Wednesday, July 29, 2020

Class Counsel Fee Reduction Reversed

A reduction of class counsel attorneys fees was reversed by the New Jersey Appellate Division

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]."

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on her personal experience in private practice, a methodology rejected in Walker, 209 N.J. at 146, and considered four unpublished decisions. See Brundage v. Estate of Carambio, 195 N.J. 575, 592-93 (2008) (acknowledging that Rule 1:36-3 "provides that '[n]o unpublished opinion shall constitute precedent or be binding upon any court.'"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.

(Mike Frisch)

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