United States District Court, M.D. North Carolina
DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiff,
DUKE UNIVERSITY and DUKE UNIVERSITY HEALTH SYSTEM, Defendants.
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
antitrust class action, the Court has approved a settlement
between the employee class members and defendants Duke and
Duke University Health System.The settlement requires Duke to
pay $54, 500, 00 and will also result in significant
injunctive relief. Plaintiffs’ counsel asks for
attorney’s fees of $18, 166, 666.67, 30% of the common
fund. Counsel also seeks $3, 320, 066.35 in reimbursement for
costs. Plaintiff Danielle Seaman also seeks a service award
in the amount of $125, 000.
Court is familiar with this case and the work of
plaintiffs’ counsel, which the Court has taken into
account. It has reviewed Class Counsel’s request and
the supporting evidence, as well as attorney’s fees and
class representative awards from similar cases. For the
reasons stated, the Court will grant the motion.
2015, Dr. Seaman, the plaintiff and class representative,
sued Duke and others under the Sherman Act and North Carolina
law, alleging that Duke had entered into an unlawful
agreement with the University of North Carolina to prevent
lateral hiring of certain medical employees in order to
eliminate competition and suppress compensation. See
Doc. 109. Dr. Seaman sought monetary and injunctive relief on
behalf of herself and the class. Id. at 25–26.
October 2015, Duke moved to dismiss in part on grounds of the
state action immunity doctrine. Doc. 30. Though this motion
was denied, the denial was “without prejudice to
renewal of state action immunity questions at summary
judgment after development of a factual record.” Doc.
39 at 1. The Court certified the question for interlocutory
appeal, but the United States Court of Appeals for the Fourth
Circuit denied the defendants’ petition. Doc. 50; Doc.
51. Thus, a potentially dispositive immunity defense was
present through the entirety of the case, even as class
counsel advanced significant time and expense to litigate it.
was thorough and costly. Defendants produced over 430, 000
pages of documents and over 28, 000 data files related to
employee compensation. Doc. 369 at 11–12. Class Counsel
met-and-conferred with defense counsel over the course of
months to understand the data and assemble it into a single
dataset for analysis.
Counsel retained three experts who offered opinions in
support of Dr. Seaman’s motion for class certification
and later to prepare for trial. Id. at 12. Dr.
Seaman’s experts provided 12 reports in total, over 680
pages, and sat for 5 depositions. Id. Dr. Leamer and
his team also gathered and analyzed over 505 files of public
University of Texas compensation data to establish a damages
benchmark. Id. Class Counsel advanced nearly $3
million-the vast majority of the approximately $3.3 million
in out-of-pocket costs for which they seek reimbursement-to
cover the cost of the expert work and analysis. See
Doc. 369-5. In addition to expert discovery, Class Counsel
deposed 15 witnesses from Duke and UNC. Doc. 369 at 12.
time Dr. Seaman moved for class certification, Doc. 87, she
also moved for a settlement limited to injunctive relief with
the UNC defendants. Doc. 81. The Court approved that
settlement. Doc. 185. Thereafter, only Duke remained in the
case, and Duke vigorously opposed class certification.
See Doc. 127.
Court granted Dr. Seaman’s class certification motion
as to medical faculty and denied the request as to other
proposed class members. Doc. 189. Thereafter, the parties
pursued additional discovery to prepare the case for summary
judgment and trial.
then moved for summary judgment, Doc. 285, and to exclude
expert testimony. Doc. 286. After the parties had completed
briefing and argued these motions and while these motions
were still pending, the parties engaged in settlement
negotiations, the Department of Justice became involved in
those negotiation, and ultimately the parties and the
Government entered into the settlement agreement.
class action, the court may award reasonable attorney’s
fees and nontaxable costs as authorized by law or by
agreement. Fed.R.Civ.P. 23(h). In a common-fund case such as
this, “a reasonable fee is based on a percentage of the
fund bestowed on the class.” Blum v. Stenson,
465 U.S. 886, 900 n.16 (1984). District courts in the Fourth
Circuit “overwhelmingly” prefer the percentage
method in common-fund cases, Phillips v. Triad Guar.
Inc., No. 1:09CV71, 2016 WL 2636289, at *2 (M.D. N.C.
May 9, 2016), and “the vast majority of courts of
appeals now permit or direct district courts to use”
this method. David F. Herr, Manual for Complex Litigation
§ 14.121 (4th ed. May 2019 Update); id. at n.
483, n. 484, n. 485 (listing cases by circuit).
the motion for attorney’s fees is uncontested by the
defendants or any class member, the Court acts as a fiduciary
of the class, Sharp Farms v. Speaks, 917 F.3d 276,
293–94 (4th Cir. 2019), and will not rubber-stamp a
motion for attorney’s fees simply because no opposition
has been voiced, see Berry v. Schulman, 807 F.3d
600, 617 (4th Cir. 2015) (stressing “the importance of
addressing fee requests fully and carefully”). The
touchstone is whether the award is reasonable. Fed. R. Civ. P
determine the reasonableness of the fee award, the Court
begins by considering the twelve factors identified in
Barber v. Kimbrell’s, Inc.: “(1) the
time and labor expended; (2) the novelty and difficulty of
the questions raised; (3) the skill required to properly
perform the legal services rendered; (4) the attorney’s
opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney’s
expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the
experience, reputation and ability of the attorney; (10) the
undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and
(12) attorney’s fees awards in similar cases.”
577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting factors from
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,
92–93 (1989)). The Court also has conducted a lodestar
cross-check that compares the requested contingent fee award
against a fee calculated based on hours spent at prevailing
market rates. See Boyd v. Coventry Health Care,
Inc., 299 F.R.D. 451, 467 (D. Md. 2014) (“The
purpose of a lodestar cross-check is to determine whether a
proposed fee award is excessive relative to the hours
reportedly worked by counsel, or whether the fee is within
some reasonable multiplier of the lodestar.”).
Counsel request attorney’s fees of one-third of the
common fund, or $18, 166, 666.67. Doc. 367 at 2. Contingent
fees of one-third are common in this circuit in cases of
similar complexity. See Phillips, 2016 WL 2636289,
at *6; Smith v. Krispy Kreme Doughnut Corp., No.
1:05CV00187, 2007 WL 119157, at *2 (M.D. N.C. Jan. 10, 2007);
see also Boyd, 299 F.R.D. at 464 (noting
attorney’s fees awarded under the percentage of the
fund method “are generally between twenty-five (25) and
thirty (30) percent of the fund.”). In this complex
case, with a high risk for Class ...