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Class Counsel to Judge: Trust Us, Our $89M Fee Request is Reasonable

September 27, 2019 | Posted in : Class Action, Fee Award Factors, Fee Request

A recent Law 360 story by Jack Queen, “Consumer Seek $89M in Atty Fees for Robocall Class Action, reports that attorneys who won a class action against a robocalling debt collector asked a California federal court to grant them $89 million in fees, citing the size of the trial judgment and lengthy appeal fight ahead.  Bursor & Fisher PA told the court that one-third of the $267 million judgment was an appropriate fee given the risks of the first-of-its-kind case and intransigence of defendant Rash Curtis & Associates, whose "sandbagging, discovery abuse, and false testimony" bogged down the case.  A jury found earlier this year that the debt collector made more than 500,000 illicit robocalls to consumers.

"Defendant repeatedly withheld information and provided false testimony regarding important issues to be decided at trial," Bursor & Fisher said.  "To overcome these abuses, class counsel had to file, and win, seven motions to compel discovery, just to obtain the evidence needed to present the claims at trial."  Bursor & Fisher said it should get more than the standard 25% benchmark fee for class actions set by the Ninth Circuit because of the novelty and risk of the case, which the firm said was the largest per-class-member judgment ever awarded under the Telephone Consumer Protection Act, a federal law limiting the use of automatic dialers.

Bursor & Fisher said the litigation is still far from over, and the firm expects to rack up expenses as it seeks to collect from Rash Curtis' insurer and fend off appeals from the California debt collector, which vowed to "tie the case up in righteous appeals for years."  The firm also said that it expects Rash Curtis to file for bankruptcy, further complicating efforts to recover the $500 awarded for each call.

The class action was originally filed in June 2016 and alleged that Rash Curtis used "repeated robocalls, prerecorded voice messages and autodialed calls to threaten and harass consumers in an attempt to collect" debts.  The firm collected numbers using "skip tracing," a method of analyzing personal information on public and private databases that often dredges up numbers unconnected to any debt, according to the class complaint.

Discovery in the case was fraught, riven with late additions to the evidence and last-second turnabouts by the defense, Bursor & Fisher said.  In a September 2017 ruling granting class certification, U.S. District Judge Yvonne Gonzalez Rogers chided Rash Curtis for its "blatant delaying and sandbagging tactics" and warned that she would impose sanctions if the debt collector kept it up.