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In re Pool Products Distribution Market Antitrust Litigation

United States District Court, E.D. Louisiana

February 26, 2015

IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION, SECTION

FINDINGS AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

By order entered February 3, 2015, Record Doc. No. 568, Chief Judge Vance referred the following to me for determination: (1) the Ex Parte Motion of Special Master, Richard C. Stanley, for Payment of Fees and Expenses Incurred by the Special Master, Record Doc. No. 490, and (2) the Ex Parte Motion of the Indirect Purchaser Plaintiffs' Settlement Class Counsel for Approval of Payment of Notice Administration Expenses, Record Doc. No. 567. Written opposition, if any, to these motions was due to be filed no later than February 13, 2015. Record Doc. No. 570. No memorandum in opposition to either motion has been timely submitted.

Accordingly, these motions are deemed to be unopposed, and, further, it appearing to the court that the motions have merit for the following reasons, IT IS RECOMMENDED that the motions be GRANTED.

These MDL cases include antitrust class actions brought under federal law. Accordingly, federal law applies to determine any awards of attorney's fees and expenses.

A. The Special Master's Motion for Payment of Fees and Expenses

By order dated August 22, 2014, Chief Judge Vance appointed Stanley as a Special Master with respect to the Indirect Purchaser Plaintiffs' proposed settlement with Hayward Industries, Inc. ("Hayward"). The order designated the Special Master's duties, authorized him to engage appropriate support personnel and approved compensation for him at the hourly rate of $275, which he should bill on a monthly basis against the settlement escrow account or, in the event preliminary approval of the Indirect Purchaser Plaintiffs' settlement with Hayward was not granted, to be paid by counsel for the Indirect Purchaser Plaintiffs. Order, Record Doc. No. 467.

In his motion, which was filed on October 21, 2014, Stanley seeks $6, 886.25 in attorney's fees and $4.40 in copying costs, for a total of $6, 890.65 in fees and expenses incurred between August 20 and September 30, 2014. The motion tracks the language of Chief Judge Vance's order and seeks payment either from the settlement funds or, in the event preliminary approval of the Indirect Purchaser Plaintiffs' settlement with Hayward was not granted, from counsel for the Indirect Purchaser Plaintiffs. However, on December 31, 2014, Chief Judge Vance granted the parties' Joint Motion for Preliminary Approval of the Hayward and Zodiac[1] Settlements and Certification of Settlement Class. Record Doc. Nos. 551, 552. Thus, the award that Stanley seeks should be paid from the funds held in escrow for the Indirect Purchaser Plaintiffs' settlement with Hayward.

Stanley states in his motion that he discounted his total fees "by 50% in order to offset time spent becoming familiar with this matter and this assignment, and further in consideration of the limitations on the amount available to the settlement class for distribution." Record Doc. No. 490 at p. 1. He attached to his motion what appears to be a contemporaneous invoice for his work and that of Kathryn W. Munson and Helena R. Shear. Stanley Exh. 1, Record Doc. No. 490-1, invoice dated October 1, 2014 from Stanley, Reuter, Ross, Thornton & Alford, LLC. The motion does not identify the titles or qualifications of Munson and Shear. The court assumes, based on their rates of $75 per hour and the description of the work for which they billed, that they were a law clerk[2] and a paralegal, respectively, whose fees for legal work are recoverable. See Missouri v. Jenkins , 491 U.S. 274, 288 (1989) (law clerks and paralegals); Thompson v. Connick , 553 F.3d 836, 868 (5th Cir. 2008), rev'd on other grounds, 131 S.Ct. 1350 (2011) (paralegals); Vela v. City of Houston , 276 F.3d 659, 681 (5th Cir. 2001) (same); Volk v. Gonzalez , 262 F.3d 528, 535 (5th Cir. 2001) ("legal assistant"); Coleman v. Houston Indep. Sch. Dist. , 202 F.3d 264, 1999 WL 1131554, at *6-7, *9 (5th Cir. Nov. 8, 1999) (law clerks).

The lodestar method is routinely used to determine attorney's fee awards in federal civil actions and applies in this case brought under a federal statute. Under the lodestar method,

[t]he determination of a fees award is a two-step process. First the court calculates the "lodestar[, ]" which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The court should exclude all time that is excessive, duplicative, or inadequately documented. Once the lodestar amount is calculated, the court can adjust it based on the twelve factors set forth in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717-19 (5th Cir. 1974)[, abrogated on other grounds by Blanchard v. Bergeron , 489 U.S. 87 (1989)].

Jimenez v. Wood Cnty. , 621 F.3d 372, 379-80 (5th Cir. 2010) (citations omitted).

"The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar award already took that factor into account. Such reconsideration is impermissible double-counting." Heidtman v. Cnty. of El Paso , 171 F.3d 1038, 1043 (5th Cir. 1999) (citing City of Burlington v. Dague , 505 U.S. 557, 562 (1992); Shipes v. Trinity Indus. , 987 F.2d 311, 319-20 (5th Cir. 1993)); accord Perdue v. Kenny A. , 130 S.Ct. 1662, 1669 (2010).

The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the ...

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