PATTY SHWARTZ, United States Magistrate Judge.
This class action concerns allegedly defective pollen filter gasket areas and sunroof drains on various Volkswagen and Audi vehicles. It is before the Court on remand from the Court of Appeals for the Third Circuit for proceedings consistent with that Court's finding that the class could not be certified under the parties' prior settlement because the representative plaintiffs were not adequate to represent the interests of the entire class. See Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170 (3d Cir.2012). On remand, the parties reached a new settlement addressing the Third Circuit's adequacy concern, which now allows class members who owned or leased vehicles in a so-called
For the procedural history of this matter preceding the appeal, the Court incorporates by reference its summary of the procedural history in Dewey v. Volkswagen of America, 728 F.Supp.2d 546, 558-63 (D.N.J.2010). As previously stated, the Court of Appeals remanded the case to address a single, curable structural error regarding the adequacy of the plaintiffs to represent all class members.
Following remand, the Court convened several telephone conferences with the parties and the objectors concerning a new settlement that would comply with the Third Circuit's ruling. During a conference on June 26, 2012, the parties reported that they had reached an agreement as to the terms of a new settlement, and on June 27, 2012, the Court directed the parties to submit a joint motion for preliminary approval of the New Settlement Agreement by July 20, 2012. (Order, June 27, 2012, ECF No. 320.) On July 19, 2012, the Court granted an extension until July 27, 2012, for the parties to submit a new settlement agreement and proposed notice to the impacted class members. (Order, July 19, 2012, ECF No. 324.) On July 27, 2012, the Plaintiffs submitted a motion for preliminary approval of the settlement class and the New Settlement Agreement. (Mot., July 27, 2012, ECF No. 326.) On July 31, 2012, the Defendants submitted a certification, (Gsovski Cert., July 31, 2012, ECF No. 329), containing a copy of the New Settlement Agreement. The New Settlement Agreement modifies the rights of those class members formerly in the "residual group"
(Id.)
Presently before the Court are: (1) the Plaintiffs' motions for certification of a settlement class and approval of the New Settlement Agreement, as well as an award of fees and costs to Class Counsel and incentive awards to the class representatives;
Based upon the record and the governing law, the Court makes the following findings of fact and conclusions of law.
The Court incorporates by reference its discussion of subject matter jurisdiction in Dewey, 728 F.Supp.2d at 563-64.
The Court incorporates by reference its discussion of personal jurisdiction in Dewey, 728 F.Supp.2d at 564. As stated therein, sufficient notice has already been provided to those class members in the "reimbursement group," whose rights have not changed from the prior settlement. See id. at 571-72. As to those class members in the "residual group," whose rights have changed, sufficient notice of the new settlement and an opportunity to be heard has been provided, (Dewey, ECF Nos. 326, 329, 335, 339), thereby satisfying due process and the requirements of Fed.R.Civ.P. 23(b)(3). Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812-13, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); In re Prudential Ins. Co. of Am. Sales Practice Litig., 148 F.3d 283, 306 (3d Cir.1998) ("In re Prudential"); Varacallo v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207, 224 (D.N.J.2005). Specifically, pursuant to the Amended Preliminary Approval Order, notice to those class members of the settlement has been provided by: (1) mail and publication; (2) the establishment of a toll-free telephone number providing settlement information; and (3) the maintenance of a website containing notice and settlement documents. (Am. Order, Sept. 6, 2012, ECF No. 339.) The mailed notice provided an explanation of the settlement as well as instructions for filing a claim, objecting to the settlement, and excluding oneself from the settlement. (Mot. for Settl. Exs. A1-8, July 27, 2012, ECF No. 326.)
As to the website, the West Objectors learned that as of October 15, 2012, the website address listed in the mailed notice displayed information related to the 2010 settlement, rather than the 2012 settlement, and only upon clicking on what the West Objectors describe as a "nonobvious link buried in small print" would a class member be directed to a different address containing information on the New Settlement Agreement and claim submission materials.
No one contends that this is an issue of constitutional magnitude, but rather the West Objectors assert that the website issue suggests that the Defendants failed to comply with the Preliminary Approval Order. No party disputes the accuracy of the exhibits to the first Frank Notice Declaration, which demonstrate that the website plainly contained the details of the 2010 settlement, including a chart stating that claims for reimbursement needed to be postmarked by July 23, 2010. (Frank Notice Decl. I Ex. 1 & 2, Nov. 8, 2012, ECF No. 389.) Upon clicking a hyperlink in an "Update" section on the right side of the page, however, class members would be directed to information about the New Settlement Agreement. This possible lack of clarity on the settlement website, in isolation, could be viewed as presenting a potential risk that class members could be confused, but the entire record must be reviewed to determine if there is a violation of the Order as a result of this potential risk, and whether the risk requires renotification. The undisputed record shows that: (1) each of the 1,095,350 class members was mailed written materials that provided information about the settlement and a telephone number for the claims administrator to whom the class members could pose questions, (see Eisert Decl. I ¶¶ 4-6; Notice Form, July 31, 2012, ECF No. 329); (2) the mailed notice explained that claims for reimbursement were to be mailed with supporting documentation to an address stated on the notice; (3) the mailed notice informed each class member that he or she could either visit the website to obtain a declaration form if the class member lacked supporting documentation for reimbursement or call a specific telephone number if the class member could not obtain the form on the website; and (4) no class member contacted Class Counsel, defense counsel, the administrator, or the Court to complain about the website or seek guidance as a result of its contents. (Gsovski Decl. ¶ 36; Eisert Decl. II ¶ 5; Fairness Hearing II 22:00.) These facts demonstrate that those class members who wanted to file a reimbursement claim had sufficient ability to do so and had clear notice of how to seek assistance. The Court cannot ignore the fact that, of the 1,095,350 class members to whom notice of the New Settlement Agreement was sent, and of the 4,490 class members to have contacted the settlement administrator via telephone, email, or mail, (Fairness Hearing II 10:30), not a single one expressed confusion about the website. The West Objectors acknowledged during the second phase of the Fairness Hearing on December 5, 2012 that the complete absence of any complaint or inquiry from class members regarding the website undermines the conclusion that the website statistics show confusion or deterrence from filing claims. (Fairness Hearing II 22:30.)
Moreover, the configuration of the website before October 15, 2012 does not require a finding that the website was deficient or failed to comply with the Preliminary Approval Order. First, a link existed on the webpage that contained the 2012 settlement documents. Second, as the Court observed in assessing the validity of an objection in 2010 concerning a missing link on the website, the class does not lack access to information simply because it may be slightly difficult to access the information from a
Thus, the Court is satisfied that proper notice has been provided and the temporary configuration of the website did not violate the Preliminary Approval Order. Notice of the settlement to the affected class members complied with the Preliminary Approval Order and the exercise of personal jurisdiction over them is proper.
On November 10, 2009, the United States District Judge approved the parties' request to consent to Magistrate Judge jurisdiction "to conduct all settlement proceedings and enter final judgment," pursuant to 28 U.S.C. § 636(c). (Dewey, ECF Nos. 158, 159; Delguercio, ECF No. 124.) The named parties' consent to magistrate judge jurisdiction permits the Court to decide all issues related to the motions for final approval of the class settlement and attorneys' fees.
For the Court to certify a class, the plaintiffs must satisfy all of the requirements of Rule 23(a), and one of the requirements of Rule 23(b). Fed.R.Civ.P. 23(a)-(b). Class certification cannot be presumed and a class may be certified only after a rigorous analysis demonstrates that all Rule 23 requirements are met. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir.2008). Even where a plaintiff seeks certification of a settlement class,
Under Rule 23, a class action is appropriate when:
Fed.R.Civ.P. 23(a). These prerequisites are known as numerosity, commonality, typicality, and adequacy. Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). They are "meant to assure both that class action treatment is necessary and efficient and that it is fair to the absentees...." Id.
As to numerosity, commonality, and typicality, the Court incorporates by reference its analysis and findings set forth in Dewey, 728 F.Supp.2d at 565-67.
As to adequacy, the Court reviews the new settlement in light of the Third Circuit's ruling in Dewey, 681 F.3d at 180-90, to determine if the representative parties will "fairly and adequately protect the interests of the class." Id. at 181 (quoting Fed.R.Civ.P. 23(a)(4)); In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir.2004) (same). The Court must evaluate "conflicts of interest between named parties and the class they seek to represent." In re Warfarin, 391 F.3d at 532. This requires the Court to determine whether or not there is "`antagonism between [the named plaintiffs'] objectives and the objectives of the [class]', [which constitutes] a `legally cognizable conflict of interest' between the two groups." In re Ins. Brokerage Antitrust Litig., Civ. No. 04-5184, 2007 WL 542227, at *15 (D.N.J. Feb. 16, 2007) (quoting Jordan v. Commonwealth Fin. Sys., Inc., 237 F.R.D. 132, 139 (E.D.Pa.2006)).
The Third Circuit held that the class as previously certified did not satisfy Rule 23(a)(4) because the representative plaintiffs were each members of the "reimbursement group" and had an incentive to carve out as many class members as possible into the unrepresented "residual group." Dewey, 681 F.3d at 187 n. 15. By eliminating the distinction between the "reimbursement group" and the "residual group" and treating each class member similarly by allowing each to seek reimbursement for repairs, the New Settlement Agreement resolves the adequacy problem the Third Circuit identified. The named plaintiffs are now in the same position as all other class members because each of them owned or leased the subject vehicles that contained the allegedly defective plenum or sunroof drain system, received allegedly inadequate maintenance recommendations and, as a result, suffered the same injury. Like the putative class members, the named plaintiffs have an interest in obtaining redress for damage or avoiding future damage caused by the allegedly defective systems. Under the New Settlement Agreement, the representative plaintiffs have no incentive to prioritize recovery for one group over another, since each class member will be treated similarly. By "do[ing] away with the distinction between the reimbursement group and the residual group, and allow[ing] all members of the class to submit reimbursements with no difference in priority," the settlement addresses the Circuit's adequacy concerns in a way it suggested. Dewey, 681 F.3d at 189. Thus, the proposed class representatives are adequate, and the Court appoints Jacqueline DelGuercio, Lynda Gallo, Francis Nowicki, Kenneth Bayer, John M. Dewey, Patrick DeMartino, Patricia Romeo, Ronald B. Marans, and Edward O. Griffin as class representatives.
The Court incorporates by reference its finding that the requirements of Rule 23(b) are satisfied, as set forth in Dewey, 728 F.Supp.2d at 568-70.
Having certified a class for settlement purposes, and consistent with the Third
In appointing class counsel, the court:
Fed.R.Civ.P. 23(g). The Court's prior discussion and findings reflect consideration of the factors set forth in Rule 23(g). See Dewey, 728 F.Supp.2d at 567 (assessing counsel's qualifications, experience, conduct, and work performed in the case). The Court incorporates by reference its discussion and findings concerning counsel's adequacy, and further notes that counsel expended additional effort litigating the case on appeal, quickly revised the settlement to comply with the Third Circuit's mandate, and promptly sought to implement the terms of the new settlement. (See Dewey, ECF Nos. 315, 320, 326, 370.) The Court therefore appoints Adam M. Slater and his firm Mazie Slater Katz & Freeman LLC and Samuel P. Sporn and his firm Schoengold & Sporn, P.C. as co-lead class counsel.
Rule 23(e) requires court approval of any class action settlement and sets forth procedures to be followed for deciding whether approval should be granted.
Here, the settlement requires the defendants to provide certain benefits to owners or lessees of particular VW and Audi vehicles. Under the settlement's terms, all class members receive educational preventative maintenance materials, including mailings that recommend inspections and cleaning of the sunroof and plenum drain systems. (New Settlement Agreement ¶ 4. 1.) All class members are eligible to receive full reimbursement from a non-exhaustible $8 million fund for expenses incurred for "[r]eimbursable [r]epairs for cleaning, drying, or replacement of carpeting, including padding, and/or repair or replacement" of affected vehicle components. (Id. ¶¶ 4.2-4.6.) Additionally, some class members with particular vehicle models
Notice of the New Settlement Agreement was transmitted to affected class members pursuant to the Amended Preliminary Approval Order, using the best practicable notice methods under the circumstances. (Eisert Decl. I.) Specifically, notice of, and information about, the new settlement was: (1) mailed to class members described in 1.31(b) of the New Settlement Agreement
The Amended Preliminary Approval Order and New Settlement Agreement notified class members that they could object to the settlement or be excluded from the class by submitting a written objection or request for exclusion postmarked no later than November 1, 2012. (Am. Prelim. Order 6, Sept. 5, 2012, ECF No. 338; New Settlement Agreement ¶ 13.1.) By operation of the Court's Standing Order dated November 1, 2012, all deadlines were extended until November 7, 2012 due to Hurricane Sandy. (D.N.J. Standing Order 12-2.) Thus, objections and exclusions received by that date are deemed timely. Here, 105 individuals sought exclusion, five lodged objections, and as of November 26, 2012, 2218 eligible class members filed reimbursement claims. (Eisert Decl. III ¶ 3.)
These events show that the putative class received valid, due, and sufficient notice of the settlement and these proceedings. Accordingly, the notice complies with due process requirements, thereby satisfying Rule 23(e).
Furthermore, experienced counsel for the parties, along with the West and Sibley Objectors, seek approval of the settlement. Experienced class counsel's approval is entitled to considerable weight and favors finding that the settlement is fair. See In re Cendant Corp. Litig., 264 F.3d 201, 232 n. 18 (3d Cir.2001) ("In re Cendant") (citing In re Gen. Motors, 55 F.3d at 785); In re Warfarin, 391 F.3d at 535; Varacallo, 226 F.R.D. at 240. Moreover, that the objectors who vigorously opposed the prior settlement support the new settlement further supports a finding that the new settlement is fair and reasonable. Even with counsel's concurrence, however, the Court must carefully examine the fairness and reasonableness of the settlement, as it serves as a fiduciary that "guard[s] the claims and rights of the absent class members." Ehrheart, 609 F.3d at 593.
In this Circuit, the factors set forth in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975), are used to determine whether a class settlement is fair and reasonable. See In re Warfarin, 391 F.3d at 534-35. The Girsh factors are:
Girsh, 521 F.2d at 157 (citation, internal quotation marks, and alterations omitted). In addition, in In re AT & T Corp., 455 F.3d 160, 165 (3d Cir.2006), the appellate court observed that:
In re AT & T Corp., 455 F.3d at 165 (quoting In re Prudential, 148 F.3d at 323) (internal quotation marks omitted). The Court has considered all of these factors to the extent they are applicable to decide whether to approve or reject the proposed class action settlement.
As to the complexity, expense, and likely duration of the litigation absent settlement, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 573, and concludes that this factor weighs in favor of approving the settlement.
The second factor the Court must consider is the reaction of the settlement class to the settlement. Under this factor, courts "attempt[] to gauge whether members of the class support the settlement." In re Warfarin, 391 F.3d at 536 (citations and internal quotation marks omitted). Courts do this by looking at the "number and vociferousness of the objectors." In re Gen. Motors, 55 F.3d at 812. While courts "generally assume[] that `silence constitutes tacit consent to the agreement,'" the "practical realities of class actions [have] led a number of courts to be considerably more cautious about inferring support from a small number of objectors to a sophisticated settlement." Id. (quoting Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1313 n. 15 (3d Cir.1993)) (recognizing that "[e]ven where there are no incentives or informational barriers to class opposition, the inference of approval drawn from silence may be unwarranted").
As to the reaction of class members unaffected by the modifications in the New Settlement Agreement, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 573-74.
Among the 1,095,350 class members affected by the modifications in the New Settlement Agreement, only 105
Among the 1,095,350 class members affected by the modifications in the New Settlement Agreement, five
The first objection [the "Gardner Objection"] asserts that the new settlement is not fair because it does not provide compensation for vehicle owners who have not yet had repairs performed. (Gardner Objection, Sept. 24, 2012, ECF No. 362.) Owners of affected vehicles who have not yet had repairs performed are members of the settlement class, (New Settlement Agreement ¶ 1.31), and are eligible to file reimbursement claims for repairs that are made during a five-year period. (Id. ¶ 6.1); see also Dewey, 728 F.Supp.2d at 579. This likely addresses part of this objector's concern as it provides relief when a repair is made. To the extent the objector objects because he believes compensation should be provided even where the class member expended no money to repair damage, the objection does not require rejecting the settlement. Allowing compensation for those who actually incur an expense is a reasonable remedy, but permitting those who expended no funds to obtain money would be tantamount to an impermissible windfall. The requirement that cash payments be limited to those who expended money on repairs is therefore reasonable and the objection to this limitation does not render the settlement unfair or unreasonable. Moreover, class members who chose not to have their vehicle repaired could have opted out of the settlement and pursued their claims individually to attempt to secure compensation for damages they choose not to repair. Thus, the objection is not a reason to reject the settlement.
The next objection [the "Neff Objection"] asserts that the plaintiffs "neglected to properly maintain their cars," that the objector "find[s] it difficult to find fault in Volkswagen of America," and that the plaintiffs should "graciously pay [their] bill[s]."
The next objection [the "Murray Objection"] asserts that the Plaintiffs' attorneys' fees should be limited by the application of New Jersey state law. (Murray Objection, Oct. 23, 2012, ECF No. 375.) For the reasons set forth elsewhere in this Opinion, the Court has determined that federal law governs the fee request and that the agreed-upon attorneys' fees are reasonable under the governing law.
The final objection [the "Braverman Objection"] asserts that, for a variety of reasons, the Plaintiffs' attorneys' fees are improperly calculated and should be reduced. (Braverman Objection, Nov. 6, 2012, ECF No. 383.) For the reasons set forth elsewhere in this Opinion, the Court has determined that the agreed-upon attorneys' fees are reasonable under the governing law.
Given the method by which notice was provided, the fact that only five out of 1,095,350 affected class members filed objections, and because none of the objections warrants a finding that the settlement is unreasonable, the Court can infer that the supermajority of the class supports the settlement.
As to the stage of proceedings and extent of discovery, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 583-84, and concludes that this factor weighs in favor of approving the settlement.
As to the risks of establishing liability and damages at trial, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 584-85, and concludes that this factor weighs in favor of approving the settlement.
As to the risk of maintaining the class action through trial, the Court incorporates
As to the ability of the defendants to withstand a greater judgment, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 585-86, and concludes that this factor does not indicate that a settlement is necessary to ensure that the plaintiffs obtain relief for their alleged injuries, but also does not alone dictate that the settlement is unreasonable.
As to the reasonableness of the settlement, the Court incorporates by reference its findings in Dewey, 728 F.Supp.2d at 586-87, and further notes that the New Settlement Agreement provides for reimbursement for repairs to all affected vehicles, without a distinction based on incidence of damage to specific groups of vehicles. The New Settlement Agreement permits more than one million additional class members to recover money from the settlement fund without simply hoping that the Defendants will show good will to reimburse them. Indeed, the New Settlement Agreement further provides that if reimbursement claims exceed the settlement fund, the Defendants will contribute additional funds to satisfy all claims. (New Settlement Agreement ¶ 5.) As a result, the New Settlement Agreement provides at least as great a benefit as the settlement that the Court previously found to provide a reasonable recovery to the class.
Thus, the Girsh factors support a finding that the settlement is fair and reasonable and is in the best interest of the settlement class, and the settlement is hereby approved.
The Court now turns to the motion for fees and expenses for class counsel.
Rule 23 provides that "[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." Fed.R.Civ.P. 23(h). Thus, a reasonable fee award is permitted if it is: (1) authorized by law; or (2) agreed upon by the parties. Unlike the 2010 Settlement Agreement, in which the parties agreed that there should be an award of "reasonable attorneys' fees" but did not agree to an amount or the law applicable to its calculation, the New Settlement Agreement specifies that Class Counsel will apply for an award of fees and expenses not to exceed $9,884,782.94,
Nonetheless, the Court must thoroughly analyze the application for attorneys' fees in a class action settlement to ensure that it is "reasonable," as Rule 23(h) requires. Fed.R.Civ.P. 23(h); see also In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir.2005) ("In re Rite Aid"); Yong Soon Oh v. AT & T Corp., 225 F.R.D. 142, 146 (D.N.J.2004). This is so even where, as here, the parties have consented to the proposed attorneys' fees, Yong Soon Oh, 225 F.R.D. at 146 (citing In re AremisSoft Corp. Sec. Litig., 210 F.R.D. 109, 128 (D.N.J.2002)), because of the risk that the "lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment for fees." In re Gen. Motors, 55 F.3d at 820 (citation and internal quotation marks omitted).
As to choice of law in assessing the reasonableness of an agreed-upon fee award, the Court incorporates by reference its observations in Dewey regarding the absence of fee shifting as a basis for the fee award. 728 F.Supp.2d at 589 n. 62. No fee shifting statute is triggered because no "party is compelled by statute to bear the opposing party's fees." In re Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009) (citing Alyeska Pipeline Svc. Co. v. Wilderness Soc'y, 421 U.S. 240, 269-70, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). Rather, the fee award is being made by agreement of the parties. In such a case, where the defendant agrees to pay fees and does not admit liability, federal class action law determines the fee award. See, e.g., McGee v. Continental Tire North America Inc., Civ. No. 06-6234, 2009 WL 539893, at *13 (D.N.J. Mar. 4, 2009) (applying federal law to a fee award in a Class Action Fairness Act settlement of claims under, among other things, the New Jersey Consumer Fraud Act); Briggs v. Hartford Fin. Servs. Group, Inc., Civ. No. 07-5190, 2009 WL 2370061, at *14, 15 n. 92 (E.D.Pa. July 31, 2009) (applying federal case law to decide class counsel's fee request in a CAFA case based upon state law and reminding counsel that federal law governs applications filed in federal class action cases); First State Orthopaedics v. Concentra, Inc., 534 F.Supp.2d 500, 523-24 (E.D.Pa.2007).
The Murray Objectors
Moreover, even if the Court applied New Jersey state law, as the Murray and Braverman Objectors suggest, the result would not be different. Two separate panels of the New Jersey Superior Court, Appellate Division, have relied upon the federal precedent of the Third Circuit to determine the fee award in class actions. See Sutter v. Horizon Blue Cross Blue Shield of New Jersey, No. L-3685-02, 2012 WL 2813813, at *5-6, *3 n. 1 (N.J.Super.Ct.App.Div. July 11, 2012) (characterizing federal class action cases as persuasive authority, describing methods of calculation as set forth in federal precedent, and holding in accordance with federal law that the "ultimate choice of methodology rests within the court's discretion"); Sutter v. Horizon Blue Cross Blue Shield of New Jersey, 406 N.J.Super. 86, 103-06, 966 A.2d 508 (App.Div.2009) (applying federal precedent in determining whether trial court properly calculated reasonable fee award). Thus, even if the Court were to apply New Jersey state court precedent, it would simply be directed back to the federal law of the Third Circuit.
Braverman's other arguments against the agreed-upon fee award are also meritless. First, Braverman contends that class counsel's time entries attributable to negotiating and seeking approval of the 2010 settlement should not be compensable in a lodestar analysis because counsel made an error that led to a remand of the settlement. (Braverman Opp'n 3-8.) In performing a lodestar cross-check, the Court may rely on activity summaries and "need not review actual billing records." Rite Aid, 396 F.3d at 306-07 (citing In re Prudential, 148 F.3d at 342). Thus, the particularized inquiry that Braverman seeks is not required. In addition, Braverman's argument that Class Counsel should not be credited for time spent negotiating the 2010 settlement ignores the fact that the New Settlement Agreement is largely the product of counsel's efforts in 2010, as every part, except for the ability of one category of cars to obtain certain cash reimbursement, remains intact. (Fairness Hearing II 1:04:13.) Moreover, Class Counsel are not seeking to be compensated for the additional work undertaken to argue the case on appeal and negotiate a new settlement that complied with the Third Circuit's mandate.
Second, Braverman contends that class counsel's hourly rate should be lower than that which the Court applied because the initial settlement was rejected on appeal and because of certain comments regarding counsel's performance in a judicial opinion in an unrelated case. (Braverman Opp'n 3-8.) For the reasons set forth in Dewey, 728 F.Supp.2d at 608, the downwardly-adjusted hourly rate used to conduct the cross-check properly valued Class Counsel's services based upon their work and experience, even where one of the class's attorneys had not previously handled a class action case. Moreover, another judge's comments about counsel's firm on issues specific to an unrelated case has no bearing on determining the hourly rate that applies to the work performed here.
Third, Braverman suggests that the 2010 hearing on the fee applications was insufficient and argues that the Court should hold a hearing where objectors can cross-examine the experts and engage their own expert witnesses. (Id. 2.) The Third Circuit has already determined that the procedures employed at the 2010 Fairness Hearing were sufficient, Dewey, 681 F.3d at 177 n. 8, and the objector has not shown that additional examination and discovery was necessary.
In Dewey, 728 F.Supp.2d at 589-92, the Court applied federal class action case law to determine what method it would use to calculate a fee award. In its prior Opinion, the Court determined that a percentage-of-recovery analysis with a lodestar cross-check was the appropriate method for calculating a reasonable fee award because: (1) fees were being paid voluntarily; (2) the settlement's value was quantifiable; and (3) the settlement fund and fees were being paid from the same source. See id. at 592. Applying that method, the Court ultimately concluded that $9,207,248.19 was a reasonable and appropriate fee award based on the Court's valuation of the settlement. The Court's valuation is the law of the case, and under the New Settlement Agreement, the value to the class is at least as great.
Rule 23(h) also provides for an award of costs. The Court has previously approved payment of costs in the amounts of $385,840.01
Like his challenge to the fee award, Braverman's challenge to the cost award also fails. Braverman argues that costs associated with fee applications are not compensable and as such, Class Counsel are not entitled to reimbursement for expert fees for Dr. Eads. (Braverman Ltr. 1, Nov. 7, 2012, ECF No. 385.) During the November 9, 2012 telephonic hearing, the Plaintiffs represented that Dr. Eads would have been a trial witness. (Nov. 9, 2012 Hearing 1:27:07.) Moreover, Dr. Eads' expert opinion on valuation was necessary to evaluate whether the settlement itself was fair. Thus, even assuming, without deciding, that Braverman is correct that costs associated with a fee petition are not compensable, the costs associated with Dr.
The Court incorporates by reference its discussion of incentive awards to the class representative Plaintiffs in Dewey, 728 F.Supp.2d at 577-78, and, for the reasons stated therein, will approve payment of $10,000 to each representative plaintiff: Kenneth Bayer, Jacqueline Delguercio, Patrick DeMartino, John M. Dewey, Lynda Gallo, Edward O. Griffin, Ronald Marans, Francis Nowicki, and Patricia Romeo.
The Court now turns to the respective motions of the Sibley Objectors and the West Objectors for fees and expenses. As with awards of attorneys' fees in general, whether to grant, and the method for calculating, an award of fees to objectors' counsel rests within the court's discretion. In re Prudential Ins. Co. of Am. Sales Practices Litig., 273 F.Supp.2d 563, 566 (D.N.J.2003) (citing In re Gen. Motors, 55 F.3d at 820). The requirement that the district court thoroughly analyze the fee application, even where the parties have agreed to the award, also remains in place. Id. Objectors, however, play "a different role in this litigation from that of Class Counsel," id. at 565, and are not entitled to an award of attorneys' fees unless "the settlement was improved as a result of their efforts." Id.; see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051-52 (9th Cir.2002); Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 288 (7th Cir.2002); White v. Auerbach, 500 F.2d 822, 828 (2d Cir.1974); Spark v. MBNA Corp., 289 F.Supp.2d 510, 513 (D.Del. 2003); In re Westinghouse Sec. Litig., 219 F.Supp.2d 657, 660 (W.D.Pa.2002).
Some courts have determined that an objector may improve a settlement without producing a quantifiable increase in the size of the settlement fund. See, e.g., Park v. Thomson Corp., 633 F.Supp.2d 8, 11 (S.D.N.Y.2009) (stating that "[s]ome courts have also rewarded objectors' counsel for advancing non-frivolous arguments and transforming the settlement hearing into a truly adversarial proceeding") (citations and internal quotation marks omitted); Great Neck Capital Appreciation Inv. P'ship, L.P. v. PricewaterhouseCoopers, L.L.P., 212 F.R.D. 400, 413 (E.D.Wis.2002) (concluding "that the objector contributed materially ... by assisting the court and enhancing the adversarial process"); In re Ikon Office Solutions, Inc., Sec. Litig., 194 F.R.D. 166, 197 (E.D.Pa.2000) (stating that "if the objection confers a benefit on the class or assisted the court by sharpening debate, fees may be appropriate") (emphasis added). Other courts have refused to award fees where the objector merely enhanced the adversarial process. See, e.g., Martin v. Foster Wheeler Energy Corp., Civ. No. 06-878, 2008 WL 906472, at *10 (M.D.Pa. Mar. 31, 2008). Thus, objectors must have economically benefitted the class or, at the very least, shown that a court adopted their objection. See id.; see also Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 855 (10th Cir.1993) (noting that objectors "may be entitled to attorneys' fees if the court in its discretion finds that the objections were valid or otherwise conferred class benefits") (citations and internal quotation marks omitted).
As to the West Objectors, by agreement, counsel seek an award of $82,134.10,
By agreement, counsel for the Sibley Objectors seek an award of $25,000.00, half to be paid by the Defendants and half to be paid by Schoengold & Sporn. (Sibley Costs Decl.; Proposed Judgment, Nov. 7, 2012, ECF No. 386.) Because the Sibley Objectors have agreed not to seek more than $25,000, inclusive of the $2,470.02 awarded them by the Third Circuit, (Sibley Costs Decl. ¶ 2), the Court will treat the difference, $22,529.98, as the Sibley Objectors' fee application.
The Sibley Objectors do not affirmatively advocate for a particular method of evaluating their attorneys' fee request, though they provide the factual information necessary to conduct a full lodestar analysis. During the November 9, 2012 Fairness Hearing, counsel indicated that he had provided billing entries to enable the Court to perform a lodestar analysis but, by agreement, he was not seeking the full lodestar amount. (Nov. 9, 2012 Hearing 58:45.) For the reasons discussed earlier, however, the Court will apply a percentage-of-recovery analysis in assessing the Sibley Objectors' fee award. Under the valuation of the benefit to the class discussed above, $782,283.87, the $22,529.98 the Sibley Objectors are seeking is 2.9% of the benefit conferred, which is well within the range of acceptable percentages-of-recovery. See Dewey, 728 F.Supp.2d at 604-05.
Applying the lodestar cross-check, counsel state that their fees under the lodestar method are $47,750.00, for 95.5 hours of work, multiplied by a $500 per hour rate. (Sibley Decl. ¶ 8, Aug. 27, 2012, ECF No. 337.) Assuming without deciding that the hourly rate and the hours worked are reasonable, the agreed-upon fee award is 47% of the lodestar figure. A lodestar multiplier of .47 is well within the acceptable range. See Dewey, 728 F.Supp.2d at 606. Moreover, assuming counsel's hours of 95.5 to be reasonable, the agreed-upon fee award results in an actual average billing rate of only $235.92 per hour, further indicating that the requested fee award is reasonable.
In aggregate, the West and Sibley Objectors seek attorneys' fees in the amount of $104,664.08. Under the valuation of the benefit to the class discussed above, $782,283.87, the West and Sibley Objectors are seeking, in aggregate, 13.4% of the benefit conferred, which is within the range of acceptable percentages-of-recovery. See id. at 604-05. Applying the
In conclusion, whether viewed individually or jointly, the West and Sibley Objectors' agreed-upon attorneys' fees are reasonable under the percentage-of-recovery analysis and satisfy the lodestar cross-check, assuming the benefit to the class conferred by their actions is the value of the reimbursement claims under the New Settlement Agreement. Thus, the motions for an award of fees are granted and fees in the amount of $82,134.10 shall be awarded to counsel for the West Objectors and fees in the amount of $22,529.98 shall be awarded to counsel for the Sibley Objectors.
In accordance with their agreement with the parties, the West Objectors seek $86,000 in fees and costs in both the District Court and on appeal, exclusive of $4,000 in incentive awards. As explained above, the $86,000 includes a request for $3,865.90 in costs, $2,678.93 of which the Third Circuit has already awarded in connection with the successful appeal. (Frank Supp. Fees Decl.) The remaining $1,186.97
The Sibley Objectors filed a Bill of Costs on December 3, 2012 which lists $2,645.02 in costs, consisting of $2,470.02 that the Third Circuit has already awarded as taxable in connection with the successful appeal, as well as $175 for transcripts. (Sibley Bill of Costs.) As explained above as to attorneys' fees, because the Sibley Objectors applied for $25,000 in fees and costs without itemizing specific costs, and because they have agreed not to seek more than that amount in total, (Sibley Costs Decl. ¶ 2), the Court will award $22,529.98 in fees, along with the $2,470.02 in costs taxed by the Third Circuit, for a total of $25,000.
The West Objectors seek $4,000 total in incentive awards: $2,000 to be allocated to West, and $1,000 each to McKinney and Sullivan. (West Mot., Oct. 16, 2012, ECF No. 369.) A number of courts have considered the propriety of permitting incentive awards to objectors with varying outcomes. See, e.g., Hartless v. Clorox Co., 273 F.R.D. 630, 647 (S.D.Cal. 2011) (recognizing that an incentive award to an objector might be appropriate in some instances); UFCW Local 880-Retail Food Employers Joint Pension Fund v. Newmont Mining Corp., Civ. No. 05-1046, 2008 WL 4452332, at *4 (D.Colo. Sept. 30, 2008) (expressing doubt that an incentive award to an objector can ever be appropriate but assuming without deciding that it could be in some cases). In deciding whether an objector deserves an incentive award, courts have considered whether:
The West Objectors base their request for an incentive award on the "selflessness" they allegedly demonstrated by pursuing appeal of the settlement. Specifically, the West Objectors submit that they "refuse[d] to accept personal payment to withdraw their objections" in the interest of benefitting the class as a whole. (See Frank Fees Decl. ¶ 29.) The West Objectors further argue that in challenging the approval of the settlement, they incurred a substantial personal risk by: (1) exposing themselves "to the risk of harassing discovery and private investigation from the plaintiffs' attorneys," (West Br. 14); and (2) posting an appeal bond of $25,000. (Id.) As to substantive involvement with the litigation, the West Objectors submit that they initiated the objection and were "kept in the loop" throughout the process. (Frank Fees Decl. ¶ 32.)
The West Objectors' contribution to the case warrants only a nominal incentive payment. Unlike their counsel or the representative plaintiffs, there is no indication that the objectors themselves devoted the sort of "substantial time or effort" that might support an award in excess of those granted in other cases. Lonardo, 706 F.Supp.2d at 813; see also Lobur v. Parker, 378 Fed.Appx. 63, 65 (2d Cir.2010) (affirming denial of incentive award to objectors who expended "minimal effort," despite their having contributed to "an improvement to the distributional fairness" of the settlement). Furthermore, the record is not sufficient to support the position that Mr. West is entitled to a greater award than Messrs. McKinney or Sullivan. West argues that he was "personally given information" that he could have made a claim on the residual of the settlement fund, but he nevertheless decided to postpone recovery and proceed with the appeal "for the larger benefit of the class." (West Br. 14.) There is no description of the information he received and so that Court cannot evaluate what he supposedly gave up. Moreover, the 2010 Settlement Agreement provided that moneys remaining after reimbursement of claims would be held for five years and "utilized to fund or reimburse, as applicable, VWGoA payments for repairs beyond warranty made
For the reasons stated herein, the motion for final approval of the settlement class and class settlement is granted, the amount of $9,207,248.19 shall be awarded as fees to Class Counsel, and reimbursement for expenses is granted in the amount of $385,840.01 to Mazie Slater Katz and Freeman, LLC and in the amount of $291,572.18 to Schoengold & Sporn, P.C. The amount of $10,000 shall be awarded to each of the following class representatives: Kenneth Bayer, Jacqueline Delguercio, Patrick DeMartino, John M. Dewey, Lynda Gallo, Edward O. Griffin, Ronald Marans, Francis Nowicki, and Patricia Romeo. The amount of $82,134.10 shall be awarded as fees to the Center for Class Action Fairness and $22,529.98 to Gary W. Sibley; reimbursement for expenses is granted in the amount of $3,865.90 inclusive of the Third Circuit's taxation of costs to the Center for Class Action Fairness and in the amount of $2,470.02 inclusive of the Third Circuit's taxation of costs to Gary W. Sibley; and $500 shall be awarded to each of the following objectors: Joshua West, Darren McKinney, and Michael Sullivan.
Judgments
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.
Fed.R.Civ.P. 23(e).