SAN FRANCISCO - Overseeing Volkswagen clean diesel litigation at the Northern District of California, U.S. District Judge Charles Breyer trimmed a request for $120,044 in costs down to $17,421, as well as laying the groundwork for slashing plaintiff attorneys' request for $1.468 million in fees for work on behalf of 52 claimants.
“Costs, like fees, are reviewed for reasonableness,” Breyer wrote. “Plaintiffs acknowledge that some of the costs they initially sought, such as airfare for a private jet and $10,801 for a steak dinner and breakfast buffet, do not meet this standard. They have therefore withdrawn $58,503 worth of costs from their initial request.”
Breyer's order entered Sept. 8 involved 52 plaintiffs who opted out of class action settlements that resolved most consumer claims arising from the Volkswagen clean diesel scandal, and who later accepted defendant's Rule 68 settlement offer. These particular cases also had been stayed while others advanced in multi-district litigation stemming from Volkswagen’s evasion of U.S. and California environmental standards with hidden devices installed in clean diesel vehicles that gamed emissions testing procedures.
A bellwether trial for 10 other opt outs ended in March with jurors awarding five plaintiffs less than $6,000 in compensatory damages and the other five plaintiffs receiving nothing in economic damages. With punitive damages, the bellwether group received in total $28,735.
In a 25-page order, Breyer indicated he would not add a requested 40 percent multiplier, which courts sometimes award to class action attorneys pursuing complicated or risky litigation, saying it was "unwarranted."
Volkswagen counsel argued that plaintiff firm Knight Law Group's was actually requesting a "grossly inflated" $1.725 million for representing 52 plaintiffs whose cases not only never went to trial, but were also stayed from their inception.
"...[V]ery little happened in Plaintiffs’ cases, because the Court authorized very limited work on these stayed cases," wrote Robert J. Giuffra, Jr. of Sullivan and Cromwell in New York, for Volkswagen.
He wrote that the only meaningful activity in the 52 cases were the filing of complaints, duplicative briefing, participation in failed mediation and submission of fact sheets.
"None of the fees in connection with this trial-related work is recoverable here," Giuffra wrote. "These 52 Plaintiffs’ cases did not go to trial and were never set for trial. In fact, given the stay, Volkswagen never filed an answer in this MDL to any of these Plaintiffs’ complaints."
While Breyer did not agree with Volkswagen's argument that Knight Law was not entitled to any fees at all, he did slash some requests.
He applied a 90 percent reduction to a request for nearly $500,000 claimed for "docket review."
He denied requests for billable hours incurred after Rule 68 offers were made, hours incurred on a motion to disqualify a judge in another proceeding, "vague time entries," and some clerical tasks. He applied reductions in requests for time billed for depositions, mediation, travel and other items. And, he applied reductions in hourly billing rates for a number of plaintiff attorneys.
"The Parties are directed to apply the foregoing analysis to Plaintiffs’ most recent fees request, then file a joint proposed order with a final fee award," Breyer wrote. "If the Parties cannot agree on the correct amount of the fee award, they should instead file a detailed explanation of their disputes regarding how to apply this Order. If the parties are unable to agree on the proper application of the Court’s rulings to Plaintiffs’ fee request, the Court may have no choice but to estimate a reasonable fee award, in an amount to be determined."
The parties have until Sept. 22 to file a joint proposed order with a stipulated fee award.
In March, Breyer approved final settlement in the multi-district litigation of $96.5 million, which provided $10.9 million in attorneys' fees and $2.1 million in costs, for a total of $13 million for a group of attorneys led by Lieff Cabraser Heimann & Bernstein in San Francisco. Class vehicles are eligible for payments ranging from $518.40 to $2,332.80.