Case 3:15-cv RBL Document 23 Filed 05/19/15 Page 1 of 17

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1 Case :-cv-00-rbl Document Filed 0// Page of THE HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ANNIE McCULLUMN, NANCY RAMEY and TAMI ROMERO, on behalf of themselves and all others similarly situated, vs. VANCOUVER HOUSING AUTHORITY, Plaintiffs, Defendant. CLASS ACTION No. :-cv-00-rbl PLAINTIFFS MOTION FOR ATTORNEYS FEES, COSTS, AND INCENTIVE PAYMENTS NOTE ON MOTION CALENDAR: JULY, :0 PM ORAL ARGUMENT REQUESTED PLAINTIFFS MOTION FOR ATTORNEYS FEES, COSTS AND INCENTIVE PAYMENTS [Case No. :-cv-00-rbl]

2 Case :-cv-00-rbl Document Filed 0// Page of TABLE OF CONTENTS I. INTRODUCTION... II. BACKGROUND AND EVIDENCE RELIED UPON... III. ARGUMENT... A. The Court Should Grant Plaintiffs Request for Attorneys Fees and Costs..... Plaintiffs are entitled to an award of attorneys fees and costs..... Plaintiffs request for attorneys fees and costs is reasonable.... a) The fees requested are reasonable under a lodestar analysis.... b) A percentage-of-recovery analysis confirms the reasonableness of the fee request.... c) There is no evidence the fees sought are disproportionate or the result of collusion.... B. The Court Should Approve the Proposed Incentive Payments..... Courts routinely approve incentive payments.... Incentive payments are appropriate in this case..... The requested incentive payments are fair and proportional..... The Class Representatives did not enter into incentive agreements nor did the Settlement Agreement condition incentive payments on their support of the settlement... IV. CONCLUSION... COSTS, AND INCENTIVE PAYMENTS - i [Case No. :-cv-00]

3 Case :-cv-00-rbl Document Filed 0// Page of Cases TABLE OF AUTHORITIES Arthur v. Sallie Mae, Inc., WL 0 (W.D. Wash. Sept., )... Fischer v. SJB-P.D. Inc., F.d (th Cir. 00)... Grays Harbor Adventist Christian School v. Carrier Corp., 0 WL 0 (W.D. Wash. April, 0)... Hanlon v. Chrysler Corp., 0 F.d (th Cir. )... Hensley v. Eckerhart, U.S. ()... Hughes v. Microsoft Corporation, 0 WL 0 (W.D. Wash. March, 0)... In re Bluetooth Headset Prods. Liab. Litig., F.d (th Cir. )...,,, In re Cendant Corp., Derivative Action Litigation, F. Supp. d (D. N.J. 0)... In re Coordinated Pretrial Proceedings, F.d 0 (th Cir. )... In re Presidential Life Securities, F. Supp. (S.D.N.Y. )... Laguna v. Coverall North America, Inc., F.d (th Cir. ), vacated as moot on other grounds F.d 0 ( th Cir. )... Morales v. City of San Rafael, F.d (th Cir. )... Pelletz v. Weyerhaeuser Co., F. Supp. d (W.D. Wash. 0)... COSTS, AND INCENTIVE PAYMENTS - ii [Case No. :-cv-00]

4 Case :-cv-00-rbl Document Filed 0// Page of Radcliffe v. Experian Information Solutions Inc., F.d (th Cir. )... Richard S. v. Dep't of Developmental Servs. of Cal., F.d 0 (th Cir. 0)... Rodriguez v. West Publishing Corp., F.d (th Cir. 0)..., Staton v. Boeing Co., F.d (th Cir. 0)... Statutes U.S.C.... U.S.C. (b)... Rules and Regulations Fed. R. Civ. P. (h)..., Fed. R. Civ. P. (d)... Other Authorities William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions : (th ed.)... Manual for Complex Litigation,.... COSTS, AND INCENTIVE PAYMENTS - iii [Case No. :-cv-00]

5 Case :-cv-00-rbl Document Filed 0// Page of I. INTRODUCTION The Settlement that the Court has preliminarily approved represents almost five years of legal work involving informal discovery, legal research, data analysis, mediation, and extensive arm s length negotiations. As provided for in Section. of the Settlement Agreement, Plaintiffs are filing this motion to recover a modest portion of the attorneys fees that were expended in settling this dispute. In this request, Plaintiffs seek to balance the competing interests and mission of the Vancouver Housing Authority ( VHA ) and. On the one hand, Plaintiffs are profoundly cognizant of VHA s mission to provide affordable housing to those most at risk of homelessness in Clark County. On the other hand, Plaintiffs recognize that an award of attorneys fees and costs will allow Columbia Legal Services to continue its core mission which traces back almost 0 years of providing all forms of legal representation to low income people throughout Washington State. The parties agreement that Plaintiffs may recover up to $0,000 in reasonable attorneys fees, costs, and incentive payments represents a thoughtful balancing of these competing interests. Pursuant to Federal Rule of Civil Procedure (h) (hereafter Rule (h) ), Plaintiffs thus respectfully request that the Court approve an award of $,000 in attorneys fees and costs to Columbia Legal Services and modest incentive payments for each of the three Class Representatives in the amounts of $,000 for Annie McCullumn, $,00 for Nancy Ramey, and $,00 for Tami Romero. This small compensation recognizes the considerable time and effort the named plaintiffs have spent working with their attorneys to reach a reasonable resolution of their claims with VHA. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

6 Case :-cv-00-rbl Document Filed 0// Page of II. BACKGROUND AND EVIDENCE RELIED UPON Plaintiffs do not repeat the factual and procedural background underlying this request to the extent that they are set forth in Plaintiffs Unopposed Motion for Preliminary Approval of Class Action Settlement (Dkt. #). The Class Representatives, Annie McCullumn, Nancy Ramey and Tami Romero, and their counsel at, Gregory D. Provenzano, Merf Ehman, and Gavin Thornton, have all filed declarations in support of the current motion. Attorneys and paralegal staff from Plaintiffs counsel Perkins Coie LLP spent a significant number of hours on this matter in analyzing data provided by VHA, legal research, preparing for and participating in the mediation, and working with the Class Representatives. In an attempt to balance the competing interests of supporting VHA s mission while seeking some minimal recompense for efforts on their behalf, Plaintiffs are not seeking compensation for Perkins Coie s work on this matter. III. ARGUMENT A. The Court Should Grant Plaintiffs Request for Attorneys Fees and Costs. Plaintiffs request an award of attorneys fees for Class Counsel, and costs as authorized by U.S.C. (b), the provisions of their rental agreements, and Section. of the Settlement Agreement. The fees and costs requested $,000 are modest in light of the time and effort expended by counsel and the results obtained, and reasonable under either a lodestar or percentage-of-recovery analysis. The Court should thus grant the request in its entirety.. Plaintiffs are entitled to an award of attorneys fees and costs. VHA has agreed to pay up to $0,000 in attorneys fees, costs, and incentive payments. VHA s Low-Rent Resident Lease provides that the prevailing party in any litigation shall be entitled to recover costs of suit and reasonable attorneys fee. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

7 Case :-cv-00-rbl Document Filed 0// Page of Settlement Agreement (Dkt. No. -) at.. Even without VHA s assent, as the prevailing party (having entered into a legally enforceable settlement agreement), Plaintiffs have the right to seek fees under U.S.C.. See, e.g., Richard S. v. Dep t of Developmental Servs. of Cal., F.d 0, (th Cir. 0).. Plaintiffs request for attorneys fees and costs is reasonable. Although the Parties agreed to an award of attorneys fees and costs, including incentive payments, the Parties agreement recognizes this Court s independent obligation to ensure that the award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount. In re Bluetooth Headset Prods. Liab. Litig., F.d, (th Cir. ). Because fees in a settlement context are a subject of compromise, the Court need not, however, subject the fees to the same level of scrutiny as when the fee amount is litigated. Staton v. Boeing Co., F.d, (th Cir. 0). Rule (h) sets forth the procedures for approving a request for attorneys fees and costs. The Parties incorporated these procedures, including timely notice to the two Settlement Classes and an opportunity to object or file a response to Plaintiffs Motion for Reasonable Attorneys Fees and Costs. This Court adopted those procedures as part of its Preliminary Approval Order (Dkt. #). Where, as here, a class action settlement includes a settlement fund, courts employ two methods to determine the reasonableness of a fee request: (a) the lodestar method or (b) the percentage-of-recovery method. Bluetooth, F.d at. Whenever feasible, the Ninth Circuit encourages district courts to guard against unreasonable outcomes by cross-checking one method against the other. Bluetooth, F.d at -. Here, such a cross-check confirms the reasonableness of Plaintiffs request. Indeed, the award sought represents a small percentage of the total attorney and paralegal staff hours expended on Plaintiffs behalf in this complex matter. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

8 Case :-cv-00-rbl Document Filed 0// Page of a) The fees requested are reasonable under a lodestar analysis. The lodestar method involves a two-step process to determine the amount of a reasonable fee award. Fischer v. SJB-P.D. Inc., F.d, (th Cir. 00). First, courts calculate a lodestar amount by multiplying the number of hours reasonably expended in the litigation by a reasonable hourly rate. Hensley v. Eckerhart, U.S., (). This calculation takes into account factors like the novelty and complexity of the issues, special skill and experience of counsel, quality of representation, and the results obtained. Morales v. City of San Rafael, F.d, - & n. - (th Cir. ). Second, courts may adjust the lodestar amount based on factors not already included in the calculation like the undesirability of the case or fee awards in similar cases. Id. Here, Plaintiffs are seeking compensation only for the time their counsel from Columbia Legal Services expended on this matter. In recognition of the important services provided by VHA, Plaintiffs are not seeking to recover any fees for the hundreds of attorney and paralegal hours expended by their other counsel Perkins Coie LLP. Each of the three Columbia Legal Services attorneys involved with this case since its inception has filed a declaration setting forth a reasonable hourly rate commensurate with the attorney s experience and the average fee rate in the Seattle-Tacoma-Olympia legal community and the hours they reasonably spent on this matter. See, Decl. of Gregory D. Provenzano; Decl. of Merf Ehman; and Decl. of Gavin Thornton. In total, these three attorneys have expended more than,00 hours on this case. Id. As shown in the following table, based on prevailing market hourly rates and the hours expended the lodestar calculation would justify a fee award of $,. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

9 Case :-cv-00-rbl Document Filed 0// Page of Lodestar Calculation for Attorneys Fees Reasonably Expended by Columbia Legal Service Advocate Hours Hourly Rate Attorneys Fees Gregory D. Provenzano. $0.00 $,.0 Merf Ehman. $00.00 $,0.00 Gavin Thornton. $.00 $,.0 Total,. $,.00 Plaintiffs do not seek an upward adjustment of this lodestar calculation despite the complex nature of this case. Rather, reflecting their compromise with VHA, Plaintiffs are seeking only $,000 in attorneys fees and costs. This amount represents less than a quarter of the recovery justified by a lodestar analysis, making the request eminently reasonable. b) A percentage-of-recovery analysis confirms the reasonableness of the fee request. Courts employ a percentage-of-recovery analysis to confirm that class counsel s compensation is commensurate with the monetary relief provided to the class. Bluetooth, F.d at -. Where the lodestar amount overcompensates the attorneys according to the percentage-of-recovery method, then a second look to evaluate the reasonableness of the hours worked and rates claimed is appropriate. Id. (citing In re Coordinated Pretrial Proceedings, F.d 0, 0 (th Cir. )). Here, the percentage-of-recovery analysis confirms that Class Counsel are not being overcompensated. Under the percentage-of-recovery method, attorneys fees and costs that amount to no more than % of the class recovery are considered reasonable. Bluetooth, F.d at. The requested attorneys fees and costs ($,000.00) fall well under this benchmark. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

10 Case :-cv-00-rbl Document Filed 0// Page of Percentage-of-Recovery Method A B C D E Attorneys Fees and Costs Settlement Fund Total Monetary Relief Under Settlement Agreement Prior Total Adjustments from Exhibit F Total of All Monetary Relief (C + D) $, $,.0 $,.0 $,. $,.0 Attorneys Fees and Costs as Percentage-of-Recovery.%.% Whether the Court considers the attorneys fees and costs as a percentage of the cumulative payments under the Settlement Agreement (.%) or the total payments by VHA to Plaintiffs because of efforts (.%), the requested fees and costs are well within the % reasonableness benchmark. c) There is no evidence the fees sought are disproportionate or the result of collusion. Fee awards in class action settlements carry the risk of collusion class counsel accepting lower class relief in exchange for higher attorneys fees. Bluetooth, F.d at. Thus, courts must carefully scrutinize class settlements negotiated prior to formal class certification to determine whether a class action settlement is the product of collusion among the negotiating parties. Id. at. Courts must be vigilant not only for explicit collusion, but also for more subtle signs that class counsel s self-interest and that of certain class members has infected the negotiations. Id. Here, there is no evidence that the fees sought are disproportionate or the result of collusion. Both the lodestar and percentage-of-recovery methods of calculation support the reasonableness of the fees sought. The Settlement Agreement does include a clear sailing This sum includes the $,000 in incentive payment to the named plaintiffs. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

11 Case :-cv-00-rbl Document Filed 0// Page of provision and allows fees not awarded to revert to VHA rather than being added to the Settlement Fund. These provisions do not evidence collusion, especially given how modest the fees are compared to the significant monetary and non-monetary relief obtained. These facts distinguish this case from the situation in Bluetooth, where the Ninth Circuit remanded the matter for further fact finding because class members received no monetary compensation but class counsel were amply rewarded. F.d at -0. When, as in this case, the fee award is reasonable, the risk of collusion is significantly narrowed. Laguna v. Coverall North America, Inc., F.d, (th Cir. ) vacated as moot on other grounds F.d 0 (th Cir. ) (appeal dismissed as moot after parties advised court of settlement; and previously filed opinion vacated). In such cases, district courts need only recognize and balance potentially collusive provisions, such as the reversion to defendants of unclaimed funds, against the other terms of the settlement agreement. Id. As explained in Hanlon v. Chrysler Corp., 0 F.d (th Cir. ), it is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness. 0 F.d at. In light of the significant monetary and nonmonetary relief to Class Members in the Settlement Agreement, this Court should find that the fees sought are neither disproportionate nor a result of collusion. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

12 Case :-cv-00-rbl Document Filed 0// Page of B. The Court Should Approve the Proposed Incentive Payments. The Parties further agree that the Court may at its discretion grant incentive payments to the Class Representatives, paid out of the funds set aside for attorneys fees and costs, provided no individual incentive payment exceeds $, Settlement Agreement at.. Plaintiffs request that the Court grant a $, incentive payment to Ms. McCullumn and $,00.00 incentive payments each to Ms. Ramey and Ms. Romero. Ms. McCullumn, Ms. Ramey, and Ms. Romero have each earned these incentive payments through their efforts on behalf of the two Settlement Classes. Moreover, the amounts requested are well within the range of incentive payments approved in comparable cases. These incentive payments will neither increase VHA s liability nor decrease relief to the Settlement Classes, but will instead come out of funds that would otherwise go to Class Counsel.. Courts routinely approve incentive payments. Trial courts have discretion to approve incentive payments in class actions, and do so routinely. See, e.g., Rodriguez v. West Publishing Corp., F.d, (th Cir. 0) (incentive payments are fairly typical ); see also, Newberg on Class Actions : (th ed.); Manual for Complex Litigation,., n. (th ed. ). In determining the propriety and amount of proposed incentive payments, courts consider: () the risk to the class representative in commencing a class action, both financial and otherwise; () the notoriety and personal difficulties encountered by the class representative; () the amount of time and effort spent by the class representative; () the duration of the litigation; and () the personal benefit, or lack thereof, enjoyed by the class representative as a result of the litigation. Pelletz v. Weyerhaeuser Co., F. Supp. d, (W.D. Wash. 0). Further, incentive payments, like those here, that come from the attorneys fees awarded to plaintiff s counsel need not be subject to intensive scrutiny, as the interests of the defendants and the class are not COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

13 Case :-cv-00-rbl Document Filed 0// Page of directly affected. See, e.g., In re Cendant Corp., Derivative Action Litigation, F. Supp. d, (D. N.J. 0); In re Presidential Life Sec., F. Supp., (S.D.N.Y. ).. Incentive payments are appropriate in this case. Incentive payments are appropriate here. First, each Class Representative took risks, both financial and otherwise, by participating in this action. This is especially true of Ms. McCullumn who refused to accept and cash a refund check for $,.00 to avoid a potential accord and satisfaction defense that might have undermined her ability to proceed with this action. Moreover, all three of the Class Representatives took a risk that they might be held liable for costs should their action fail under Fed. R. Civ. P. (d). Second, each of the Class Representatives spent significant time and effort gathering information and documents, meeting with Class Counsel, and otherwise assisting counsel in negotiating the settlement. Ms. McCullumn was instrumental in securing a tolling agreement with VHA. Ms. Ramey and Ms. Romero traveled overnight from Vancouver to Seattle to participate in a full day of mediation with VHA. Ms. Romero did this despite having recently given birth to her daughter. Although Ms. McCullumn was unable to attend this mediation in person, she made herself available by telephone throughout the day-long mediation session. Third, as negotiations progressed, each of the Class Representatives participated in numerous conference calls addressing settlement proposals and counter proposals. To stay abreast of these negotiations, the Class Representatives had to review letters and documents from counsel. Additionally, each of the Class Representatives reviewed and executed declarations in support of Plaintiffs motion for provisional certification of the Settlement Classes and preliminary approval of the Settlement Agreement and in support of the current motion. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

14 Case :-cv-00-rbl Document Filed 0// Page of Fourth, although this Action was only recently filed, each of the Class Representatives maintained an attorney-client relationship with Class Counsel for many years. Ms. McCullumn retained in April. Ms. Ramey and Ms. Romero did so in. Finally, recognizing that their efforts would be assisting others, the Class Representatives agreed to pursue this matter as a class action even though the damages they individually expected to recover were relatively modest. Ms. McCullumn s Settlement Share is $,.. Ms. Ramey s Settlement Share is $.. Ms. Romero is not entitled to a Settlement Share because of previous refunds that exceed her claim under Plaintiffs theory of the case. But for a modest incentive payment, Ms. Romero would receive no monetary compensation for the efforts she made on behalf of other tenants.. The requested incentive payments are fair and proportional. The requested incentive payments are fair and proportional. Plaintiffs are seeking a slightly larger, but still modest, incentive payment for Ms. McCullumn than the other two Class Representatives because she was involved from the inception of this dispute and had no choice but to refuse to accept a March refund check to avoid a possible accord and satisfaction defense. All of the requested incentive payments are modest and fall squarely within the range of payments approved in comparable cases. See e.g., Arthur v. Sallie Mae, Inc., WL 0, * (W.D. Wash. Sept., ) (approving incentive payments or service awards of $,00 to each of three class representatives); Grays Harbor Adventist Christian School v. Carrier Corp., 0 WL 0, * (W.D. Wash. April, 0) (approving $,00 incentive payments). Differences in the amounts of incentive payments, based upon the roles played in litigation, are proper. See, e.g., Hughes v. Microsoft Corporation, 0 WL 0, * (W.D. Wash. March, 0). COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

15 Case :-cv-00-rbl Document Filed 0// Page of. The Class Representatives did not enter into incentive agreements nor did the Settlement Agreement condition incentive payments on their support of the settlement. Although incentive payments are fairly typical and routinely approved, incentive agreements are quite different. While such agreements only bind counsel to seek an incentive payment, such agreements can put class counsel and the contracting class representative into a position of conflict from day one. See, e.g., Rodriguez v. West Publishing Corp., F.d at -0. Unlike in Rodriguez, none of the three Class Representatives here entered into an incentive agreement with class counsel. Further, the Parties did not condition incentive awards on the Class Representatives support for the settlement, mindful that a conditional incentive award would call into question whether the Class Representatives and their counsel adequately represented the two proposed Settlement Classes. See, e.g., Radcliffe v. Experian Information Solutions Inc., F.d, - (th Cir. ). Although Class Counsel discussed the possibility of incentive payments with the Class Representatives, Class Counsel emphasized that any such payment would be relatively modest and commensurate with the time and effort the Class Representatives spent on this matter, and would require court approval. Given the substantial time and effort each Class Representative expended prosecuting this action, the proposed incentive payments are appropriate and should be approved. COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

16 Case :-cv-00-rbl Document Filed 0// Page of IV. CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs motion for attorneys fees, costs, and incentive payments, and should award $,000 in attorneys fees and costs to and incentive payments of $, to Ms. McCullumn and $,00.00 each to Ms. Ramey and Ms. Romero. The requested fees are reasonable and well within either a lodestar or percentage-of-recovery calculation. The proposed fees are not disproportionate and there is no evidence of collusion. The three Class Representatives have each earned the modest incentive payments sought through their efforts on behalf of the two Settlement Classes. The payments sought are well within the range of incentive payments approved in comparable cases. Respectfully submitted on May,. COLUMBIA LEGAL SERVICES s/ Gregory D. Provenzano Gregory, D. Provenzano, WSBA # Merf Ehman, WSBA # PERKINS COIE LLP s/ Brendan Peters Brendan Peters, WSBA No. 0 Kaustuv M. Das, WSBA No. ATTORNEYS FOR PLAINTIFFS COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]

17 Case :-cv-00-rbl Document Filed 0// Page of CERTIFICATE OF SERVICE I certify, under penalty of perjury under the laws of the United States of America that on May,, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel on the Electronic Mail Notice List as shown below. Electronic Mail Notice List The following are those who are currently on the list to receive notices for this case: Adrian Urquhart Winder Foster Pepper PLLC Third Avenue, Suite 00 Seattle, Washington Manual Notice List None. DATED: May,, at Olympia, Washington. s/gregory D. Provenzano Gregory D. Provenzano COSTS, AND INCENTIVE PAYMENTS - [Case No. :-cv-00]