Kondash v. Citizens Bank, National Association
1:18-cv-00288
D.R.I.Dec 23, 2020Background
- Plaintiff Darren Kondash sued Citizens Bank under the TCPA, alleging nonconsensual prerecorded robocalls to his cell and to a class of ~283,000 persons.
- The parties mediated and agreed to a non-reversionary Settlement Fund of $1,837,500 to be distributed to claimants after notice, administration costs, attorney fees/expenses, and a previously approved $15,000 incentive award.
- Court-approved notice reached >95% of class; ~7% submitted claims; estimated per-class-member recovery ~$44 (notice estimated $25–$60).
- Class Counsel moved for fees of one-third of the fund ($612,500) and reimbursement of $13,544.84 in expenses; the Final Approval Order reserved on fees/expenses.
- The court required a lodestar cross-check; counsel corrected a prior understatement and documented a lodestar of $226,785 (hours and hourly rates), yielding a multiplier ≈ 2.7.
- Magistrate Judge Sullivan recommended approving the requested one-third fee ($612,500) and expenses ($13,544.84) as reasonable given contingency risk, counsel experience, settlement benefit, and comparison to the lodestar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate fee method / 1/3 award | Percentage-of-fund is market-based; plaintiff agreed to contingency 1/3 | No objection; defendant views settlement as fair | Magistrate: percentage-of-fund appropriate; 1/3 of fund reasonable and approved |
| Lodestar cross-check & multiplier | Lodestar is $226,785; multiplier ~2.7 justifiable by risk and market | Court initially concerned about understatement; no opposing lodestar evidence | Magistrate: lodestar reasonable; multiplier 2.7 not a windfall; supports 1/3 fee |
| Expense reimbursement | Sought $13,544.84 (mediation, travel, discovery, court fees) | No objection; no overhead included | Magistrate: expenses modest and appropriate; approve reimbursement |
| Risk & market justification for contingency fee | High litigation risk (TCPA certification, evolving law, possible unconstitutionality); market contingency rates 33–40% | No objection; settlement value supports fee | Magistrate: contingency risks and market justify one-third fee |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (statement on intrusive robocalls in TCPA context)
- Boeing Co. v. Van Gemert, 444 U.S. 472 (common-fund principle: counsel entitled to reasonable fee from fund)
- In re Thirteen Appeals Arising out of the San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295 (First Circuit endorsing percentage-of-fund approach)
- In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30 (use of market-based "mimic-the-market" approach for fee-setting)
- Bais Yaakov of Spring Valley v. Act, Inc., 798 F.3d 46 (TCPA does not provide attorney-fee shifting)
- Holtzman v. Turza, 828 F.3d 606 (same: TCPA not a fee-shifting statute)
- In re Asacol Antitrust Litig., 907 F.3d 42 (class certification requires plan to identify and exclude uninjured persons)
- Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (discussion of TCPA statutory ambiguity re autodialers)
- Barr v. Am. Ass'n of Political Consultants, Inc., 140 S. Ct. 2335 (Supreme Court severed government-debt exception in TCPA First Amendment ruling)
- Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358 (multipliers in class-fee awards can be reasonable)