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Rose v. Bank of America Corp.

United States District Court, N.D. California, San Jose Division

May 1, 2015

STEPHANIE ROSE, on behalf of herself and others similarly situated, Plaintiff,
v.
BANK OF AMERICA CORP., and FIA CARD SERVICES, N.A., Defendants. CAROL DUKE and JACK POSTER, on behalf of themselves and others similarly situated, Plaintiffs,
v.
BANK OF AMERICA, N.A.; BANK OF AMERICA, CORP.; and FIA CARD SERVICES, N.A., Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

EDWARD J. DAVILA, District Judge.

Plaintiffs Stephanie Rose, Sandra Ramirez, Shannon Johnson, Amin Makin, Carol Duke, Jack Poster, and Freddericka Bradshaw ("Plaintiffs") initiated the present class action lawsuit against Defendants Bank of America Corp., Bank of America, N.A., and FIA Card Services, N.A. (collectively, "Defendants") alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. ยง 227, et seq. On August 29, 2014, this Court issued its Order Granting Motion for Final Approval of Settlement; Granting in Part and Denying in Part Motion for Attorney's Fees and Costs ("Order"). Presently before the Court is Class Counsel's Motion for Reconsideration of this Court's Order. See Rose v. Bank of Am. Corp., No. 5:11-cv-02390-EJD, Dkt. No. 110; Duke v. Bank of Am., N.A., No. 5:12-cv-04009-EJD, Dkt. No. 64 ("Mot."). For the following reasons, Class Counsel's motion is DENIED.

I. BACKGROUND

The parties reached a settlement agreement resolving six actions alleging that Bank of America engaged in a systematic practice of calling or texting consumers' cell phones through the use of automatic telephone dialing systems and/or an artificial or prerecorded voice without their prior express consent, in violation of the TCPA. Order at 2. On August 29, 2014, the Court issued an Order granting final approval of the class action settlement agreement, and granting in part and denying in part Plaintiffs' motion for attorneys' fees and costs. While Class Counsel sought 25% of the settlement fund of $32, 083, 905, which amounted to $8, 020, 976, the Court concluded that a reduction was appropriate. Id. at 17. Therefore, the Court reduced the attorneys' fees and costs award to $2, 402, 243.91. Id. at 22. Judgment was entered on September 2, 2014.

On September 15, 2014, Class Counsel filed the instant motion challenging the attorneys' fees and costs awarded in the Order. See Mot. Objectors James Kirby and Susan House filed an opposition brief, and Class Counsel filed a reply brief.

II. LEGAL STANDARD

A motion under Federal Rule of Civil Procedure 59(e) may be granted on the following grounds: "(1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law." Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). A successful Rule 59(e) motion is an exception, not the norm, because it "offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

III. DISCUSSION

In challenging the award of attorneys' fees and costs, Class Counsel contends that the Order is not supported by a fulsome review of the undisputed material facts relating to five key issues: (1) the nature of the prospective practice changes required by the settlement; (2) the amount of the monetary relief achieved by the settlement for each submitted claim; (3) class counsel's litigation strategy enhancing efficiency and saving the class millions of dollars; (4) the number of hours Class Counsel worked on this litigation; and (5) the risk that Class Counsel would not be paid for their work. Mot. at 1. Thus, Class Counsel requests that the Court correct these undisputed facts, and alter the Judgment to award attorneys' fees and costs in the amount of $8, 020, 976, which is 25% of the common fund created in the settlement agreement. Id. at 14.

A. Nature of the Prospective Practice Changes Required by the Settlement

In its Order, the Court "question[ed] the prospective relief' provided by the Settlement Agreement, " it expressed "concern[] that the prospective relief would not be of any benefit to consumers because it would not prevent Defendants from continuing to call Class Members, " and it concluded that "Defendants chang[ing] their systems to reflect the borrower's prior express consent means very little in the context of this lawsuit." Order at 18. Here, Class Counsel contends that these prospective practice changes are, in fact, significant because it provides class members with the ability to stop the automated phone calls. Mot. at 3. Specifically, Class Counsel argues that as a result of this litigation, the Bank of America, N.A.'s mortgage servicing telephone calling policies changed so that it identified all cell phone numbers on a systematic basis, placed those numbers on a "suppression table" to prevent calling via auto-dialer, and obtained consent from the borrower before the number can again become eligible to be auto-dialed. Id. at 3-4. Moreover, Class Counsel argues that Bank of America Corporation and FIA Card Services, N.A. systematically review their databases on a daily basis to ensure that all customers with cell phone numbers have given consent to be autodialed. Id. at 4.

The Court retains the same concerns it expressed in its Order. Since Defendants continue to use the same definition of "prior express consent, " which has an unsettled meaning, it is possible that class members will continue to receive the automated calls that were the subject of this litigation. See Order at 19. Class Counsel can continue to tout this relief as "exceptional" to support an $8 million attorneys' fee award, but the Court simply does not share that opinion. Therefore, the Court will not disturb the position expressed in the Order.

B. Amount of Monetary Relief Achieved by the Settlement

The Order states that "claimants will receive an average recovery of between $20 and $40" and that "the $20 to $40 range falls in the lower range of recovery for achieved in other TCPA class action settlements." Order at 18. Here, Class Counsel contends that these figures were conservative. Mot. at 6. In fact, Class Counsel argues, class members who submitted a claim for mortgage calls or credit card calls would receive at least $57, and class members ...


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