IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LASANDRA HILLSON, 

STEVEN BOHLER, and 

ASHLEY SCHMIDT, 

individually and as representatives of the class,

 Case No. 2:15-cv-10803-LJM-APP

Plaintiffs, Honorable Laurie J. Michelson

v. Magistrate Judge Anthony P. Patti 

KELLY SERVICES, INC., 

Defendant.

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, COSTS, AND CLASS 

REPRESENTATIVE SERVICE PAYMENTS

Pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2) and the Court’s Order dated 

January 23, 2017 (ECF No. 55), Class Counsel and Named Plaintiffs LaSandra 

Hillson, Steven Bohler, and Ashley Schmidt (“Plaintiffs” or “Class 

Representatives”) respectfully move the Court for an Order approving the 

following payments in connection with the Settlement: (1) attorneys’ fees to Class 

Counsel in the amount of $1,687,250, which amounts to 25% of the settlement

fund; (2) $37,487.22 to reimburse Class Counsel for their out-of-pocket, 

documented expenses; (3) settlement administration costs not to exceed $243,216, 

plus the actual costs of postage; and (4) Class Representative service payments of 

$2,500 to each of the Plaintiffs. Defendant Kelly Services, Inc. (“Kelly” or 

“Defendant”) takes no position on this motion at this time.

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MEMORANDUM IN SUPPORT

STATEMENT OF ISSUES PRESENTED

Whether the requested attorneys’ fees, litigation expenses, settlement 

administration costs, and Class Representative service payments are reasonable 

and should be awarded. 

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AUTHORITY FOR RELIEF SOUGHT

Federal Rule of Civil Procedure 23(h) and 54(d)(2).

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INTRODUCTION

Plaintiffs and Class Counsel1have litigated this action for more than twoand-a-half years, engaged in multiple mediation sessions and extensive 

negotiations with Defendant, and ultimately achieved a favorable settlement on 

behalf of the Settlement Class (“Class”). The Settlement provides for direct 

monetary benefits and important nonmonetary relief—despite significant hurdles 

to recovery had this litigation proceeded. These benefits to the Class could not 

have been achieved absent Class Counsel’s time, effort, and skill, as well as 

Plaintiffs’ active participation in the case. Accordingly, Class Representatives and 

Class Counsel seek Court approval of the following payments in connection with 

the Settlement: (1) attorneys’ fees to Class Counsel in the amount of $1,687,250, 

which is 25% of the Maximum Settlement Amount (“Settlement Fund”); (2) 

$37,487.22 to reimburse Class Counsel for their out-of-pocket, documented

expenses; (3) settlement administration costs to Epiq Systems not to exceed

$243,216, plus the actual costs of postage; and (4) service payments of $2,500 to 

each of the Class Representatives.

The requested amount of attorneys’ fees is reasonable. It constitutes 25% of 

the Settlement Fund, an amount which is less than the maximum percentage Class 

Counsel can seek pursuant to the Settlement Agreement. The requested litigation 

 

1 Unless otherwise explicitly defined herein, all capitalized terms have the same 

meanings as those set forth in the Parties’ Settlement Agreement (ECF No. 37-2).

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costs, administration expenses, and service awards are also reasonable. Plaintiffs 

and Class Counsel thus respectfully request that this Court grant their motion.

BACKGROUND

I. SUMMARY OF CLAIM AND SETTLEMENT

This case involves the FCRA’s “stand-alone disclosure” provision, which 

requires that, prior to procuring a background check, employers make a clear and 

conspicuous written disclosure, in a document that consists solely of the disclosure, 

that a consumer report may be obtained. 15 U.S.C. § 1681b(b)(2). Plaintiffs filed a 

complaint in the Northern District of California on July 18, 2014, alleging that 

Defendant willfully violated this provision by including a liability release and other 

extraneous information in its disclosure. See Complaint, ECF No. 1 (N.D. Cal.).

Initially, the Parties agreed to attend an early mediation with Hon. Layn 

Phillips of Phillips ADR, which occurred on February 23, 2015. Declaration of E. 

Michelle Drake (“Drake Decl.”) ¶ 3. Prior to attending the mediation, the Parties 

exchanged informal discovery and detailed mediation briefs. Id. The initial 

mediation was ultimately unsuccessful, and the Parties returned to litigation.

Following the February 2015 mediation, the Parties stipulated to transfer the 

case to this Court. ECF No. 50 (N.D. Cal.). Then, on April 27, 2015, the Supreme 

Court granted a writ of certiorari in Spokeo, Inc. v Robins, No. 13-1339, 2015 WL 

1879778, at *1 (U.S. Apr. 27, 2015), to review whether a “plaintiff who suffers no 

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concrete harm” can satisfy the injury-in-fact requirement of Article III standing. 

Order Granting Cert., Spokeo, Inc. v. Robins, No. 13-1339 (S. Ct. April 27, 2015). 

On May 22, 2015, Defendant moved to stay litigation pending the Supreme 

Court’s decision in Spokeo, and Plaintiffs opposed the motion. ECF Nos. 18, 21. 

The motion to stay was briefed in detail and argued before the Court. The Court 

granted the motion to stay on July 15, 2015, noting that Spokeo had a “high 

potential to be completely dispositive of the instant case.” ECF No. 29. Despite the 

stay, the parties agreed to attend a second mediation. Drake Decl. ¶ 5. The second 

mediation took place on January 7, 2016, and resulted in a settlement. Id. ¶¶ 5-7. 

Spokeo was decided on May 16, 2016. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540 

(2016), as revised (May 24, 2016). After months of further, extensive negotiations

surrounding the terms of the final settlement agreement, on June 8, 2016, the 

parties executed a final Settlement Agreement. Drake Decl. ¶ 7. The Court 

preliminarily approved the Settlement on January 23, 2017. ECF No. 55.

The full Settlement Agreement and a detailed summary of the same were 

filed with Plaintiffs’ motion for preliminary approval and are explicitly 

incorporated here by reference. See ECF No. 37; ECF No. 37-2 (hereinafter, 

“Settlement Agreement”). In summary, the Agreement establishes a Settlement 

Fund of $6,749,000. Settlement Agreement ¶ 45. After any deductions for 

attorneys’ fees, expenses, and service payments, the Settlement Fund will be 

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divided pro rata among Class Members who timely return claim forms, with Class 

Members who were Adjudicated Ineligible—those who had a background check 

result other than “favorable”—receiving three times the amount that Class 

Members who were not so adjudicated will receive. Id. ¶¶ 46-49.2

The Settlement also provides three forms of nonmonetary relief. First, 

Defendant has agreed not to include a liability release on its FCRA disclosure form 

for a period of five years, unless there is a material change in the law. Id. 

¶ 42. Second, the Settlement allows Class Members to receive a free copy of any 

consumer report Kelly procured on them. Id. ¶ 54(e). The Settlement Website 

includes a simple-to-use form that Class Members can utilize to request reports. 

See http://hillsonfcrasettlement.com/request.php (last visited March 27, 2017).

Class Members can also request copies of their reports through a toll-free call 

center. Id. ¶ 55. Third, under the Settlement, Defendant will designate a dedicated 

“Consumer Reports Information Operator,” who, for a period of three years, will 

provide Class Members and Kelly’s temporary employees with information about 

procuring copies of their background checks. Id. ¶ 43. 

The Settlement allows Class Counsel to seek up to one-third of the 

Settlement Fund as well as Class Representative Service Payments of $2,500 for 

each of the Plaintiffs. Id. ¶ 47-48. The amounts of service payments and attorneys’ 

 

2

The parties will update the Court with final numbers regarding what each Class 

Member would receive in their forthcoming motion for final settlement approval.

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fees were negotiated only after the Parties had agreed on the amount of the 

Settlement Fund and the method of distribution to Class Members. Id. The 

Settlement is not contingent on the Court awarding attorneys’ fees or service 

payments in this amount (or in any amount). Id.

II. CLASS COUNSEL’S EXPERIENCE AND EFFORTS TO SECURE BENEFITS FOR 

THE CLASS

The specific qualifications of Class Counsel are set forth in the 

accompanying Declarations of E. Michelle Drake, Paul J. Lukas (“Lukas Decl.”), 

and Ian Lyngklip (“Lyngklip Decl.”) and are incorporated herein. As a result of 

their experience in this area, Class Counsel were able to efficiently and effectively 

litigate this action and had the credibility necessary to negotiate a fair and 

reasonable settlement on behalf of the Class. 

Class Counsel has worked without compensation or reimbursement for their 

time and out-of-pocket expenses necessary to position this case for settlement. 

Drake Decl. ¶¶ 10-11. Before taking on this case, Plaintiffs and Class Counsel 

negotiated a customary one-third contingency fee, with the understanding that this 

amount was an appropriate incentive for Class Counsel to take on the financial 

risks involved in the representation. Id. ¶ 8. Class Counsel also agreed to advance 

all costs of this litigation. Id. ¶¶ 8, 10. Plaintiffs and Class Counsel agreed that 

Class Counsel would receive reimbursement for its costs from the value of a 

successful settlement or judgment. Id. ¶ 8. In the event that Class Counsel did not 

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successfully resolve this matter, Class Counsel would have been paid nothing and 

would have been required to absorb all costs that were advanced as well as the 

value of their time. 

Although the parties settled this case in the pre-trial stage, Class Counsel has 

invested a substantial amount of time and resources investigating and litigating this 

action. Id. ¶ 12. Many of the tasks performed by Class Counsel are not evident 

based solely upon a review of the docket in this matter, as much of the litigation of 

this action took place outside the courtroom. Id.

Tasks performed by Class Counsel thus far include: (1) investigating the 

claims; (2) meeting and communicating regularly with Plaintiffs, including 

traveling to Iowa meet with Plaintiff Ashley Schmidt in person; (3) researching 

and drafting the complaint and an amended complaint; (4) reviewing Plaintiffs’ 

documents and preparing them for production; (5) drafting discovery requests and 

a protective order; (6) drafting responses to Defendant’s written discovery; 

(7) retaining and consulting with an expert; (8) researching and conferring with 

defense counsel regarding the stipulation to transfer the case; (8) preparing for and 

attending the Rule 26(f) conference; (9) drafting a case management plan and 

Electronically Stored Information (“ESI”) supplement; (10) meeting and 

conferring with Defendant’s counsel regarding ESI issues; (11) preparing for and 

attending the scheduling conference; (12) corresponding with Class Members and 

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potential additional plaintiffs; (13) researching and drafting a response to 

Defendant’s motion to stay the case; (14) traveling to, preparing for, and arguing at 

the hearing on Defendant’s motion to stay; (15) exchanging and reviewing premediation discovery; (16) researching and drafting two mediation briefs; (17) 

preparing for and participating in two separate mediation sessions; (18) engaging

in extended settlement negotiations with Defendant; (19) drafting the Settlement 

Agreement and class notices; (20) researching and drafting the preliminary 

approval brief; (21) researching and drafting two supplemental briefs and 

numerous notices of supplemental authority in support of preliminary approval; 

(22) traveling to, preparing for, and arguing at the preliminary approval hearing; 

(23) developing and maintaining the Settlement website; (24) overseeing

administration of the Settlement; and (25) responding to calls from Class Members 

with questions about the Settlement. Lukas Decl. ¶ 4.

Class Counsel’s fee entries demonstrate the amount of time devoted to each 

of these tasks and how Class Counsel’s lodestar was calculated. See Drake Decl., 

Ex. A; Lukas Decl., Ex. A; Lyngklip Decl., Ex. A. To date, Class Counsel’s

combined lodestar is $326,391.63. Drake Decl. ¶ 14; Lukas Decl. ¶ 6. This lodestar 

amount does not include numerous hours spent on purely administrative matters.3

 

3 More than 39 hours ($7,593.25 in lodestar) spent on administrative matters or 

other, similar tasks were excluded from Class Counsel’s cumulative lodestar.

Lukas Decl. ¶ 6.

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Class Counsel also anticipates contributing additional time and effort to this case if

the Settlement is finally approved. Drake Decl. ¶ 16. Additional tasks Class 

Counsel expects to perform include continuing to oversee the administration of the 

Settlement, researching and drafting final approval papers, preparing for the final

fairness hearing, and traveling to and arguing at the final fairness hearing. Id. 

Importantly, Class Counsel’s lodestar also does not reflect the full extent of 

Class Counsel’s efforts outside of this case that ultimately benefited the Class. For 

example, Class Counsel has expended dozens of hours researching standing issues 

and monitoring cases interpreting Spokeo. Id. ¶ 18. Class Counsel monitors every 

new FCRA case that is filed in federal court on a daily basis. Id. Class Counsel has 

tracked every such case that has resulted in any litigation around standing, and has 

compiled a comprehensive compendium of all post-Spokeo district court opinions 

in FCRA cases. Id. Class Counsel has also monitored every appellate court 

decision mentioning Spokeo, including both FCRA and non-FCRA cases, and has 

compiled a compendium of those cases as well. Id. These efforts, none of which 

were specifically billed to this case, but each of which consumes a significant 

amount of Class Counsel’s time, provided tremendous benefits to the Class. They 

enabled Class Counsel to negotiate a substantial and meaningful settlement of this 

case, by comparing it to other FCRA cases, and by distinguishing it from other 

cases that settled for less. They also allowed Class Counsel to effectively and 

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efficiently brief the standing issues that arose during preliminary approval and that 

may arise again at final approval, and to effectively assess the reasonability of the 

recovery in this matter. They also motivated Class Counsel to negotiate a 

settlement that would persist no matter the outcome of Spokeo, due to the provision 

in Paragraph 77 that requires the Settlement to be presented in an alternative 

jurisdiction should the need arise. None of these efforts are reflected in Class 

Counsel’s time records in this case (or in any other case). Class Counsel’s past 

successes, experience, and virtually unparalleled knowledge of the FCRA, FCRA 

cases, and the state of the law regarding standing under the FCRA allowed Class 

Counsel to reach a favorable Settlement with efficiency and appropriate risk 

analysis. 

To date, Class Counsel has also collectively incurred $37,487.22 in out-ofpocket litigation costs. Id. ¶ 15. All of these costs were necessarily incurred and are

of the type typically reimbursed by paying clients. Id. The estimated costs of 

settlement administration in this matter (which are not included in the litigation 

cost totals) are anticipated not to exceed $243,216, plus the actual costs of postage,

and were also reasonably incurred. Id. ¶ 17.

III. CLASS REPRESENTATIVES’ PARTICIPATION IN THE CASE

Plaintiffs have played a valuable role in bringing this litigation to a 

successful conclusion. Id. ¶ 19. Among other things, Plaintiffs: (1) met with Class 

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Counsel at the outset of the case; (2) assisted with Counsel’s investigation of the 

facts; (3) reviewed the complaint prior to filing; (4) worked with Counsel to 

respond to written discovery; (5) produced documents relating to their applications 

with Defendant; (6) consulted with Class Counsel during the course of Settlement 

negotiations; (7) reviewed and approved the final Settlement Agreement; and (8) 

regularly communicated with Class Counsel and provided input and answers to 

questions whenever needed. Hillson Decl. ¶ 4; Bohler Decl. ¶ 4; Schmidt Decl. ¶ 4. 

Plaintiffs also anticipate submitting declarations in support of final approval of the 

settlement. Hillson Decl. ¶ 5; Bohler Decl. ¶ 5; Schmidt Decl. ¶ 5.

In sum, Plaintiffs have actively engaged in discovery and settlement 

negotiations and have had frequent correspondence with Class Counsel to stay 

abreast of developments in the case. Drake Decl. ¶ 19. The Settlement’s allowance 

for service payments of up to $2,500 reflects the Class Representatives’ initiative 

in pursuing this action, the risks associated with attaching their names to this 

litigation, and the time they have invested in the case. 

ARGUMENT

I. THE COURT SHOULD APPROVE THE REQUESTED ATTORNEYS’ FEES 

In this case, the requested award fairly and reasonably compensates Class 

Counsel. The requested fee of 25% of the Settlement Fund is consistent with the 

benchmark percentage in this circuit and is less than the amount authorized in the 

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Settlement Agreement. Class Counsel invested significant resources in this case 

with the possibility of no recovery whatsoever. Due in no small part to their skill, 

experience, and past success litigating similar claims, Class Counsel was able to 

efficiently resolve this case in a Settlement that provides significant relief to Class 

Members, after extensive negotiations. The Parties’ ability to reach the Settlement 

without much protracted litigation or dispositive motion practice demonstrates 

Class Counsel’s efficient use of resources and recognizes the risks and expenses of 

litigation and trial, as well as the benefits of Settlement. Notably, Class Counsel 

achieved these benefits for the Class even in the shadow of Spokeo—which was 

pending in the Supreme Court at the time of the Settlement and which Magistrate 

Judge Patti stated had a “high potential” to completely dispose of Plaintiffs’, and 

the Class’s, claims. Order Granting Motion to Stay, ECF No. 29. 

“[A] litigant or lawyer who recovers a common fund for the benefit of 

persons other than himself or his client is entitled to a reasonable attorney’s fee 

from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).

“When awarding attorney’s fees in a class action, a court must make sure that 

counsel is fairly compensated for the amount of work done as well as for the 

results achieved.” Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 516 (6th 

Cir. 1993). In common fund cases, the Sixth Circuit “require[s] only that awards of 

attorney’s fees be reasonable under the circumstances.” Moulton v. U.S. Steel 

Case 2:15-cv-10803-LJM-APP ECF No. 60, PageID.914 Filed 03/27/17 Page 14 of 36
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Corp., 581 F.3d 344, 352 (6th Cir. 2009) (internal quotations omitted). Courts may 

address the following factors to determine the reasonableness of an attorneys’ fee 

award:

(1) the value of the benefit rendered to the plaintiff class; (2) the 

value of the services on an hourly basis; (3) whether the services 

were undertaken on a contingent fee basis; (4) society’s stake in 

rewarding attorneys who produce such benefits in order to 

maintain an incentive to others; (5) the complexity of the litigation; 

and (6) the professional skill and standing of counsel involved on 

both sides.

Id. at 352 (quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996)). As 

discussed below, these factors demonstrate that an award of 25% of the Settlement 

Fund is reasonable and should be granted. 

A. The Court Should Apply the Percentage Method to Determine a 

Reasonable Fee

In class action settlements involving common funds, the Sixth Circuit gives 

courts discretion in choosing the “appropriate method for calculating attorney’s 

fees in light of the unique characteristics of class actions in general, and of the 

unique circumstances of the actual cases before them.” Rawlings, 9 F.3d at 516. 

There is, however, a clear trend toward awarding a percentage of the fund. Id. at 

515-16; Bowling v. Pfizer, Inc., 922 F. Supp. 1261, 1279 (S.D. Ohio), aff’d, 103 

F.3d 128 (6th Cir. 1996), and aff’d, 102 F.3d 777. Indeed, the Supreme Court has

recognized that, under the “‘common fund doctrine’ . . . a reasonable fee is based 

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on a percentage of the fund bestowed on the class.” See Blum v. Stenson, 465 U.S. 

886, 900 n.16 (1984).

The percentage approach to awarding fees is appropriate even if the 

underlying claims were brought under a fee-shifting statute. District courts in this 

circuit—including this Court—frequently apply the percentage method in common 

fund settlements of claims under fee-shifting statutes. See, e.g., Underwood v. 

Carpenters Pension Trust Fund—Detroit & Vicinity, No. 13-CV-14464, 2017 WL 

655622, at *13 (E.D. Mich. Feb. 17, 2017) (stating that the “percentage of fund 

method is appropriate” in a class settlement under ERISA); Clevenger v. Dillards, 

Inc., No. C-1-02-558, 2007 WL 764291, at *1 (S.D. Ohio Mar. 9, 2007) 

(“[R]ecovery of common fund fees is not precluded where a fee-shifting statute 

applies”). Several Courts of Appeals have explicitly held that the common fund 

doctrine is applicable in class action settlements involving fee-shifting statutes. See 

Staton v. Boeing Co., 327 F.3d 938, 967 (9th Cir. 2003); Brytus v. Spang & Co., 

203 F.3d 238, 246 (3d Cir. 2000); Florin v. Nationsbank, 34 F.3d 560, 564 (7th 

Cir.1994).

4

 

4

The two cases cited in the Court’s preliminary approval Order (ECF No. 55, at 

20) do not require the Court to apply a lodestar approach. The Settlement in 

Yeagley v. Wells Fargo & Co. did not involve a common fund, and the Ninth 

Circuit specifically noted that the percentage method is appropriate where the 

settlement involves a common fund. 365 Fed. App’x 886, 887 (9th Cir. 2010). In 

Reibstein v. Rite Aid Corp., 761 F. Supp. 2d 241, 259-60 (E.D. Pa. 2011), the court 

suggested that the lodestar method was often applied in settlements involving feeCase 2:15-cv-10803-LJM-APP ECF No. 60, PageID.916 Filed 03/27/17 Page 16 of 36
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The percentage approach is preferable here in light of the unique 

characteristics of this case and of class actions generally. See Rawlings, 9 F.3d at 

516. The percentage method “more accurately reflects the results achieved.” 

Gascho v. Global Fitness Holdings, LLC, 822 F.3d 269, 279 (6th Cir. 2016). It also

“decreases the burden imposed on the Court by eliminating a full-blown, detailed 

and time consuming lodestar analysis while assuring that the beneficiaries do not 

experience undue delay in receiving their share of the settlement.” Stanley v. U.S. 

Steel Co., No. 04-74654, 2009 WL 4646647, at *1 (E.D. Mich. Dec. 8, 2009). Use 

of the percentage method also promotes efficiency and removes incentives for 

lawyers to run up hours. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 

121 (2d Cir. 2005); Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986). In sum, 

the percentage method best aligns the interests of the lawyer and the client. See 

Wal-Mart, 396 F.3d at 121 (concluding the percentage approach “directly aligns 

the interests of the class and its counsel and provides a powerful incentive for the 

efficient prosecution and early resolution of litigation,” whereas the “lodestar 

create[s] an unanticipated disincentive to early settlements”) (quotations omitted).

The percentage method is also appropriate in the unique circumstances of 

this case. Class Counsel took this case on a contingent fee basis. Drake Decl. ¶ 8.

 

shifting statutes, but stated that it was not required. To the contrary, the Third 

Circuit explicitly allows use of the percentage method in common-fund settlements 

where the underlying claims involve fee-shifting statutes. Brytus, 203 F.3d at 246.

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The percentage method reflects the realities of the private marketplace, where 

contingent-fee attorneys are routinely compensated based on a percentage of the 

recovery. Manners v. Am. Gen. Life Ins. Co., No. CIV.A. 3-98-0266, 1999 WL 

33581944, at *29 (M.D. Tenn. Aug. 11, 1999).

Importantly, this is not a case where Class Counsel settled early in the hopes 

of garnering a larger fee—the type of scenario that reflects a possible disadvantage 

to the percentage approach. See Rawlings, 9 F.3d at 516; Underwood, 2017 WL 

655622, at *14. Instead, two key factors resulted in the relatively early settlement 

here: (1) Class Counsel’s experience litigating these types of cases, and (2) the 

major risks posed by the need to prove willfulness and a possible adverse ruling in 

Spokeo, which was pending in the Supreme Court at the time of the Settlement. 

Indeed, Magistrate Judge Patti noted in the order staying this case that Spokeo had 

a “high potential to be completely dispositive of the instant case.” ECF No. 29. 

Under these circumstances, settling this case before the Spokeo opinion was issued

was in the best interest of Class Members.5 As such, the primary disadvantage of 

the percentage method is inapplicable here.

Given the circumstances of this case and of class actions generally, the Court 

should apply the percentage approach to award a reasonable attorneys’ fee.

 

5

To protect against the risks Spokeo posed, the Settlement Agreement included a 

provision allowing the Settlement to be enforced in another court of competent 

jurisdiction, had this Court determined that Plaintiffs lacked standing. Settlement 

Agreement ¶ 77.

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B. The Award Reasonably Compensates Class Counsel for the Value 

Obtained for the Class

Both the monetary and nonmonetary benefits of the Settlement warrant the 

requested amount of fees, considering the range of recovery available, the risks of 

proceeding with litigation, and typical percentages awarded in other, similar cases. 

In this case, the potential damages per Class Member ranged from $100 to 

$1,000. 15 U.S.C. § 1681n(a)(1). Under the Settlement, assuming a 100% claims 

rate, Class Members will receive an average per-capita gross recovery of $30.50.6

This is well in line with recoveries in other settlements of FCRA stand-alone

disclosure claims. See, e.g., Aceves v. Autozone Inc., No. EDCV 14-2032-VAP 

(DTBx), ECF No. 58 (C.D. Cal. Nov. 18, 2016) ($20 per disclosure class member); 

Foltz v. Guitar Center Stores, Inc., No. 2:14-cv-04308-NKL, ECF Nos. 41 & 48 

(W.D. Mo. July 10, 2015 & Dec. 30, 2015) ($35 gross recovery per class member); 

Landrum v. Acadian Ambulance Serv., Inc., No. 14-cv-1467, ECF No. 37 (S.D. 

Tex. Nov. 5, 2015) ($10 per disclosure class member); Patrick v. Interstate Mgmt. 

Co., LLC, No. 8:15-cv-1252-T-33AEP, ECF Nos. 42 & 49 (M.D. Fla. Jan. 14, 

2016 & Apr. 29, 2016) ($16.40 gross recovery per disclosure class member). The

recovery is even more impressive in light of the significant risks to recovery at the 

time of Settlement: namely, the pendency of Spokeo in the Supreme Court, and the 

 

6

In reality, a claims rate of 100% is unlikely, and Class Members who submit 

claims will receive considerably more. For example, a claims rate of 15% would 

result in an average per-capita gross recovery of about $203.

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likely difficulties of proving willfulness. See infra at 25-26 (explaining the risks to 

recovery); Memo in Supp. of Preliminary Approval, ECF No. 37, at 28-31 

(elaborating on these risks).

The Settlement also includes significant nonmonetary benefits.

7

First, the 

Settlement provides a unique mechanism for Class Members to easily request 

copies of their background checks. This allows Class Members and other Kelly 

employees and applicants to more easily learn what is being reported about them 

and to correct any errors, improving their future employment prospects. Under the 

Settlement, Defendant has also agreed to cease its past practice of including a 

liability release in its disclosures. Settlement Agreement ¶ 42. This ensures that, 

going forward, the disclosure fulfills its purpose by clearly and succinctly 

informing applicants that a consumer report will be procured. This injunctive relief 

is significant, given there is disagreement among courts whether injunctive relief is 

even available under the FCRA. See Greear v. Equifax Info. Servs., LLC, No. 14-

11988, 2014 WL 3809475, at *1 (E.D. Mich. Aug. 1, 2014) (citing cases). 

The requested percentage of the Settlement Fund is well within reason and is 

consistent with the “reasonable expectations on the part of plaintiffs’ attorneys as 

to their expected recovery.” Rawlings, 9 F.3d at 516. Fee awards in other common 

 

7

The Court may consider these nonmonetary benefits when evaluating a 

reasonable fee. See, e.g., In re Skechers Toning Shoe Prod. Liab. Litig., No. 3:11-

MD-2308-TBR, 2013 WL 2010702, at *10 (W.D. Ky. May 13, 2013) (considering 

injunctive relief in determining fee award).

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fund settlements demonstrate that courts in the Sixth Circuit routinely award fees 

at or above 25%. See Underwood, 2017 WL 655622, at *15 (awarding 28% of the 

common fund); In re Packaged Ice Antitrust Litig., No. 08-MDL-01952, 2011 WL 

6209188, at *19 (E.D. Mich. Dec. 13, 2011) (“30% appears to be a fairly wellaccepted ratio . . . .”); Fournier v. PFS Investments, Inc., 997 F. Supp. 828, 832 

(E.D. Mich. 1998) (“The ‘benchmark’ percentage . . . has been 25% [of the

fund] . . . .”); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 

366, 372 (S.D. Ohio 1990) (“Fee awards in common fund cases generally are 

calculated as a percentage . . . ranging from 20 to 50 percent. . . .”). In fact, courts 

nationwide frequently award attorneys’ fees amounting to 33% of the common 

fund in FCRA class action settlements. See, e.g., Johnson v. Midwest Logistics 

Sys., Ltd., No. 2:11-CV-1061, 2013 WL 2295880, at *6 (S.D. Ohio May 24, 2013);

Smith v. Res-Care, Inc., No. CV 3:13-5211, 2015 WL 6479658, at *8 (S.D.W. Va. 

Oct. 27, 2015); Serrano v. Sterling Testing Sys., Inc., 711 F. Supp. 2d 402, 421 

(E.D. Pa. 2010). The requested fee is 8% less than the fee awards in these cases—

and 8% less than the maximum percentage outlined in the Settlement Agreement

and class notices. Settlement Agreement ¶ 48; ECF Nos. 49-1, 49-2, 49-3.

The first factor thus weighs in favor of the requested award.

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C. A Lodestar Cross-Check Confirms the Appropriateness of the 

Award

A lodestar cross-check confirms that the requested award is reasonable.

Performing a cross-check of the requested fees using Class Counsel’s lodestar is 

optional. Feiertag v. DDP Holdings, LLC, No. 14-CV-2643, 2016 WL 4721208, at 

*7 (S.D. Ohio Sept. 9, 2016); see also Dick v. Sprint Commc'ns Co. L.P., 297 

F.R.D. 283, 300 (W.D. Ky. 2014) (“The Court emphasizes that a lodestar analysis 

is unnecessary if the fee does not appear to be excessive as a percentage of the 

recovery.”). But courts in the Sixth Circuit often use a lodestar cross-check to 

verify the reasonableness of a fee awarded under the percentage approach. In re 

Cardinal Health Inc. Sec. Litigations, 528 F. Supp. 2d 752, 764 (S.D. Ohio 2007). 

Class Counsel has attached detailed logs of their time entries showing the 

work they have performed on this case to date. As the time records indicate, Class 

Counsel has already logged a combined total of $326,391.63 in billable time at its 

standard hourly rates. Drake Decl. ¶ 14; Lukas Decl. ¶ 6. This results in a 

requested lodestar multiplier of 5.2. 

The hours billed represent time spent on tasks that were reasonably 

necessary to litigate this case. Drake Decl. ¶ 12; Lukas Decl. ¶ 9. Class Counsel’s

rates are also reasonable. In determining a reasonable hourly rate, courts may look 

at “national markets, an area of specialization, or any other market they believe is 

appropriate to fairly compensate attorneys.” McHugh v. Olympia Entm’t, Inc., 37 

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22

F. App’x 730, 740 (6th Cir. 2002) (citing Louisville Black Police Officers Org. v. 

City of Louisville, 700 F.2d 268, 278 (6th Cir. 1983)). Class Counsel’s hourly 

rates—ranging from $300 to $675 for attorneys and $150 to $275 for paralegals 

and staff—reflect Class Counsel’s standard hourly rates. Drake Decl. ¶ 13; Lukas 

Decl. ¶ 5. These rates are reasonable, particularly given that this was a nationwide 

class action, Class Counsel’s experience litigating similar class actions, and the 

national scope of Class Counsel’s practices. Declaration of David Blanchard, 

¶¶ 6-11 (attesting to reasonableness of Class Counsel’s rates); Spano v. Boeing Co., 

No. 06-CV-743-NJR-DGW, 2016 WL 3791123, at *3 (S.D. Ill. Mar. 31, 2016) 

(approving hourly rates of $460 to $998 for attorneys, $309 for paralegals, and 

$190 for legal assistants); In re Mercedes-Benz Tele Aid Contract Litig., No. 07-

CV-2720, 2011 WL 4020862, at *7 (D.N.J. Sept. 9, 2011) (finding reasonable, in 

consumer class action settlement, hourly rates up to $855 for partners and up to 

$560 for associates); Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 794 

(N.D. Ohio 2010) (approving attorney rates ranging from $325 to $825 and 

paralegal rates up to $215 in class action); Laffey Matrix,

8

http://www.laffeymatrix.com/see.html (last visited Mar. 26, 2017) (setting forth 

rates between $343 and $826 for attorneys of similar experience levels).

 

8

The Laffey Matrix is “an official statement of market-supported reasonable 

attorney fee rates” adopted and updated by the D.C. Circuit Court of Appeals. 

Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 347 n.3 (6th Cir. 2000). 

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The requested lodestar multiplier is also within a reasonable range. Courts in 

this circuit have recognized lodestar multipliers like the one sought here to be

reasonable and appropriate and have awarded even higher multipliers when 

performing a lodestar analysis only as a cross-check. See In re Prandin Direct 

Purchaser Antitrust Litig., No. 2:10-CV-12141-AC-DAS, 2015 WL 1396473, at 

*4 n.28 (E.D. Mich. Jan. 20, 2015) (listing cases); Merkner v. AK Steel Corp., 

1:09-cv-00423-TSB, ECF No. 79, at 6-7 (S.D. Ohio Jan. 10, 2011) (multiplier of 

5.3 in lodestar crosscheck); Bailey v. AK Steel Corp., No. 1:06-CV-468, 2008 WL 

553764, at *2 (S.D. Ohio Feb. 28, 2008) (noting that the “normal range” for a 

lodestar multiplier is “between two and five”); In re Cardinal Health, 528 F. Supp. 

2d at 767 (multiplier of 5.9 in lodestar crosscheck); In re Fernald Litig., No. C-1-

85-149, 1989 WL 267038, at *5 (S.D. Ohio Sept. 29, 1989) (multiplier of 5 in 

lodestar crosscheck); In re Beverly Hills Fire Litig., 639 F. Supp. 915, 924 (E.D. 

Ky. 1986) (multiplier of 5 for lead counsel).9

The unique circumstances of this case render the multiplier even more 

reasonable. First, there is a considerable amount of work remaining. To ensure that 

Class Members have all the key information they need before deciding whether to 

 

9 Courts across the country have also awarded much higher multipliers. See, e.g., 

New Eng. Carpenters Health Benefits Fund v. First Databank, No. 05-cv-11148-

PBS, 2009 WL 2408560, at *2 (D. Mass. Aug. 3, 2009) (8.3 multiplier); Stop & 

Shop Supermarket Co. v. SmithKline Beecham Corp., No. 2:03-CV-04578, 2005 

WL 1213926, at *18 (E.D. Pa. May 19, 2005) (15.6 multiplier).

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object or opt out of the Settlement, Class Counsel sought a deadline for this fee 

application that was two weeks prior to the opt-out and objection deadline—and 

more than four months before the final approval hearing. Settlement Agreement 

¶ 72. Thus, Counsel’s time entries and lodestar to date do not include time Class 

Counsel will spend drafting the final approval papers, preparing for and attending 

the final approval hearing, and overseeing the ongoing administration of the 

Settlement. See Drake Decl. ¶ 16. Class Counsel will supplement this request with

a final lodestar number shortly before the final approval hearing. Furthermore, the 

fee records in this case do not reflect work Class Counsel performed outside this 

case that ultimately benefited the Class and the Settlement. See supra, at 10-11.

Thus, the second factor supports the requested award.

D. Class Counsel Took This Case on a Contingent Fee Basis Despite 

Significant Risks

The requested fee award is even more reasonable considering the risks that 

Class Counsel assumed in undertaking the representation on a contingent fee basis. 

This is “an important factor in determining the fee award.” Stanley v. U.S. Steel 

Co., 2009 WL 4646647, at *3. Indeed, “[s]everal courts consider the risk of nonrecovery the most important factor in the fee determination.” In re Cardinal 

Health, 528 F. Supp. 2d at 766. 

At the time Class Counsel took on this case, the outcome was uncertain. 

There were very few court opinions addressing the meaning of 15 U.S.C. 

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§ 1681b(b)(2). Drake Decl. ¶ 9. To Class Counsel’s knowledge, there were no 

such cases within the Sixth Circuit. Id. ¶ 9. Class Counsel thus contributed more 

than 830 hours to this case with the very real possibility of no fee recovery at all.

These risks come into even sharper focus taking into account the FCRA’s 

willfulness requirement. The FCRA is not a strict liability statute. Dalton v. 

Capital Associated Indus., 257 F.3d 409, 417 (4th Cir. 2001). Because Plaintiffs

did not allege actual damages, they would have been required to prove that 

Defendants acted willfully. See 15 U.S.C. § 1681n(a). To prevail, Plaintiffs would 

have had to show not only that their interpretation of the FCRA was correct, but 

that Defendant’s interpretation of the statute was objectively unreasonable. See 

Safeco Ins. Co. v. Burr, 551 U.S. 47, 69 (2007). To challenge the willfulness 

element, Defendants likely would have relied on the lack of cases directly on point 

in the Court of Appeals at the time of the pertinent conduct. See id. at 70. This, too, 

increased the risk that Class Counsel would recover nothing. 

For these reasons, the third factor supports the requested award.

E. The Public Interest Favors Incentivizing Class Counsel’s 

Advocacy

This action and cases like it serve to protect important informational and 

privacy interests. The FCRA “ensure[s] fair and accurate credit reporting . . . and 

protect[s] consumer privacy.” Id. at 52. Congress amended the Act in 1996 due to 

two key concerns: (1) that employers’ practices relating to procuring and using

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consumer reports “create[d] an improper invasion of privacy,” S. Rep. 104-185, at 

35 (1995), and (2) the “significant amount of inaccurate information . . . being 

reported by consumer reporting agencies and the difficulties that consumers faced 

getting such errors corrected,” S. Rep. No. 108-166, at 5-6 (2003). To address 

these concerns, Congress implemented additional protections, including

§ 1681b(b)(2)’s disclosure requirement. See Pub. L. 104-208.

The first step to give effect to the FCRA’s protections for job applicants and 

employees is to require employers to disclose that they are procuring a consumer 

report in a clear, succinct, and understandable format. 

If information is not provided in a clear and usable form, it may 

actually make people less knowledgeable than they were before, 

producing overreactions, or underreactions, based on an ability to 

understand what the information actually means. People also face a 

pervasive risk of ‘information overload,’ causing consumers to treat a 

large amount of information as equivalent to no information at all. 

Certainly this is true when disclosure campaigns are filled with details 

that cannot be processed easily.

Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and 

Beyond, 147 U. Pa. L. Rev. 613, 627-28 (1999).

Here, Plaintiffs alleged that Defendant’s release included a liability waiver 

and other extraneous information, which not only can result in “information 

overload,” preventing applicants from understanding their rights, but also can chill 

individuals’ enforcement of those rights based on a belief that they have waived 

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them. Accordingly, there is an important societal interest at stake, which weighs in 

favor of the requested fee.

F. The Complexity of the Case Supports the Requested Fee

Although the factual issues may appear straightforward at first blush, several 

factors rendered this case complex.

First, class actions are inherently complex. In re Delphi Corp. Sec., 

Derivative & “ERISA” Litig., 248 F.R.D. 483, 504 (E.D. Mich. 2008). Compared 

to individual cases, class actions by their very nature involve unique procedural 

hurdles, more extensive discovery, and larger stakes, all of which affect the way 

the case is litigated from the outset.

Second, the FCRA’s state-of-mind requirement increased the complexity of 

this case. As explained above, to prevail on their claims, Plaintiffs would have had 

to prove that any violation of the statute was willful. This is no easy task. 

“[P]roving wilfulness may well be difficult in the context of large corporate 

employers where the locus of particular decision-making is often elusive.” Ellis v. 

Glover & Gardner Const. Co., 562 F. Supp. 1054, 1061 (M.D. Tenn. 1983) 

(quoting Stewart v. Travelers Corp., 503 F.3d 108, 113 (9th Cir. 1974)). 

Third, standing issues also increased the complexity of this case. Spokeo 

raised a complicated jurisdictional issue, which Class Counsel addressed during the 

motion to stay, in the Settlement Agreement itself, and again in the motion for 

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preliminary approval. The law on standing post-Spokeo developed rapidly, 

requiring Class Counsel to monitor case developments and formulate novel 

arguments for purposes of preliminary approval of the Settlement.

Importantly, each of these risks was not gradated, but binary. Without 

winning on class certification, willfulness, and standing, the Class and Class 

Counsel would have recovered nothing. These complexities support the 

reasonableness of the fee.

G. Class Counsel Are Skilled and Experienced in Litigating Similar 

Cases

Class Counsel’s qualifications are set forth in their firm resumes and 

declarations, see ECF Nos. 37-3, 37-5, 37-6; Drake Decl., Exs. C-D; Lukas Decl. 

Ex. C, Lyngklip Decl. ¶¶ 4-28, and Memorandum in Support of Preliminary 

Approval, see ECF No. 37, at 38, which are incorporated herein. As these 

qualifications demonstrate, Class Counsel is highly skilled in handling major 

complex litigation and has extensive experience litigating consumer and 

employment class actions. Class Counsel and their firms frequently have been 

recognized by courts and other institutions for their proficiency, expertise, and 

professionalism. ECF Nos. 37-3, 37-5, 37-6; Drake Decl., Exs. C-D; Lukas Decl. 

Ex. C, Lyngklip Decl. ¶¶ 4-28. 

Class Counsel also hails from a select number of firms that have a depth of 

experience litigating FCRA class actions. The attorneys who worked on this case 

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have achieved a remarkable number of favorable decisions in other FCRA standalone disclosure cases.10 These victories not only demonstrate that Class Counsel’s 

skill level supports the requested fee, but also positioned the Class for a strong

Settlement in this case.

Defense counsel is also well respected and highly skilled. Seyfarth Shaw has 

more than 900 attorneys and is particularly well respected in the employment 

defense bar. See http://www.seyfarth.com/ (last visited March 27, 2017). The 

attorneys who represented Kelly on this case specialize in complex employment 

and FCRA litigation and are preeminent in those fields. 

Counsel’s skill and standing thus support the requested award.

II. THE REQUESTED COSTS ARE REASONABLE AND SHOULD BE GRANTED

Class Counsel also seeks reimbursement of its documented, out-of-pocket 

litigation expenses and approval of the costs of settlement administration. 

“Under the common fund doctrine, ‘class counsel is entitled to 

reimbursement of all reasonable out-of-pocket litigation expenses and costs in the 

prosecution of claims and settlement, including expenses incurred in connection 

 

10 See, e.g., Terrell v. Costco Wholesale Corp., No. C16-1415JLR, 2017 WL 

951053, at *1 (W.D. Wash. Mar. 10, 2017); Robrinzine v. Big Lots Stores, Inc., 

156 F. Supp. 3d 920 (N.D. Ill. 2016); Johnson v. Casey’s Gen. Stores, Inc., 116 F. 

Supp. 3d 944 (W.D. Mo. 2015); Harris v. Home Depot, U.S.A., Inc., No. 15-cv01058-VC, 2015 WL 4270313 (N.D. Cal. June 30, 2015); Lengel v. HomeAdvisor, 

Inc., 102 F. Supp. 3d 1202 (D. Kan. 2015); Avila v. NOW Health Group, Inc., No. 

14 C 1551, 2014 WL 3537825 (N.D. Ill. July 17, 2014); Singleton v. Domino’s 

Pizza, LLC, No. DKC 11-1823, 2012 WL 245965 (D. Md. Jan. 25, 2012).

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with document production, consulting with experts and consultants, travel and 

other litigation-related expenses.’” N.Y. State Teachers’ Ret. Sys. v. Gen. Motors 

Co., 315 F.R.D. 226, 244 (E.D. Mich. 2016) (quoting New England Health Care 

Emp. Pension Fund v. Fruit of the Loom, 234 F.R.D. 627, 634-35 (W.D. Ken. 

2006)). In determining whether expenses are compensable out of a common fund, 

courts consider “whether the particular costs are the type routinely billed by 

attorneys to paying clients in similar cases.” In re Cardizem CD Antitrust Litig., 

218 F.R.D. 508, 535 (E.D. Mich. 2003).

As Counsel’s expense records show, all of the $37,487.22 in costs were 

reasonable and necessary to the successful conclusion of this litigation. Drake 

Decl., Ex. B; Lukas Decl., Ex. B. They include expenses for filing fees, 

computerized research, service of process, photocopying, expert consultants, 

mediation services, travel, and postage. These types of expenses are routinely 

billed by attorneys to paying clients in consumer and employment cases. 

Class Counsel also seeks the Court’s approval to pay Settlement 

Administration costs, not to exceed $243,216 plus the actual costs of postage, out 

of the Settlement Fund.

11 See Newberg on Class Actions § 12:20 (5th ed.) (“The[] 

costs of paying the claims administrator, processing the claims, providing notice to 

 

11 The Settlement Administrator, Epiq, has agreed that the costs of administration 

will not exceed $243,216 plus the actual costs of postage (which Class Counsel 

will provide at the final approval hearing). Drake Decl. ¶ 17.

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the class, and generally administering the settlement is typically deducted from the 

settlement fund.”). In choosing a settlement administrator to handle the notice and 

claims process in this matter, Class Counsel sought competitive bids from three 

reputable firms and determined that Epiq’s bid was fair and reasonable. Drake 

Decl. ¶ 17. The requested settlement administration costs cover, among other 

things, expenses incurred or estimated to be incurred for mailing notices, Spanish 

translation, processing claims and opt-outs, issuing checks, postage, corresponding 

with Class Members, issuing tax documents, and phone support. Id. Given that this 

settlement involved 221,216 Class Members, the requested administration costs are 

fair and reasonable.

Plaintiffs therefore respectfully request that the Court approve distribution of 

$37,487.22 in litigation costs to Class Counsel and of Settlement Administration 

costs not to exceed $243,216, plus the actual costs of postage, to Epiq.

III. THE COURT SHOULD APPROVE THE REQUESTED CLASS REPRESENTATIVE 

SERVICE PAYMENTS

Courts in the Sixth Circuit have awarded service payments to class 

representatives in recognition of the fact that, “absent their willingness to be class 

representatives in th[e] case, the Class Members likely never would have recovered 

damages from Defendants as their claims, individually, would not have been worth 

bringing.” Michel v. WM Healthcare Sols., Inc., No. 1:10-CV-638, 2014 WL 

497031, at *12 (S.D. Ohio Feb. 7, 2014); see also Hadix v. Johnson, 322 F.3d 895, 

Case 2:15-cv-10803-LJM-APP ECF No. 60, PageID.932 Filed 03/27/17 Page 32 of 36
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897 (6th Cir. 2003). Courts may look to a three-factor test for such service 

payments:

(1) the action taken by the Class Representatives to protect the 

interests of Class Members and others and whether these actions

resulted in a substantial benefit to Class Members; (2) whether the 

Class Representatives assumed substantial direct and indirect financial

risk; and (3) the amount of time and effort spent by the Class 

Representatives in pursuing the litigation.

Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 

(S.D. Ohio 1991).

Here, as to the first and third factors, the Class Representatives have 

diligently represented the interests of Class Members. Drake Decl. ¶ 19. Although 

there have been limited in-court proceedings, the Plaintiffs have expended 

considerable time and effort performing a number of services without which this 

case could not have moved forward, including assisting Class Counsel with 

investigation, reviewing the complaint, responding to written discovery, producing 

documents, and consulting with Class Counsel during Settlement negotiations. 

Hillson Decl. ¶ 4; Bohler Decl. ¶ 4; Schmidt Decl. ¶ 4. With regard to the second 

factor, although Class Representatives did not expend money from their own 

pocket to litigate this case, they have borne the indirect risks associated with 

attaching their names and reputations to this litigation, which could have an impact 

on their future employment prospects. 

Importantly, here, the prospect of service payments had no impact on the 

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total Settlement value, as the service payments were not negotiated until after the 

Parties had reached agreement on the total amount of the Settlement Fund. 

Settlement Agreement ¶ 47; Drake Decl. ¶ 20. The requested service payments of 

$2,500 per Class Representative are modest and similar to or less than awards in 

analogous cases. Gascho v. Global Fitness Holdings, LLC, No. 2:11-cv-436, 2014 

WL 1350509, at *26 (S.D. Ohio Apr. 4, 2014) (awarding $5,000 and $3,500 to 

named plaintiffs where the minimum payment to the class was $1.3 million),

report and recommendation adopted, No. 2:11-CV-00436, 2014 WL 3543819 

(S.D. Ohio July 16, 2014), aff’d, 822 F.3d 269; Michel, 2014 WL 497031, at * 12 

(awarding $3,000 to each named plaintiff in junk fax case involving a settlement 

fund of $4,375,000). The sum total of the service payments represents only about 

0.1% of the Settlement Fund.

Although the requested service payments are several times larger than the 

amount other Class Members will receive, that is due to the nature of the damages 

in this case. Whenever class members’ damages are small, anything other than a 

minimal service payment will always be significantly larger than the payment 

designated for each unnamed class member. Yet it is in these very circumstances 

that it is most important to separately incentivize class representatives to invest the 

time and effort required to pursue the litigation to a successful conclusion. Cf.

Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (“The policy at the very 

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core of the class action mechanism is to overcome the problem that small 

recoveries do not provide the incentive for any individual to bring a solo action 

prosecuting his or her rights.”).

Plaintiffs recognize that the Sixth Circuit and this Court recently indicated a 

preference for documentation “in the manner of attorney time sheets” of the time 

Class Representatives spent on the case. Shane Group, Inc. v. Blue Cross Blue 

Shield of Mich., 825 F.3d 299, 311 (6th Cir. 2016); Underwood, 2017 WL 

6555622, at *11. As Class Counsel and Class Representatives unfortunately did not 

have the benefit of these opinions when they initiated this litigation, such detailed 

documentation does not exist. But the requested service payments are substantially 

more modest than those sought in the aforementioned cases. See Shane Group, 825 

F.3d at 311 (payments between $10,000 and $50,000); Underwood, 2017 WL 

6555622, at *10 ($15,000 and $7,500 payments). Indeed, courts in this district—

including this Court—have awarded similarly modest service payments to Class 

Representatives post-Shane Group, even in the absence of detailed time records.

See, e.g., Underwood, 2017 WL 6555622, at *12. Thus, the service payments

should be granted.

CONCLUSION

Plaintiffs respectfully request that the Court grant Class Counsel and 

Plaintiffs’ request for 25% of the settlement fund as attorneys’ fees ($1,687,250), 

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$37,487.22 in litigation costs, settlement administration costs not to exceed 

$243,216 plus the actual costs of postage, and service payments to the Class 

Representatives of $2,500 each.

Respectfully submitted,

NICHOLS KASTER, PLLP

Dated: March 27, 2017 /s/Paul J. Lukas

Paul J. Lukas, MN Bar #22084X*

4600 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

Telephone: 612-256-3200

Facsimile: 612-338-4878

lukas@nka.com

*generally admitted

BERGER & MONTAGUE, P.C.

E. Michelle Drake, MN Bar #0387366*

43 SE Main Street, Suite 505

Minneapolis, MN 55414

Telephone: 215-875-3000

Facsimile: 215-875-4604

emdrake@bm.net

*generally admitted

LYNGKLIP & ASSOCIATES

CONSUMER LAW CENTER, PLC

Ian B. Lyngklip (MI Bar No. P-47173)

24500 Northwestern Hwy, Suite 206

Southfield, MI 48075

Telephone: 248-208-8864

ian@michiganconsumerlaw.com

ATTORNEYS FOR PLAINTIFFS

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