Fee Award in TD Bank Wage/Hour Class Action.
In Keller v. TD Bank, N.A., Civ. Action No. 12-5045 (E.D.Pa. Nov. 4, 2014 Order), U.S. District Judge L. Felipe Restrepo awarded class action counsel exactly what they wanted--$1.2 million in fees out of a $6 million settlement fund in the settlement of a wage/hour class action brought by former tellers of TD Bank. In doing so, District Judge Restrepo observed that the percentage of recovery was the favored fee-setting measure, citing In re Prudential Ins. America Sales Practice Litig., 148 F.3d 283, 333 (3d Cir. 1998). He noted that 19-45% of the common fund was found proper in the Third Circuit in wage/hour cases, expressly determining the 20% request reasonable in nature. He also found the reasonableness was “cross-checked” by the lodestar hours, plus a multiplier shortly above 3—a reasonable result given the experience of the attorneys and the settlement result.
Fee Award in Neurontin Off-Label Use Class Action.
Pfizer, Inc. was sued in a class action accusing it of illegally marketing Neurontin for off-label use. The case was settled and class action counsel requested $108.3 million in fees and costs based on a $325 million settlement—a third under the “percentage of recovery” method. U.S. District Judge Patti B. Saris, in In re Neurontin Marketing and Sales Practice Litig., Civ. Action No. 04-10981-PBS (D.Mass, Doc. 4303, filed Nov. 10, 2014), found this request too high and awarded fees and costs instead of $91 million, which was 28% of the settlement. District Judge Saris found that a one-third award was too high in “mega-fund” class action settlements, relying on First Circuit cases showing 17.8% was the mean for fee recovery in $250-500 million settlement situations. She also relied on results from a 2010 empirical study by Professor Fitzpatrick of fee awards in class action settlements. Finally, although observing that the hourly rates and hours work were not delineated with great detail, District Judge Saris “cross-checked” by use of the $27.4 million lodestar provided by counsel, determining the $91 million award was reasonable because it was based on a 3.32 positive multiplier enhancement of the lodestar.
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