' fees to be
Court has considered Settlement Class Counsel's
application for attorneys' fees and is satisfied that the
Johnson factors weigh in favor of awarding the
requested amount. Johnson, 488 F.2d at 718. The
Court awards Settlement Class Counsel the sum of $283, 333.33
as an award of attorneys' fees to be paid from the
Settlement Amount thirty (30) days after the “Effective
Date, ” as defined by the Settlement Agreement (within
thirty-five (35) days of final judgment), and finds this
amount of fees is fair and reasonable. The Defendants are