NOT PRECEDENTIAL
                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                         Nos. 13-1123/1124
                          _____________

 JOHN M. DEWEY; PATRICK DEMARTINO; PATRICIA ROMEO; RONALD B.
 MARANS; EDWARD O. GRIFFIN, ON BEHALF OF THEMSELVES AND ALL
                  OTHERS SIMILARLY SITUATED

                                 v.

  VOLKSWAGEN AKTIENGESELLSCHAFT; VOLKSWAGEN BETEILIGUNGS
    GESELLSCHAFT M.B.H.; VOLKSWAGEN GROUP OF AMERICA, INC.
      (FORMERLY KNOWN AS VOLKSWAGEN OF AMERICA, INC.);
    AUDI AG; VOLKSWAGEN GROUP OF AMERICA, INC., d/b/a AUDI OF
 AMERICA, INC.; AUDI OF AMERICA, LLC; VOLKSWAGEN DE MEXICO, S.A.
                              DE C.V.

                      (D.C. No. 2-07-cv-02249)


     JACQUELINE DELGUERICO; LYNDA GALLO; FRANCIS NOWICKI;
   KENNETH BAYER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
                      SIMILARLY SITUATED

                                 v.

 VOLKSWAGEN OF AMERICA, INC.; VOLKSWAGEN GROUP OF AMERICA,
  INC.; VOLKSWAGEN OF AMERICA, INC., d/b/a AUDI OF AMERICA, INC.;
VOLKSWAGEN AG; AUDI AG; VOLKSWAGEN DE MEXICO, S.A. DE. C.V.; ABC
                         ENTITIES 1-20

                      (D.C. No. 2-07-cv-02361)

                            David T. Murray; Jennifer B. Murray,
                                        Appellants in No. 13-1123
                            Peter Braverman,
                                        Appellant in No. 13-1124
                         _______________
                  On Appeal from the United States District Court
                            for the District of New Jersey
                       (D.C. Nos. 07-cv-2249 and 07-cv-2361)
              Magistrate Judge: Hon. Patty Shwartz (sitting by consent)
                                  _______________

                                    Argued
                                December 17, 2013

      Before: JORDAN, VANASKIE and VAN ANTWERPEN, Circuit Judges.

                             (Filed: February 12, 2014)
                                 _______________

John J. Pentz, Esq. [ARGUED]
19 Widow Rites Lane
Sudbury, MA 01776

     Counsel for Appellants David and Jennifer Murray

Michael J. Epstein, Esq. [ARGUED]
The Epstein Law Firm
340 West Passaic St.
Rochelle Park, NJ 07662
     Counsel for Appellant Peter Braverman

Angelo J. Genova, Esq.
Dina M. Mastellone, Esq.
Genova Burns Gianstomasi & Webster
494 Broad St. – 6th Fl.
Newark, NJ 07102




                                         2
Jay P. Saltzman, Esq.
Samuel P. Sporn, Esq.
Schoengold & Sporn
19 Fulton St. – Ste. 407
New York, NY 10038
      Counsel for Appellees John M. Dewey,
      Patrick DeMartino, Patricia Romeo,
      Ronald B. Marans and Edward O. Griffin

David M. Freeman, Esq.
Eric D. Katz, Esq.
Matthew R. Mendelsohn, Esq.
Adam M. Slater, Esq. [ARGUED]
Mazie, Slater, Katz & Freeman
103 Eisenhower Pkwy.
Roseland, NJ 07068
      Counsel for Appellees Jacqueline Delguerico,
      Lynda Gallo, Francis Nowicki, and Kenneth Bayer

Jeffrey L. Chase, Esq. [ARGUED]
Herzfeld & Rubin
125 Broad St.
New York, NY 10004

Peter J. Kurshan, Esq.
Chase, Kurshan, Herzfeld & Rubin
354 Eisenhower Pkwy. – Ste. 1100
Livingston, NJ 07039
       Counsel for Appellees Volkswagen of America Inc.,
       Volkswagen AG, Volkswagen Beteiligungs Gesellschaft MBH,
       Audi AG, Volkswagen De Mexico SA DE CV,
       Volkswagen Group of America, Inc., and Audi of America

Theodore H. Frank, Esq.
Adam E. Schulman, Esq. [ARGUED]
Center for Class Action Fairness
1718 M Street, NW – No. 236
Washington, DC 20036




                                         3
David M. Nieporent, Esq.
Samuel & Stein Law Office
38 W. 32nd St. – Ste. 1210
New York, NY 10001
     Counsel for Appellees Joshua West, Darren McKinney,
      Michael Sullivan, and Daniel Sibley
                                 _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       This case is before us for the second time. In 2010, then-Magistrate Judge Patty

Shwartz of the United States District Court for the District of New Jersey1 certified a

class, approved a settlement, and awarded attorney‟s fees in a products liability suit

concerning defects in cars manufactured by Volkswagen of America, Inc., Audi of

America, Inc., and related entities (collectively, “Volkswagen”). We reversed and

remanded because the class could not be certified under the parties‟ prior settlement

agreement, given our determination that the representative plaintiffs were not adequate to

represent the interests of the entire class. On remand and after changes to the settlement

agreement, the Magistrate Judge re-certified the class, re-approved the settlement, and re-

awarded attorney‟s fees. This time, the settlement placed all class members on equal

footing, essentially eliminating the adequacy defect. The award of attorney‟s fees was

the same as before.




       1
        Judge Shwartz was sworn in as a United States circuit judge for this Court on
April 10, 2013. She has not participated in any way in this appeal.

                                             4
       Class members David and Jennifer Murray now appeal, challenging primarily the

Magistrate Judge‟s determination that federal law, as opposed to New Jersey law, applied

to the calculation of attorney‟s fees. Also, another class member, Peter Braverman,

appeals the Magistrate Judge‟s refusal to allow him to intervene in the proceedings on

remand; he also echoes the Murrays‟ challenge to the award of attorney‟s fees. (We refer

to the Murrays and Braverman collectively as the “Appellants.”) For the reasons that

follow, we will affirm.

I.     BACKGROUND

       This appeal relates to a class action settlement regarding several models of

Volkswagen and Audi automobiles that allegedly had defectively designed sunroofs that

leaked. See Dewey v. Volkswagen of Am. (Dewey I), 

, 558 (D.N.J.

2010), rev’d sub nom., Dewey v. Volkswagen Aktiengesellschaft (Dewey II), 

, 175-76 (3d Cir. 2012). The District Court approved the parties‟ request to refer the

case to a magistrate judge “to conduct all settlement proceedings and enter final

judgment.” 

(quoting 28 U.S.C. § 636(c)). After the case was referred, 

requested certification of a settlement class consisting of two different groups: a

“reimbursement group,” which was entitled to make initial claims to an $8 million

reimbursement fund for certain reimbursable repairs, and a “residual group,” which was

only permitted to make claims after the reimbursement group‟s claims were fulfilled, as

long as value remained in the fund. Dewey 

. The settlement

agreement also provided certain inspection, modification, and repair services for roof



                                              5
drainage along with preventative maintenance information. Dewey 

, 571.

       After preliminarily approving the settlement and requiring notice to be issued, the

Magistrate Judge held a fairness hearing to determine the value of the settlement and

attorney‟s fees, and, on August 3, 2010, she issued an order certifying the class,

approving the settlement, and granting representative plaintiffs‟ fee petition. 

601, 616. Specifically, the Magistrate Judge determined that the settlement had a value

of $69,277,430, including a combined value of $46,725,244 for service work performed

on class vehicles; $1,443,299 for direct reimbursements; $8 million for the

reimbursement fund; and $13,108,887 for the damage that would be prevented by the

preventative-maintenance information. 

       In determining class counsel‟s fee award, the Magistrate Judge applied federal

law, found that the fee should be based on the percentage-of-recovery method, and

awarded class counsel fees in the amount of $9,207,248.19. 

She arrived at

this figure by applying a 15.83% percentage-of-recovery rate to the $69,277,430

settlement valuation, which amounted to $10,967,773. 

She next applied a

lodestar “cross-check” to compare her determination using the percentage-of-recovery

method to calculations of other federal courts in this circuit using the lodestar method and

arrived at a lodestar multiplier of 2.38. 

However, after finding that the

case was not sufficiently extraordinary to warrant such a large multiplier, she reduced the

lodestar multiplier to 2.0, which in turn reduced the fee award to $9,207,248.19 – 13.3%



                                             6
of the calculated value of the settlement excepting administrative costs. 

n.69,

609-16.

       Following final approval of the class settlement, two groups of objectors appealed,

raising a host of issues. We reversed the certification order and remanded for further

proceedings based on the Supreme Court‟s reasoning in Amchem Products, Inc. v.

Windsor, 

(1997), and Ortiz v. Fibreboard Corp., 

(1999). See

Dewey 

. Specifically, we held that the named plaintiffs, all of

whom were members of the reimbursement group, did not adequately represent the

interests of the unnamed plaintiffs, who were members of the residual group and would

not be able to access the reimbursement fund until after those of the former group

exhausted their claims. 

189. Although Volkswagen also challenged the

calculation of attorney‟s fees, we did not reach that issue.

       On remand, the parties revised the settlement agreement to allow all affected class

members to make initial claims to the reimbursement fund. The plaintiffs then filed a

motion for final approval of the revised settlement agreement. Dewey v. Volkswagen of

Am. (Dewey III), 

, 378 n.6 (D.N.J. 2012). That agreement provides

that the balance of $3 million plus accumulating interest will remain available for a

period of five years to be paid to class members through Volkswagen‟s goodwill program

for further water-damage claims. 

that remains in the fund after five

years will be donated cy pres, with the District Court‟s approval, to an appropriate U.S.

research or charitable institution for the general advancement of new automotive

technologies. Dewey 

. Notably, the total value of accepted

                                              7
reimbursement claims already paid at the time the Magistrate Judge approved the revised

settlement agreement was, in fact, approximately $5 million instead of the originally

expected $8 million. Dewey 

n.21.

       Five class members filed objections. Two sets of objections were overruled and

those objectors have not appealed. 

The other three – those filed by the

Appellants here – were also overruled, 

and the Appellants timely appealed.

After evaluating the fee request, the Magistrate Judge approved the same attorney‟s fee of

$9,207,248.19. 

       Additionally, prior to the fairness hearing, Braverman filed a motion to intervene

pursuant to Rule 24(a) of the Federal Rules of Civil Procedure so that he could object to

the Magistrate Judge‟s jurisdiction and, in turn, enable a different judge to rule on his

objection to class counsels‟ fee request. The Magistrate Judge denied that motion. Dewey

v. Volkswagen of Am. (Dewey IV), No. 07-2249, 

, at *5 (D.N.J.

Nov. 26, 2012). Braverman did not file an objection to that order with the District Court

but instead appealed the order directly to us. The named plaintiffs and class members

Joshua West, Darren McKinney, and Michael Sullivan (the “West Appellees”)

responded to Appellants. (We refer to the named plaintiffs and the West Appellees

collectively as the “Appellees.”) Volkswagen also responded, but only to Braverman.2



       2
         Although its brief adresses Braverman‟s attempt to intervene, Volkswagen
acknowledged at oral argument that it only intended to respond to what it believed was
Braverman‟s attack on the settlement agreement itself. Once Braverman conceded, also
at oral argument, that he takes issue only with the fee award, Volkswagen waived its
arguments.

                                              8
II.    DISCUSSION3

       The Murrays make two arguments. First, they contend that the Magistrate Judge

incorrectly applied federal law in calculating attorney‟s fees because,“[p]ursuant to Erie,

the award of attorneys‟ fees in diversity and pendent jurisdiction claims is governed by

state substantive law.” (Murray Br. at 12.) Applying New Jersey law, they argue, would

reduce the fee award to “no more than $6.2 million” because the state prefers the lodestar

method, not the percentage-of-recovery method, and “the district court‟s factual findings

… make clear that this is not a case that would permit a multiplier of greater than 1.35.”


       3
         The District Court had diversity jurisdiction under the Class Action Fairness Act
of 2005. See 28 U.S.C. § 1332(d). A magistrate judge may exercise jurisdiction over a
case in which a federal district court had jurisdiction “[u]pon the consent of the parties.”
28 U.S.C. § 636(c)(1). Where the parties properly consent to allow the magistrate judge
to exercise jurisdiction over the case, 28 U.S.C. § 636(c)(3) permits the parties to “appeal
directly to the appropriate United States court of appeals from the judgment of the
magistrate judge,” as opposed to appealing to the district court that referred the case to
the magistrate judge. “Accordingly, [this court‟s] final order jurisdiction to review such
an order arises from 28 U.S.C. § 636(c)(3) to the extent it is final under 28 U.S.C.
§ 1291.” Skretvedt v. E.I. DuPont De Nemours, 

, 200 n.7 (3d Cir. 2004).
        We review the District Court‟s order certifying the class for an abuse of discretion.
See In re DVI, Inc. Sec. Litig., 

, 629 n.7 (3d Cir. 2011), abrogated on other
grounds by Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 

(2013).
Similarly, “„[w]here the district court has declined to certify a subclass‟ and treats all
class members as falling within a single class for purposes of a fund allocation, „we will
ordinarily defer to its decision unless it constituted an abuse of discretion.‟” Sullivan v.
DB Invs., Inc., 

, 326 (3d Cir. 2011) (en banc) (quoting In re Ins. Brokerage
Antitrust Litig., 

, 271 (3d Cir. 2009)). An abuse of discretion “occurs if the
district court‟s decision rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact. [W]hether an incorrect legal
standard has been used is an issue of law to be reviewed de novo.” In re Hydrogen
Peroxide Antitrust Litig., 

, 312 (3d Cir. 2009) (citations omitted) (internal
quotation marks omitted). We also review a district court‟s determination regarding
attorney‟s fees for abuse of discretion. In re Diet Drugs Prod. Liab. Litig., 

,
538 (3d Cir. 2009).

                                             9
(Id.) Second, they argue that, even assuming federal law is proper, the Magistrate Judge

should have reduced the fees on remand because she “overvalued the settlement in 2010

when [she] accepted Plaintiffs‟ expert‟s claim projections.” (Id.)

       Braverman echoes the Murrays‟ arguments and includes several additional

challenges to the calculation of attorney‟s fees, but his primary point of contention is that

he should have been allowed to intervene as of right to object to the jurisdiction of the

Magistrate Judge because his interests conflict with those of the named plaintiffs.

Alternatively, he argues he should have been permitted to permissively intervene under

Rule 24(b) of the Federal Rules of Civil Procedure. Responding to the contention that,

by failing to object to the District Court before appealing, he waived any issue relating to

intervention, he argues that his motion to intervene was a dispositive motion, divesting

him of his obligation to object.

       A.     The Choice of Law Issue

       We need not decide what law governs an award of attorney‟s fees in a class action

settlement based purely on diversity jurisdiction because, in this case, there is no sound

reason to believe the result would be different depending on the law applied. Both

federal law and New Jersey law permit courts to apply the percentage-of-recovery

method in class actions where attorney‟s fees flow from a “common fund” shared by

plaintiffs. Compare In re Cendant Corp. PRIDES Litig., 

, 732 (3d Cir.

2001) (“The percentage-of-recovery method is generally favored in cases involving a

common fund, and is designed to allow courts to award fees from the fund in a manner

that rewards counsel for success and penalizes it for failure.” (footnote omitted) (quoting

                                             10
In re Prudential, 

, 333 (3d Cir. 1998)) (internal quotation mark omitted)),

with Sutter v. Horizon Blue Cross Blue Shield of N.J. (Sutter I), 

, 519 (N.J.

App. Div. 2009) (“A court may consider two different methods for determining class

action fees: the lodestar method and the percentage of recovery method. … The ultimate

choice of methodology rests with the court‟s discretion.”).

       Granted, this case does not involve a true common fund because Volkswagen is

paying the fee out of its own pocket and not through the reimbursement fund. However,

where the reality is that the fund and the fee are paid from the same source – in this case,

Volkswagen – the arrangement “is, for practical purposes, a constructive common fund,”

and courts may still apply the percent-of-fund analysis in calculating attorney‟s fees. In

re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 

, 820-21

(3d Cir. 1995). New Jersey appellate courts have relied on In re General Motors in

applying the percentage-of-recovery method to calculate attorney‟s fees based on

constructive common funds where fees and settlement funds “come from the same

source.” See Sutter 

(quoting In re Gen. 

).

       The Murrays rely on Rendine v. Pantzer, 

(N.J. 1995), for the

proposition that New Jersey courts must apply the lodestar analysis, not the percentage-

of-fund analysis, when calculating attorney‟s fees relating to common fund class action

settlements.4 But nowhere in Rendine did the New Jersey Supreme Court prohibit a


       4
        Appellants also rely on Rendine v. Pantzer, 

(N.J. 1995), to
challenge the Magistrate Judge‟s lodestar cross-check multiplier of 2.0 as too high. For
example, the Murrays contend that Rendine “limits maximum attorneys‟ fees in actions
brought pursuant to statutes that contain a fee-shifting provision, regardless of whether
                                             11
percentage-of-fund analysis, nor did the case even include a class action settlement. And,

aside from Rendine, Appellants point to no cases to support their argument. Accordingly,

we find that argument unpersuasive. Because the Magistrate Judge was justified in

performing a percentage-of-recovery analysis in calculating attorney‟s fees under both

federal and New Jersey law, she did not abuse her discretion in doing so.

       The Murrays also argue that, “[e]ven if New Jersey law permitted a common fund

fee analysis in these circumstances, the district court erred when it used the 2010

valuation of the settlement, which was based upon an expert‟s projections, rather than the

actual claims data available in 2012.”5 (Murray Br. at 25.) It is true that, as the

Magistrate Judge acknowledged, only $5 million worth of claims had been submitted by



those actions result in the creation of a common fund.” (Murray Br. at 18 (citing

).) They argue that lodestar multipliers rarely exceed 1.35, the
multiplier applied in Rendine itself. (Id.) But Rendine is inapplicable for two reasons.
First, the Magistrate Judge in this case did not employ the lodestar method in the first
instance – she instead used the lodestar cross-check as a supplement to her primary
analysis under the percentage-of-recovery method. Cf. In re Rite Aid Corp. Sec. Litig.,

, 306 (3d Cir. 2005) (“The loadstar cross-check calculation need entail
neither mathematical precision nor bean-counting.”). Second, Rendine dealt with a fee-
shifting statute, the New Jersey Law Against Discrimination, which requires application
of the lodestar method in determining attorney‟s fees. See 

.
Although Appellants argue that courts in New Jersey would apply the lodestar formula
here because plaintiffs are prevailing parties under New Jersey‟s Consumer Fraud Act
(“CFA”) and are entitled to its fee-shifting provision, they are mistaken. The Magistrate
Judge correctly pointed out that in cases such as this one, where a settlement does not
entail a consent decree and therefore no court-ordered change has been achieved, a party
is not “prevailing” for purposes of fee-shifting provisions. Dewey 

n.62; see, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 

, 603-04 (2001).
       5
         The remaining contentions about the fees seem to be veiled personal attacks
against class counsel or arguments that clearly do not meet the abuse-of-discretion
standard.

                                             12
the settlement agreement deadline. Dewey 

n.21. But In re

Baby Products Antitrust Litigation, which Appellants cite in support of their argument,

held that district courts have discretion to determine whether to decrease attorney‟s fees

to account for a potential cy pres component. 

, 178 (3d Cir. 2013) (“We

think it unwise to impose … a rule requiring district courts to discount attorneys‟ fees

when a portion of an award will be distributed cy pres.”). In this case, as mentioned

supra Part I, the reimbursement fund will be distributed cy pres after five years. See

Dewey 

. Although the Magistrate Judge did not explicitly

account for that component of the settlement agreement in re-approving the fee award,

such an accounting would certainly justify maintaining the same fee-award amount as

before. In addition, although at this point the value of claims already submitted is less

than had been expected, drawing the line now is not necessarily the better course because

additional claimants are still free to make claims against the fund. See 

the

Magistrate Judge‟s valuation of the settlement was within her discretion, and, on these

facts, we find no reason to believe that the Magistrate Judge abused her discretion in

deciding not to reduce the fee award.

       B.     Braverman’s Motion to Intervene

       Braverman argues that the District Court erred in denying his motion to intervene

as of right under Rule 24(a) of the Federal Rules of Civil Procedure.6 Appellees argue


       6
         Braverman, who is not a named party, did not consent to the Magistrate Judge‟s
jurisdiction. Unnamed class members “may apply to the district court to intervene under
Rule 24(a)” to obtain the right to withhold consent to proceed before a magistrate judge.
Dewey 

(quoting Williams v. Gen. Elec. Capital Auto Lease, Inc., 159
                                             13
that he waived his right to appeal the Magistrate Judge‟s ruling as a matter of law because

the Magistrate Judge treated the motion as non-dispositive, and thus the order was only

appealable in the first instance via an objection to the District Court, pursuant to 28

U.S.C. § 636(b)(l)(A) and Rule 72.l(a)(l) of the District of New Jersey Local Rules of

Civil Procedure. See Dewey IV, 

, at *1 (citing In re Gabapentin Patent

Litig., 

, 661 (D.N.J. 2004); United States v. W.R. Grace & Co., 

, 187 (D.N.J. 1999)). According to Appellees, if Braverman had any concerns

with the Magistrate Judge‟s decision, he was required to first object to the District Judge,

which he did not do. Braverman points out that the Third Circuit has not determined

whether a motion to intervene as of right in a class action proceeding is dispositive, and

he invites us to “adopt the position” of the Second and Eleventh Circuits, claiming they

say it is. (Braverman Reply Br. at 2-4 & n.2 (citing Day v. Persels & Assocs., LLC, 

, 1322 (11th Cir. 2013); Stackhouse v. McKnight, 168 F. App‟x 464, 467 (2d

Cir. 2006); N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 

, 25 (2d Cir.

1993)).)

       But assuming without deciding that Braverman did not waive his right to appeal

this issue, he cannot show that the Magistrate Judge erred in any way. Braverman failed

to rebut the presumption, applicable here, that his interests were aligned with the named



F.3d 266, 269 (7th Cir. 1998)). Following that precedent, Braverman applied to the
District Court to have District Judge Faith Hochberg, who initially had jurisdiction over
this case, hear his motion to intervene. Instead, the Magistrate Judge considered the
motion as a non-dispositive motion under 28 U.S.C. § 636(b), which empowers her to do
so even absent consent of the parties.

                                             14
plaintiffs. Dewey IV, 

, at *4-5; see In re Cmty. Bank of No. Va., 

, 314 (3d Cir. 2005). The only arguments he proffers in response are that “the

very nature of the objection” suggests their interests are not aligned (Braverman Opening

Br. at 9) and that class counsel failed to raise certain arguments attacking the fee

arrangement, suggesting a conflict of interest (Braverman Reply Br. at 5-6). Those

arguments are unpersuasive. The mere fact that he objected is insufficient to rebut the

presumption of aligned interests. See Dewey IV, 

, at *4 (“There is no

indication of „adversity of interest, collusion, and non-feasance on the part of a party to

the suit‟ here.”) Furthermore, Braverman points to nothing in the record to suggest any

conflict of interest between the plaintiffs and class counsel. Thus, even if Braverman

properly preserved his argument, the denial of his motion to intervene was not an abuse

of discretion.7

III.   CONCLUSION

       For the foregoing reasons, we will affirm.




       7
        Braverman also argues that he should have been permitted to permissively
intervene under Rule 24(b). But he never included that request in his motion to
intervene, and it was not before the Magistrate Judge in the first instance. He has
therefore waived that argument here.

                                             15