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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS’
UNOPPOSED MOTION FOR
ATTORNEYS’ FEES AND
COSTS AND FOR CLASS
REPRESENTATIVE STIPENDS
Co-Lead and Liaison Counsel for Plaintiffs and the Class TABLE OF CONTENTS
Class Certification and Subsequent Motion Practice.6 Preliminary Approval and Settlement Notice.15 CLASS COUNSEL’S REQUEST FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS IS WELL SUPPORTED .16 Class Counsel’s Lodestar Shows that the Requested Fee is Fair and Reasonable .18 Class Counsel’s Hourly Rates Are Reasonable.20 The Number of Hours Class Counsel Worked Is Reasonable .21 TABLE OF CONTENTS
(continued)
Additional Considerations Relevant to Attorneys’ Fees Support the Modest Lodestar Multiplier Here .23 The Novelty and Difficulty Of The Questions Involved and the Time and Labor Required .24 The Experience, Reputation, And Ability Of The Attorneys .26 The Requested Fee is a Reasonable Percentage of the Projected Settlement Recovery .28 Class Counsel’s Recorded Costs are Reasonable .31 THE REQUESTED CLASS REPRESENTATIVE STIPENDS ARE REASONABLE .32 TABLE OF AUTHORITIES

CASES
Atlass v. Mercedes-Ben USA, LLCz
No. 06-cv-0366, 2007 WL 1797651 (D.N.J. June 20, 2007) .20 Bredbenner v. Liberty Travel, Inc., No. 09-1248, 2011 U.S. Dist. LEXIS 38663 (D.N.J. Apr. 8, 2011) .32 No. 98-cv-1282, 2005 WL 1917869 (D.N.J. Aug. 10, 2005).19 Case No. 08-2619, 2010 U.S. Dist. LEXIS 42063 (D.N.J. Apr. 29, No. 01-cv-6539, 2004 WL 2745890 (E.D. Pa. Dec. 1, 2004) .33 Grays Harbor Adventist Christian Sch. v. Carrier Corp., No. 05-05437, 2008 U.S. Dist. LEXIS 106515 (W.D. Wash. Apr. Hankins v. Mercedes-Benz USA, LLC In re AT&T Corp. Secs. Litig., In re Cendent Corp. PRIDES Litig., In re GMC Pickup Fuel Tank Prod. Liab. Litig., In re Lawnmower Engine Horsepower Marketing & Sales Pracs MDL No. 08-1999 (E.D. Wis., Aug. 16, 2010).21 TABLE OF AUTHORITIES
(continued)
In re LG/Zenith Rear Projection TV Class Action Litig., No. 06-5609, 2009 U.S. Dist. LEXIS 13568 (D.N.J. Feb. 18, 2009).33 In re Mercedes-Benz Tele Aid Contract Litig., Civ. No. 07-2720, MDL No. 1914, 2010 WL 2976496 (D.N.J. July 22, 2010); 267 F.R.D. 113 (D.N.J. March 15, 2010); 257 F.R.D. 46 In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-cv-285, 2010 WL 547613 (D.N.J. Feb. 9, 2010) .24, 25, 29, 30 In Re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, In re Remeron Dir. Purchaser Antitrust Litig., 2005 WL 3008808 (D.N.J. Nov. 9, 2005) .25 In re Rite Aid Corp. Sec. Litig., In re Safety Components Int'l Sec. Litig., In re Schering-Plough/Merck Merger Litig., No. 09-CV-1099, 2010 U.S. Dist. LEXIS 29121 (D.N.J. Mar. 25, Levin v. Mercedes-Benz USA, LLC 706 F. Supp. 2d 766 (N.D. Ohio 2010) .21 Lonzisero v. Mercedes-Benz, U.S.A., LLC, Marsikyan et al. v. Mercedes-Benz USA, LLC, 569 F. Supp. 2d 448 (D.N.J. 2008) .16, 31, 33 McGee v. Cont. Tire N. America, Inc., No. 06-cv-6234, 2009 WL 539893 (D.N.J. March 04, 2009) .29 Morris v. ADT Sec. Servs.,
No. 07-cv-809 (S.D. Fla. Sept. 11, 2009) .1, 24 No. L-259207 (N.J. Sup. Ct.).1, 8, 9, 24 TABLE OF AUTHORITIES
(continued)
O’Keefe v. Mercedes-Benz USA, Inc., Paul, Johnson, Alton & Hunt v. Graulty, Pellegrini v. Mercedes-Benz USA, LLC, 592 F.Supp.2d 1322 (W.D. Wash. 2009) .21 Planned Parenthood of Cent. New Jersey v. Attorney General Public Interest Research Group v. Windall, Russell v. Mercedes-Benz USA, LLC Stowers v. Mercedes-Benz USA, LLC, Tenafly Eruv Ass’n v. Borough of Tenafly, Tuteur v. Mercedes-Benz USA, LLC, Weiss v. Mercedes-Benz of North America, Inc., STATUTES
28 U.S.C. § 1292(b) .8
Fed.R.Civ.P. Rule 23(f) .7
Fed.R.Civ.P. Rule 23(g)(3) .6
INTRODUCTION
In connection with the proposed nationwide class action settlement (“Settlement”) reached between Plaintiffs and Defendant Mercedes-Benz USA, LLC (“MBUSA”) resolving all claims in this matter, Class counsel submit this uncontested motion for an award of $6,250,000 in attorneys’ fees and out-of- pocket costs, and a $5,000 stipend for each of the named Plaintiffs. After years of difficult and tenaciously fought litigation the parties reached a proposed Settlement that represents an overwhelmingly positive outcome for Class members. The proposed Settlement provides recovery to Class members matched to the harm they suffered as a result of MBUSA’s alleged failure to advise them of the pending obsolescence of the analog-based Tele-Aid System in their Mercedes- Benz vehicles. This relief is a tremendous accomplishment for the Class, particularly in light of the fact that two other cases arising from the same or similar core facts were lost without recovery. See Morris v. Mercedes-Benz USA, No. L- 259207 (Law Div., Bergen Co.) (summary judgment granted on facts identical to those here); Morris v. ADT Sec. Servs., No. 07-cv-809 (S.D. Fla. Sept. 11, 2009)
(class certification denied and case dismissed on similar claims regarding the end of the analog signal against the home alarm company ADT). The proposed Settlement further provides that MBUSA will pay Class counsel’s fees and expenses, subject to the Court’s approval, independent from the relief provided to Class members. The parties negotiated for MBUSA to pay $6,250,000 in combined fees and expenses entirely separately from negotiation of Class relief, only after the substantive terms of the Settlement were agreed upon. Indeed, the Settlement is binding even if the Court declines to award Class counsel’s attorneys’ fees and expenses in the amount requested. The same is true of the requested stipends of $5,000 for each of the named Plaintiffs; that amount was negotiated separately from relief to the Class, and Class relief will not be impacted by the service awards regardless of the amount the Court awards. The requested fees and expenses reflect Class counsel’s actual time and costs expended in the case, enhanced by a very modest multiplier of less than 1.5 that is squarely supported by the lodestar method of calculating attorneys’ fees under Third Circuit law. The request for stipends to the named Plaintiffs for their service to the Class is similarly supported by Third Circuit law and the facts of this For these reasons, and for those detailed below, Class counsel respectfully request that the Court award the requested fees and costs in full, as well as payment of the requested stipends to each named Plaintiff. FACTUAL BACKGROUND
The Court is intimately familiar with the facts of this case and the history of this litigation, and Class counsel will not detail those facts again here.1 A brief Plaintiffs allege that MBUSA violated the New Jersey Consumer Fraud Act and unjustly enriched itself by failing to adequately inform owners and lessees of model year 2002-2006 Mercedes-Benz vehicles equipped with an analog-based Tele Aid system of the impending obsolescence in February 2008 of analog service (by FCC mandate). See generally, Consolidated Class Action Complaint (DE 38). MBUSA charged consumers $600-650, plus labor costs that averaged more than $100, to upgrade Tele Aid systems to enable them to operate using digital signals. As the Court is aware, MBUSA disagrees with Plaintiffs’ allegations and maintains that it did not know when the FCC would allow wireless companies to discontinue analog service until 2007, and that it made appropriate disclosures that reflected the potential unavailability of analog cellular service. See Declaration of Jonathan D. Selbin in Support of Plaintiffs’ Unopposed Motion for Attorneys’ Fees and Costs and for Class Representative Stipends (“Selbin Decl.”) ¶ 36. 1 Class counsel reference additional facts in the following sections to the extent pertinent to the issues raised in this motion, and otherwise assume familiarity with the facts as set forth in this Court’s decisions. See In re Mercedes-Benz Tele Aid Contract Litig., Civ. No. 07-2720, MDL No. 1914, 2010 WL 2976496 (D.N.J. July 22, 2010) (DE 165) (denying motion for reconsideration of denial of decertification); 267 F.R.D. 113 (D.N.J. March 15, 2010) (DE 151) (denial of motion for decertification); 257 F.R.D. 46 (D.N.J. 2009) (DE 105) (granting class certification). Following several years of intensely contested litigation that involved a motion to dismiss, extensive discovery, a successful motion for class certification, and several unsuccessful motions and petitions by MBUSA contesting the grant of class certification, the parties negotiated the terms of the proposed Settlement for the Class with the help of a professional mediator, Professor Eric Green. Selbin Decl. ¶ 40. Only after those terms were agreed upon did the parties turn to negotiating Class counsel’s fees and stipends for the named Plaintiffs. Selbin Decl. ¶ 41. The parties reached agreement on attorneys’ fees and expenses and named Plaintiff stipends following Court-ordered mediation before the Honorable Michael A. Shipp, U.S.M.J. Selbin Decl. ¶ 42. Plaintiffs moved this Court for preliminary approval of a proposed Settlement on May 3, 2011. (DE 182). In a May 10, 2011 Order, the Court granted preliminary approval of the proposed Settlement, ordered dissemination of Settlement Notice, and set a briefing schedule related to the motion for final approval of the Settlement as well as the instant motion for attorneys’ fees and costs and named Plaintiff service While the objection period runs until July 19, 2011, to date there have been only two objections that mention the fee request; no Class members have objected to the stipends. Class counsel will address all fee objections and any objections to the stipends in their reply, once the full number and scope of objections are known. III. CLASS COUNSEL’S WORK
As the Court is aware, MBUSA has vigorously contested each stage of these proceedings, from an initial motion to dismiss through discovery battles, multiple rounds of class certification briefing, and two appeals. Class counsel’s time and efforts have been correspondingly significant. Those efforts have resulted in multiple critical rulings in Plaintiffs’ favor, primarily with regard to class certification. As evidenced by the length and complexity of the Court’s opinions, the legal questions in this case are hardly clear-cut. Plaintiffs (and Class counsel) have faced considerable risk throughout this litigation, and this pattern of hard- fought litigation would no doubt escalate during the course of any trial and the lead-up to trial, underscoring the significant benefits Plaintiffs’ and Class counsel’s settlement efforts have yielded for the Class. These efforts merit approval of the requested attorneys’ fees and expenses as well as the stipends for each of the Initial Filings and Consolidation
Plaintiffs filed a series of independent actions throughout the United States alleging violations of applicable consumer protection laws, breach of warranty, and unjust enrichment. In the first-filed case, Atlass v. Mercedes-Benz USA, LLC, No. 07-2720 (D.N.J.), MBUSA filed a motion to dismiss, which this Court denied on The Judicial Panel for Multi-District Litigation (“JPML”) subsequently transferred eight other actions to this Court for coordinated pre-trial proceedings, and one additional action was filed directly with this Court. See In re Mercedes- Benz Tele Aid Contract Litigation, No. 07-2720, MDL No. 1914 (DE 30).2 On April 11, 2008, this Court appointed Lieff Cabraser Heimann & Bernstein, LLP, Girard, Gibbs LLP, and Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC to serve as Interim Co-Lead Class counsel pursuant to Rule 23(g)(3) of the Federal Rules of Civil Procedure on behalf of Plaintiffs and the putative Class. (DE 34). The Court also appointed Trujillo, Rodriguez & Richards, LLC to serve as Interim Plaintiffs’ Liaison Counsel. Id. In accordance with that Order, Plaintiffs filed a Consolidated Class Action Complaint on May 2, 2008. (DE 38). Class Certification and Subsequent Motion Practice
After extensive document and deposition discovery, detailed below, Plaintiffs moved on October 6, 2008 for certification of a nationwide class. (DE 60-62). In an Opinion and Order dated April 27, 2009, the Court found that New Jersey law applied to a nationwide class of Tele-Aid subscribers and certified a 2 The other nine actions are Pellegrini v. Mercedes-Benz USA, LLC, No. 07-4530 (C.D. Cal.); Stowers v. Mercedes-Benz USA, LLC, No. 08-1215 (W.D. Wash.); Hankins v. Mercedes-Benz USA, LLC, No. 07-07543 (C.D. Cal.); Levin v. Mercedes-Benz USA, LLC, No. 08-0175 (N.D. Ill.); Sen. v. Mercedes-Benz USA, LLC, No. 07-6519 (N.D. Ill.); Marcus v. Mercedes-Benz USA, LLC, No. 07-6892 (N.D. Ill.); Russell v. Mercedes-Benz USA, LLC, No. 07-4984 (E.D.N.Y.); Tuteur Class asserting New Jersey Consumer Fraud Act and unjust enrichment claims. On May 11, 2009, pursuant to Fed.R.Civ.P. Rule 23(f), MBUSA filed a petition for leave to appeal the Class Certification Order. Class counsel filed an opposition, and the Third Circuit denied that petition on June 11, 2009. (DE 111). MBUSA next filed a motion to decertify the Class. (DE 124). Following extensive briefing and argument, this Court denied that motion in a decision filed on March 15, 2010. (DE 151, 152). The Court also granted certification for v. Mercedes-Benz USA, LLC, No. 08-223 (E.D. Mo.); and Lonzisero v. Mercedes-Benz, U.S.A., LLC, Civ. No. 09-0899 (D.N.J.). 3 After subsequent submissions by the parties, the Court ultimately defined the Class as follows: All persons or entities in the United States who purchased or leased a Mercedes-Benz vehicle equipped with an analog-only Tele Aid system after August 22, 2002, and (1) subscribed to Tele Aid service until being informed that such service would be discontinued at the end of 2007, or (2) purchased an upgrade to digital equipment, (1) purchased or leased a pre-owned Mercedes-Benz vehicle in December 2006 or thereafter, or (2) leased a Mercedes-Benz vehicle for a term that expired prior to the discontinuation of Tele Aid service. interlocutory appeal of two narrow issues pursuant to 28 U.S.C. § 1292(b). After additional briefing by the parties, the Third Circuit denied MBUSA’s petition for leave to appeal pursuant to the Court’s section 1292(b) certification. (DE 156). On March 29, 2010, MBUSA moved this Court for reconsideration of the denial of decertification. (DE 154). Plaintiffs filed briefing in opposition to the motion (DE 157), and in another thorough opinion addressing class certification issues, this Court denied MBUSA’s motion for reconsideration. (DE 165). Research and Discovery
From the pre-filing stage through exhaustive litigation and up until Settlement, Class counsel have conducted extensive investigation, research, documentary discovery, and work with experts in support of their claims. The details of this research and discovery are outlined in Plaintiffs’ settlement approval papers, and only points relevant to this application for fees, costs and stipends are Early Discovery Efforts
Preceding coordination and consolidation, Class counsel devoted significant resources to client interviews and research pertaining to the applicability and effect of FCC regulations. Selbin Decl. ¶ 13. Additionally, counsel coordinated their early discovery with the discovery served by plaintiffs in the state-court Morris case. Selbin Decl. ¶ 14. In particular, counsel worked with MBUSA’s counsel and Morris counsel to develop a protocol for the production of electronically stored information and a deposition schedule. Selbin Decl. ¶ 14. MBUSA produced approximately 62,000 documents, which Class counsel coded and reviewed. Written Discovery
Each Plaintiff responded separately to MBUSA’s 34 requests for production, and Plaintiffs eventually produced over 7,300 pages of documents (averaging about 520 pages of documents per Plaintiff). Selbin Decl. ¶ 16. Plaintiffs also separately responded to hundreds of interrogatories, many of which had discrete subparts. Selbin Decl. ¶ 17. Plaintiffs provided detailed information regarding the purchase of their vehicles and their experiences with Tele Aid, and each Plaintiff reviewed and verified his or her responses. Selbin Decl. ¶ 17. Prior to the July 8, 2008, submission of a Joint Discovery Plan (DE 45-1), Plaintiffs served a request for production of documents and deposition notices upon MBUSA pursuant to Fed.R.Civ.P. 30(b)(6) and subpoenaed documents from the Tele-Aid service provider, ATX Group, Inc. (“ATX Group”). Selbin Decl. ¶ 18. Plaintiffs also served third party subpoenas duces tecum and ad testificandum upon AT&T Mobility LLC, Cellco Partnership (d/b/a Verizon Wireless), Verizon Communications Inc., Lichtenstein + Associates, and Temic Automotive Services of North America, Inc., which led to the production of tens of thousands of documents that Class counsel reviewed. Selbin Decl. ¶ 19. Plaintiffs thereafter propounded over 100 requests for admissions asking that MBUSA authenticate the documents it produced in response to Plaintiffs’ discovery requests. Selbin Decl. ¶ 20. Plaintiffs also propounded interrogatories seeking available subscriber and ownership data necessary for damages calculations. Selbin Decl. ¶ 21. After months of conferring, exchanging position letters, negotiating about data depositions (one of which was taken), and otherwise working to identify and obtain data regarding Class members, Plaintiffs ultimately obtained all of the data needed to calculate damages. Selbin Decl. ¶ 22. Plaintiffs were therefore able to generate an additional expert report and the final Class-wide damages figures necessary for trial. Selbin Decl. ¶ 22. In August 2009, MBUSA sought responses to contention interrogatories, and the parties engaged in a vigorous meet and confer about the scope and timing of MBUSA’s contention discovery. Selbin Decl. ¶ 23. Plaintiffs ultimately provided specific document citations for each of their factual contentions, as well as a list of all “communications-related technology” Plaintiffs had owned over a In December 2009, MBUSA propounded 248 requests for admissions, which required Class counsel to verify the existence of 79 articles and public filings relating generally to the analog to digital transition. Selbin Decl. ¶ 24. Class counsel located and reviewed the articles and provided responses in early 2010. Depositions
Class counsel deposed ten MBUSA employees, three employees of ATX Group, and three MBUSA experts, including former FCC Commissioner Kathleen Quinn Abernathy. Selbin Decl. ¶ 25. MBUSA deposed 13 Class representatives, one non-MDL Plaintiff, and each of Plaintiffs’ three experts. Selbin Decl. ¶ 26. Expert Reports
Plaintiffs retained and relied upon the reports of three experts -- Dr. Warren J. Keegan, Mr. Edmond J. Thomas, and Dr. Russell L. Lamb. Selbin Decl. ¶ 27. Class counsel assisted with the preparation of the reports authored by Plaintiffs’ experts, prepared the witnesses for deposition, and defended the witnesses at their depositions. Selbin Decl. ¶ 28. In addition, Dr. Lamb provided a subsequent report that contained detailed damage calculations. Selbin Decl. ¶ 29. Class counsel also carefully examined each of the three extensive opinions offered by MBUSA’s three experts and deposed each of MBUSA’s experts. Selbin Decl. Class Notice
Class counsel devoted significant attention to discovery regarding Class Notice, particularly the effort to gain access to mailing lists of Tele Aid subscribers. Selbin Decl. ¶ 31. Class counsel also negotiated the content of Class Notice with MBUSA, which required additional briefing before the Court. Selbin Plaintiffs ultimately mailed Class Notice to 117,625 Class members after obtaining Court orders regarding the Class definition and Class counsel’s efforts to obtain complete data on Class members. Selbin Decl. ¶ 33. Counsel also worked with the class notice administrator to process and update mailing data and design a Mediation
The parties engaged in arms-length and in-person negotiations before Professor Eric Green on October 25, 2010, and November 18, 2010. Selbin Decl. ¶ 40. At the conclusion of the November 18, 2010 mediation, the parties reached an agreement in principle concerning the material terms of a settlement for the Class, leaving the issues of attorneys’ fees and expenses and stipends for the named Plaintiffs to be negotiated at a later time. Selbin Decl. ¶ 41. Following Court-ordered mediation before the Honorable Michael A. Shipp, U.S.M.J., the parties reached agreement on attorneys’ fees and costs, and stipends for the The Proposed Settlement
Plaintiffs maintain that the claims asserted are meritorious, that maintenance of class certification would prove successful, and that Plaintiffs would prevail if this matter proceeded to trial. Selbin Decl. ¶ 35. MBUSA maintains that Plaintiffs’ claims are unfounded and cannot be maintained as a class action, denies any potential liability, and has shown a willingness to litigate those claims vigorously. Selbin Decl. ¶ 36. Plaintiffs have concluded that the benefits of settlement in this case outweigh the risks attendant to litigation, which include, but are not limited to, the time and expenses associated with proceeding to trial, the time and expenses associated with appellate review, and the countless uncertainties Class Relief
The full terms of the relief to the Class under the Settlement are set forth in the Settlement itself and detailed in the settlement approval papers. They can be (1) Class members who paid out-of-pocket for a digital Tele-Aid upgrade will automatically receive relief without the need to file a claim. These Class members will have the option of cashing a $650 check or using a New Vehicle Certificate as a $1,300 credit toward the purchase or lease of a new Mercedes-Benz vehicle from an authorized Mercedes-Benz dealer; (2) Class members who still own or lease their Mercedes-Benz vehicles but did not purchase the digital upgrade are entitled to obtain a free upgrade to digital Tele Aid (but must pay for the dealer labor), or a $750 credit toward the purchase or lease of a new Mercedes-Benz vehicle from an authorized (3) Class members who no longer own their Mercedes-Benz vehicle and did not purchase the digital upgrade will be entitled to a $750 credit toward the purchase or lease of a new Mercedes-Benz vehicle from an authorized Mercedes- Attorneys’ Fees and Expenses
Subject to Court approval, MBUSA will pay Class counsel $6.25 million in combined attorneys’ fees and expenses. Agreement ¶ 89 (DE 182-2). The parties negotiated and reached agreement regarding attorneys’ fees only after reaching agreement on all other material terms of the Settlement, and payment of attorneys’ fees and expenses is separate from and in addition to the other relief afforded to Class members under the Settlement. No Class member’s recovery is reduced to pay for fees and expenses. Agreement ¶ 90 (DE 182-2); Selbin Decl. ¶ 43. Nor is approval of the Settlement itself conditioned on the Court awarding the requested fee -- in the event the Court approves the Settlement but declines to award Class counsel’s attorneys’ fees and expenses in the amount requested by Class counsel, the Settlement shall nevertheless be effective and binding on the Parties. Agreement ¶ 90 (DE 182-2); Selbin Decl. ¶ 44. Class Representatives’ Stipends
The parties agreed that Class counsel would petition the Court for $5,000 stipends for each of the Class Representatives, to be paid by MBUSA in addition to the relief to which each Class Representative is entitled as a Class member and on top of the relief to the Class. Agreement ¶¶ 97-98. (DE 182-2).4 That request is The stipends will compensate the Class Representatives for the considerable time and effort they expended in prosecuting this case against MBUSA. Selbin Decl. ¶ 45. In addition to the discovery-related efforts outlined above, each Class Representative was kept informed of the litigation as it developed, and all were kept abreast of, and signed off on, the proposed Settlement. Selbin Decl. ¶ 46, Ex. H (Class Representative Declarations). Had Settlement not occurred, each named Plaintiff was prepared to participate in the litigation in whatever capacity necessary, including by testifying at trial. Selbin Decl. ¶ 47. Preliminary Approval and Settlement Notice
On May 3, 2011, Plaintiffs submitted an unopposed motion for preliminary approval of the Settlement. (DE 182). This Court granted preliminary approval in an order dated May 10, 2011. (DE 184). Thereafter, individual Settlement Notice 4 The 12 Class Representatives who will receive a $5,000 stipend if this motion is granted are Leroy Browning, James Giotis, Richard Hankins, Jack D. Kelley, was distributed to the Class according the plan adopted by the parties in the Settlement Agreement and approved by this Court’s Order granting preliminary approval. See Declaration of Katie Horton ¶¶ 2-3.5 CLASS COUNSEL’S REQUEST FOR AN AWARD OF
ATTORNEYS’ FEES AND COSTS IS WELL SUPPORTED
Legal Standard
Courts in the Third Circuit assess attorneys’ fees in class cases in one of two ways: the “percentage-of-recovery” method, or the “lodestar-multiplier” method. See In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005). “The former applies a certain percentage to the [settlement] fund. The latter multiplies the number of hours class counsel worked on a case by a reasonable hourly billing rate for such services.” In re Diet Drugs, 582 F.3d 524, 540 (3d Cir. 2009) (internal quotation marks and citations omitted); see also In re AT&T Corp. Secs. Litig., 455 F.3d 160, 164 (3d Cir. 2006); McCoy v. Health Net, Inc., 569 F. Supp. 2d 448, 475 While courts have typically applied the percentage-of-recovery method of assessing fees in cases with an established common fund, see, e.g., In re Rite Aid, 396 F.3d at 306-07, the lodestar method takes on greater significance in cases like Karen Marcus, Cristian Andrew Pellegrini, Mark Russell, Ashish Sen, Colleen Sen, Michael Leslie Shim, Lois A. Martin (formerly Stowers), and Susan Tuteur. 5 Plaintiffs address the parties’ compliance with the Court-approved Notice plan in their motion for final settlement approval. this one, where the amount of relief distributed through a settlement depends in significant part upon the number of Class members that submit claims. See Dewey v. Volkswagen of Am., 728 F. Supp. 2d 546, 593 (D.N.J. 2010) (“[I]f the settlement’s value is certain, the Court can use the percentage-of-recovery method to calculate attorneys’ fees, but if the value is too uncertain, then the Court must use the lodestar method.”); see also In re Schering-Plough/Merck Merger Litig., No. 09-cv-1099, 2010 WL 1257722, at *17 (D.N.J. Mar. 25, 2010) (noting that existence of complexities in valuation of settlement supports use of lodestar As the Third Circuit has explained, the lodestar method “allows courts to reward counsel for undertaking socially beneficial litigation” where the percentage-of-recovery method “would provide inadequate compensation, or in cases where the nature of the recovery does not allow the determination of the settlement’s value required for application of the percentage-of-recovery method.” In re Rite Aid, 396 F.3d at 300 (internal quotation marks omitted).6 Regardless of the method used to assess fees, courts are to use their discretion in considering factors that are “useful and relevant with respect to the particular facts of the case.” In re AT&T Corp., 455 F.3d at 166. The requested 6 Use of the lodestar method in this case is also consistent with the fact that attorneys’ fees will be assessed against MBUSA without reducing the relief available to the Class. amount of $6,250,000 to compensate Class counsel for their time and expenses is exceedingly fair, modest, and reasonable in light of counsel’s significant and successful efforts throughout this litigation. Class Counsel’s Lodestar Shows that the Requested Fee is Fair
and Reasonable
The lodestar method “provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Counsel’s lodestar is “presumptively reasonable” where it arises from a reasonable hourly rate and a reasonable number of hours. Planned Parenthood of Cent. New Jersey v. Attorney General of the State of New Jersey, 297 F.3d 253, 265 n. 5 (3d Cir. 2002). However, courts are to exclude consideration of hours that are “excessive, redundant, or otherwise unnecessary.” Once the lodestar amount has been determined through review of the reasonableness of counsel’s hourly rate and recorded time, courts have discretion to adjust the fee up or down, based on a variety of factors, including: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See, e.g., Tenafly Eruv Ass’n v. Borough of Tenafly, 195 Fed. Appx. 93, 96 n.2 (3d Cir. 2006) (unpublished) (citing Hensley, 461 U.S. at 430 n.3 (1983); Public Interest Research Group v. Windall, 51 F.3d 1179, 1185 n.8 (3d Cir. 1995)). Furthermore, where there has been a class settlement, the lodestar “is usually multiplied by a factor to reflect the degree of success, the risk of non-payment the attorneys faced and perhaps the delay in payment that they encountered.” Brown v. Esmor Corr. Servs., No. 98-cv-1282, 2005 WL 1917869, at *13 (D.N.J. Aug. 10, 2005); see also In Re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 340 (3d Cir. 1998) (“Multipliers may reflect the risks of nonrecovery facing counsel, may serve as an incentive for counsel to undertake socially beneficial litigation, or may reward counsel for an extraordinary result.”). For purposes of this motion, Class counsel are submitting only the time and costs of the four firms serving as co-lead and liaison counsel in the MDL. To date, the combined lodestar for those four firms is $3,863,619. Selbin Decl. ¶ 64. Counsel have agreed not to seek separate reimbursement for out-of-pocket expenses currently amounting to approximately $493,787 for co-lead and liaison counsel, and will instead reimburse costs from the requested $6,250,000 amount. Selbin Decl. ¶ 65. Not included in these numbers is the roughly $2.36 million in lodestar associated with the substantial work performed by other Plaintiffs’ counsel, or the almost $299,000 in costs incurred by other Plaintiffs’ counsel. Class Counsel’s Hourly Rates Are Reasonable
“In general, a reasonable fee is one which is adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys.” Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (internal quotation marks omitted; alteration in original). In assessing the reasonableness of an attorney’s hourly rate, courts consider the prevailing market rate in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Barkouras v. Hecker, No. 06-cv-0366, 2007 WL 1797651, at *3-*4 (D.N.J. June 20, 2007) (citing Blum v. Stenson, 465 U.S. 886, In this case, co-lead Class counsel are highly regarded members of the bar who are among the most experienced in the country in the field of consumer class actions and complex class action litigation. See Selbin Decl. ¶ 3, Ex. A; Gibbs Decl. ¶ 3, Ex. A ; Cecchi Decl. ¶ 7, Ex. C. This Court itself recognized in its April 7 Though the requested fees and expenses are based only on the work performed by co-lead and liaison counsel, other Plaintiffs’ counsel will nonetheless receive a portion of the fee and cost award, to be allocated by co-lead counsel, see Agreement ¶ 92 (DE 182-2), based upon co-lead counsel’s assessment of the work performed by each firm and the benefits to the Class from it. Selbin Decl. ¶ 70. 27, 2009 Class Certification Order that Class counsel who negotiated the Settlement Agreement are “sufficiently qualified and experienced to conduct the litigation[,] . . . have ably handled the proceedings thus far, and MBUSA has not objected to their qualifications.” (DE 105 at 51). Furthermore, co-lead Class counsel’s customary rates, which were used for purposes of calculating lodestar here, have been approved by numerous federal courts in districts with similar or lower prevailing fee structures relative to this district. See Selbin Decl. ¶ 55, Exs. C, D and E; see also Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 794 (N.D. Ohio 2010); In re Lawnmower Engine Horsepower Marketing & Sales Pracs Litig., MDL No. 08-1999, slip op. 380, at 28 Accordingly, Class counsel submit that their hourly rates are reasonable and The Number of Hours Class Counsel Worked Is Reasonable
The number of hours Class counsel have recorded is also reasonable. Class counsel have devoted considerable effort to the challenging work presented by this litigation over the course of four years. As detailed above, Class counsel’s efforts include but are not limited to: (1) investigating and filing the action; (2) defeating a 8 As noted, only two Class members have objected to the request for fees and costs thus far. Selbin Decl. ¶ 49. Class counsel will address all fee objections, and any motion to dismiss; (3) reviewing extensive written discovery; (4) working with experts to prepare multiple reports; (5) deposing multiple MBUSA employees and experts; (6) preparing Class Representatives and experts for depositions and defending those depositions; (7) working with Class Representatives to produce written discovery and respond to hundreds of interrogatories; (8) successfully seeking certification of a nationwide Class; (9) defeating multiple motions and petitions aimed at reversing Class certification; (10) obtaining data from MBUSA necessary to develop a reliable Class list; and (11) engaging in multiple sessions of intensely contested mediation regarding settlement. Selbin Decl. ¶¶ 10; Gibbs Counsel’s responsibilities will not end with final approval. Co-lead Class counsel will remain available to answer any Class member inquiries and to work with MBUSA and the Settlement Administrator to remedy any issues that may arise with respect to this Settlement. Selbin Decl. ¶ 60. Prior experience indicates that this ongoing work will add significant time to the work Class counsel and their staff have performed in this case. Selbin Decl. ¶ 60. Moreover, co-lead Class counsel developed a litigation plan early in this case through which they divided the primary litigation responsibilities, allowing made to the stipends, in their reply to be filed after the objection period ends on July 19, 2011. them to prosecute this case jointly while preventing inefficiency and duplication of effort. Selbin Decl. ¶ 62. Thus, Lieff Cabraser took the lead on motion practice, which included multiple rounds of briefing on both class certification and choice of law issues as well as two appeals, while Girard Gibbs took the lead on all discovery related activities and Carella Byrne supported both. Selbin Decl. ¶ 63. If primary responsibilities overlapped, counsel allocated responsibility and worked to ensure that they were working toward a common goal and not duplicating each other’s efforts. Selbin Decl. ¶ 63. Co-lead counsel also assigned discrete tasks to other plaintiffs’ firms, which further allowed Plaintiffs to prosecute this matter as efficiently and expeditiously as possible. Selbin Decl. ¶ 63. Accordingly, Class counsel respectfully submit that the hours recorded in this case, as reflected in the supporting documentation attached to this motion, are reasonable. See Selbin Decl. ¶ 52, Ex. B; Gibbs Decl. ¶ 6, Ex. C; Cecchi Decl. ¶ 3, Additional Considerations Relevant to Attorneys’ Fees
Support the Modest Lodestar Multiplier Here
This Circuit has recognized that lodestar multipliers from one to four “are frequently awarded” in class cases. In re Prudential Ins. Co., 148 F.3d 283, 341 (3d Cir. 1998) (citing 3 Herbert Newberg & Albert Conte, Newberg on Class Actions, § 14.03 at 14-5 (3d ed. 1992)); see also In re Cendent Corp. PRIDES Litig., 243 F.3d 772, 735-36 (3d Cir. 2001) (multiplier of 3 used even where case “was neither legally nor factually complex,” there was a “minimal amount of motion practice,” and where the parties submitted a settlement agreement within four months of the filing date); In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-cv-285, 2010 WL 547613, at *13 (D.N.J. Feb. 9, 2010) (approving lodestar After reducing the requested fee of $6,250,000 by $493,787 in costs incurred by lead and liaison counsel, the resulting amount in fees is $5,756,213. That represents an extremely modest multiplier of less than 1.5 from the reported $3,863,619 lodestar amount to date for co-lead and liaison counsel, which is entirely in-line with the case law cited above. Selbin Decl. ¶ 68. The multiplier necessarily lowers a great deal further if the work performed by all Plaintiffs counsel, not just the work performed by co-lead and liaison counsel, is included. A review of additional factors relevant to the reasonableness of attorneys’ fees more than supports the low multiplier here. The Novelty and Difficulty Of The Questions Involved
and the Time and Labor Required
This case has posed particular risks for Class counsel, as evidenced by the dismissal of other cases based on the same or similar underlying facts, see Morris v. Mercedes-Benz USA, No. L-259207 (Law Div., Bergen Co.); Morris v. ADT Sec. Servs., No. 07-cv-809 (S.D. Fla. Sept. 11, 2009), and in light of
MBUSA’s demonstrated intention to litigate the case to the fullest extent the law allows in the event that the litigation proceeds. Selbin Decl. ¶ 37. While Class counsel believes a jury would have found in favor of the Class on the merits, that outcome was by no means guaranteed. Selbin Decl. ¶ 38. The complexity of the legal issues involved in this case and the duration of the litigation have also contributed to extensive time and labor on Class counsel’s part. Where the time counsel has spent on a case is significant, courts favor awarding the requested fee. See In re Remeron Dir. Purchaser Antitrust Litig., 2005 WL 3008808, at *15 (D.N.J. Nov. 9, 2005) (noting intense litigation and several rounds of legal briefing); In re Rite Aid, 396 F.3d at 305 (complexity and duration of litigation favored significant award where litigation lasted several years and settlement was reached only through mediation); Vytorin, 2010 WL 547613, at *10 (“[M]ulti-district class action litigation is inherently complex, involving classes of persons from multiple states and consolidation of cases from multiple The Contingent Nature Of This Case
From the outset of the case to the present, prosecution of this action has involved financial risk for Class counsel. Class counsel prosecuted this matter on a wholly contingent basis, which placed at risk their own resources, with no guarantee of recovery. Selbin Decl. ¶ 61. There was no guarantee that Plaintiffs would succeed in further motion practice, at trial, or on appeal. MBUSA has at no time conceded liability, the appropriateness of class certification, the availability of damages, or the proper measure thereof. Selbin Decl. ¶¶ 36, 37, 38. In short, since the beginning of this litigation, recovery by Plaintiffs was far from assured. Despite such challenges, Class counsel succeeded in reaching a Settlement in which MBUSA will provide immediate and significant relief to the Class. Class counsel have spent significant time and resources to prosecute the case successfully on behalf of the Class, and will continue to assist the Class until the conclusion of the claims process. Selbin Decl. ¶ 60. Counsel’s willingness to take this risk weighs in favor of a finding that Counsel’s requested fees are reasonable. The Experience, Reputation, And Ability Of The
Attorneys
The reputation, experience, and ability of Class counsel were essential to success in this litigation. See, e.g., In re Rite Aid, 396 F.3d at 304 (noting that skill of counsel resulted in significant cash relief for class). As explained more fully in the attached declarations, Class counsel have substantial experience in consumer class action litigation. See Selbin Decl. ¶ 3, Ex. A ; Gibbs Decl. ¶ 3, Ex. A; Cecchi Decl. ¶ 7, Ex. C; Rodriguez Decl. ¶ 4, Ex. A. Class counsel’s skill in navigating significant and complex motions practice and in mediating this dispute before professional mediators was essential to achieving this Settlement. Class counsel’s history of aggressive and successful prosecution of nationwide consumer class actions made credible their commitment to pursue this litigation until MBUSA provided a fair result for the Class members. Through their skill, reputation, and ability, Class counsel were able to obtain a settlement that provides an outstanding result for the Class; one that likely could not have been achieved by less experienced or less capable counsel. Awards in Similar Cases
The fee awards in other settlements involving Mercedes vehicles underscore the reasonableness of the requested fee in this case. In one recent settlement, for example, the lodestar multiplier was 1.25 where there was no active litigation and class certification had not yet been briefed, much less granted and upheld against challenge repeatedly. See Fee Approval Order, Marsikyan et al. v. Mercedes-Benz USA, LLC, 08-cv-4876 (C.D. Cal. May 17, 2010), attached as Exhibit G to Selbin Declaration. In light of Class counsel’s significantly greater efforts in this case, the multiplier of less than 1.5 is appropriate here. Two other prior class settlements entered into by MBUSA also bear further discussion. O’Keefe v. Mercedes-Benz USA, Inc., 214 F.R.D. 266 (E.D. Pa. 2003), involved a contested attorneys’ fee petition in the context of a class action settlement in a case over allegedly defective vehicles, and the court awarded a 2.95 multiplier on class counsel’s claimed lodestar, plus costs of $159,312.37, all paid separately by MBUSA. Id. at 310-11. The case was litigated from start to finish in 16 months. Unlike this case, in O’Keefe, as the court noted, “the parties agree that they are a long way from being prepared to try the case [as] [e]xtensive discovery, interrogatories and depositions were left undone.” Id. at 309. Moreover, unlike here, that litigation was mostly “routine” and both motion practice and briefing were “especially light.” Id. Applying the same multiplier here that the Court applied in O’Keefe results in a fee that is significantly greater Weiss v. Mercedes-Benz of North America, Inc., 899 F.Supp. 1297 (D.N.J. 1995), is another, older, class settlement involving allegedly defective vehicles. There, the Court awarded class counsel a fee of $11.25 million paid by MBUSA in addition to class relief. Id. at 1304. While the opinion does not report the lodestar or multiplier applied, it does indicate that the case went from filing to settlement in 2 years, that a motion to dismiss was denied, and a motion for class certification was granted. Whatever lodestar class counsel incurred in that case, it surely did not reach, much less exceed, that expended here. Assuming for the sake of argument it was $5 million, the multiplier applied to reach $11.25 million was 2.25; in all likelihood it was considerably higher. The Requested Fee is a Reasonable Percentage of the Projected
Settlement Recovery
The percentage-of-recovery method of assessing attorneys’ fees allows courts to approve fees “in a manner that rewards counsel for success and penalizes it for failure.” In re Rite Aid, 396 F.3d at 300 (internal quotation marks omitted). When determining the appropriate percentage of recovery for class counsel, courts look to seven factors, known as the Gunter factors: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs’ counsel; and (7) the awards in similar cases. In re Rite Aid, 396 F.3d at 301 (citing Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000)); see also Vytorin, 2010 WL 547613, The Third Circuit has indicated that fee awards generally range from 19% to 45%. In re GMC Pickup Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 822 (3d Cir. 1995). The starting point, or benchmark, in the Third Circuit is 25%, with an adjustment upward or downward depending on the facts of particular case. Paul, Johnson, Alton & Hunt v. Graulty, 886 F.2d 268, 273 (3d Cir. 1989); see also Vytorin, 2010 WL 547613, at *9 (approving fee of 33 1/3% of settlement, or $13,819,500, at a lodestar-multiplier of 2.78); In re Rite Aid, 396 F.3d at 300, 303 (noting that fee amounting to 25% of $126.6 million settlement does not exceed fee percentages in similar cases); McGee v. Cont. Tire N. America, Inc., No. 06-cv- 6234, 2009 WL 539893, at *16 (D.N.J. March 04, 2009) (case went from filing to settlement in two years and only contested motion was motion to dismiss; court approved fee of 21-32% of the value of settlement, at multiplier of 2.6 ). Class counsel retained an expert to value the relief provided to the Class under the Settlement. Selbin Decl. ¶ 29. Using the most conservative methodology employed by the expert, which assigns zero value to the certificates for purchase of new Mercedes vehicles, the total settlement value is $24,593,800. Selbin Decl. ¶ 71. Valuing the deal under two alternative methodologies that afford some value to the certificates (but, importantly, do not assign anything close to 100% face value) and make different assumptions about how Group 2 Class members behave, results in total valuations of $34,227,925 and $49,626,408. Even if the Court were to employ the most conservative method of valuing the Settlement, resulting in the lowest possible Settlement value, the requested fee (excluding costs) would amount to roughly 23% of the Settlement, which is directly in-line with the benchmark employed in this Circuit and others. Selbin Decl. ¶ 71. In hard-fought cases like this, which are also not “mega-fund” cases (in which the percentages tend to decline), courts routinely award well above that benchmark. For example, in Vytorin, the court awarded 33.3% in fees. Accordingly, to the extent it is possible to ascertain what percentage of the Settlement recovery the requested fee amounts to, that effort confirms the Class Counsel’s Recorded Costs are Reasonable
There is little question that “[c]ounsel for a class action is entitled to reimbursement of expenses that were adequately documented and reasonably and appropriately incurred in the prosecution of the class action.” Careccio v. BMW of N. Am. LLC, Case No. 08-2619, 2010 WL 1752347, at *7 (D.N.J. Apr. 29, 2010) (quoting In re Safety Components Int'l Sec. Litig., 166 F. Supp. 2d 72, 108 (D.N.J. 2001)); see also McCoy, 569 F. Supp. 2d at 479. Though Class counsel do not seek an award of costs in addition to the requested $6.25 million in fees, they have provided an accounting of the reasonable costs incurred by co-lead and liaison counsel totaling approximately $493,787. Selbin Decl. ¶ 58 , Ex. F; Gibbs Decl. ¶ 9, Ex. B; Cecchi Decl. ¶ 6, Ex. B; Rodriguez Decl. ¶ 8, Ex. B. That amount does not consider the almost $299,000 in additional costs incurred by other Plaintiffs’ counsel that have not been appointed lead or liaison counsel in the Class proceedings. Selbin Decl. ¶ 69. The biggest litigation expense for Plaintiffs was to retain the three experts needed for successful litigation of the case. Selbin Decl. ¶ 66. Those experts produced reports related to consumer expectations, the history of the digital-to-analog transition, and damages. Selbin Decl. ¶ 66. Additional modest litigation expenses Class counsel incurred in this case include the following: (1) copying, mailing, and messenger expenses; (2) computer research expenses; and (3) travel expenses. Selbin Decl. ¶ 67, Ex. F; Gibbs Decl. ¶ 9, Ex. B; Cecchi Decl. ¶ 6, Ex. B; Rodriguez Decl. ¶ 8, Ex. B. Class counsel put forward these necessary out-of- pocket costs without assurance that they would ever be repaid. Class counsel worked hard to bring this case to a successful resolution in the face of a vigorous defense, and the requested fee and costs amount is more than fair and reasonable under the circumstances. THE REQUESTED CLASS REPRESENTATIVE STIPENDS ARE
REASONABLE
Stipends for class representatives promote the public policy of encouraging individuals to undertake the responsibility of representative lawsuits. It is clear that “[c]ourts have ample authority to award incentive or ‘service’ payments to particular class members where the individual provided a benefit to the class or incurred risks during the course of litigation.” Bredbenner v. Liberty Travel, Inc., No. 09-1248, 2011 WL 1344745, at *23 (D.N.J. Apr. 8, 2011) (collecting cases). Plaintiffs’ efforts were instrumental in achieving the Settlement on behalf of the Class and justify the stipends requested here. Throughout the litigation, Plaintiffs have performed numerous tasks, including: (1) assisting counsel with the preparation of the relevant complaints; (2) responding to discovery requests; (3) sitting for depositions; (4) staying abreast of the settlement negotiations; (5) reviewing and approving the settlement terms; and (6) preparing and submitting declarations to the Court. Selbin Decl. ¶ 46, Ex H. Plaintiffs have also committed to providing testimony at trial should that become necessary. A $5,000 stipend for each of the named Plaintiffs is modest under the circumstances, and well in line with awards approved by federal courts in New Jersey and elsewhere. See Godshall v. Franklin Mint Co., No. 01-cv-6539, 2004 WL 2745890, at *6 (E.D. Pa. Dec. 1, 2004) (granting special award of $20,000 to each named plaintiff for their work as class representatives); cf. McCoy, 569 F. Supp. 2d at 479-80 (finding incentive payments of $60,000 to each plaintiff appropriate when the named plaintiffs “sacrificed personal and medical privacy for the good of the class”). The stipends in this case are particularly uncontroversial, as they do not reduce the recovery of other Class members, and they are not opposed by MBUSA. See In re LG/Zenith Rear Projection TV Class Action Litig., No. 06-cv-5609, 2009 WL 455513, at *9 (D.N.J. Feb. 18, 2009) (approving incentive award that “will not decrease the recovery of other class members”). It is also significant that no Class member has objected to the stipends. See Godshall, 2004 WL 2745890, at *6 (noting lack of Class member objections to incentive awards). In light of Plaintiffs’ effort and risk undertaken to obtain a meaningful result for the Class, Plaintiffs request that the Court approve the stipends of $5,000 for CONCLUSION
For the reasons stated above, Class counsel respectfully request that this Court award Class counsel $6,250,000 in fees and costs, and award 12 stipends of CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO Co-Lead and Liaison Counsel for Plaintiffs and the Class

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