The impact fee suit: Half for attorney compensation

Adam Kaufman

Legal Analyst

May 21, 2015 1:00 a.m.

The final judgment and dismissal of the class action lawsuit Conlon v. City of Fernandina, the “impact fee case,” was ordered by Circuit Court Judge Adrian G. Soud on May 18, 2015. The Court action is the result of the settlement agreement entered into by the City and Conlon in November 2014

Joanne Conlon flanked by Attorneys Gilbert L. Feltel Jr., Thomas E. Bishop, and Clinch Kavanaugh

The Court also approved payment of attorneys’ fees, payments to the settlement administrator and reimbursement of expenses from the settlement account provided for in that agreement which exceed of 50% of the total available funds.

The settlement amount agreed to by the City was $1,940,685 or approximately 78% of the total water utility impact fees assessed by the City that were found to be in violation of Florida law by now Federal Judge Brian Davis in January 2014. The impact fees imposed by the City were the result of a funding scheme implemented as a result of the City’s purchase of its water utility from Florida Public Utilities in 2002. The settlement covered all persons or entities that paid a water utility impact fee any time between March 2003 and the settlement date. Most claims for a pro rata payment do not exceed $5,000, although there are a few aggregate claims exceeding $100,000.

The Court indicated that based upon the record Conlon’s attorneys were entitled to compensation in excess of that which would be approved. The Court, to “insure” that a reasonable remainder of net settlement funds will available to those making claims and “that the interests of the class are adequately protected,” limited the aggregate attorneys’ fees to be paid to 50% of the $1,940,685 settlement benefit under the parties’ settlement agreement.

Local Attorney Clinch Kavanaugh

The law firm of Tanner Bishop was awarded $834,296; local attorney E. Clinch Kavanaugh, $86,789 and The Mills Firm $49, 275. In addition, Tanner Bishop was awarded its costs, to be deducted from the settlement fund, in the amount of $174,935. The Settlement Administrator is to receive $41,880 from the settlement fund. Conlon, individually, was approved for a “class representative incentive award” of $5,000.

The Court noted that from the time of the commencement of the litigation to settlement, a period of four years, Conlon’s attorneys and their professional support staffs on a contingent fee basis expended more than four thousand (4000) hours and spent approximately $175,000 in litigation costs. The Court underscored that “because of the high cost of this litigation and the modest claims of most class members, this litigation could not have been prosecuted on any fee basis other than a contingency fee” and that the Conlon attorneys “could not mitigate the risk of non-payment in any way and bore the full risk of receiving no fee and suffering direct out-of–pocket loss.”

Editor's Note: The Fernandina Observer's legal analyst, Adam Kaufman, has covered the impact fee lawsuit extensively. We have placed previous articles for your review below.

Impact fee class action arguments at the Court of Appeal

"The $5,000,000 - Impact Fee Lawsuit Day 1"

"Impact Fees - "A paper napkin calculation?"

Adam Kaufman is a semi-retired mediator and attorney. A graduate of Northwestern University School of Law, he was born and raised in the Bronx, NY. and attended NYC public schools, including Stuyvesant High School. He still serves on the American Arbitration Association Labor Panel. From 1994 - 2005, he was Regional Director for the New York State Public Employment Relations Board.