1As noted in Klein IV, Long is the only member of the

plaintiff class who opposed the request for a 30% attorney’s fee.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 7:03-CV-102-D

VS. § (Consolidated with 

 § Civil Action No. 7:09-CV-094-D)

O’NEAL, INC., d/b/a O’NEAL, §

JONES & FELDMAN §

PHARMACEUTICALS, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In a prior opinion, the court approved the proposed settlement

in this class action. See Klein v. O’Neal, Inc., ___ F.Supp.2d

___, 2010 WL 1435161, at *42 (N.D. Tex. Apr. 9, 2010) (Fitzwater,

C.J.) (“Klein IV”). The court awarded counsel for the plaintiff

class under Fed. R. Civ. P. 23(h)(1) a fee of 30% of the settlement

amount, reimbursement of reasonable and necessary expenses

associated with the litigation, and $300,000 from the settlement

amount to pay for costs of administration and distribution of the

settlement proceeds. Id. at *41-*42. Lawrence V. Long, Jr.

(“Long”), a class member who objected to the proposed settlement,

moves the court to reconsider the attorney’s fees award based on

the Supreme Court’s recent decision in Perdue v. Kenny A., ___ U.S.

___, 130 S.Ct. 1662 (2010), which the Court decided after this

court issued Klein IV.1 The court denies the motion.

 

 Case 7:03-cv-00102-D Document 451 Filed 06/16/10 Page 1 of 3 PageID 14250
The vast majority of class members, after being provided with

information including the amount of the requested fee, signed

documents affirmatively requesting that the court approve the

settlement. See Klein IV, 2010 WL 1435161, at *38 n.41.

2

Long cites Van Horn v. Nationwide Property & Casualty Co.,

2010 WL 1751995 (N.D. Ohio Apr. 30, 2010), for the proposition that

- 2 -

In Perdue the Court held that——when calculating an award under

42 U.S.C. § 1988, a fee-shifting statute——“there is a ‘strong

presumption’ that the lodestar figure is reasonable, but that

presumption may be overcome in those rare circumstances in which

the lodestar does not adequately take into account a factor that

may properly be considered in determining a reasonable fee.” Id.

at 1673. Long argues that Perdue demonstrates that this court

erred in calculating the fee award in Klein IV and that it should

make an award based only the sum of reasonable hours multiplied by

a reasonable hourly rate. 

Long’s reliance on Perdue is misplaced. This court awarded

attorney’s fees in Klein IV from the common fund obtained for the

class plaintiffs through the settlement, not under a fee-shifting

statute such as 42 U.S.C. § 1988. Perdue addresses how a fee

should be calculated under a fee-shifting statute. Moreover, the

Supreme Court did not purport to overrule the reasoning or results

of common fund fee awards like Klein IV or the Fifth Circuit

precedent on which Klein IV is based. Perdue therefore neither

requires nor suggests that this court reconsider its decision in

Klein IV.2

 

 Case 7:03-cv-00102-D Document 451 Filed 06/16/10 Page 2 of 3 PageID 14251
Perdue ought to be applied in a common fund case. Van Horn

represents a district court’s exercise of its discretion and

adherence to the law of the circuit in which it sits. It is not

binding on this court, and Fifth Circuit precedent supports the

reasoning and award in Klein IV. See Klein IV, 2010 WL 1435161, at

*34.

- 3 -

* * *

Long’s May 18, 2010 motion for reconsideration of attorney’s

fee award is denied.

SO ORDERED.

June 16, 2010.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

 

 Case 7:03-cv-00102-D Document 451 Filed 06/16/10 Page 3 of 3 PageID 14252