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Attorneys Float $2.7M Fee Request for Caribou Coffee TCPA Action

October 3, 2017 | Posted in : Contingency Fees / POF, Expenses / Costs, Fee Award Factors, Fee Request

A recent Law 360 story by Shavna Posses, “Atty Float $2.7M Fee Request for Caribou TCPA Suit” reports that attorneys for a consumer who accused Caribou Coffee Co. Inc. of violating the Telephone Consumer Protection Act (TCPA) by sending unsolicited text messages have asked a Wisconsin federal court for roughly $2.7 million in fees and costs, saying an $8.5 million settlement wouldn’t have happened without their hard work.

Lead plaintiff Kristie Farnham’s attorneys from Carey Rodriguez Milian Gonya LLP said that they deserve one-third of the net settlement fund for taking on the “comprehensive and highly contentious” litigation even though it wasn’t always certain they’d get paid, contending that their fee request is in line with awards in similar suits and is warranted based on the “tremendous result.”

“Class counsel’s requested fee award of one-third of the net settlement fund (inclusive of out of pocket litigation expenses) fits squarely within the range of market rates for attorneys’ fees in TCPA class action settlements of this size, particularly given the significant risk [of] nonpayment to class counsel at the outset and the quality of class counsel’s representation,” the attorneys said.

Farnham’s May 2016 complaint claimed that Caribou had sent her about 50 text message advertisements since March of that year.  The five-digit number the messages were sent from was an SMS short code, which indicated that they were sent from an automated telephone dialing system and reached other random cellphone users, the complaint said.

But U.S. District Judge William M. Conley wasn’t swayed, concluding in March that the decision in ACA International v. FCC was unlikely to affect the case.  Farnham alerted the judge the next month that the parties had reached a proposed settlement, and they ultimately asked for preliminary approval in June.  Under the $8.5 million settlement, each claimant is expected to receive about $200 after money is taken out to cover things like administration costs and an attorneys’ fees request of up to 35 percent, according to the motion.

Carey Rodriguez told the court that Farnham deserves a $10,000 incentive award for sticking up for other Caribou text recipients and explaining that the attorneys had settled on requesting one-third of the fund, which falls well within the 30 to 36 percent “market rate” for TCPA class action settlements of this size.  Class counsel certainly deserves the fee award for the considerable time and resources they invested despite the substantial risk of non-payment, the attorneys argued.

There were a number of factors that made victory an uncertainty, they said, including the fact that the suit was filed right before the high court handed down its landmark Spokeo decision, meaning there were serious questions regarding whether purely statutory damage class actions like Farnham’s litigation were viable.

The potential outcome of the ACA case also posed a risk, considering the parties’ primary disagreement in Farnham’s suit was the definition of the term “automatic telephone dialing system,” which was one of the questions before the D.C. Circuit, according to class counsel.