                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                )
MARILYN KEEPSEAGLE, et al.,     )
                                )
               Plaintiffs,      )
                                )
          v.                    ) Civil Action No. 99-3119 (EGS)
                                )
SONNY PERDUE, Secretary, U.S.   )
Department of Agriculture,      )
                                )
               Defendant.       )
________________________________)

                       MEMORANDUM OPINION


     On April 28, 2011, the Court granted, among other things,

plaintiffs’ motion for award of attorneys’ fees and costs,

awarding class counsel at the high end of the range set forth in

the 2011 Settlement Agreement between the parties: 8% of the

$760 million compensation fund amount, or $60.8 million,

pursuant to the following provision:

          Plaintiffs will ask the Court to approve an
          award of attorneys’ fees and costs to Class
          Counsel, payable as part of the common fund
          awarded to the Class, with the understanding
          that the Plaintiffs may seek, and the Court
          may award, such attorneys’ fees and costs the
          total amount of which shall be at least 4% and
          not more than 8% of $760,000,000.

Settlement Agreement, ECF No. 576-1 at XV.B; Order, ECF No. 606

at 3. Because a compensation fund had been established, the

Court made this award pursuant to the common fund doctrine. See

Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1262 (D.C. Cir.
1993)(holding that the “proper measure of [contingent counsel

fees in class actions resulting in the creation of a common fund

payable to plaintiffs] is a percentage of the [common] fund”).

Class counsel provided a lodestar calculation of actual and

projected fees 1 and costs of $26,533,940.48 for cross-check

purposes. Mem. of Law in Support of Pls.’ Mot. for an Award of

Attorneys’ Fees and Expenses, ECF No. 581-1 at 9. 2 The fees

awarded by the Court therefore exceeded actual and projected

fees and costs by a multiplier of 2.3, which fell “well within

the typical range of [comparable] awards.” Id. at 43-45.

       Class counsel now seek a supplemental award from interest

accrued from the compensation fund based on a lodestar

calculation and pursuant to the following provision of the 2015

Addendum to the Settlement Agreement (“Addendum”):

            In the event counsel seek an award of
            attorneys’ fees and costs for work involved in
            establishing the Trust and Modifying the
            Agreement, such award may be made from
            interest that has accrued from the total
            Compensation Fund, and may only be with
            approval by the Court upon a properly noticed
            motion. The Secretary reserves the right to
            address the entitlement to fees, the amount of
            fees, or both entitlement and amount, in any
            opposition or response.


1The lodestar method is the “number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
2When citing electronic filings throughout this opinion, the

Court cites to the ECF header page number, not the original page
number of the filed document.

                                  2
Addendum, ECF No. 824-2 at IV.C. Specifically, class counsel

seek $3,220,035.85 in fees and $46,656.50 in additional costs

that they contend were not foreseen and therefore not

compensated in the prior award. Final Report to Court on

Payments from the Keepseagle Settlement Fund and Mot. for

Approval of Final Payments Including Suppl. Att’ys’ Fees (“Mot.

for Att’ys’ Fees”), ECF No. 911 at 10, 18. Class counsel also

seek an award of $566,537.50 in fees and $6,987.56 in costs for

Mrs. Keepseagle’s independent counsel, Olsson Frank Weeda Terman

Matz PC (“OFW Law”). Id. Mrs. Keepseagle obtained independent

counsel after the Court asked if she would like the opportunity

to do so to assist her in her efforts to modify the Settlement

Agreement. Id. at 22. Class counsel have provided notice of this

request to the class and to the Trustees of the Trust. Id. at

11.

      The Addendum was negotiated after the claims process

concluded and an unanticipated $380 million remained in the

compensation fund for distribution to cy pres beneficiaries. The

Addendum was agreed to by class counsel, the government, and

Mrs. Keepseagle’s counsel, and approved by the Court. See

Keepseagle v. Vilsack, No. 99-3119, slip op. (D.D.C. April 20,

2016), aff’d, 856 F.3d 1039 (D.C. Cir. 2017).

      The government disputes that class counsel is entitled to a

supplemental award pursuant to the Settlement Agreement. The

                                 3
government argues that the 8% cap on an award of attorneys’ fees

and costs was not increased by the Addendum and therefore an

additional award is not permitted pursuant to the Settlement

Agreement. Def.’s Opp’n to Counsels’ Second Fee Pet. (Def.’s

Opp’n), ECF No. 912 at 6-8. The Court disagrees. The Addendum

clearly contemplates that class counsel and Mrs. Keepseagle’s

counsel 3 would be entitled to seek an award of attorneys’ fees

and costs, which would be made on motion to the Court, with an

opportunity for the government to oppose, and “may be made from

interest that has accrued from the total Compensation Fund.”

Addendum, ECF No. 824-2 at IV.C. Since the Addendum

unambiguously provides that the award would be paid “from

interest that has accrued from the total Compensation Fund,”

this provision overrides the 8% award cap in the Settlement

Agreement. To accept the government’s argument would render this

provision of the Addendum meaningless. See Beal Mort., Inc. v.

FDIC, 132 F.3d 85, 88 (D.C. Cir. 1998)(“the cardinal

interpretative principle [is] that we read a contract to give

meaning to all of its provisions and to render them consistent

with each other.”)(internal quotation marks and citation




3Although the term “counsel” is not defined in the Addendum, it
was signed by class counsel, Mrs. Keepseagle’s counsel, and
government counsel. Addendum, ECF No. 824-2 at 6-7.

                                4
omitted). Therefore, class counsel is entitled to seek a

supplemental award pursuant to the terms of the Addendum.

     “When awarding attorneys’ fees, federal courts have a duty

to ensure that claims for attorneys’ fees are reasonable.”

Swedish Hosp. Corp., 1 F.3d at 1265. “In general, a trial court

enjoys substantial discretion in making reasonable fee

determinations.” Id. at 1271 (citation omitted). “[C]ourts

maintain discretion to award supplemental fees to counsel for

work performed in relation to the litigation or settlement

following counsel’s initial fee application.” Cassese v.

Washington Mut., 27 F. Supp. 3d 335, 339 (E.D.N.Y. 2014)

(internal quotation marks and citations omitted). Courts have

this discretion whether the work for which the supplemental fees

are sought was anticipated or not. Pray v. Lockheed Aircraft

Corp., 1987 WL 9757, at *1 (D.D.C. Apr. 3, 1986). That said, “it

is reasonable to inquire whether any supplemental award of

attorney’s fees for work performed . . . is justified.”

Goldenberg v. Marriott PLP Corp., 33 F. Supp. 2d 434, 440 (D.Md.

1998). “[A] reasonable attorney’s fee is one that is adequate to

attract competent counsel, but . . . that does not produce

windfalls to attorneys.” Blum v. Stenson, 465 U.S. 886, 897

(2010)(internal quotation marks and citation omitted).

     The government argues that an additional award is not

reasonable on several grounds: (1) the original award exceeded

                                5
class counsels’ actual and projected fees and costs by nearly

$34 million and so the extra fees and costs incurred have been

covered by that “cushion”; (2) class counsel was overcompensated

for their projected costs when the award was made since the

amount of unclaimed funds–$380 million–was so large; and

(3) class counsels’ original award should have been half of what

it was because the settlement amount was twice what it should

have been. Def.’s Opp’n, ECF No. 912 at 10-12.

     Class counsel responds that: (1) the Court has already

rejected the argument that the award was too high when it

awarded to the cap; (2) as a factual matter, it was not overpaid

for the projected costs; and (3) regarding the amount of

unclaimed funds, the settlement amount was fully justified by

the damages calculation of plaintiffs’ expert, but a variety of

factors lead to not all class members being able to, or choosing

to, make their claims. Pls.’ Reply, ECF No. 914 at 3-6. Class

counsel also points out that the government does not contest the

reasonableness of the rates or hours in their request. Id. at 5.

     Class counsels’ supplemental request is neither reasonable

nor justified. There is no dispute that this supplemental

request is for work and costs that were not contemplated in

class counsels’ 2011 award request. However, the reason class

counsel needed to undertake this work and incur these costs, was

because of the magnitude of unclaimed funds. Class counsel

                                6
object to taking into consideration the magnitude of unclaimed

funds because the damages calculation was “fully justified.”

Pls.’ Reply, ECF No. 914 at 5. The Court disagrees that the

magnitude of the unclaimed funds should not be considered.

Although the damages calculation was fully justified, the fact

is that class counsels’ original award was based on a percentage

of a compensation fund amount that exceeded successful claims by

approximately half. The Court recognizes that the Supreme Court

has held it to be a proper application of the common fund

doctrine for an award of fees to be based on a percentage of the

entire fund even if not all funds were disbursed to class

members. See Boeing Co. v. Van Gemert, et al., 444 U.S. 472, 473

(1980). However, the amount not disbursed in that case—$1.5

million out of a $3.2 million settlement fund—as compared to

$380 million out of the $760 million settlement fund here

renders this precedent entirely distinguishable. See id. at 474,

476.

       The Court agrees with class counsel that its work on the

Addendum benefitted the class: It resulted in additional

payments to successful claimants and the creation of a Trust to

benefit the members of the class. And class counsels’ work

resulted in this Court approving the Addendum and in that

approval being upheld on appeal. However, the Court must still

determine whether the supplemental award is reasonable. Here,

                                  7
the $60.8 million awarded exceeded class counsels’ actual and

projected lodestar fees and costs by approximately $34 million. 4

The Court recognizes persuasive authority approving supplemental

fees where the prior award exceeded lodestar fees and costs,

Pray, 1987 WL 9757, at *2, but doing so here would not be

reasonable. It is neither reasonable nor justified to award

supplemental fees, even though the work was not anticipated,

when the original award: (1) was a percentage of a settlement

fund of this magnitude that exceeded the successful claims by

half; and (2) exceeded actual and projected fees and costs by a

multiplier of 2.3.

       Class counsel also seek an award of $566,537.50 in fees and

$6,987.56 in costs for OFW Law, which represented Mrs.

Keepseagle in her efforts to modify the Settlement Agreement.

Mot. for Att’ys Fees, ECF No. 911 at 22. OFW Law was

instrumental in negotiating the Addendum, which obtained $77

million in additional payments to class members, a supplemental

service award of $100,000 to Mrs. Keepseagle, and created the

Trust. See Decl. of Marshall L. Matz in Support of Marilyn

Keepseagle’s Request for an Award of Att’ys’ Fees and Expenses

(“Matz. Decl.”), ECF No. 911-8 ¶ 9. OFW Law also represented




4The Court recognizes that class counsels’ actual lodestar fees
were somewhat higher than originally projected. See Mot. For
Att’ys’ Fees, ECF No. 911 at 12 n.4.

                                  8
Mrs. Keepseagle in her successful Motion to Modify the

Settlement Agreement, in successfully opposing the appeal of

this Court’s approval of the Addendum to the Court of Appeals

for the District of Columbia Circuit, and in successfully

opposing petitions of certiorari to the Supreme Court. Id.

¶¶ 6,7.

     In response to class counsels’ request for this award, the

government reiterates its argument that the Settlement Agreement

does not authorize the payment, but makes no other objection.

Def.’s Opp’n, ECF No. 912 at 12-13. The Court has rejected that

argument. See supra at 3-5. The Addendum specifically provides

that OFW Law would be able to “seek an award of attorneys’ fees

and costs for work involved in establishing the Trust and

Modifying the Agreement” payable from the interest accrued from

the compensation fund. Addendum, ECF No. 824-2 at IV.C.

     Unlike the Settlement Agreement, the Addendum did not

provide for the payment of attorneys’ fees as a percentage of

the compensation fund. See id. OFW Law has submitted a lodestar

request for fees and costs. While the source of any award here

will be the interest accrued from the compensation fund, which

is distinct from damages awarded by a court pursuant to the fee




                                9
shifting provisions the Equal Credit Opportunity Act (“ECOA”) 5,

and because the ECOA underpins this litigation, the Court will

consider whether the lodestar fees requested are reasonable by

reference to the fee shifting provisions of the ECOA. In this

context, this Court has stated:

          The   starting    point  for    determining   a
          reasonable fee is the “lodestar method,” which
          “is the number of hours reasonably expended on
          the litigation multiplied by a reasonable
          hourly rate.” Hensley v. Eckerhart, 461 U.S.
          424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
          (1983). “[T]he lodestar method produces an
          award that roughly approximates the fee that
          the prevailing attorney would have received if
          he or she had been representing a paying
          client who was billed by the hour in a
          comparable case[.]” Perdue, 130 S.Ct. at 1672.
          There is a “strong presumption” that the
          lodestar   figure   represents   a   reasonable
          attorney’s fee, id. at 1673, because “ ‘the
          lodestar figure includes most, if not all, of
          the    relevant    factors    constituting    a
          ‘reasonable’ attorney’s fee,’ ” id. at 1667
          (quoting Pennsylvania v. Delaware Valley
          Citizens’ Council for Clean Air, 478 U.S. 546,
          566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

          In calculating a reasonable fee award, the
          Court must make three separate determinations:
          (1) what constitutes a “reasonable hourly
          rate” for the services of plaintiff’s counsel;
          (2) the number of hours that were reasonably
          expended on the litigation; and (3) whether
          plaintiff has offered “specific evidence”
          demonstrating this to be the “rare” case in
          which a lodestar enhancement is appropriate,
          and if so, in what amount. Miller v. Holzmann,
          575 F.Supp.2d 2, 11 (D.D.C.2008); see also

5See15 U.S.C. § 1691e(d)(“the costs of the action, together with
a reasonable attorney’s fee as determined by the court, shall be
added to the damages awarded by the court”).

                                  10
          Covington v. District of Columbia, 57 F.3d
          1101, 1107 (D.C.Cir.1995). The fee applicant,
          however, “bears the burden of establishing
          entitlement to an award, documenting the
          appropriate   hours,    and   justifying   the
          reasonableness of the rates [.]” Covington, 57
          F.3d at 1107 (citing Blum, 465 U.S. at 896 n.
          11, 104 S.Ct. 1541; Hensley, 461 U.S. at 437,
          103 S.Ct. 1933). Likewise, “the burden of
          proving that an enhancement is necessary must
          [also] be borne by the fee applicant.” Perdue,
          130 S.Ct. at 1673.[6]

Heller v. District of Columbia, 832 F. Supp. 2d 32, 37-38

(D.D.C. 2011).

     First, the Court must determine whether OFW Law’s rates are

reasonable based on its review of OFW Law’s: (1) billing

practices; (2) skill, experience and reputation; and

(3) prevailing market rates in the relevant community. Id. at

38. The Court finds OFW Law’s rates to be reasonable. The

declaration submitted in support of the request attests that the

hourly rates are consistent with the usual and customary rates

for work performed for non-contingency fee clients and that have

been paid by the firm’s commercial clients. Matz. Decl., ECF No.

911-8 ¶ 16. Attached to the declaration are descriptions of the

experience and reputation of counsel upon which the rates are

established. Id. at 11-27. The Court notes the impressive




6
 OFW Law does not seek a lodestar enhancement. See generally,
Mot. For Att’ys Fees, ECF No. 911; Pls.’ Reply, ECF No. 914;
Marilyn Keepseagle’s Reply, ECF No. 915.


                               11
qualifications of Mrs. Keepseagle’s counsel. See id. She was

represented by a skilled team of litigators with significant

relevant experience at both the trial and appellate levels. See

id. Furthermore, the rates are comparable to, and for the most

part lower than, the Legal Services Index (LSI) of the Bureau of

Labor Statistics Laffey Matrix. Compare Matz. Decl., ECF No.

911-8 at 78 with the LSI Laffey Matrix, available at

http://laffeymatrix.com/see.html. Finally, the rates are

comparable to, but slightly higher than, the United States

Attorney’s Office Laffey Matrix. Compare Matz. Decl., ECF No.

911-8 at 78 with USAO Attorney’s Fees Matrix, available at

https://www.justice.gov/usao-dc/file/796471/download. In this

Circuit, either matrix may be used to demonstrate prevailing

market rate. See Covington v. District of Columbia, 57 F.3d

1101, 1109 (D.C. Cir. 1995). After evidence has been provided

demonstrating that counsels’ rates are reasonable, the burden

shifts to the government to produce “equally specific

countervailing evidence” demonstrating that the proposed hourly

rate is “erroneous.” Heller, 832 F. Supp. 2d at 40 (quoting

Covington, 57 F.3d at 1109). Here, however, the government has

not disputed the reasonableness of OFW Law’s rates. See

generally Def.’s Opp’n, ECF No. 912.

     Next, the Court must determine whether the number of hours

expended on the litigation was reasonable. See Heller, 832 F.

                               12
Supp. 2d at 38. The evidence supporting the hours worked must

“be sufficiently detailed to permit the District Court to make

an independent determination whether or not the hours claimed

are justified.” Id. at 49 (quoting Nat’l Ass’n of Concerned

Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982).

The Court finds the number of hours OFW Law expended on the

litigation to be justified. OFW Law claims 1,179.1 attorney, law

clerk and paralegal hours that “were actually expended, in the

exercise of professional judgment, by the lawyers, paralegal

staff, and clerks involved in the matter.” Matz Decl., ECF No.

911-8 ¶ 15. In support, OFW Law submitted detailed,

contemporaneously-made records indicating the amount of time

spent on a particular day on the matter and describing the tasks

performed. Id. ¶ 13, Ex. B at 29-76. The Court has reviewed

these records and, in view of its detailed knowledge of this

matter, finds them to be adequately detailed, and the number of

hours expended justified. OFW Law seeks a total of $566,537.50

in fees for work performed over two and a half years for the

following number of billable hours: Attorney Dillard: 679.8

hours; Attorney Matz: 206.2 hours; Attorney Fried: 79.5 hours;

Attorney Tsien: 43.2 hours; Attorney Durkin: 27.2 hours; Law

Clerk Chapin: 88.5 hours; Law Clerk Ardalan: 30.3 hour; Attorney

Weinreib: 6.5 hours; Paralegal Morgan: 17.9 hours. Id. ¶ 17, Ex.

B at 29-76, Ex. C. Appropriately, the bulk of the billable hours

                               13
are for a junior attorney with three to six years’ experience,

with the more senior attorneys generally providing a supervisory

role. Again, the government has not disputed the reasonableness

of the number of hours expended. See generally Def.’s Opp’n, ECF

No. 912.

     Finally, OFW Law claims $6,987.56 in costs. The Court has

compared the types of costs OFW Law claims to the types of costs

the Court originally approved for class counsel and finds them

to be for the same type of costs, such as telephone charges,

transportation charges, postage, duplicating, filing fees, etc.

Compare Matz. Decl., ECF No. 911-8, Ex. D with Decl. of Joseph

M. Sellers in Supp. of Pls.’ Mot. For an Award of Att’ys’ Fees

and Costs, ECF No. 581-1, Ex. C. Additionally, the costs are not

excessive. Therefore, the Court finds these costs to be

reasonable.




                               14
     Accordingly, the supplemental motion for an award of

attorneys’ fees and expenses is GRANTED IN PART and DENIED IN

PART. Class counsels’ request for supplemental fees and costs is

DENIED. Counsel for Mrs. Keepseagle are awarded $566,537.50 in

fees and $6,987.56 in costs from the interest accrued from the

compensation fund. An appropriate order accompanies this

Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          September 21, 2018




                               15
