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Harding v. Jacoby & Meyers, LLP

United States District Court, D. New Jersey

October 30, 2017

NANCY HARDING et al, Plaintiffs,
JACOBY & MEYERS, LLP, et al, Defendants.

         Not for Publication



         This class action comes before the Court on Plaintiffs' motion for class certification. The matter arises from a dispute between Nancy and Jeffrey Harding and their former lawyers, Finkelstein & Partners, LLP ("F&P"). Plaintiffs allege that they were improperly charged for work performed by Total Trial Solutions, LLC ("Total Trial"), a litigation support company that is owned by one of the named partners of Finkelstein & Partners. Plaintiffs filed this matter on behalf of themselves and all others similarly situated. Plaintiffs claim that Total Trial's work should have actually been covered by F&P's contingency fee arrangement with Plaintiff; instead, Plaintiffs were charged for Total Trial's work as a separate expense. Plaintiffs also seek the appointment of class counsel. For the reasons stated below, Plaintiffs motion is DENIED.

         I. Background & Procedural History

         Plaintiffs Nancy and Jeffrey Harding filed their Complaint on August 28, 2014, against Jacoby & Meyers, LLP, F&P, Total Trial, Andrew Finkelstein, and Kenneth Oliver. D.E. 1 ("Compl."). Plaintiffs had retained F&P to separately represent them in two unrelated personal injury lawsuits. Compl. at ¶¶12, 36. Ms. Harding's case ultimately settled for $195, 000; F&P's one-third contingency fee was $57, 938.60, and $21, 183.66 was deducted from the settlement for litigation expenses. Compl. at ¶29. Mr. Harding's case was settled for $99, 280.00. Compl. at 52. The contingency fee was $29, 340.06, and his settlement was reduced by another $11, 258.50 for expenses. Id. Part of the deducted expenses in Ms. Harding's case, $3, 870.68, and in Mr. Harding's case, $2, 968.40, [1] were for payments made to Total Trial. Compl. at ¶8, 53-54, Exhibit B to the Declaration of Olimpio Lee Squitieri in Support of Plaintiff s Motion for Class Certification (hereinafter "Squitieri Decl.") at 7.

         Both Finkelstein and Oliver are equity partners of F&P. Ex. B to Squitieri Decl. at 7-8. Total Trial, along with MedTrial Solutions, LLC, and CineTrial Solutions, LLC, were formed in 2009 by Defendants Andrew Finkelstein and Kenneth Oliver as litigation support businesses.[2]Ex. D to Squitieri Decl. While all three LLCs are litigation support service businesses, Total Trial is the focus here. Oliver has since divested his interest in Total Trial. See Ex. B to Squitieri Decl. at 7-8.

         Total Trial performs a number of different services for F&P and Jacoby & Meyers, including: service of subpoenas, writing and editing client biographies, investigations, photo and video gathering, locating expert witnesses, research, conducting focus groups, and creating trial exhibits. See Ex. I to Squitieri Decl. Total Trial shares space in the same building as F&P, and F&P also shares the same computer system with Total Trial.[3] Ex. F to Squitieri Decl. at 16-17.

         Total Trial performed several tasks on Ms. Harding's case including the following: preparing a biography, scanning and printing color photographs, preparing a video, and locating a liability expert. Declaration of Nancy Harding at ¶6. For Mr. Harding's case, Total Trial prepared a biography as well as printed and copied color photographs. Declaration of Jeffrey Harding at ¶6.

         Both Mr. and Ms. Harding signed retainer agreements with F&P that included the following language under the heading "Litigation Costs and Expenses":

(b) Costs and Expenses Affecting Contingency Fee Costs and expenses paid by Law Firm in connection with Client's claim shall be reimbursed before the contingency fee is computed .
(d) Advancement of Costs "Law Firm is authorized to incur reasonable costs and expenses in performing legal services under this Agreement." In accordance with applicable law, regardless of the outcome of this matter, Client shall remain responsible to the Law Firm for such advances. The Law Firm utilizes very extensive trial support services in order to obtain the best possible verdict or settlement, which can result in large expenditures by the Law Firm ....
(c) Total Trial Solutions, LLC, MedTrial Solutions, LLC, and CineTrial Solutions, LLC. Among the independent contractors we use is Total Trial Solutions, LLC, ("Total Trial"), MedTrial Solutions, LLC ("MedTrial") and CineTrial Solutions, LLC ("CineTrial"). Total Trial provides a very broad menu of litigation support services. These include, but are not limited to: story and biographical work by accomplished writers, computerized time lines and trial exhibit creation, forensic accounting, forensic data base searches, investigation including scene inspection and witness statements, transportation, translator/interpreter services, in Court technical support time coding documents for trial/mediation/arbitration .... Total Trial, MedTrial and CineTrial are owned in whole or in part by Andrew Finkelstein and Kenneth Oliver, Partners of the Law Firm. Mr. Finkelstein and Mr. Oliver will benefit from the use of these services by the Law Firm. Consequently, you have the right to inquire about the charges for these services and insist that any such services be obtained from other vendors to avoid any potential conflict of interest. Be aware, these companies are not a law firm, are not part of the Law Firm and do not provide legal services. However, we have found the use of these companies allows for a seamless offering of services necessary for exemplary trial work.
You should be aware that most of the services obtained from Total Trial, MedTrial and CineTrial can be obtained from other vendors. The cost for the services provided by these companies will vary when provided by other vendors; it is possible that the cost for a particular services, when offered by other vendors may be less expensive than those offered by Total Trial, MedTrial or CineTrial. However, the firm believes Total Trial, MedTrial and CineTrial provide superior services and you will benefit from the services provided by these companies notwithstanding this possible added expense. If at any time the Law Firm believes another vendor will provide comparable service for les it will notify you in order to give you the option of using another vendor.
Please remember, you should consult independent counsel, if you deem appropriate, regarding the benefit and propriety of the above described expenses and the utilization of Total Trial, MedTrial and CineTrial.

Exs. K & L to Squitieri Declaration. The parties do not dispute that the same, or a substantially similar, retainer was used by F&P during the relevant period.

         As noted, Plaintiffs filed their Complaint in August 2014 on behalf of themselves and others similarly situated. D.E. 1. The Complaint accuses Defendants of: breach of fiduciary duty (against F&P, Jacoby & Meyers, Finkelstein and Oliver), aiding and abetting breach of fiduciary duty (against Total Trial), breach of the duty of good faith and fair dealing (against F&P, Jacoby & Meyers, Finkelstein and Oliver), violation of N.Y. General Business Law §349(a) (same), unjust enrichment (against Total Trial, Finkelstein and Oliver), and violation of N.Y. Judiciary Law §487 (against F&P, Jacoby & Meyers, Finkelstein and Oliver). Compl. At ¶69-119.

         Defendants filed a motion to dismiss on October 23, 2014. D.E. 15. Judge Arleo granted and denied the motion in part, dismissing the claim for breach of contract against Oliver and Jacoby & Meyers, the unjust enrichment claim against Finkelstein and Oliver, and the claim for violation of New York Judiciary Law §487. D.E. 28. Judge Arleo denied the motion as to the following counts: breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, breach of the duty of good faith and fair dealing, violation of N.Y. General Business Law §349(a), and unjust enrichment. Id.

         Discovery and settlement discussions were ongoing throughout 2015 and 2016. D.E. 29-72. Plaintiffs filed a motion to consolidate their case with a parallel case, Smalls v. Jacoby & Meyers, et al, Docket No. 15-6559, on March 9, 2016. D.E. 73. Judge Falk denied the motion and directed Plaintiffs to file their motion for ...

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