Kinard v. East Capitol Family Rental, L.P. ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MILDRED KINARD et al.,
Plaintiffs,
v.
Civil Action No. 15-1935 (TJK)
EAST CAPITOL FAMILY RENTAL, L.P.
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs in this class action are tenants of a low-income housing development in the
District of Columbia. They allege that Defendants, management companies overseeing the
development, violated federal laws by adjusting their utility allowances—rent reductions that
should reflect reasonable utility use—improperly and without adequate notice. After lengthy
negotiations, the parties reached a settlement agreement under which the named plaintiffs and
other class members will receive both monetary and non-monetary relief. In November 2018,
the Court preliminarily approved the settlement agreement and conditionally certified the class,
and in April 2019, it held a fairness hearing. Before the Court is the parties’ Joint Motion for
Final Certification of Class for Settlement Purposes and for Approval of Class Action
Settlement. ECF No. 35. For the reasons explained below, the motion will be granted.
Background
A. Factual and Procedural History
Capitol Gateway Family Rental (“Capitol Gateway”) is a low-income housing
development in the District of Columbia, which includes 86 family rental units. ECF No. 1
(“Compl.”) ¶¶ 1, 27–28. Defendant East Capitol Management Family Rental, L.P., (“East
Capitol”) owns a portion of Capitol Gateway. Id. ¶ 9. Some of the units in Capitol Gateway—
61 of the 86—are designated as low-income housing, and therefore must be operated in
accordance with regulations governing the Low-Income Housing Tax Credit (LIHTC) Program.
Id. ¶¶ 22, 29, 32. In addition, according to Plaintiffs, East Capitol entered into a “Regulatory and
Operating Agreement” (“R&O Agreement”) with the District of Columbia Housing Authority
(DCHA), under which it agreed to operate those units subject to regulations promulgated by the
U.S. Department of Housing and Urban Development (“HUD”). Id. ¶¶ 29, 30. Defendant A&R
Management, Inc., served as the managing agent at Capitol Gateway from 2007 until mid-2014,
when Defendant Kettler Management, Inc., took over. Id. ¶¶ 10–11. Plaintiffs are past and
present residents of the low-income units in Capitol Gateway. Id. ¶¶ 5–8, 34. Mildred Kinard
began living there in 2008, and the other named plaintiffs started the year before that. Id. ¶¶ 5–8.
The proposed class consists of all tenants who were residents of Capitol Gateway in one of the
low-income units at any time between January 1, 2014 and December 31, 2015. ECF No. 32-2
(“Settlement Agreement”) ¶ 8(e).
Plaintiffs allege that, according to their lease agreements and the R&O Agreement, East
Capitol had to provide them a utility allowance in the form of a rent reduction. Compl. ¶ 36.
Prior to 2013, their utility allowances remained constant. Id. ¶ 46. Around October 2013,
however, Defendants notified them that their allowances were being reduced that December. Id.
¶ 47. Plaintiffs allege that the notice failed to adequately describe the reason for the reduced
allowance and did not give them an opportunity to comment about it or request individual relief
from it. Id. ¶ 48. Moreover, Plaintiffs assert, less than two years later the same thing happened
to them again. Id. ¶¶ 51–52. More specifically, Plaintiffs allege that in early 2015, some tenants
received written notice either immediately before or after a second reduction to their allowances,
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and some received no notice at all. Id. ¶ 52. And once again, the notice that was provided to
some Plaintiffs was deficient because it failed to describe the reason for the reduction or provide
an opportunity for them to comment or request individual relief. Id. ¶ 53. Finally, Plaintiffs
contend that, starting in December 2013, the amounts of their reduced individual allowances
were unlawful under the United States Housing Act and its implementing regulations. See id.
¶¶ 15, 59.
In November 2015, Plaintiffs filed this class action under Federal Rule of Civil Procedure
23(b)(2) and (b)(3), challenging both Defendants’ alleged failure to provide proper notice of the
reduced utility allowances and the reduced allowances themselves. Id. ¶ 82. In their five-count
complaint, Plaintiffs assert that Defendants violated 42 U.S.C. § 1983; the United States Housing
Act of 1937, 42 U.S.C. §§ 1437a and 1437a(a)(1); the Low-Income Housing Tax Credit
Program, 26 U.S.C. § 42; Plaintiffs’ lease agreements; and the Indenture of Restrictive
Covenants for Low-Income Housing Tax Credits. Id. ¶¶ 89–120.
The next month, Defendants moved to dismiss the complaint. ECF No. 11. Following
briefing on the motion, the parties agreed to mediate the case with the assistance of Magistrate
Judge G. Michael Harvey. ECF No. 23. In advance of mediation, the parties exchanged
informal discovery and engaged in extended settlement negotiations. ECF No. 32-1 at 12. Just
when those negotiations appeared to be breaking down, the parties accepted one of two
alternative “mediator’s proposals” suggested by Judge Harvey, which led to a settlement in
principle in March 2017. Id. The parties then negotiated and memorialized a formal settlement
agreement, which they executed over a year later, in May 2018. See id. at 5.
B. The Settlement Agreement
In June 2018, the parties jointly moved for preliminary approval of the settlement
agreement, conditional certification of the class for purposes of settlement, appointment of class
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counsel, approval of notice to the class, and for the scheduling of a fairness hearing. ECF
No. 32. Under the terms of the settlement agreement, Defendants have agreed to designate
$100,000 to compensate the named plaintiffs and other class members. Settlement Agreement
¶ 8(r). Of that $100,000, the agreement allocates $15,000 for fees for Plaintiffs’ counsel and
$5,000 for service awards for each of the four named plaintiffs. Id. ¶¶ 11–12. The remaining
amount is available for distribution to class members according to a formula that sets
individualized awards based on the length of time the class member lived in Capitol Gateway
and size of the class member’s unit. Id. ¶ 16. The settlement agreement also includes non-
monetary relief for class members. Id. ¶ 21. Defendants have agreed to adjust class members’
utility allowances for two years according to another formula, and to do so subject to agreed-
upon notice provisions. Id. ¶¶ 21–22. For their part, class members have agreed to release all
claims in the complaint and all claims relating to the calculation of utility allowances by
Defendants during those two years. Id. ¶¶ 23, 57.
The Court preliminarily approved the settlement agreement and conditionally certified
the class in November 2018. ECF No. 33. Pursuant to the terms of the settlement agreement, on
December 18, 2018, Defendants provided the claims administrator identifying and contact
information for the 64 members of the class. ECF No. 35-5 ¶ 3. On January 11, 2019, the
claims administrator mailed a “Notice to Class of Proposed Settlement” and a claim form to the
last known address of each class member. Id. ¶ 4. The notice form provided an explanation of
the basis for the lawsuit and of the class members’ rights with respect to the suit, including the
right to opt out of the suit and to object to the settlement terms. See ECF No. 32-3. The notice
also informed class members that they had to complete an enclosed claim form and return it by a
date certain to participate in the settlement. Id. at 5. Class members also received separate,
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individualized notices with a preliminary calculation of the award they would receive under the
settlement. Id. at 4–5. For each notice returned as undeliverable, the claims administrator tried
to locate an updated address for the class member and re-sent the notice to any identified updated
address. ECF No. 35-5 ¶ 5. By February 22, 2019—the deadline for a class member to opt-out
from the settlement, object to the settlement, or challenge the monetary amount that he or she
would receive—the claims administrator had received no opt-outs, objections, or challenges. 1 Id.
¶¶ 8–10. On February 25, 2019, the claims administrator mailed reminder postcards to the 19
class members who had not returned a claim form by then. Id. ¶ 6. By March 22, 2019—the
deadline for class members to submit claim forms—the claims administrator had received forms
from 57 out of 64 class members. Id. ¶ 7.
C. Joint Motion for Final Approval and Fairness Hearing
In March 2019, the parties jointly moved for final certification of the class and for
approval of the settlement. ECF No. 35. As required by Federal Rule of Civil Procedure 23(e),
the Court held a fairness hearing on April 10, 2019, which was attended by counsel for the
parties and one of the named plaintiffs. As described above, although class members had been
advised of their right to appear at the hearing and to object to the settlement, no objectors
appeared.
Legal Standards
A. Class Certification
When certifying a class for settlement purposes, the Court must consider whether
Plaintiffs have established “that each of the elements of Rule 23(a) are met and that the class is
1
The claims administrator did receive one possible challenge to a class member’s proposed
settlement payment, but it was determined to be untimely and was denied for that and other
reasons. ECF No. 35-5 ¶ 10.
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maintainable pursuant to one of Rule 23(b)’s subdivisions.” Radosti v. Envision EMI, LLC, 717
F. Supp. 2d 37, 50 (D.D.C. 2010). Under Rule 23(a), Plaintiffs must establish that (1) the class is
so numerous that joinder of all members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the representative parties are typical of the
claims and defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class. These requirements are generally referred to as “numerosity,
commonality, typicality, and adequacy of representation.” Cohen v. Chilcott, 522 F. Supp. 2d
105, 113 (D.D.C. 2007).
In addition, the parties have moved the Court to certify the class under Rule 23(b)(3),
which requires Plaintiffs to show that “questions of law or fact common to class members
predominate over any questions only affecting individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” See
ECF No. 35-1 (“Joint Mot.”) at 19. “These requirements are referred to as predominance and
superiority.” Chilcott, 522 F. Supp. 2d at 113.
B. Final Approval of Class Settlement
Rule 23(e) provides that “[t]he claims, issues, or defenses of a certified class may be
settled . . . only with the court’s approval” and upon its finding that the proposed settlement is
“fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In evaluating proposed class action
settlements under Rule 23(e), courts in this Circuit generally consider the following factors: (1)
whether the settlement is the result of arm’s-length negotiations; (2) the terms of the settlement
in relation to the strength of the plaintiffs’ case; (3) the status of the litigation at the time of
settlement; (4) the reaction of the class; and (5) the opinion of experienced counsel. See Howard
v. Liquidity Servs. Inc., No. 14-1183 (BAH), 2018 WL 4853898, at *4 (D.D.C. October 5, 2018);
In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 104 (D.D.C. 2004). In so doing, the Court
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“must strike a balance between a rubber stamp approval and the detailed and thorough
investigation that it would undertake if it were actually trying the case.” Chilcott, 522 F. Supp.
2d at 113 (internal quotations omitted). It is the role of the Court to “provide[] a check against
settlement dynamics that may lead the negotiating parties—even those with the best intentions—
to give insufficient weight to the interests of at least some class members.” In re Vitamins
Antitrust Class Actions, 215 F.3d 26, 30 (D.C. Cir. 2000) (internal quotations omitted).
However, there is a “long-standing judicial attitude favoring class action settlements.” In re
Vitamins Antitrust Litig., 305 F. Supp. 2d at 103 (citing Mayfield v. Barr, 985 F.2d 1090, 1092
(D.C. Cir. 1993)). Therefore, “[a]bsent evidence of fraud or collusion, such settlements are not
to be trifled with.” Osher v. SCA Realty I, Inc., 945 F. Supp. 298, 304 (D.D.C. 1996) (quoting
Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992)).
Analysis
As explained in more detail below, the Court concludes that the class easily meets the
requirements for certification set out in Rules 23(a) and (b)(3). Moreover, it finds that the
proposed settlement is fair, reasonable, and adequate under Rule 23(e)(2).
A. Class Certification – Rule 23(a)
1. Numerosity
“There is no specific threshold that must be surpassed in order to satisfy the numerosity
requirement,” however “courts in this jurisdiction have observed that a class of at least forty
members is sufficiently large to meet this requirement.” Taylor v. D.C. Water & Sewer Auth.,
241 F.R.D. 33, 37 (D.D.C. 2007). Here, the proposed settlement class, defined as “all tenants
who were residents at Capitol Gateway Family Rental in one of the Units for any period of time
between January 1, 2014[,] to December 31, 2015,” includes 64 members. Settlement
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Agreement ¶ 8(e). Because the proposed class meets the 40-member threshold recognized in this
Circuit, the Court concludes that it satisfies the numerosity requirement of Rule 23(a)(1).
2. Commonality
Commonality is satisfied when “there is at least one issue, the resolution of which will
affect all or a significant number of putative class members.” Vista Healthplan, Inc. v. Warner
Holdings Co. III, Ltd., 246 F.R.D. 349, 357 (D.D.C. 2007). “[F]actual variations among class
members will not defeat the commonality requirement, so long as a single aspect or feature of
the claim is common to all proposed class members.” Bynum v. District of Columbia, 214
F.R.D. 27, 33 (D.D.C. 2003). The parties contend that class members’ claims share multiple
questions of law and fact, including:
(1) whether the Class Members are present or former residents of the Units; (2)
whether Defendants provided proper notice of changes to utility allowances; (3)
whether Defendants properly calculated the utility allowances; (4) whether the
utility allowances that Defendants provided were so low that they do not
approximate the reasonable consumption costs of even an energy-conservative
household; (5) whether Plaintiffs have asserted a cause of action under the federal
or state laws or regulations identified in the Complaint, including the Housing Act
and LIHTC statute and regulations; and (6) whether the Defendants’ alleged
conduct violated the Plaintiffs’ leases.
Joint Mot. at 21. The Court concurs that these questions of law and fact are shared by all, or
nearly all, class members. Accordingly, the Court concludes that the class satisfies the
commonality requirement of Rule 23(a)(2).
3. Typicality
“Typicality requires that the claims of the representative be typical of those of the class,”
Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 9 (D.D.C. 2010), and is generally satisfied “when
the plaintiffs’ claims arise from the same course of conduct, series or events, or legal theories of
other class members,” In re XM Satellite Radio Holdings Secs. Litig., 237 F.R.D. 13, 18 (D.D.C.
2006). “The facts and claims of each class member do not have to be identical to support a
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finding of typicality; rather, [t]ypicality refers to the nature of the claims of the representative,
not the individual characteristics of the plaintiff.” Radosti, 717 F. Supp. 2d at 52 (internal
quotations omitted) (quoting In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 304 (E.D.
Mich. 2001)). Here, the claims of the class members arise from the same course of alleged
events as the named plaintiffs’ claims: Defendants’ adjustments of their utility allowances
between January 2014 and December 2015, and the notices Defendants provided regarding those
adjustments. The claims of the named plaintiffs are therefore typical of those that could be
advanced by the class as a whole. For this reason, the Court concludes that the class satisfies the
typicality requirement of Rule 23(a)(3).
4. Adequacy
Rule 23(a)’s adequacy requirement demands that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Two criteria for
determining the adequacy of representation are generally recognized: 1) the named
representative must not have antagonistic or conflicting interests with the unnamed members of
the class, and 2) the representative must appear able to vigorously prosecute the interests of the
class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997). There is nothing in the record that suggests that the named plaintiffs have a
conflict of interest with other members of the class. Moreover, the named plaintiffs will receive
an award in accordance with the same formula as the rest of the class, aside from their service
awards for pursuing the claims for the class. Accordingly, the Court concludes that the named
plaintiffs “‘possess the same interest and suffer the same injury’ as the class members.” Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (quoting E. Tex. Motor Freight Sys., Inc. v.
Rodriguez, 431 U.S. 395, 403 (1977)).
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Additionally, the Court credits named plaintiffs’ counsel’s representations that she and
her co-counsel have significant experience in civil cases relating to federally-subsidized housing.
Joint Mot. at 22. Accordingly, the Court concludes that the named plaintiffs are able to
vigorously pursue the interests of the class through qualified counsel.
For these reasons, the Court finds that the class satisfies the adequacy requirement of
Rule 23(a)(4).
B. Class Certification – Rule 23(b)(3)
1. Predominance
Under the predominance requirement, the issues sufficient to establish commonality
under Rule 23(a)(2) must predominate over any issues affecting only individual members. See
In re Vitamins Antitrust Litig., 209 F.R.D. 251, 262 (D.D.C. 2002). “There is no definitive test
for determining whether common issues predominate, however, in general, predominance is met
when there exists generalized evidence which proves or disproves an element on a simultaneous,
class-wide basis, since such proof obviates the need to examine each class members’ individual
position.” Chilcott, 522 F. Supp. 2d at 116. “[E]ven the minor differences between the class
members—such as the amount of total damages—are susceptible to generalized proof since a
common formula is used to calculate the individual damages.” Alvarez v. Keystone Plus Constr.
Corp., 303 F.R.D. 152, 162 (D.D.C. 2014).
Here, the Court has little trouble concluding that common questions predominate over
questions that are individualized for each class member. Plaintiffs’ claims that Defendants
improperly calculated their utility allowances and failed to provide them proper notice are
common to every class member and are capable of being proven or disproven through
generalized evidence. The amount of damages allegedly owed to each class member appears to
be the only significant non-common issue, but it is susceptible to generalized proof through the
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use of a common formula, such as the one proposed here. See Settlement Agreement ¶¶ 16–20.
Accordingly, the Court concludes that the predominance requirement is satisfied.
2. Superiority
“The superiority requirement ensures that resolution by class action will ‘achieve
economies of time, effort, and expense, and promote . . . uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or bringing about other undesirable
consequences.” Chilcott, 522 F. Supp. 2d at 117 (omission in original) (quoting Amchem, 521
U.S. at 615). Here, given the common issues of law and fact among the class members, the
Court concludes that it is efficient and otherwise desirable to litigate those claims in a single
action. Further, each class member’s share of the settlement fund—with an average award of
$955.33, Joint Mot. at 6—is small enough to suggest that most members would not pursue their
claims outside of a class action, since the costs of individually prosecuting this litigation would
outweigh an individual class member’s potential damages. See Ceccone v. Equifax Info. Servs.
LLC, No. 13-1314 (KBJ), 2016 WL 5107202, at *7 (D.D.C. Aug. 29, 2016). For these reasons,
the Court concludes that the superiority requirement is satisfied.
* * *
For all the above reasons, the Court finds that the proposed class satisfies the
requirements of Rule 23(a) and (b)(3), and with the consent of the parties, the Court will certify
the class for settlement purposes.
C. Final Approval of the Settlement Agreement – Rule 23(e)
The Court now turns to the proposed settlement agreement. As set forth above, Rule
23(e) requires the Court to consider whether the settlement is “fair, adequate, and reasonable.”
In doing so, the Court looks to the five factors considered by courts in this Circuit when making
such a determination. See In re Vitamins Antitrust Litig., 305 F. Supp. 2d at 104.
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1. Arm’s-Length Negotiations
A “presumption of fairness, adequacy, and reasonableness may attach to a class
settlement reached in arm’s length negotiations between experienced, capable counsel after
meaningful discovery.” Id. “[F]ormal discovery is not . . . necessarily required even for final
approval of a proposed settlement” if the parties “demonstrate to the Court at the final approval
stage their sufficient appreciation for the merits of the case and [are] able to explain in greater
detail the ‘significant factual investigation’ made prior to the settlement.” Trombley v. Nat’l City
Bank, 759 F. Supp. 2d 20, 26 (D.D.C. 2011) (quoting In re Vitamins Antitrust Litig., 305 F.
Supp. 2d at 105). Here, the parties represent that the settlement agreement is the product of
serious, extended arm’s-length negotiations, during which they “exchanged significant informal
discovery to assess the strengths and weakness[es] of their claims and defenses.” Joint Mot. at
13. For example, Defendants provided Plaintiffs with “detailed engineering analysis supporting
their re-calculated utility allowance figures” and Plaintiffs “gathered water and electric bills for
dozens of tenants living in the Units, analyzed these records, and shared the results with
Defendants.” Id. Relying on evidence gathered through informal discovery, the parties
“participated in protracted in-person and telephone mediation proceedings with the Honorable G.
Michael Harvey” and ultimately accepted one of two alternative “mediator’s proposals” offered
by Judge Harvey. Id.
In light of these representations, the lack of any suggestion of collusion, and the
significant time the parties spent negotiating the settlement agreement, the Court has no doubt
that it was the product of fair, arm’s-length bargaining between experienced counsel.
Accordingly, the Court concludes that this factor weighs in favor of approving the settlement
agreement.
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2. Terms of the Settlement Agreement in Relation to the Strength of the
Case
Under this factor, courts typically “compare[] the terms of the settlement with the likely
recovery plaintiffs would attain if the case proceeded to trial, an exercise which necessarily
involves evaluating the strengths and weaknesses of plaintiffs’ case.” Stephens v. U.S. Airways
Grp., Inc., 102 F. Supp. 3d 222, 227 (D.D.C. 2015) (quoting In re Fed. Nat’l Mortg. Ass’n Secs.,
Derivative, & “ERISA” Litig., 4 F. Supp. 3d 94, 103 (D.D.C. 2013)). “The D.C. Circuit has
suggested that this may be the most important factor in evaluating a proposed class settlement.”
Ceccone, 2016 WL 5107202, at *9 (citing Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir.
1998)).
The settlement agreement provides class members with a pro-rata share of the $100,000
settlement fund, after attorney’s fees and service awards are distributed, as well as non-monetary
relief, including a prospective change to their utility allowances for two years in accordance with
an agreed-upon formula. See Settlement Agreement. Although both parties represent that they
“firmly believe in the merits of their claims,” they argue in their joint motion that the terms of
the settlement agreement are favorable for both sides, given that “the outcome of the litigation is
not certain and attempting to prove liability and defend against these claims w[ould] require a
substantial investment of time and resources.” Joint Mot. at 14.
At the fairness hearing, counsel for both parties provided further details on their clients’
risks if they continued to advance toward a trial. Plaintiffs’ counsel acknowledged that her
clients would have to overcome several significant hurdles, especially in establishing that class
members suffered damages in connection with some of their claims. See Rough Tr. at 17:21–
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20:18.2 Plaintiffs’ counsel also discussed the likelihood that, were the case to go to trial, there
would be a wide disparity between the damages estimates produced by each party’s experts,
leading to further uncertainty about Plaintiffs’ recovery. Id. at 20:4–20:18. Although it is
possible that Plaintiffs could have secured a larger recovery if they prevailed at trial, in her view
they also faced a substantial risk of winding up with nothing. See id. at 19:8–20:3. Similarly,
Defendants’ counsel noted that their likelihood of success at the dispositive-motion stage was
uncertain, and that they, too, wished to avoid the high cost of proceeding further with the
litigation. See id. at 31:16–32:18. Both parties also emphasized that, even if Plaintiffs had won
a judgment, they would not have been guaranteed to receive the prospective, non-monetary relief
provided under the settlement agreement. See id. at 7:15–17:22; 32:3–32:18.
The Court finds no reason to question the representations by counsel that each side would
face these potential difficulties, with no guarantee of success, if the case went to trial. In light of
this uncertainty, and the cost of proceeding, the parties have demonstrated that the settlement
agreement is fair and reasonable in light of the strength of Plaintiffs’ case. Thus, the Court
concludes that this factor also weighs in favor of approval.
3. Stage of the Proceedings
Under this factor, courts look to “whether counsel had sufficient information, through
adequate discovery, to reasonably assess the risks of litigation vis-à-vis the probability of success
and range of recovery.” Meijer, Inc. v. Warner Chilcott Holdings Co. III, 565 F. Supp. 2d 49, 57
(D.D.C. 2008) (quoting In re Lorazepam & Clorazepate Antitrust Litig., No. 99-790 (TFH), 2003
WL 22037741, at *4 (D.D.C. June 16, 2003)). In doing so, courts may weigh favorably
2
Citations to statements made at the April 10, 2019 fairness hearing are to page numbers in a
“rough” transcript provided by the Court Reporter, since the final, certified transcript is not yet
available.
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settlements that do not “come too early to be suspicious nor too late to be a waste of resources,”
but rather “at a desirable point in the litigation for the parties to reach an agreement and to
resolve these issues without further delay, expense, and litigation.” In re Vitamins Antitrust
Litig., 305 F. Supp. 2d at 105. As discussed above, this case was filed over three years prior to
the Court’s preliminary approval of the settlement agreement and after the parties briefed
Defendants’ motion to dismiss and engaged in informal discovery. Both parties represent that
they have now exchanged sufficient information to accurately assess the relative strengths of
their claims and defenses, and the risks of continuing the litigation. Joint Mot. at 16–17. The
Court credits these representations and concludes that the settlement was reached at an
appropriate stage of the litigation. This factor also weighs in favor of approving the settlement
agreement.
4. Reaction of the Class
A “low number of opt outs and objectors (or purported objectors) supports the conclusion
that the terms of the settlement were viewed favorably by the overwhelming majority of class
members.” Bynum v. District of Columbia, 412 F. Supp. 2d 73, 77 (D.D.C. 2006). And the
“existence of even a relatively few objections certainly counsels in favor of approval.” In re
Lorazepam, 2003 WL 22037741, at *6. Here, the claims administrator reported no opt-outs or
objectors to the settlement agreement; rather, 57 of 64 class members opted into it. ECF No. 35-
4 ¶ 6. In light of this high acceptance rate, and the lack of any opt-outs or objectors, the Court
concludes that the reaction of the class weighs heavily in favor of approving the settlement.
5. Opinion of Experienced Counsel
The opinion of experienced counsel “should be afforded substantial consideration by a
court in evaluating the reasonableness of a proposed settlement.” Chilcott, 522 F. Supp. 2d at
121. Counsel for both parties are experienced in litigation regarding federally-subsidized
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housing and each has represented that, in their opinion, the settlement is fair, adequate, and
reasonable. See Rough Tr. at 25:17–28:21; 32:19–33:8; Joint Mot. at 18. The Court credits their
opinions and concludes that this factor weighs in favor of approval.
* * *
For all the above reasons, the Court finds that the proposed settlement is fair, reasonable,
and adequate under Rule 23(e)(2), and on that basis, the Court will approve it.
D. Service Awards and Attorney’s Fees
The parties also request that the Court approve $5,000 individual service awards for the
four named plaintiffs to compensate them for being class representatives and their efforts to
prosecute this action. ECF No. 32-1 at 7. Courts in this Circuit regularly approve service awards
“to compensate plaintiffs for the services they provided and the risks they incurred during the
course of the class action litigation.” Radosti v. Envision EMI, LLC, 760 F. Supp. 2d 73, 79
(D.D.C. 2011). As counsel emphasized at the fairness hearing, the named plaintiffs have
invested significant time in prosecuting this case, as reflected by their efforts to retain
experienced counsel, assist with discovery efforts, and participate in a lengthy mediation process.
Rough Tr. at 8:9–21; ECF No. 32-1 at 14. Further, neither Defendants nor any class member has
objected to these fees. The Court approves them as fair and reasonable.
Finally, Plaintiffs’ counsel requests that the Court approve $15,000 in attorney’s fees,
representing fifteen percent of the settlement fund. ECF No. 32-1 at 7. Under Federal Rule of
Civil Procedure 23(h), “[i]n a certified class action, the court may award reasonable attorney’s
fees and nontaxable costs that are authorized by law or by the parties’ agreement.” The amount
requested here is below the range of “reasonable” attorneys’ fees recognized in this Circuit,
which generally runs from “twenty to thirty percent of the common fund.” In re Lorazepam,
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2003 WL 22037741, at *7. And again, neither Defendants nor any class member has objected to
the proposed attorneys’ fees. For these reasons, the Court approves the fee request.
Conclusion
For all the reasons explained above, the Court will, in a separate order, grant the parties’
Joint Motion for Final Certification of Class for Settlement Purposes and for Approval of Class
Action Settlement. ECF No. 35.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 28, 2019
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