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Seaman v. Duke University

United States District Court, M.D. North Carolina

September 25, 2019

DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiff,


          Catherine C. Eagles, District Judge.

         In this antitrust class action, the Court has approved a settlement between the employee class members and defendants Duke and Duke University Health System.[1]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.

         The 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.

         I. Background

         In June 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.

         In 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.

         Discovery 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.

         Class 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.

         At the 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.

         The 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.

         Duke 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.

         II. Analysis

         A. Fees

         In a 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).

         While 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 23(h).

         To 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.”).

         1. Barber Factors

         Class 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 ...

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