LYNCH, Chief Judge.
This appeal is from the district court's award of $30 million in attorneys' fees to several groups of plaintiffs' attorneys who achieved a class action settlement agreement. It presents the question of what source of law governs the award of such fees in a diversity suit, where the parties' settlement agreement contains, inter alia, a provision expressly stating that the parties have not agreed on the source of law to apply to the fee award. We hold that under these circumstances, where there is an agreement that the defendants will pay reasonable fees, state law governs the award of fees. We vacate the fee award, which was based on federal sources of law, and remand for a new determination of the proper reasonable fee award under the relevant state law.
This suit arises out of alleged engine defects in certain Volkswagen and Audi vehicles, which plaintiffs asserted were prone to the formation of damaging engine sludge unless particular types of motor oil were used. Five putative statewide class actions were filed in five federal district courts, alleging, among other claims, consumer fraud and unfair and deceptive trade practices. In Re Volkswagen & Audi Warranty Extension Litig., 452 F.Supp.2d 1354, 1355-56 (J.P.M.L.2006). On August 29, 2006, these suits were consolidated by the Judicial Panel on Multidistrict Litigation and, as multidistrict litigation
Plaintiffs filed their second amended consolidated complaint on October 15, 2007. The factual allegations underlying the complaint were that the 1.8 liter turbo-charged engines contained in 1997 to 2004 model Audi vehicles and 1998 to 2004 model Volkswagen Passat vehicles were defectively designed, and that the defendants concealed this defect. The plaintiffs sought to bring claims "on behalf of all persons or entities in the United States who are current or former owners and/or lessees" of those particular vehicles. The complaint named as defendants Volkswagen of America, Inc., a New Jersey corporation, Volkswagen of America, Inc., d/b/a Audi of America, Inc., a New Jersey corporation, the domestic distributors of the vehicles, as well as Volkswagen AG and Audi AG, two German corporations.
The second amended complaint raised a number of legal theories of recovery, including that defendants had violated the New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1 et seq., and other state consumer fraud statutes that are "the same or substantially similar to the New Jersey" law. The complaint also alleged breach of contract, breach of implied warranty of merchantability, unjust enrichment, and violation of certain California laws. The complaint stated that diversity subject matter jurisdiction was proper under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), (d)(6), and sought a declaratory judgment, injunctive relief, actual and treble damages, restitution, and an award of costs, including attorneys' fees.
On October 23, 2008, a special master was appointed to "supervise all aspects of discovery," to "decide all nondispositive pretrial motions," to make recommendations as to all dispositive motions, and to assist the parties in any settlement efforts. In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790 (D.Mass. Oct. 23, 2008).
At some point, serious settlement discussions between the parties began, and on December 14, 2009, the special master reported that the parties "seem[ed] very close to reaching an agreement." In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790 (D.Mass. Dec. 14, 2009). On May 12, 2010, the special master reported that the parties had begun drafting a proposed settlement agreement and associated documents. In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790 (D.Mass. May 12, 2010).
On September 13, 2010, a proposed settlement agreement was submitted to the district court, along with a motion requesting conditional approval of the settlement and certification of a class for settlement purposes. The final settlement as approved by the court did not change the terms of the proposed settlement. So we discuss several material portions of the proposed settlement: the benefits obtained by the class, the appointment of a settlement administrator, the terms as to attorneys' fees, and the choice of law provision.
The settlement stated it was not "an admission by Defendants of any liability or wrongdoing whatsoever." The settlement class consisted of all current and former owners and lessees of model year 1997-2004 Audi A4 vehicles or model year 1998-2004 Volkswagen Passat vehicles equipped with 1.8 liter turbo engines, comprising a total of 479,768 vehicles. The proposed settlement offered several benefits to the class, including (1) payment for engine repair or replacement costs, (2) a warranty extension for a subset of the vehicles, (3) a one-time $25 oil change discount for a subset of the vehicles, and (4) an education and information program designed to inform class members of the risks to their engines and means to prevent those risks. The proposed settlement did not place a monetary value on these benefits.
The proposed settlement created an "Oil Sludge Settlement Administrator" to oversee the claims process for class members. The administrator was to record every claim for reimbursement, to determine whether the claim was to be allowed or denied, and to explain the basis for any claim that was denied.
The proposed settlement contained a procedure for providing notice to all settlement class members of the certification and fairness hearing and the settlement agreement. Notice of the proposed settlement was to be prepared by defendants, reviewed and approved by class counsel, and disseminated by the settlement administrator.
The proposed settlement also "reserve[d] to the [district] [c]ourt exclusive and continuing jurisdiction over this action, the [p]arties, ... and this Settlement Agreement for purposes of administering, supervising, construing, and enforcing this Settlement Agreement."
Most relevant to this appeal, the proposed settlement contained a section regarding "Attorney Fees and Costs." It provided:
Section VI.A.2 of the proposed agreement provided:
The attorneys' fees provision expressly states that it is "subject to" this section.
On September 22, 2010, the special master issued a recommendation that the district court (1) conditionally approve a class for settlement purposes only and (2) conditionally approve the proposed settlement agreement, with a hearing on the final agreement to be held on March 11, 2011, after notice of the settlement was sent to class members. In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790, 2010 WL 3769259, at *1, *7 (D.Mass. Sept. 22, 2010).
On December 20, 2010, notice of the proposed settlement was mailed to 1,603,013 class members, see Fed.R.Civ.P. 23(e)(1), whose names and addresses were determined by use of Volkswagen and Audi Vehicle Identification Numbers on record in each state registry of motor vehicles throughout the United States. The proposed settlement agreement provided that the notice was to be drafted by the defendants and reviewed and approved by class counsel, and this procedure appears to have been followed. The notice contained a section addressing the question "How will the lawyers be paid?"
On December 20, 2010, class counsel submitted a request for $37.5 million in attorneys' fees, for all attorneys working for plaintiffs,
The defendants did not argue that the court should award no attorneys' fees at all but strongly opposed the argument that federal law could apply, arguing that any fee award would only be proper under New Jersey's fee-shifting statute, not federal law. Defendants also opposed class counsel's fee calculation methodology. They argued that the settlement value could not be determined until after June 27, 2011, when certain reimbursement claims would be due. Defendants that said this was particularly necessary as their expert valued the settlement at only approximately $50 million, as opposed to the over $400 million valuation of plaintiffs' expert.
On February 18, 2011, the special master issued a report and recommendation which, after finding that federal law governed the attorneys' fees award and that the New Jersey statute was irrelevant, recommended an award of $30 million in attorneys' fees and approximately $1.2 million in costs. In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790, 2011 WL 721970, at *2-3, *11 (D.Mass.
The district court held a hearing on both the proposed settlement agreement and the attorneys' fees award on March 11, 2011, see Fed.R.Civ.P. 23(e)(2), (h)(3), where defendants again argued that state law must govern the fee award.
On March 24, 2011, the district court issued two opinions. In the first opinion, the district court approved the proposed settlement.
In the second opinion, the district court adopted, virtually verbatim, the special master's recommendation that the court award $30 million in attorneys' fees and approximately $1.2 million in costs and expenses. In re Volkswagen & Audi Warranty Extension Litig., 784 F.Supp.2d 35 (D.Mass.2011).
The district court applied federal law to determine the amount of fees to award, for two reasons. First, the district court found that "where, as here, a fee award is a result of the parties' private agreement, federal law governs the decision." Id. at 40. Second, the court explained that a fee award pursuant to the state fee-shifting statutes would not be appropriate because plaintiffs would not be "prevailing parties" within the meaning of those statutes. Id. at 41. The district court also noted that "[i]n the context of a class action settlement in the First Circuit, however, fees may be awarded, as part of the court's equitable powers over such settlement agreements, from a fund created to benefit the class." Id. at 39.
The district court then applied the percentage of fund method, finding that a $30 million award would be a reasonable percentage of the value of the settlement, against the parties' experts' estimation at somewhere between $50 million (defendants' expert) and $223 million (class counsel's expert's revised estimate). Id. at 43-44, 47. The court did not determine the value of the settlement.
The district court also said it applied a lodestar cross check, taking the 23,191 hours spent by class counsel, reducing those hours by one-third for unnecessary hours, and multiplying the remaining hours by $500 per hour to produce a base lodestar value of $7,734,000.
Defendants appealed the award of fees. They also filed a motion to vacate, alter, or amend the fee award under Rules 52(b), 59(e), and 60(b), which again argued, among other points, that the district court should have applied New Jersey rather
"We review a district court's determination regarding attorney's fees for abuse of discretion." Airframe Sys., Inc. v. L-3 Commc'ns Corp., 658 F.3d 100, 108 (1st Cir.2011). That said, "mistakes of law... always constitute abuses of a court's discretion," and in addition, "we will set aside a fee [determination] ... if it clearly appears that the trial court ignored a factor deserving significant weight, relied upon an improper factor, or evaluated all the proper factors (and no improper ones), but made a serious mistake in weighing them." Id. (alteration in original) (quoting Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292-93 (1st Cir.2001)) (internal quotation marks omitted). "The issue of whether a district court may use a given methodology in structuring an award of attorneys' fees is one of law, and, thus, is subject to de novo review." In re Thirteen Appeals Arising out of the San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 304 (1st Cir.1995).
Defendants raise two primary arguments in challenging the attorneys' fees award.
Because the court erred as a matter of law in applying federal-law principles instead of the relevant state's law, we do not reach the defendants' other claim of error. We vacate the fee award and remand for application of Massachusetts law principles, as described below.
We typically review the district court's interpretation of a settlement agreement de novo, and do so here. See Ricci v. Patrick, 544 F.3d 8, 17 (1st Cir. 2008); F.A.C., Inc. v. Cooperativa de Seguros de Vida de P.R., 449 F.3d 185, 192 (1st Cir.2006). We also review choice of law issues de novo. See Robidoux v. Muholland, 642 F.3d 20, 22 (1st Cir.2011) ("Choice of law determinations are questions of law, which we also review de novo."); see also Torre v. Brickey, 278 F.3d 917, 919 (9th Cir.2002) (per curiam) ("Whether state or federal law applies to a particular issue in a diversity action is a question of law which we also review de novo.").
It is axiomatic that, under the "American Rule," "[e]ach litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise." Hardt v. Reliance Standard Life Ins. Co., ___ U.S. ___, 130 S.Ct. 2149, 2157, 176 L.Ed.2d 998 (2010); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (discussing exceptions to the American Rule).
This language makes clear that the defendants agreed to pay "reasonable attorneys' fees and expenses;" further, the notice sent to the class made clear that "[t]he Defendants do not dispute Class Counsel's entitlement to an appropriate fee and reimbursement for cost and expenses."
However, the settlement agreement expressly disclaims any agreement between the parties as to what choice of law governs the award of attorneys' fees:
The fee award here is based on the agreement and not on any statute, federal or state. The question then is what source of law governs the fee award. The district court incorrectly concluded that federal law governed.
To determine the source of law that governs the settlement agreement in this diversity case, we engage in a two-part inquiry. First, we evaluate whether under the Erie doctrine, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal or state law governs the matter. This assessment is made first because "[a]lthough state law generally supplies the rules of decision in federal diversity cases, it does not control the resolution of issues governed by federal statute." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (citations omitted); see also U.S. Const. art. VI, cl. 2 (Supremacy Clause); Sun Oil Co. v. Wortman, 486 U.S. 717, 727, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) ("It is never the case under Erie that either federal or state law — if the two differ — can properly be applied to a particular issue...."); Erie, 304 U.S. at 78, 58 S.Ct. 817 ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.").
Second, if state law governs, and a choice of law must be made, we determine which state's law applies by applying the choice of law rules of the forum state (subject to the complexities of MDL litigation). See Servicios Comerciales Andinos, S.A. v. Gen. Elec. del Caribe, Inc., 145 F.3d 463, 479 (1st Cir.1998) (a federal court sitting in diversity first "determines whether a particular matter is procedural or substantive for Erie purposes;" only if the matter is procedural does federal law apply; "if substantive, the court follows the law of the forum state;" and "if a choice of law must be made," the federal court "applies the law that would be applied under the conflict of laws rules of the forum state").
State law, rather than federal law, governs the determination of the award of attorneys' fees in this case.
As a general matter, "interpreting [settlement] agreements and their scope is a matter of state contract law." Fábrica de Muebles J.J. Álvarez, Inc. v. Inversiones Mendoza, Inc., 682 F.3d 26, 33 (1st Cir.2012); see also, e.g., Fanning v. Potter, 614 F.3d 845, 848 n. 2 (8th Cir.2010) (same); In Re: Chira, 567 F.3d 1307, 1311 (11th Cir.2009) (same); Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337, 1347 (Fed.Cir.2008) (same).
We also start with the basic premise that the issue of attorneys' fees has long been considered for Erie purposes to be substantive and not procedural, and so state-law principles normally govern the award of fees. See IOM Corp. v. Brown Forman Corp., 627 F.3d 440, 451 (1st Cir. 2010) ("Where, as here, the court's jurisdiction is based on diversity of the parties, a district court's award of attorneys' fees is governed by relevant state law...."); Titan Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265, 273 (1st Cir.1990) (same); N. Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st Cir.1988) (same); see also, e.g., Northon v. Rule, 637 F.3d 937, 938 (9th Cir.2011) (per curiam) (same); Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273, 1280 (10th Cir.2011) (same); Chin v. Chrysler LLC, 538 F.3d 272, 279 (3d Cir.2008) (same).
Class counsel defend the choice of federal-law principles on two grounds: first, that Rule 23(h)(3), Fed.R.Civ.P., provides a basis for federal law governing the award of attorneys' fees; and second, in a qualitatively different argument, that federal courts' inherent equitable powers provide a basis for applying federal-law principles to the award of attorneys' fees. We reject each argument and hold that state law applies to interpretation of the settlement agreement.
Apparently attempting to argue in this case that the award is "procedural" under Erie, class counsel point to Rule 23(h). We reject the argument that Rule 23(h) provides a basis for applying federal-law principles to the award of attorneys' fees here. Rule 23(h) provides: "In 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). The Advisory Committee's notes make plain that "[t]his subdivision does not undertake to create new grounds for an award of attorney fees or nontaxable costs. Instead, it applies when such awards are authorized by law or by agreement of the parties." Fed.R.Civ.P. 23 advisory committee's notes on the 2003 amendment. The text does not say such awards have to be governed by federal fee award principles.
Rule 23(h) does not provide a free-floating grant of authority to apply federal law to award attorneys' fees in class actions; rather it allows the federal court to make fee awards where they "are authorized by law or by the parties' agreement." Fed. R.Civ.P. 23(h); see also 7B Wright, Miller,
It is clear that Rule 23(h) does not "undertake to create new grounds for an award of attorney fees or nontaxable costs." Fed.R.Civ.P. 23 advisory committee's notes on the 2003 amendment. As a result, Rule 23(h) is not "`sufficiently broad' to cause a `direct collision' with the state law or, implicitly, to `control the issue' before the court, thereby leaving no room for the operation of that law."
The district court erred in finding that it had inherent federal equitable powers to fashion an attorneys' fee award.
This based on inherent equitable powers argument is not an argument, like the Rule 23 argument, that the determination of the award is a matter of procedural law. Further, the argument is based on a series of cases which rest on federal question jurisdiction, not diversity jurisdiction. See Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); Alyeska, 421 U.S. 240, 95 S.Ct. 1612; Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).
The basis for the award here is the agreement itself, a contract under state law, and not federal law. The fact that attorneys' fees are provided for by the settlement agreement is one of several reasons why there is no basis to resort to these federal equitable doctrines. Cf. United States ex rel. Bogart v. King Pharm., 493 F.3d 323, 331 (3d Cir.2007) (where plaintiffs' attorneys are awarded fees under statutory fee-shifting regime, there is no need to resort to the common fund doctrine because "there is no iniquity to redress" given that the defendants paid attorneys' fees).
Beyond that, this is not a common fund or a common benefit case, and so equitable powers to award attorneys' fees are unavailable under those theories. The common fund method should apply only where attorneys seek compensation from a discernable pot of money won by the plaintiffs. See In re Thirteen Appeals, 56 F.3d at 305; see also Boeing, 444 U.S. at 478-79, 100 S.Ct. 745 (explaining that the common
In any event, the reasonable fees class counsel will receive come not out of the settlement proceeds but are in addition to the settlement proceeds,
By the same token, the common benefit method is unavailable here because this is not a case in which the cost of the fees is being "spread around" among the parties benefitted; the fees are on top of the class-wide benefits. See Alyeska, 421 U.S. at 264 n. 39, 95 S.Ct. 1612 (noting that "[i]n this Court's common-fund and common-benefit decisions ... there was reason for confidence that the costs could indeed be shifted with some exactitude to those benefiting"); Mills, 396 U.S. at 393-94, 90 S.Ct. 616 (stating that the substantial benefit doctrine applies where "the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among" the class members); see also Savoie v. Merchants Bank, 84 F.3d 52, 56 (2d Cir.1996) ("The common fund doctrine does not apply, however, when fees are sought from the assets of the losing party, and the fee award would not come from a common fund nor be assessed against persons who have derived benefit from the lawsuit.").
Having concluded that state law governs, we turn to the question of which state's choice of law principles law applies to determine which state's attorneys' fees law applies.
In a diversity case, "[u]nder Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487 [61 S.Ct. 1020, 85 L.Ed. 1477] (1941), a court ordinarily must apply the choice-of-law rules of the State in which it sits." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 243 n. 8, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); see also Auto Eur., LLC v. Conn. Indem. Co., 321 F.3d 60, 64 (1st Cir.2003) ("A federal court sitting in diversity jurisdiction must employ the choice-of-law principles of the forum state....").
Special rules apply in MDL cases as to determining the forum state. Here, the litigation in Massachusetts was consolidated from suits filed in federal district courts in multiple states and transferred to the District of Massachusetts under 28 U.S.C. § 1407. In Re Volkswagen, 452 F.Supp.2d at 1356. Where a suit is consolidated and transferred under § 1407, courts typically apply the choice of law rules of each of the transferor courts.
This approach is consistent with the Supreme Court's holding that "where a case is transferred pursuant to 28 U.S.C. § 1404(a), [a court] must apply the choice-of-law rules of the State from which the case was transferred." Piper Aircraft Co., 454 U.S. at 243 n. 8, 102 S.Ct. 252; see also Ferens v. John Deere Co., 494 U.S. 516, 519, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (holding that the choice of law rules of the transferor court apply regardless of whether the defendant or the plaintiff moves for the transfer under 28 U.S.C. § 1404(a)).
Here, a total of seven cases were ultimately transferred to and consolidated in the district of Massachusetts, from the following jurisdictions: California, Florida, Illinois,
Most of the states in which the suits originated (the exceptions are Florida and California) follow the "most significant relationship" test for determining the source of law that applies to contracts that do not contain choice of law provisions, based on Section 188 of the Restatement (Second) of Conflict of Laws. See Safeco Ins. Co. v. Jelen, 381 Ill.App.3d 576, 319 Ill.Dec. 792, 886 N.E.2d 555, 558 (2008) ("If the claim raised is a contract, the most significant contacts test is used.") (citing § 188);
Under this approach, "[t]he rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties." Restatement (Second) of Conflict of Laws § 188(1) (1971). The Restatement enumerates several factors to consider in making this determination:
Id. § 188(2). The Restatement notes that the contacts are to be assessed in the context of the principles of § 6 of the Restatement. Id. § 188(1). The Restatement further provides that "[t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue." Id. § 188(2). The Restatement also explains that "[i]f the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied." Id. § 188(3).
Under the Restatement's approach, it is clear that Massachusetts law would be applied in this case. The settlement agreement was drafted to settle litigation that was ongoing in the District of Massachusetts. Many of the settlement negotiations took place in Boston, at settlement conferences with the special master. The agreement was entered into "subject to Final Judicial Approval," and so required approval by the district court in Massachusetts. The agreement provided that the district court retained "exclusive and continuing jurisdiction over this action, the Parties, ... and this Settlement Agreement for purposes of administering, supervising, construing, and enforcing this Settlement Agreement." The district court approved the settlement agreement, which was incorporated into the judgment and possessed "the full force and effect of an
The substance of the litigation also has significant contacts with Massachusetts. One of the suits was filed directly in the District of Massachusetts. One of the class representatives resides in Massachusetts. Moreover, the Judicial Panel on Multidistrict Litigation found that transfer of the suits to the District of Massachusetts would "serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation." In Re Volkswagen, 452 F.Supp.2d at 1355.
As a result, the weight of the relevant factors indicates that Massachusetts has the most substantial relationship to the issue of attorneys' fees under the settlement agreement, and so these five states would apply Massachusetts law.
Florida applies the "lex loci contractus" rule, which "provides that the law of the jurisdiction where the contract was executed governs the rights and liabilities of the parties." State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.2d 1160, 1163 (Fla.2006); see also Shaps v. Provident Life & Accident Ins. Co., 826 So.2d 250, 254 n. 3 (Fla.2002) ("This Court has held that under lex loci contractus, the law of the jurisdiction where the contract was executed governs substantive issues regarding the contract."). Under this rule, Massachusetts law would also apply: the settlement is properly viewed as having been executed in Massachusetts,
Under the law of the last transferor jurisdiction, California, "[a] contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." Cal. Civ.Code § 1646; see also Frontier Oil Corp. v. RLI Ins. Co., 153 Cal.App.4th 1436, 63 Cal.Rptr.3d 816, 821 (2007) ("We conclude that notwithstanding the application of the governmental interest analysis to other choice-of-law issues, Civil Code section 1646 is the choice-of-law rule that determines the law governing the interpretation of a contract."). Given that the settlement agreement provided that the district court is to maintain jurisdiction over the settlement "for purposes of administering, supervising, construing, and enforcing this Settlement Agreement," the settlement agreement is properly construed as to be performed in Massachusetts. Even if it were decided that the state of performance is indeterminable, for the reasons given above it is properly viewed as having been "made" in Massachusetts. Either way, under California's choice of law rules, Massachusetts law would apply to the interpretation of the settlement agreement.
As a result, we conclude that all of the transferor jurisdictions would apply Massachusetts law to determine what constitutes "reasonable attorneys' fees and expenses" under the settlement agreement.
"Massachusetts generally follows the `American Rule' and denies recovery of attorney's fees absent a contract or statute to the contrary." Police Comm'r of Bos. v. Gows, 429 Mass. 14, 705 N.E.2d 1126, 1128 (1999). Under Massachusetts law, there appear to be two permissible approaches to determining attorneys' fees pursuant to a contractual agreement.
First, the lodestar approach is permissible in contractual fee cases. See WHTR Real Estate Ltd. P'ship v. Venture Distrib., Inc., 63 Mass.App.Ct. 229, 825 N.E.2d 105, 111 (2005); see also Raymond Leasing Corp. v. Callico Distribs., Inc., 62 Mass.App.Ct. 747, 820 N.E.2d 267, 271 (2005) (affirming attorneys' fees award based on an adjusted "number of hours expended" multiplied by "the hourly rate customarily charged by attorneys with experience and expertise in this particular area of the law"). It has been used in some contractual fee cases.
Under Massachusetts's lodestar approach, attorneys' fees are "calculated by multiplying the number of hours reasonably spent on the case times a reasonable hourly rate." Fontaine v. Ebtec Corp., 415 Mass. 309, 613 N.E.2d 881, 890 (1993). This figure is "the basic measure of a reasonable attorney's fee" under this approach. Id. at 891. After the base lodestar figure is calculated, "[i]n limited circumstances" it may be "enhanced to compensate for the risk of nonpayment." Id.; see also WHTR, 825 N.E.2d at 111. The Supreme Judicial Court has held that no enhancement was appropriate where the case was "not complex," "raised no novel issues of law," and did not have "significance ... for a wider class of persons" beyond the particular plaintiff. Fontaine, 613 N.E.2d at 892.
The second permissible approach is a multi-factor analysis. Under this approach, a court may consider a number of factors, originally outlined in Cummings v. National Shawmut Bank of Boston, 284 Mass. 563, 188 N.E. 489 (1934), to arrive at a determination of reasonable attorneys' fees,
Id. at 492 (quoted in WHTR, 825 N.E.2d at 111-12); see also Margolies v. Hopkins, 401 Mass. 88, 514 N.E.2d 1079, 1082 (1987) (considering these factors where parties agreed to pay counsel fees as part of a settlement); Citizens Bank of Mass. v. Travers, 69 Mass.App.Ct. 174, 866 N.E.2d 974, 977 (2007) (holding that these factors govern reasonableness of attorneys' fees awarded under a contract).
The district court on remand should determine which method Massachusetts would apply here. It is clear that the present award cannot stand.
If under Massachusetts law the lodestar approach is called for, or if it is highly relevant under the multi-factor approach, the litigation on remand may be simplified. In this case, the district court calculated a base lodestar figure of $7,734,000 (encompassing only class counsel), and neither side mounted a real challenge to the figure, as a pre-award figure, on appeal. Class counsel agreed at oral argument that the base lodestar value would only need to be increased to the extent that it did not
Given the absence of any direct challenge to this figure, the base lodestar figure of $7,734,000 shall be the base figure used on remand as to class counsel, save for an increase for extra work. The use of this figure is appropriate given the courts' "interest in avoiding burdensome satellite litigation" over attorneys' fees. City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). Because no lodestar calculation was performed as to plaintiffs' attorneys who were not class counsel, the district court will need to perform a separate lodestar calculation as to those attorneys.
Under both methods used by Massachusetts law, a question remaining on remand is the question of the appropriate contingency enhancement, if any. The district court's choice of a multiplier figure was not based on Massachusetts law nor justified by the record, and it is therefore vacated. We understand the parties to have agreed, at oral argument, that if there were a remand, the issues open on remand would include, inter alia, the further time remaining to be spent by all counsel, not just class counsel; the risks undertaken; and the value of the settlement. As to this last question, the actual claims data collected by the settlement administrator is relevant to the enhancement question and in determining the appropriate fee. We also urge the parties to attempt to resolve the remaining issues between them.
We reverse the district court's decision for legal error and vacate the award of attorneys' fees. We remand for calculation of an appropriate fee under Massachusetts law, consistent with this opinion.
No costs are awarded.
On June 9, 2008, the district court denied the motion to dismiss in a one-sentence order which stated that the motion was "denied without prejudice to be resubmitted as a Motion for Summary Judgment." In re Volkswagen & Audi Warranty Extension Litig., No. 07-1790 (D.Mass. June 9, 2008) (emphasis omitted). Discovery began shortly thereafter.
