09-3195-cv(L); 09-3766-cv(XAP)
Parker v. Time Warner Entertainment
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the federal appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
3 New York, on the 24th day of May, two thousand ten.
4
5 PRESENT:
6 JON O. NEWMAN
7 JOHN M. WALKER, JR.,
8 Circuit Judges. *
9 _________________________________________________
10
11 RICHARD LOBUR, SHARON LOBUR,
12 Objectors-Appellants-Cross-Appellees.
13
14 -v.- No. 09-3195(L)
15 No. 09-3766(XAP)
16
17 ANDREW PARKER, on behalf of himself and all others similarly situated, ERIC
18 DeBRAUWERE, on behalf of himself and all others similarly situated,
19 Plaintiffs-Appellees-Cross-Appellants,
20
21 TIME WARNER ENTERTAINMENT COMPANY, LP, TIME WARNER CABLE,
22 LYDIA TOWNSEND, ROSALIE VITRANO,
23 Defendants.
24 _________________________________________________
25
26 DANIEL W. ANDERSON, The Anderson Law Firm,
27 Tampa, Florida (A. Anderson B. Dogali, Forizs & Dogali,
*
The Honorable Gerard E. Lynch, originally a member of the panel, recused himself
from this case. The remaining two members of the panel, who are in agreement, decide
this case in accordance with Second Circuit Internal Operating Procedure (“IOP”) E(b).
1
1 P.L., Tampa, Florida, on the brief), for Objectors-
2 Appellants-Cross-Appellees.
3
4 DANIEL HUME, Kirby McInerney LLP, New York, New
5 York (George W. Sampson, Hagens Berman Sobol Shapiro
6 LLP, Seattle, Washington; Jonathan W. Cuneo and Michael
7 G. Lennett, Cuneo Gilbert & LaDuca LLP, Washington,
8 D.C.; James M. Beaulaurier, Law Office of James M.
9 Beaulaurier, Seattle, Washington, on the brief), for
10 Plaintiffs-Appellees-Cross-Appellants.
11
12 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the judgment of the district court be AFFIRMED.
14 Objectors-Appellants-Cross-Appellees Richard and Sharon Lobur appeal from a
15 final judgment by the United States District Court for the Eastern District of New York
16 (Glasser, J.), entered July 16, 2009, granting the Loburs’ request for attorneys’ fees, but
17 in an amount less than that requested, and denying an incentive award to the Loburs for
18 their role as objectors to the underlying class settlement. The Loburs argue that the
19 district court abused its discretion by 1) failing to apply the correct legal standard, as
20 stated in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), to their
21 request for attorneys’ fees; 2) failing to reasonably account for the benefits to the class
22 conferred by through their counsel’s efforts; and 3) failing to grant their request for an
23 incentive award. The Plaintiffs-Appellees-Cross-Appellants cross-appeal the district
24 court’s award of any amount of attorneys’ fees to the Loburs’ counsel. We assume the
25 parties’ familiarity with the facts and the record of the prior proceedings, which we
26 reference only to the extent necessary to explain our decision.
27 This Court “will not overturn a district court’s award of attorneys’ fees absent an
28 abuse of discretion, such as a mistake of law or a clearly erroneous factual finding.” In re
29 Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir. 2008) (internal quotation
2
1 marks omitted). A district court may calculate a reasonable attorney fee using either the
2 “lodestar” or the “percentage of the fund” method, see Goldberger, 209 F.3d at 47, 50,
3 but must be guided in its determination by the traditional criteria for awarding attorneys’
4 fees, including “‘(1) the time and labor expended by counsel; (2) the magnitude and
5 complexities of the litigation; (3) the risk of the litigation . . . ; (4) the quality of
6 representation; (5) the requested fee in relation to the settlement; and (6) public policy
7 considerations.’” Id. at 50 (quoting In re Union Carbide Corp. Consumer Prod. Bus. Sec.
8 Litig., 724 F. Supp. 160, 167-68 (S.D.N.Y. 1989) (alteration in original)).
9 The district court determined that the fee award for the Loburs’ counsel was best
10 assessed under the lodestar method. Though the district court did not mechanically
11 address each of the Goldberger factors as it had in assessing class counsel’s fee request,
12 in assessing the Loburs’ request for attorneys’ fees, the district court based its decision
13 regarding the Loburs’ counsel on the Goldberger factors that account for counsel’s time
14 and labor expended on the objections, the magnitude and complexity of the Loburs’
15 intervention in the class settlement, and the risks of participating in shaping the class
16 settlement. Based upon a review of the summary of hours billed by the Loburs’ counsel
17 and its consideration of the Goldberger factors, the district court reasonably concluded
18 that the requested fee award of $861,652, based on a lodestar amount of $195,830 with a
19 4.4 multiplier, was excessive. The district court’s decision to base its award on a reduced
20 number of hours, cutting the 418.5 hours of work claimed by the Loburs’ counsel (and,
21 hence, the lodestar) by half, was a reasonable means of tailoring the fee award so as to
22 more accurately reflect a reasonable value of the time and effort contributed by the
23 Loburs’ counsel with respect to the class settlement. Moreover, the district court’s
3
1 decision not to apply a multiplier to the reduced lodestar, thereby settling on a total of
2 $97,915 in fees awarded to the Loburs’ counsel, was not an abuse of discretion in light of
3 the district court having already accounted for counsel’s efforts and contributions to the
4 class settlement in arriving at a reasonable number of hours exerted on the objections.
5 Cf. Purdue v. Kenny A., No. 08-970, slip op. at 9 (S. Ct. Apr. 21, 2010) (“[T]here is a
6 ‘strong presumption’ that the lodestar figure is reasonable, but that presumption may be
7 overcome in those rare circumstances in which the lodestar does not adequately take into
8 account a factor that may properly be considered in determining a reasonable fee.”).
9 We review a district court’s grant or denial of incentive awards for the abuse of
10 discretion. See Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 408 (7th Cir. 2000).
11 In this case, the district court reasonably determined that the minimal effort and risk to
12 the Loburs in participating as objectors to the class settlement did not warrant an
13 incentive award.
14 Finally, though the Loburs’ objections arguably resulted in no increase in the
15 class settlement’s value, the district court reasonably found that their participation did
16 result in an improvement to the distributional fairness of the class settlement. Thus, the
17 argument advanced by class counsel on cross-appeal that the award of any attorneys’ fees
18 to the Loburs’ counsel was erroneous due to a lack of any contribution on their part is
19 without merit. As noted above, the district court assessed the Loburs’ efforts using the
20 Goldberger factors and arrived at a reasonable fee award.
21 We have carefully considered all of the parties’ other arguments and found them
22 to be without merit.
23
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1 For the foregoing reasons, the judgment of the district court is hereby affirmed.
2
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
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