STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, SS. Location: Portland Docket No. BCD-CV-2020-13 KIMBERLY M. NORWOOD, * individually and on behalf of all others * similarly situated, * * Plaintiff, * v. * * THE CAMDEN NATIONAL BANK, * * Defendant. * * PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS AND EXPENSES, SETTLEMENT ADMINISTRATOR’S COSTS, AND CLASS REPRESENTATIVE’S SERVICE AWARD Plaintiff and Class Representative Kimberly M. Norwood, by Class Counsel, respectfully moves the Court under Maine Rule of Civil Procedure 23(d) and the common fund doctrine for entry of an Order: 1. Awarding Class Counsel attorneys’ fees from the Settlement Fund established by the Settlement of this action, in the amount of $561,817.33, which represents one-third of the Value of the Settlement; 2. Approving reimbursement from the Settlement Fund of reasonable litigation costs and expenses to Class Counsel in the amount of $12,189.73; 3. Approving reimbursement from the Settlement Fund of costs and expenses to the Settlement Administrator in an amount not to exceed $47,500; and 4. Awarding from the Settlement Fund a service award to the Class Representative, in recognition of the Class Representative’s role in securing the benefits of the Settlement for the Classes, in the amount of $10,000. {005758/20126/00541664.DOCX / Ver.1} This motion is supported by the accompanying memorandum of law and the affidavit of Lynn A. Toops (Exhibit 1 hereto). The motion is scheduled for hearing on December 11, 2020, at 11:00 a.m., in conjunction with the forthcoming motion for final approval of the settlement. A proposed order is also included herewith (Exhibit 2 hereto). Defendant does not oppose the relief requested by this motion. Dated: November 16, 2020 Respectfully submitted, Adam J. Arguelles Maine Bar No. 6205 BERMAN & SIMMONS, P.A. P.O. Box 961 129 Lisbon Street Lewiston, Maine 04243-0961 Tel: (207) 784-3576 [email protected] Lynn A. Toops COHEN & MALAD, LLP One Indiana Square Suite 1400 Indianapolis, IN 46204 Tel: (317) 636-6481 [email protected] J. Gerard Stranch, IV Martin F. Schubert BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Tel: (615) 254-8801 [email protected] [email protected] {005758/20126/00541664.DOCX / Ver.1}2 Christopher D. Jennings THE JOHNSON FIRM 610 President CSlinton Avenue Ste 300 Little Rock, AR 72201 Tel: (501) 372-1300 [email protected] Counsel for Plaintiff and the Proposed Classes {005758/20126/00541664.DOCX / Ver.1}3 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, SS. Location: Portland Docket No. BCD-CV-2020-13 KIMBERLY M. NORWOOD, * individually and on behalf of all others * similarly situated, * * Plaintiff, * v. * * THE CAMDEN NATIONAL BANK, * * Defendant. * * MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS AND EXPENSES, SETTLEMENT ADMINISTRATOR’S COSTS, AND CLASS REPRESENTATIVE’S SERVICE AWARD The efforts of the Plaintiff and her counsel in litigating and settling this matter produced a phenomenal result for the members of the classes, including Defendant agreeing to pay $1,200,000 cash into a settlement fund and forgiving an additional $485,452 in class member debts, for a total Settlement Value of $1,685,452. This result was hard fought. Plaintiff and her counsel engaged in discovery and motion practice, prepared a 20-page mediation statement and a supplemental mediation statement, evaluated expert analysis of the potential damages, participated in pre- mediation conference and an all-day mediation with Professor Eric D. Green of Resolutions LLC, and spent the following six weeks drafting, revising, and negotiating the Settlement Agreement, and subsequently moving for preliminary approval. On September 21, 2020, this Court granted preliminary approval to the Settlement Agreement as being preliminarily “fair, reasonable, and adequate.” Should the Court grant final approval,1 it should recognize the efforts of Plaintiff and 1 Class Counsel has filed this motion in accordance with the Settlement Agreement so that it can be made available to class members in advance of the deadline to file any objections to the settlement. This motion will be posted to the settlement website for easy access by class members. {005758/20126/00541673.DOCX / Ver.1} her counsel in awarding payments from the Settlement Fund for attorneys’ fees, expenses and costs, the Settlement Administrator’s costs, and the Class Representative’s service award, in recognition of the benefits they have achieved for the classes. I. The Court should award Class Counsel one-third of the Value of the Settlement, to be paid from the Settlement Fund. Under the “common fund doctrine,” a lawyer who achieves a settlement for the benefit of a class is entitled to be compensated for his or her efforts from the common fund created by the settlement. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“a litigant or a 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”). The “prevailing” approach is for courts to award class counsel’s fees from the settlement fund a percentage of the value of the settlement. Bennett v. Roark Capital Grp., Inc., No. 2:09-CV-00421-GZS, 2011 WL 1703447, at *1 (D. Me. May 4, 2011).2 Courts determine the total value to the class based on both the monetary and the non-monetary value of the settlement. See Principles of the Law of Aggregate Litigation, A.L.I., § 3.13(b) (May 20, 2009) (“a percent-of-the-fund approach should be the method utilized in most common-fund cases, with the percentage being based on both the monetary and the nonmonetary value of the settlement.”). Thus, consideration of injunctive or declaratory relief, as well as savings to Class Members or elimination of their debts is appropriately considered as part of the total value of a settlement. See, e.g., Tussey v. ABB, Inc., No. 06-CV-04305-NKL, 2019 WL 3859763, at *2 (W.D. Mo. Aug. 16, 2019) (including tax avoidance and injunctive relief in addition to monetary The Court has set this motion for hearing on December 11, 2020, at 11:00 a.m., to be considered at the same time as the forthcoming motion for final approval of the settlement. 2 “[U]nder the percentage approach, the class members and the class counsel have the same interest—maximizing the recovery of the class.” Silber and Goodrich, Common Funds and Common Problems: Fee Objections and Class Counsel’s Response, 17 Rev. Litig. 525, 534 (Summer 1998). {005758/20126/00541673.DOCX / Ver.1}2 relief as being the basis for the total value of the settlement for determining an appropriate common-fund fee); Barfield v. Sho-Me Power Elec. Co-op., No. 2:11-CV-4321NKL, 2015 WL 3460346, at *4 (W.D. Mo. June 1, 2015) (including administrative costs paid separately by defendant as being part of the total value of the settlement). In evaluating the reasonableness of the fee, courts consider such factors as whether the fee was fixed or contingent, the novelty and complexity of the case, the fees customarily awarded, and the results achieved. Bennett, 2011 WL 1703447, at *1. A request for an award of one-third of the value of the settlement “is customary.” Id. at *2 (approving one-third fee). Sylvester v. CIGNA Corp., 401 F. Supp. 2d 147, 151 (D. Me. 2005) (awarding one-third of a $2.3 million settlement and reimbursement of expenses of $256,516); O’Connor v. Dairy, No. 2:14-00192-NT, 2018 WL 3041388, at *4 (D. Me. June 19, 2018) (awarding one-third of a $5,000,000 settlement). The Court should award Class Counsel the standard fee of one-third of the value of the Settlement, which is the fee amount the Settlement Agreement contemplates. Not only is this amount customary, it is supported by the contingency of the fee, the complexity of the case, the result achieved, and the standard one-third amount that Class Counsel has been award in this type of litigation. See Affidavit of Lynn A. Toops in Support of Plaintiff’s Motion for Award Of Attorneys’ Fees, Costs And Expenses, Settlement Administrator’s Costs, and Class Representative’s Service Award, attached as Exhibit 1 to the Motion (“Toops Aff.”) ¶¶ 14, 17. First, the benefit conferred by the Settlement is substantial and valued at nearly $1.7 million. Id. ¶ 5. This represents over 60% of the estimated potential damages, and it will be directly distributed to class members, with no need to submit a claim and no reversion to Defendant. Id. The Settlement also provides a going-forward benefit to Settlement Class Members in the form of an agreement by Defendant to make a good faith effort to implement an electronic “patch” or its {005758/20126/00541673.DOCX / Ver.1}3 equivalent to Defendant’s deposit account processing system to eliminate APSN Fees, when such a patch or its equivalent becomes technically and practically feasible. This factor supports granting the requested fee. Second, the risks of the litigation for Class Counsel were high. Toops Aff. ¶¶ 11–12. Class Counsel took this case on a 100% contingency basis, meaning that Class Counsel labored and advanced their own funds to prosecute the case all at the risk of never being paid for their work or reimbursed for their expenses. Id. ¶ 10. Class Counsel devoted their time and energy to this matter, instead of pursuing other income, all at the risk of never getting paid and, at best, being paid at some point potentially many years down the road. Had Defendant prevailed on the merits, on class certification, or on appeal, Class Counsel might have recovered nothing for the time and expense they invested in representing the Classes.