United States District Court, D. New Jersey, Camden Vicinage
REPORT AND RECOMMENDATION REGARDING COUNSELS' FEE
SCHNEIDER, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation addresses counsels' fee
dispute. In short, counsel dispute how to allocate
$900, 000 in attorney's fees and $25, 000 in costs
defendants agreed to pay as part of their settlement of this
strip-search class action. On the one hand, Carl Poplar,
Esquire and William Riback, Esquire (hereinafter
collectively, “Poplar”), ask that they be
allocated 100% ($900, 000) of the available fees and costs
($25, 000). On the other hand, David Novack, Esquire and
Susan Lask, Esquire (hereinafter collectively,
“Novack”), ask that they be allocated 50% of the
disputed attorney's fee ($450, 000) and $4, 931.20 in
costs. The Court will not address how to allocate each
side's share. To assist in the preparation of this
recommended allocation, the Court not only read the
parties' extensive motion papers, but it also reviewed
its lengthy file and notes going back to “day
one” of the case.
be discussed in detail herein, as to fees the Court
recommends Poplar and Riback be allocated 82.5% ($742, 500),
and Novack and Lask be allocated 17.5% ($157, 500). As to
costs, the Court recommends Novack/Lask be reimbursed 100% of
their claim ($4, 931.20), and that Poplar/Riback be allocated
the remainder ($20, 068.80) of the $25, 000 to be shared. The
Court makes the following findings in support of its
proceeding to its analysis, the Court will make three general
it can hardly be debated that this Court is in the best
position to make a fair, unbiased, objective and informed
allocation recommendation. No. one else has firsthand
knowledge of all relevant developments in the case, and was
an eyewitness participant to virtually every relevant
liability and settlement issue, conference and discussion.
Further, the Court has not only managed this case from its
inception, but it also managed the related Florence
Court's second general observation is that it regrets
counsel was unable to agree to allocate the settlement fund.
“Ideally, allocation is a private matter to be handled
among class counsel.” Turner v. Murphy Oil USA,
Inc., 582 F .Supp. 2d 797, 808 (E.D. La. 2008) (citation
and quotation omitted). The Court takes no satisfaction in
creating winners and losers. The fact the Court has to
allocate a fixed sum results in a zero-sum game. For every
dollar one side receives, there is one less dollar available
to the other side. The best course would have been for
counsel to resolve their dispute without significant
involvement of the Court.
although the Court originally stated it would keep this
recommendation confidential, it changed its mind. The Court
wholeheartedly agrees with the following quote from In re
High Sulfur Content Gasoline Prod. Liab.
Litig., 517 F.3d 220, 230 (5th Cir. 2008):
broad public level, fee disputes, like other litigation with
millions at stake, ought to be litigated openly.
Attorneys' fees, after all, are not state secrets that
will jeopardize national security if they are released to the
public. As the Third Circuit has noted, “[p]ublic
confidence [in our judicial system] cannot long be maintained
where important judicial decisions are made behind closed
door and then announced in conclusive terms to the public,
with the record supporting the court's decision sealed
from public view.” United States v. Cianfrani,
573 F.2d 835, 851 (3d Cir. 1978). From the perspective of
class welfare, publicizing the process leading to
attorneys' fee allocation may discourage favoritism and
unsavory dealings among attorneys even as it enables the
court better to conduct oversight of the fees. If the
attorneys are inclined to squabble over the generous fee
award, they are well positioned to comment-publicly-on each
other's relative contribution to the litigation.
completed its introduction, the Court will proceed to its
detailed history of the background of the case is necessary
to put the present dispute in context. Riback filed the
initial complaint in this action on February 26, 2008, naming
Tammy Haas and Conrad Szczpaniak as plaintiffs. The complaint
generally challenged Burlington County's practice of
“strip-searching” all pre-trial detainees. The
Haas/Szczpaniak complaint was filed shortly after the
Florence action was instituted on July 19, 2005 (C.
A. No. 05-3619 (JHR/JS)). Riback filed an amended complaint
[Doc. No. 11] on February 2, 2009 but only named Haas as a
plaintiff. Haas filed her second amended complaint on April
3, 2009 [Doc. No. 18]. The third amended complaint was filed
on November 28, 2012. [Doc. No. 18].
(represented by Riback) filed a state court complaint in
Burlington County on December 3, 2009. The case was removed
to federal court on January 13, 2010 (C.A.No.10-199
(NLH/JS)), and thereafter stayed. As the parties know, the
Florence summary judgment decision in Florence's
favor was reversed on appeal by the Third Circuit on
September 21, 2010. See 621 F.3d 296 (3d Cir. 2010).
On April 2, 2012, the reversal was affirmed by the U.S.
Supreme Court in a 5-4 decision. See 566 U.S. 318
(2012). On August 30, 2012, Poplar entered his appearance in
the Haas and Szczpaniak cases. The two
cases were consolidated on September 12, 2012, under the
Haas docket number.
Court granted plaintiff's motion to amend her complaint
based on Florence on November 13, 2012. [Doc. No.
69]. On appeal the decision was affirmed and reversed in part
on June 30, 2013. [Doc. No. 121]. Plaintiff filed her first
motion to certify the class on October 11, 2013. [Doc. No.
141]. Defendant filed its motion for summary judgment on
November 15, 2013. [Doc. No. 144]. On February 10, 2014,
plaintiff re-filed her motion for class certification and
filed plaintiff's motion for summary judgment. [Doc. Nos.
155, 156]. The pending motions for class certification and
for summary judgment were withdrawn on February 18, 2014.
[Doc. Nos. 159, 166]. Oral argument on the motions was held
on January 15, March 26 and June 5, 2015, before the
Honorable Noel L. Hillman.
Judge Hillman did not enter a formal Order granting
Poplar's summary judgment motion, he indicated the motion
would be granted on state law grounds. See
Transcripts, Doc. Nos. 181, 185, 196. Judge Hillman also
indicated that class certification would be granted.
Id. Judge Hillman referred the case to mediation on
June 9, 2015 [Doc. No. 195]. The first and second mediation
sessions were held on August 18, 2015 and February 26, 2016,
before the Honorable John Hughes (Ret.).
in June 2016 the case took an unfortunate turn. At that time
Haas indicated she wanted to fire Riback and Lask sought to
be admitted pro hac vice to represent Haas. This
development resulted in counsel filing numerous papers and
arguing about Lask's admission, an issue that had nothing
to do with the merits of the case. Novack's first written
appearance in the case was on March 3, 2017, when he advised
the Court he was representing Haas. [Doc. No.
issues involving Lask's pro hac vice appearance
were finally resolved on March 13, 2017, when this Court
granted her motion with conditions. [Doc. No. 297]. After the
issues involving Lask's appearance were finally resolved,
and the parties turned their attention back to the merits of
the case, this Court ended the parties' mediation and
undertook substantial efforts to settle the case. After
countless in-person and phone conferences, the parties
finally agreed to settle. Plaintiffs' Motion to Certify
the Class and for Preliminary Settlement Approval was filed
on October 4, 2017. [Doc. No. 331]. The hearing on the motion
was held on January 31, 2018. [Doc. No. 348]. Judge Hillman
granted preliminary settlement approval on April 20, 2018
[Doc. No. 357] and appointed Poplar (individually) and Novack
(individually) as Co-Class Counsel. The final Order approving
the parties' settlement was entered on January 31, 2019
[Doc. No. 383] and was amended on February 1, 2019. [Doc. No.
Common Fund Allocation
summarized the fact and procedural background of the case,
the Court will begin its allocation analysis with a
discussion of the applicable allocation law which will guide
its recommendation. In this regard it is necessary to focus
the parties' discussion. While the parties discuss the
lodestar analysis, to a large extent they focus on each
side's contribution to the successful resolution of the
case. This is understandable since counsel explicitly or
implicitly agree that a qualitative rather than a
quantitative analysis of their time should be done.
this is not an instance where the parties have to justify the
attorney's fees defendants will pay in the case. The
Court has already determined that $900, 000 is an appropriate
sum. Instead, the Court's task is to allocate amongst
different counsel an already approved $900, 000 common fund.
Even if deductions are taken, it is likely counsels'
combined lodestar will exceed $900, 000. After all,
Poplar's lodestar is approximately $1.3 million and
Novack's lodestar is $992, 362.
addition to the fact that a pure lodestar analysis is not
workable given that the parties' lodestar exceeds the
common fund to be paid, the analysis ignores the quality and
importance of each attorney's work. Not all work on the
case is entitled to equal weight. As noted, a qualitative
rather than a quantitative analysis needs to be done. This
accounts for why a pure lodestar analysis has been criticized
in common fund cases. In re E.I. Dupont DeNemours and Co.
C-8 Personal Inj. Litig., No. 2-13-MD-2432, 2018 WL
4771524, at *4. (S.D. Ohio Oct. 3, 2018) (“[Trying to
make precise lodestar calculations would only provide
illusory mathematical precision unsupported by the realities
of…time keeping practices and disconnected to the
value that the work provided to the litigation.”).
[T]he task at hand is not solely a matter of counting
hours…but rather assigning a weight to each person or
entity's input in the product achieved as a result of the
collective effort of the group. Stated another way, while an
hour is sixty (60) minutes, all hours are not equal.
LeBlanc v. Texas Brine Co., LLC, C. A. No. 12-2059
c/w, 2015 WL 13574286, at *1 (E.D. La. May 7, 2015).
of doing a pure lodestar analysis, the Court will treat this
as a common fund case. “Where, as here, a defendant has
voluntarily undertaken the establishment of a separate fund
to pay class counsel's costs and fees, the case is most
appropriately reviewed as a common fund case.” In
re: National Football League Players' Concussion
Injury Litigation, MDL No. 2323, 2018 WL 1635648, at *3
(E.D.Pa. April 5, 2018).”
Court will consider as common benefit work efforts that
contributed to the settlement, thereby benefitting the
settlement class. In re Syngenta AG MIR 162 Corn
Litig., MDL No. 2591, 2018 WL 6839380, at *14 (D. Kan.
Dec. 31, 2018). The Court will not consider as common benefit
work efforts that did not advance the interests of the class
or settlement of the class action. For example, the Court
will disregard the time spent by both sides between June 2016
and March 2017 when the parties argued about Lask's
pro hac admission. This time did not benefit the class.
To be sure, however, work done for individual clients may be
considered common benefit work “if [the] work provided
a benefit to the entire settlement class.” Id.
as the factors to analyze when allocating a common fund are
concerned, the cases that discuss the issue focus on the
nature and quality of the work performed. An illustrative
case is In re: High Sulfur Content Gasoline Prod. Liab.
Litig., 517 F.3d 220, 228 (5th Cir. 2008). In High
Sulfur the Court emphasized the importance of the
so-called Johnson factors. These are: (1) time and
labor required, (2) novelty and difficulty of the questions,
(3) skill requisite to perform the legal service properly,
(4) preclusion of other employment by the attorney due to
acceptance of the case, (5) customary fee, (6) whether the
fee is fixed or contingent, (7) time limitations imposed by
the Court or the circumstances, (8) the amount involved and
the results obtained, (9) the experience, reputation, and
ability of the attorneys, (10) the