NINA SEIGELSTEIN VS. SHREWSBURY MOTORS, INC. (L-4072-15, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3801-18T2
NINA SEIGELSTEIN,
on behalf of herself and
all others similarly situated,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, July 29, 2020
APPELLATE DIVISION
v.
SHREWSBURY MOTORS,
INC., d/b/a SHREWSBURY
VOLKSWAGEN and JEFF
ANDERSON,
Defendants-Respondents.
__________________________
Argued February 5, 2020 – Decided July 29, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4072-15.
Andrew R. Wolf argued the cause for appellant (The
Wolf Law Firm LLC, and Christopher Joseph Mc
Ginn, attorneys; Andrew R. Wolf and Christopher
Joseph Mc Ginn, on the briefs).
Steven M. Richman argued the cause for respondents
(Clark Hill PLC, attorneys; Steven M. Richman and
Boris Brownstein, of counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Plaintiff Nina Seigelstein appeals from a March 27, 2019 Law Division
order, "grant[ing] in part and den[ying] in part," her attorneys' application for
fees in connection with a class action lawsuit against a car dealership,
Shrewsbury Motors, Inc. d/b/a Shrewsbury Volkswagen, and its principal, Jeff
Anderson, collectively defendants. The judge reduced the billable hours as
well as the requested hourly rates and applied a lower contingency fee
enhancement percentage than requested by plaintiff's attorneys (Class
Counsel). On appeal, plaintiff only challenges the hourly rate reduction.
Because we agree that the judge mistakenly exercised her discretion, we
reverse.
On October 30, 2015, plaintiff filed a class action complaint alleging
defendants violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A.
56:8-1 to -20, and the New Jersey Truth-in-Consumer Contract, Warranty and
Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, in the sale and leasing of
motor vehicles "by charging unlawful fees and failing to itemize the
documentary fees charged to [p]laintiff and all those similarly situated." See
R. 4:32-1; R. 4:32-2. Among other things, the complaint sought "reasonable
A-3801-18T2
2
attorney's fees and costs pursuant to the CFA at [N.J.S.A.] 56:8-19 and/or
TCCWNA at [N.J.S.A.] 56:12-17."
After defendants filed a notice of appeal as of right from the March 16,
2016 order denying arbitration, see R. 2:2-3, the parties engaged in extensive
settlement negotiations, including participation in the Appellate Division's
Civil Appeals Settlement Program (CASP). Negotiations ultimately resulted in
the execution of a comprehensive class action settlement agreement on August
30, 2017, and, following confirmatory discovery, an amended final class action
settlement agreement on November 30, 2017.
In pertinent part, the final agreement addressed Class Counsel's
"entitlement" to reasonable attorneys' fees and costs as follows:
Subject to the [c]ourt's [f]inal [a]pproval of this [f]inal
[s]ettlement [a]greement, Shrewsbury Motors, Inc.
shall pay the reasonable attorneys' fees and costs of
Class Counsel to be determined by settlement or fee
petition. . . . [T]he [p]arties will attempt to reach an
agreement on the amount of attorneys' fees and costs.
If such an agreement is reached, then, subject to
[c]ourt approval within ten . . . days of the [e]ffective
[d]ate, Shrewsbury Motors, Inc. shall pay the amount
awarded, pursuant to [c]ourt approval. If such an
agreement is not reached, Shrewsbury Motors, Inc.
agrees to pay the amount of attorneys' fees and costs
awarded by the trial court on any fee petition within
ten . . . days of the [c]ourt's determination of same.
Defendants shall be given proper notice of such fee
applications and afforded the opportunity to file
objections to the amount of the reasonable attorneys'
fees and costs sought by Class Counsel. While
A-3801-18T2
3
[d]efendants may file objections to the amount of
reasonable attorneys' fees and costs sought by [C]lass
[C]ounsel if an agreement on an amount of attorneys'
fees and costs is not reached, [d]efendants agree and
shall not object to Class Counsels' entitlement to their
reasonable attorneys' fees and costs.
After the parties failed to reach an agreement on the amount of attorneys'
fees, on June 4, 2018, plaintiff moved for final approval of the class act ion
settlement,1 which included a request for approval of attorney's fees and costs
in the amount of $161,634.50 and $774.25, respectively, through June 1,
2018. 2 In detailed supporting certifications submitted by the lead attorneys,
Andrew R. Wolf and Christopher J. McGinn, Class Counsel asserted they had
expended a combined total of 273.7 hours on the litigation at their respective
law firms. For the Wolf Law Firm LLC, hourly rates were listed as follows:
1
Previously, on March 9, 2018, the judge had preliminarily approved the
proposed class action settlement, certified the class for purposes of settlement,
see R. 4:32-2(a) and (e), appointed plaintiff as Class Representative and her
attorneys as Class Counsel, see R. 4:32-2(g), directed that notices be mailed to
the settlement class members, see R. 4:32-2(b)(2), and scheduled a fairness
hearing to consider any objections or exclusions and determine whether to
"grant final approval to the settlement as fair, reasonable, and adequate." See
R. 4:32-2(e)(1)(C); Chattin v. Cape May Greene, 216 N.J. Super. 618, 627
(App. Div. 1987) ("The basic test for court approval of a settlement of a class
action is whether it is fair and reasonable to the members of the class."). Of
the 2883 class members notified, no objections or requests for exclusion were
received.
2
Plaintiff sought leave to file a supplemental fee application for Class
Counsel's time expended after June 1, 2018, including replying to any
opposition to the fee application, attending the fairness hearing, and
overseeing the implementation of the settlement.
A-3801-18T2
4
Andrew R. Wolf at $765; Henry P. Wolfe at $625; Bharati S. Patel at $550;
Andrew W. Li at $525; Kelly Samuels Thomas at $365; Matthew S. Oorbeek
at $360; Mariel Mercado at $250; and a paralegal at $165. For the Law Office
of Christopher J. McGinn, Christopher J. McGinn's hourly rate was listed as
$500.
Wolf's and McGinn's certifications identified several New Jersey state
and federal cases where the court had approved their current and comparable
prior hourly rates. Additionally, Wolf, who was admitted to the New Jersey
bar in 1995, averred that to date, he had "been certified as [C]lass [C]ounsel in
121 cases, many of which have involved claims brought under the [CFA] and
the [TCCWNA]." McGinn, who was admitted to the New Jersey bar in 2002,
certified that he "concentrate[d his] practice in the area of consumer protection
law," and had "been appointed as [C]lass [C]ounsel in forty-eight class
actions."
Further, Wolf submitted the biographies of the other attorneys in his
firm who worked on the case, as well as a 2018 certification from Lawrence H.
Shapiro, a 2015 certification from John E. Keefe, Jr., and a 2009 certification
from Allyn Z. Lite. Shapiro, a partner in Ansell Grimm & Aaron, PC with a
practice devoted predominantly to "commercial litigation," confirmed that
Class Counsel's hourly rates in this case were "consistent with the rates
A-3801-18T2
5
charged by other [law] firms throughout New Jersey and in Monmouth County
by attorneys with similar experience, skill and reputation in handling such
matters." Keefe, "a co-managing member of . . . Keefe Bartels[, LLC]" with
"extensive experience . . . handling complex litigation, including consumer and
other class action cases," certified in an unrelated contested fee application
that Class Counsel's rates were "consistent with the rates charged . . .
throughout New Jersey for attorneys with similar experience, skill and
reputation," and "were recently approved for [his] firm" in several cases.
Finally, Lite, then a "senior member of . . . Lite DePalma Greenberg & Rivas,
LLC" specializing "in complex plaintiffs-oriented litigation," opined as Wolf's
"expert . . . to assist the [c]ourt" in an unrelated fee application that "Class
Counsel has long and deep experience in the class action arena" and, "[g] iven
that experience and credentials of those lawyers, their rates [were] reasonable"
and "comparable to . . . others who prosecute [and defend] class actions in the
state and federal courts in New Jersey."
Additionally, Wolf submitted a September 26, 2014 oral decision
rendered by Judge James Hely awarding attorneys' fees and costs to his firm in
a contested fee application in an unrelated individual consumer fraud case ,
pointing out that Judge Hely specifically found that Class Counsel were "in a
field which requires very, very specific knowledge" and "[v]ery few attorneys
A-3801-18T2
6
would be able to take a case like this . . . and know what to do with it."
Without leave of court, plaintiff later submitted supplemental support for Class
Counsel's fee application consisting of a transcript of a July 27, 2018
unopposed award of counsel fees to the Wolf firm by Judge Ana C. Viscomi in
a class action settlement captioned "Harris v. General Motors Financial Co.,
Inc., MID-L-3170-15." In accepting the hourly rate, Judge Viscomi "reviewed
the [dated] submissions of other practitioners that [spoke] to the hourly rates,"
and noted that "the hourly rates [were] approved most recently in both Federal
District Courts for the District of New Jersey as well as other Superior
Courts."
Defendants opposed the counsel fee application, noting "[t]he fee
amount represent[ed] approximately [forty-five percent] of the total monetary
recovery for the settlement class." Among other things, defendants objected to
Class Counsel's hourly rates. Defense counsel certified that the hourly rates of
Class Counsel's lead attorneys were "unreasonably high, and somewhat
misleading" because "th[e] case involved claims against a single automobile
dealership, . . . focusing on the finite issue of whether or not a documentary
fee was properly categorized." Defense counsel asserted that "[the] case was
not actively litigated beyond the [c]ourt's denial of [d]efendants' [m]otion to
[c]ompel [a]bitration," and "[t]here was no written discovery exchanged" other
A-3801-18T2
7
than the brief confirmatory discovery conducted "pursuant to the . . .
settlement agreement." Thus, according to defense counsel, "given the facts
and circumstances of the . . . case," Class Counsel's lead attorneys "were both
redundantly involved in much of the same work," resulting in an excessive
"combined effective rate" of $1265 per hour. By comparison, defense counsel
pointed out that "Steven Richman, a New Jersey-based attorney representing
[d]efendants . . . with [thirty-eight] years of experience in commercial
litigation, including class actions, provided services in this matter at an hourly
rate of $450/hour." Defense counsel also objected to the supplemental
submission, characterizing Judge Viscomi's decision as "irrelevant," and citing
Shelton v. Restaurant.com, Inc., No. 10-824, 2016 U.S. Dist. LEXIS 176785,
at *12-18 (D.N.J. Dec. 21, 2016), "in which the Wolf[] firm's fees were
significantly reduced" by a federal district court judge.
On September 14, 2018, following oral argument, the judge entered an
order granting final approval of the settlement, and reserved judgment on Class
Counsel's fee application. Thereafter, on March 27, 2019, the judge entered an
order awarding plaintiff $120,772.98 in attorneys' fees and costs, by reducing
the requested hourly rates of all the attorneys and the paralegal, reducing the
requested hours by 46.1 hours, and awarding a contingency fee enhancement
of five percent, instead of the twenty-five percent sought by plaintiff. See
A-3801-18T2
8
Rendine v. Pantzer, 141 N.J. 292, 335-37, 343 (1995) (holding that after
establishing the lodestar, calculated by "the number of hours reasonably
expended [on the litigation] multiplied by a reasonable hourly rate," the trial
court should consider whether to increase that fee by awarding a contingency
fee enhancement "in typical contingency cases ranging between twenty and
thirty-five percent of the lodestar" in order "to reflect the risk of nonpayment
in all cases in which the attorney's compensation entirely or substantially is
contingent on a successful outcome.").
In an accompanying forty-eight-page statement of reasons, 3 the judge
applied the governing principles and determined that in accordance with
Rendine, 141 N.J. at 337, "the lodestar method," was "the proper way to
determine attorneys' fees," as opposed to "the percentage recovery method,"
urged by defendants. Regarding the hourly rate, the judge stated she could not
"deny that the attorneys are experienced, and that they received a positive
result." However, the judge stressed that there was nothing particularly "novel
or complex" about the case, and expressed concerns about "the number of
attorneys and firms" working on the case and "the amount of time . . . Wolf
and McGinn spent reviewing and editing documents which other attorneys also
3
We note the length of the judge's written decision to point out that the judge
clearly gave careful thought to her decision, and we intend no criticism of her
painstaking and conscientious efforts.
A-3801-18T2
9
reviewed and edited," noting that the "constant oversight and review of another
senior attorney's work" was an "inefficient and unreasonable [practice]."
Turning to the supporting certifications submitted by Class Counsel, the
judge pointed out that although Wolf "provide[d] biographies" for the other
attorneys in his firm, "for the most part," his certification "provide[d] no
meaningful information" regarding whether the other attorneys' rates were
approved "in each of th[e] cases" in which Wolf had "received the requested
fees." The judge also noted that while "Shapiro attest[ed] to the 'consistency'
of hourly rates of the Wolf firm to his firm," his certification contained
"absolutely no analysis but rather[] only conclusory assertions" and
"appear[ed] to be a form certification that could be quickly issued in any case
for any counsel." Further, according to the judge, the Keefe certification
"found that the Wolf Firm rates . . . for partners and . . . associates" were
"reasonable" in "a completely unrelated 2015 case" that was "venued in
Middlesex County," not Monmouth County like this case. Likewise, the Lite
certification "concluded that the 2009-blended Wolf Firm rate . . . was
reasonable in a case venued in Middlesex County." In sum, the judge found it
particularly relevant that "not one of the [three] certifications provide[d] a
modicum of detail regarding this particular case," or "opine[d] on the
reasonableness of [McGinn's] rates."
A-3801-18T2
10
Further, the judge distinguished the two judicial opinions submitted by
Class Counsel, finding that "Judges Hely and [Viscomi's] decisions were not
instructive in determining the reasonableness of the fees requested here." On
the other hand, the judge cited four unpublished cases, including the case cited
by defendants, and indicated that she was "[r]elying on the . . . case[s]" in part
to adjust Class Counsel's hourly rates. In that regard, the judge stated:
Despite the lack of evidence to support their
rates, the court has reviewed recent case law to
determine some facts that other courts considered in
an effort to set the appropriate fee where class counsel
sought more than $500 an hour. See [In re Johnson &
Johnson, 2013 U.S. Dist. LEXIS 180822, at *225-26
(D.N.J. June 13, 2013)] (setting $750 as a reasonable
rate and ceiling for the lead attorney, who was from
Carella Byrne, which is located in Roseland, New
Jersey, had twenty-three years of complex federal and
state litigation); [4] Educ[.] Station Day Care Ctr. [Inc.
v. Yellow Book USA, Inc.], 2007 N.J. Super. Unpub.
LEXIS 1607[,] at *20 [(App. Div. May 1, 2007)]
(stating that [a] former Supreme Court Justice's rate of
$550 per hour was "not disproportionate considering
the vastness, preparedness and expertise necessary for
this type of settlement"); Cohen v. Perelman, 2015
N.J. Super. Unpub. LEXIS 657[,] at *17 (Law Div.
Mar. 16, 2015) (decreasing Greenbaum Rowe's named
partner's contract billing rate of $725 down to $580,
which represented an adjustment of approximately
[twenty percent]); and Shelton[, 2016 U.S. Dist.
4
The judge also pointed out that in Johnson, "the proponents of the fee award
provided certifications but did not provide any analysis, which is precisely
what occurred here. Consequently, the court declined to rely on those
affidavits because the affidavits' references to other courts' approvals of the
firms' hourly rates were lacking in details."
A-3801-18T2
11
LEXIS 176785, at *12-18] (declining to award [the]
same fees being sought in this case for many of the
same attorneys and instead awarding a range of
between $290 and $520, albeit based upon a different
analysis).
In addition to considering the four unpublished cases, the judge "[relied]
on . . . [her] fifteen years of private practice [experience]," and analyzed "the
parties' submissions as well as other factors expressed in [RPC] 1.5(a)." Based
on her detailed analysis, the judge concluded that "Class Counsel ha[d] not met
their burden of demonstrating the customary rate for this type of work," and
had "not even define[d] . . . the community at issue." Therefore, the judge
reduced the attorneys' and the paralegal's hourly rates as follows: (1) Wolf's
rate from $765 to $575; (2) Wolfe's rate from $625 to $500; (3) Patel's rate
from $550 to $475; (4) Li's rate from $525 to $450; (5) Thomas's rate from
$365 to $275; (6) Oorbeek's rate from $360 to $270; (7) Mercado's rate from
$250 to $225; (8) the paralegal's rate from $165 5 to $125; and (9) McGinn's
rate from $500 to $475.
This appeal followed, in which plaintiff argues that "[d]espite the
paucity of evidence to contradict Class Counsel's submissions," the judge "set
new lower rates for all attorneys and paralegals" contrary to "the evidence
driven process required by Rendine." Additionally, according to plaintiff, by
5
The judge's statement of reasons lists the paralegal's hourly rate at $160
whereas Class Counsel's billing records indicate a rate of $165.
A-3801-18T2
12
"relying on facts gleaned from an unrepresentative sample of old, unpublished
decisions" as well as "prior experience while in private practice," the judge
abused her discretion.
"We invest our trial courts with wide latitude in resolving attorney-fee
applications." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25 (2004). As a
result, "fee determinations by trial courts will be disturbed only on the rarest
occasions, and then only because of a clear abuse of discretion." Rendine, 141
N.J. at 317. "[A]buse of discretion is demonstrated if the discretionary act was
not premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)
(citing Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Thus, we have stated that "[w]here the [trial] court's determination of
fees was based on irrelevant or inappropriate factors, or amounts to a clear
error in judgment," we "should intervene." Garmeaux v. DNV Concepts, Inc.,
448 N.J. Super. 148, 155-56 (App. Div. 2016) (citing Masone, 382 N.J. Super.
at 193). We have also stated that where "the methodology used by the judge is
untethered to the standards adopted by our Supreme Court for determining an
award of counsel fees," the "ultimate conclusions reached by the judge" are
A-3801-18T2
13
"thus arbitrary" and reversible. Jacobs v. Mark Lindsay & Son Plumbing &
Heating, Inc., 458 N.J. Super. 194, 210-11 (App. Div. 2019).
"The starting point in awarding attorneys' fees is the determination of the
'lodestar,' which equals the 'number of hours reasonably expended multiplied
by a reasonable hourly rate.'" Furst, 182 N.J. at 21 (quoting Rendine, 141 N.J.
at 335). While the trial court must consider the factors in RPC 1.5(a)6 "[i]n
determining the reasonableness of a fee," Stoney v. Maple Shade Twp., 426
N.J. Super. 297, 318 (App. Div. 2012) (citing Furst, 182 N.J. at 22),
the trial court's determination of the lodestar amount is
the most significant element in the award of a
reasonable fee because that function requires the trial
6
RPC 1.5(a) sets forth the following factors necessary to determine whether
an attorney fee is reasonable:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal
services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and
length of the professional relationship with the client;
(7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8)
whether the fee is fixed or contingent.
Rule 4:42-9(b) requires an attorney to submit an affidavit of services
addressing the factors listed in RPC 1.5(a).
A-3801-18T2
14
court to evaluate carefully and critically the aggregate
hours and specific hourly rates advanced by counsel
for the prevailing party to support the fee application.
[Rendine, 141 N.J. at 335.]
See also Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 366 (1995)
("[A] trial court should carefully and closely examine the lodestar-fee request
to verify that the attorney's hours were reasonably expended.").
In that regard, trial courts "should not accept passively the submissions
of counsel to support the lodestar amount." Rendine, 141 N.J. at 335. Instead,
"the attorney's presentation of billable hours should be set forth in sufficient
detail to permit the trial court to ascertain the manner in which the billable
hours were divided among the various counsel" and the trial court must
"determine whether the assigned hourly rates for the participating attorneys are
reasonable." Id. at 337.
Generally, a reasonable hourly rate is to
be calculated according to the prevailing
market rates in the relevant community.
Thus, the court should assess the
experience and skill of the prevailing
party's attorneys and compare their rates
to the rates prevailing in the community
for similar services by lawyers of
reasonably comparable skill, experience,
and reputation.
That determination need not be unnecessarily complex
or protracted, but the trial court should satisfy itself
that the assigned hourly rates are fair, realistic, and
A-3801-18T2
15
accurate, or should make appropriate adjustments. To
take into account delay in payment, the hourly rate at
which compensation is to be awarded should be based
on current rates rather than those in effect when the
services were performed.
[Ibid. (quoting Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990)).]
"The party seeking attorney's fees has the burden to prove that its request
for attorney's fees is reasonable." Rode, 892 F.2d at 1183. "To meet its
burden, the fee petitioner must 'submit evidence supporting the hours worked
and rates claimed.'" Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). "In a statutory fee case," such as this one, "the party opposing the fee
award then has the burden to challenge, by affidavit or brief with sufficient
specificity to give fee applicants notice, the reasonableness of the requested
fee." Ibid.
In Rendine, the plaintiffs prevailed in an employment discrimination
case tried to a jury, and on appeal. 141 N.J. at 298. Our Supreme Court
granted the defendant's petition for certification challenging counsel fees,
among other issues. Ibid. In setting forth the facts relevant to the trial court's
award of counsel fees, the Court stated:
To support the reasonableness of their lodestar
fee, plaintiffs' counsel submitted certifications by
several lawyers in their own firm attesting that the
hourly rates used to calculate the lodestar were
consistent with the standard hourly rates for the
A-3801-18T2
16
participating lawyers. In addition, plaintiffs' counsel
submitted certifications from three experienced
employment-law practitioners from other law firms
who had provided estimates of the hours required to
litigate a plaintiff's employment-discrimination case,
and the estimates either exceeded or approximated the
hours expended by plaintiffs' counsel. Those
unaffiliated lawyers also certified that the hourly rates
billed by the attorneys that had worked on the
litigation appeared to be reasonable and consistent
with rates charged by lawyers of comparable seniority
and experience. Although defendant did not
specifically challenge the reasonableness of the hourly
rates used to calculate plaintiffs' counsel's lodestar fee,
defendant contended that the hours expended,
especially those devoted to pretrial discovery and
preparation, were excessive and should be reduced
significantly. The trial court concluded, however, that
the total number of hours expended by plaintiffs'
counsel was reasonable, as were the hourly rates,
which resulted in the trial court's acceptance of the
lodestar fee of $114,334.25.
[Id. at 318-19.]
Although the Court ultimately reduced the contingency fee enhancement
applied to the lodestar by the trial court, the lodestar remained intact. Id. at
345.
In Walker v. Giuffre, the Court reaffirmed "the continuing validity of the
Rendine approach," and held that "Rendine shall remain in full force and effect
as the governing principles for attorneys' fee awards made pursuant to fee -
shifting provisions in our state statutes and rules." 209 N.J. 124, 128 -29
(2012). Although the Court reversed the Appellate Division's order vacating
A-3801-18T2
17
and remanding the award of counsel fees to Walker's attorneys for reasons not
germane to this appeal, the Court did not question the Appellate Division's
complete rejection of the trial judge's reliance on "'personal opinion . . .
predicated solely on [the judge's] own professional experiences'" to "'satisfy
the analysis required . . . under Rendine to determine a reasonable hourly
rate.'" Id. at 146 (quoting Walker v. Giuffre, 415 N.J. Super. 597, 607 (App.
Div. 2010)).
Here, to support the fee application, Class Counsel submitted
certifications by the lead attorneys, both highly experienced in class action
consumer protection litigation, attesting that the hourly rates were consistent
with their standard hourly rates and had been previously approved in several
New Jersey state and federal cases. In addition, Class Counsel submitted
certifications from three experienced unaffiliated practitioners who also
certified that the hourly rates billed by the attorneys working on the litigation
were reasonable and consistent with rates charged in the community by
lawyers of comparable seniority and experience. In that regard, other than
referring to the hourly rate of one of defendants' attorneys, defense counsel's
certification did not dispute Class Counsel's submissions. Indeed, the judge
even commented that "[d]efendants could have facilitated the analysis by
providing certifications as to what the local or customary fee [was]."
A-3801-18T2
18
Class Counsel's undisputed submissions mirrored the certifications
deemed acceptable in Rendine. In rejecting Class Counsel's submissions and
reducing the hourly rate for all the attorneys and the paralegal, the judge relied
on her personal experience in private practice, a methodology rejected in
Walker, 209 N.J. at 146, and considered four unpublished decisions. See
Brundage v. Estate of Carambio, 195 N.J. 575, 592-93 (2008) (acknowledging
that Rule 1:36-3 "provides that '[n]o unpublished opinion shall constitute
precedent or be binding upon any court.'" (alteration in original) (quoting R.
1:36-3)). Under these circumstances, we are persuaded that the judge's
reduction of the hourly rates was based upon consideration of inappropriate
factors, and thus reflects a mistaken exercise of discretion. Accordingly, we
are constrained to reverse and remand for reconsideration of the counsel fee
award.7
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
7
In remanding this matter, we make no finding or suggestion about what
hourly rates ultimately should be deemed reasonable for this kind of case.
A-3801-18T2
19