United States District Court, D. New Jersey
MICHAEL VAZQUEZ U.S.D.J.
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.
Background & Procedural History
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,  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.")
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.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.
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. Ex. F to Squitieri Decl. at 16-17.
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.
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.
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.
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.
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 ...