EFTA Document EFTA01416838

NAME SEARCHED: Richard Kahn PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business, Legal and Compliance management. Also, all accounts involving PEPs must be escalated. Search: Result: RDC PCR BIS Yes No Hit Hit No Hit Hit Not Required Not Required No Not Required D&B Smartlinx Court Cases Results? Yes Not Required Results? be Required Yes Not Required Review by Legal May No Results Search not required Prepared by: Prachi Pawa Date: 06/19/2017 Research Analyst Instructions: 1. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We have attached the web link below for your convenience:Martindale-Hubbellhttp://www.martindale.com/xp/- Martindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your KYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. No VII. Smartlinx VIII. Court Cases EFTA01416838 No Click here for results: I. RDC Results II. PCR Results III. Negative Media IV. Non-Negative Media Reviewer Comments (as necessary): RDC alert (mail send separately) No PCR alert (Please see attached) There was no information found There was no information found V. Other Language Media Not Required VI. D&B Not Required Result Found(please see attached) Result Found(please see attached) For internal use only EFTA01416839 OFAC RESULTS RDC: 11602748 Alerted KYC 1791049 Richard Kahn Country:UNITED STATES Date of C20170637921902 Richard Kahn 12893128 NCA customised Closed No Hit 19/06/2017 BIS RESULTS Negative Media: There was no information found Non-Negative Media: There was no information found Other Language Media: Not Required Public Records: 1 OF 1 RECORD(S) FOR INFORMATIONAL PURPOSES ONLY Copyright 2017 LexisNexis a division of Reed Elsevier Inc. All Rights Reserved. Date: 6/16/2017 Report processed by: DEUTSCHE BANK AGI I For internal use only EFTA01416840 Page 2 Full Name Address KAHN, RICHARD DANIEL AL INFORMATION SSN Subject Summary Name Variations 1: KAHN, R 2: KAHN, RICHARD 3: KAHN, RICHARD D 4: KAHN, RICHARD DANIEL 5: KAHO, RICHARD D SSNs Summary No. SSN 1: DOBs OBs: ossi e -Mail Addresses Others Using SSN - 0 records found Address Summary - 16 records found No. Address EFTA01416841 EFTA01416842 Pa'e 3 EFTA01416843 Address For internal use only Dates Phone Dates Phone EFTA01416844 Census Data for Geographical Region Median Head of Household Age: 39 Median Income: $81,397 Median Home Value: $429,167 Median Education: 16 years Household Members None Listed Other Associates None Listed 3: Address Household Members None Listed Other Associates None Listed 4: Address Census Data for Geographical Region Median Head of Household Age: 36 Median Income: $28,140 Median Home Value: $78,195 Median Education: 12 years Household Members None Listed Other Associates None Listed 5: Address Census Data Data for Geographical Region Median Head of Household Age: 35 Median Income: $123,611 Median Home Value: $678,697 Median Education: 16 years Household Members None Listed Other Associates None Listed 6: EFTA01416845 Address Census Data for Geographical Region Median Head of Household Age: 38 Median Income: $225,720 For internal use only Dates 8/1996 - 11/2002 Phone Dates 1/1997 - 3/2003 Phone Dates 8/2007 - 8/2007 Phone Dates 12/2002 - 6/2008 Phone 3/2003 - 9/2008 EFTA01416846 Page 5 Median Home Value: $1,000,000 Median Education: 18 years Household Members BLITSTEIN, CAROL RUBIN KAHN, GARY E LIPUMA, ALISSA B Other Associates RUBIN, LUCILLE L 7: Address Er Census Data for Geographical Region Median Head of Household Age: 27 Median Income: $131,641 Median Home Value: $1,000,000 Median Education: 15 years Household Members None Listed Other Associates None Listed 8: Address M -I Census Data for Geographical Region Median Head of Household Age: 45 Median Income: $156,818 Median Home Value: $896,802 Median Education: 14 years Household Members None Listed Other Associates None Listed 9: Address Mn Census Data for Geographical Region Median Head of Household Age: 22 Median Income: $11,280 Median Home Value: $0 Median Education: 12 years Household Members None Listed Other Associates None Listed EFTA01416847 10: Address Mm• Census Data for Geographical Region For internal use only Dates 4/1995 - 2/1997 Phone Dates 5/1973 - 1/2000 Phone Dates 2/2000 - 2/2000 Phone Dates 2/2001 - 2/2001 Phone EFTA01416848 Page 6 Median Head of Household Age: 35 Median Income: $139,826 Median Home Value: $803,571 Median Education: 15 years Household Members None Listed Other Associates None Listed 11: Address Mmi Census Data for Geographical Region Median Head of Household Age: 46 Median Income: $106,250 Median Home Value: $504,854 Median Education: 13 years Household Members None Listed Other Associates None Listed 12: Address Census Data for Geographical Region Median Head of Household Age: 42 Median Income: $148,281 Median Home Value: $744,932 Median Education: 16 years Household Members KAHN, IRENE L Other Associates None Listed 13: Address Census Data for Geographical Region Median Head of Household Age: 22 Median Income: $17,885 Median Home Value: $0 Median Education: 13 years Household Members None Listed Other Associates None Listed EFTA01416849 14: Address SP - Census Data for Geographical Region For internal use only Dates 5/1973 - 5/1973 Phone Dates 8/1991 - 12/1991 Phone Dates 8/1990 - 10/1993 Phone Dates 6/1994 - 6/1994 Phone EFTA01416850 Page 7 Median Head of Household Age: 39 Median Income: $80,556 Median Home Value: $448,387 Median Education: 15 years Household Members None Listed Other Associates None Listed 15: Address Census Data for Geographical Region Median Head of Household Age: 38 Median Income: $208,387 Median Home Value: $965,909 Median Education: 15 years Household Members None Listed Other Associates None Listed 16: Address ME- Census Data for Geographical Re ion Median Head of Household Age: II Median Income: $123,316 Median Home Value: $1,000,000 Median Education: 16 years Household Members None Listed Other Associates None Listed Voter Registrations - 8 records found 1: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 2/5/2008 Party Affiliation: INDEPENDENT EFTA01416851 Active Status: ACTIVE 2: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: For internal use only Dates 2/2008 - 6/2017 Phone Dates Phone EFTA01416852 Pa e 8 SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 2/5/2008 Party Affiliation: REPUBLICAN 3: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 11/2/2010 Party Affiliation: INDEPENDENT Active Status: ACTIVE 4: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 11/2/2010 Party Affiliation: INDEPENDENCE Active Status: ACTIVE 5: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: Home Phone: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 11/8/2016 EFTA01416853 Party Affiliation: INDEPENDENCE Active Status: ACTIVE 6: New York Voter Registration Registrant Information For internal use only EFTA01416854 Page 9 Name: KAHN, RICHARD D Residential Address: Home Phone: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 2/5/2008 Party Affiliation: INDEPENDENT Active Status: ACTIVE 7: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 10/6/2003 Last Vote Date: 11/2/2004 Party Affiliation: REPUBLICAN Active Status: ACTIVE 8: New York Voter Registration Registrant Information Name: KAHN, RICHARD D Residential Address: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 9/6/1996 Party Affiliation: REPUBLICAN Driver Licenses - 0 records found Professional Licenses - 1 records found 1: Professional License Licensee Information Name: KAHN, RICHARD SSN: Address: Gender: M License Information License Type: CPA EFTA01416855 License Number: 078502 Health Care Providers - 0 records found Health Care Sanctions - 0 records found For internal use only EFTA01416856 Page 10 Pilot Licenses - 0 records found Sport Licenses - 0 records found Real Property - 0 records found Motor Vehicle Registrations - 5 records found 1: NY MVR Registrant Information Registrant: KAHN, RICHARD D DOB: Address: Registration Information Original Registration Date: 3/17/2011 Registration Date: 3/17/2011 Registration Expiration Date: 3/16/2013 Vehicle Information VIN: 1GNSKKE34BR274132 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2011 Make: Chevrolet Model: K1500 Series: SUBURBAN LTZ Body Style: 4 Dr Wagon Sport Utility Weight: 5827 Plate Information License Plate Type: Private License Plate Number: FHH6920 Plate State: NY Source Information Data Source: GOVERNMENTAL 2: NY MVR Vehicle Information VIN: 1GNSKKE34BR274132 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2011 Make: Chevrolet Model: K1500 Series: SUBURBAN LTZ Body Style: 4 Dr Wagon Sport Utility Weight: 5827 Owner Information Name: KAHN, RICHARD D DOB: Address: Title Information Title Transfer Date: 4/7/2011 Title Issue Date: 4/7/2011 Source Information EFTA01416857 Data Source: GOVERNMENTAL 3: NY MVR Registrant Information Registrant: KAHN, RICHARD D DOB: For internal use only EFTA01416858 Page 11 Address: Registration Information Original Registration Date: 5/22/2009 Registration Date: 5/22/2009 Registration Expiration Date: 7/8/2011 Vehicle Information VIN: SALMF15407A257934 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2007 Make: Land Rover Model: Range Series: ROVER HSE Body Style: 4 Dr Wagon Sport Utility Weight: 5701 Plate Information License Plate Type: Private Previous Plate Number: EAE1027 Previous Plate State: NY License Plate Number: EAE1027 Plate State: NY Source Information Data Source: GOVERNMENTAL 4: NY MVR Vehicle Information VIN: SALMF15407A257934 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2007 Make: Land Rover Model: Range Series: ROVER HSE Body Style: 4 Dr Wagon Sport Utility Weight: 5701 Owner Information Name: KAHN, RICHARD D DOB: Address: Title Information Title Transfer Date: 8/9/2007 Title Issue Date: 8/9/2007 Source Information Data Source: GOVERNMENTAL 5: NY MVR Registrant Information Registrant: KAHN, RICHARD D DOB: Address: EFTA01416859 Registration Information Original Registration Date: 12/7/2003 Registration Date: 12/7/2003 Registration Expiration Date: 1/6/2006 Vehicle Information VIN: SALPM16412A466707 For internal use only EFTA01416860 Page 12 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2002 Make: Land Rover Model: Range Series: ROVER HSE Body Style: 4 Dr Wagon Sport Utility Weight: 4960 Plate Information License Plate Type: Private Previous Plate Number: BEV5149 Previous Plate State: NY License Plate Number: BEV5149 Plate State: NY Source Information Data Source: GOVERNMENTAL Boats - 0 records found Aircraft - 0 records found Bankruptcy Information - 0 records found Judgments/Liens - 1 records found 1: NY Judgments and Liens Filings Debtor Information Name: KAHN, RICHARD SSN: Address: Creditor Information Name: SIBA R E L P Filing Information Jurisdiction: NY Amount: $1,783 Filing Date: 5/2/2000 Eviction Y Filing 1 Number: 20000072311 Type: CIVIL NEW FILING Agency: CIVIL COURT OF THE CITY OF NEW YORK Agency State: NY Agency County: NEW YORK UCC Liens - 0 records found Fictitious Businesses - 0 records found Notice Of Defaults - 0 records found Potential Relatives - 10 records found 1st Degree: 10 No. 1. Full Name MINSKY, LISA G • AKA KAHN, LISA G • AKA MINSKY, LISA G EFTA01416861 • AKA MINSKY, LISA GALE • AKA MINSKY, LISA G SSN: DOB: (Age: •) Address/Phone For internal use only EFTA01416862 Page 13 No. Full Name Address/Phone 2. KAHN, GARY E Deceased • AKA AHN, GARY E • AKA KHAN, G • AKA KAHAN, GARY SSN: DOB: (Age 3. BLITSTEIN, CAROL RUBIN • AKA KAHN, CAROL RUBIN • AKA RUBIN, CAROL JAYNE • AKA RUBIN, KAHN CAROL • AKA BLITSTEIN, CAROL JAYNE • AKA RUBIN, CAHN CAROL • AKA KAHN, C R • AKA RUBIN-KAHN, CAROL • AKA RUBIN, BLITSTEIN CAROL • AKA RUBIN CAHN, CAROL • AKA RUBIN KAHN, CAROL • AKA BLISTEIN, CAROL R • AKA LITSTEIN, CAROL R • AKA RUBINKAHN, CAROL SSN: DOB: ) 4. LIPUMA, ALISSA B • AKA KAHN, ALISSA B • AKA PUMA, ALISSA LI EFTA01416863 • AKA KAHNLIPUMA, ALISSA • AKA LIPUMA, AB • AKA LIPUMA, A • AKA KAHN-LIPUMA, ALISSA • AKA LI PUMA, ALISSA B • AKA KAHN, ALISSA L • AKA KHAN, ALISSA • AKA LI, ALISSA B • AKA LIPLUMA, ALISSA B • AKA LIPUMA, ALISSA P • AKA PUMA, ALISSA B LI • AKA KAHN, LIPUMA ALISSA SSN: For internal use only EFTA01416864 Page 14 No. 5. Full Name DOB: ) KAHN, IRENE L • AKA NUGENT, KAHN IRENE SSN: DOB: (Age 7. KAHN, GABRIELLE EVE SSN: 6. KAHN, IRWIN A • AKA KAHN, IRWIN A SSN: DOB: (Age: EFTA01416865 DOB: (Age: III' II . KAHN, IRWIN GRANTEE SSN: DOB: (Age For internal use only Address/Phone EFTA01416866 Page 15 No. 9. Full Name KAHN, IRWIN M • AKA KAHN, IRWIN K • AKA IRWIN, KAHN SSN:MMI DOB: (Age: MI Address/Phone 10. KAHN, FRANCINE L Deceased • AKA CAHN, FRANCINE L • AKA KAHN, FRAN • AKA LEA, KAHN • AKA KAHN, LEA SSN: DOB: (Ag Business Associates - 6 records found 1: ARC HOLDING INC. Name: KAHN, RICHARD Status: INACTIVE State: NY Corporation Number: 2558550 Descriptive Status: INACTIVE Record Type: CURRENT Record Date: 4/18/2017 Filing Date: 9/29/2000 2: ARKAY CAPITAL CORP. Name: KAHN, RICHARD Status: ACTIVE State: NY Corporation Number: 2515783 Descriptive Status: ACTIVE Record Type: CURRENT Record Date: 4/18/2017 EFTA01416867 Filing Date: 5/31/2000 3: HBRK ASSOCIATES INC. Name: KAHN, RICHARD Status: ACTIVE State: NY Corporation Number: 3714818 Descriptive Status: ACTIVE Record Type: CURRENT Record Date: 4/18/2017 For internal use only EFTA01416868 Page 16 Filing Date: 8/29/2008 4: K & F CAPITAL CORP. Name: KAHN, RICHARD Status: INACTIVE State: NY Corporation Number: 2516183 Descriptive Status: INACTIVE Record Type: CURRENT Record Date: 4/18/2017 Filing Date: 6/1/2000 5: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Status: INACTIVE State: NY Corporation Number: 2558561 Descriptive Status: INACTIVE Record Type: CURRENT Record Date: 4/18/2017 Filing Date: 9/29/2000 6: THE C.O.U.Q. FOUNDATION, INC. Name: KAHN, RICHARD Status: INACTIVE State: FL Corporation Number: F08000003048 Descriptive Status: INACTIVE Title: DIRECTOR, TREASURER Record Type: CURRENT Record Date: 12/5/2016 Filing Date: 9/23/2011 Person Associates - 4 records found No. Full Name Address 1: RUBIN, LUCILLE L 2: RUBIN, ISAAC 3 EFTA01416869 RUBIN, I RUBBIN, ISAAC RUBIN, ISAAC RUBIN, JUDGE I EFTA01416870 Page 17 No. Full Name Address 3: SCHEFFLER, ADAM CRAIG SCHEFELER, ADAM C SCHEFFLER, A C SCHLEFFLER, ADAM SHEFFLER, ADAM SCHEFFER, ADAM SHEFFLER, DAM • RUBIN. LUCILLE L Nei•hbors - 9 records found Name MAURO, ANDREA F JR MAURO, CHARLES L JR NEU, CHLOE NEU, FRANCINE M NEU, ROBERT T BENDALL, B J BENDALL, PAULA A LACY, JOHN MOEDER, ALYSSA C MOEDER, CHARLES W ODELL, MRSSPETER M ABRAHAMSON, L R EFTA01416871 BARONOFF, KENNETH D Address SSN Phone DOB For internal use only EFTA01416872 Page 18 MINSKY, LISA G WESELEY, MATTHEW D HENRIPIN, DANIELLE Employment Locator - 24 records found 1: Company Name: ARKAY CAPITAL CORP. Name: KAHN, RICHARD SSN: Confidence: Medium 2: Company Name: HBRK ASSOCIATES INC. Name: KAHN, RICHARD SSN: Confidence: Medium 3: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD SSN: Confidence: Medium 4: Company Name: ARC HOLDING INC. Name: KAHN, RICHARD SSN: Confidence: Medium 5: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD SSN: Confidence: Medium 6: Company Name: K & F CAPITAL CORP. Name: KAHN, RICHARD SSN: Confidence: Medium 7: Company Name: THE C O.U.Q. FOUNDATION, INC. Name: KAHN, RICHARD Title: DIRECTOR, TREASURER SSN: Confidence: Medium 8: Company Name: THE C.O.U.Q. FOUNDATION, INC. Name: KAHN, RICHARD EFTA01416873 Title: DIRECTOR SSN: Confidence: Medium 9: Company Name: HBRK ASSOCIATES INC. For internal use only EFTA01416874 Page 19 Name: KAHN, RICHARD SSN: Phone: Confidence: High 10: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Address: SSN: Confidence: High 11: Company Name: ARC HOLDING INC. Name: KAHN, RICHARD SSN: Confidence: Medium 12: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Address: SSN: Confidence: High 13: Company Name: K & F CAPITAL CORP. Name: KAHN, RICHARD SSN: Confidence: Medium 14: Company Name: ARKAY CAPITAL CORP. Name: KAHN, RICHARD SSN: Phone: Confidence:ii•im 15: Company Name: ALASKA FREEDOM FISHN Name: KAHN, RICHARD SSN: Confidence: High EFTA01416875 16: Company Name: ALASKA FREEDOM FISHN Name: KAHN, RICHARD Title: CONTACT Address: For interns use on y EFTA01416876 Pa e 20 SSN: Confidence: High 17: Company Name: HBRK ASSOCIATES INC Name: KAHN, RICHARD Title: CONTACT Address: SSN: Phone: Confidence: High 18: Company Name: HBRK ASSOCIATES INC Name: KAHN, RICHARD Title: CONTACT Address: SSN: Phone: Confidence: High 19: Company Name: RDK ASSET MANAGEMENT INC Name: KAHN, RICHARD Title: CONTACT Address: SSN: Confidence: High 20: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Title: CHAIRMAN OR CHIEF EXECUTIVE OFFICER Address: SSN: Confidence: High 21: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Title: CHAIRMAN OR CHIEF EXECUTIVE OFFICER Address: SSN: Confidence: High 22: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Title: PRINCIPAL EXECUTIVE OFFICE CONTACT Address: EFTA01416877 SSN: Confidence: High 23: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD For internal use only EFTA01416878 Page 21 Title: PRINCIPAL EXECUTIVE OFFICE CONTACT Address: SSN: Confidence: High 24: Company Name: RDK ASSET MANAGEMENT INC. Name: KAHN, RICHARD Title: PROCESS ADDRESS CONTACT Address: SSN: Confidence: High Criminal Filings - 0 records found Cellular & Alternate Phones - 1 records found 1: Personal Information Name: KAHN, RICHARD Address: Phone Number: Phone Type: Mobile Carrier Information Carrier: VERIZON WIRELESS-NY Carrier City: NEW YORK CITY Carrier State: NY Sources - 83 records found All Sources Corporate Affiliations Email addresses Historical Person Locator Liens and Judgments Motor Vehicle Registrations Person Locator 1 Person Locator 2 Person Locator 4 Phone PhonesPlus Records Professional Licenses Voter Registrations 83 Source Document(s) 6 Source Document(s) 10 Source Document(s) 30 Source Document(s) 1 Source Document(s) 6 Source Document(s) 7 Source Document(s) 6 Source Document(s) 1 Source Document(s) 6 Source Document(s) EFTA01416879 1 Source Document(s) 1 Source Document(s) 8 Source Document(s) D&B: Not Required For internal use only EFTA01416880 Page 2 Worldbase, 11/30/2013, THE RELATED COMPANIES LP LEGAL RESULTS: Court Cases: Copyright 2017 Info4C, All Rights Reserved Watchlists and Blacklists June 9, 2017 Richard Kahn SOURCE: COUNTRY: United States of America LIST NAME: NYSE Arca Enforcement AUTHORITY: New York Stock Exchange * * * * * * * * * * * * * * PERSONAL INFORMATION * * * * * * * * * * * * * * * COUNTRY: United States of America ADDITIONAL INFORMATION: Decision number: 12-ARCA-3 * * * * * * * * * * * * * * * * OTHER INFORMATION * * * * * * * * * * * * * * * LIST INFORMATION: ENTITY TYPE: I DATE OF PUBLICATION: April 20, 2012 LIST NAME: NYSE Arca Enforcement DATE OF INFORMATION: January 23, 2017 CASE: Name on the list of Arca Disciplinary Actions (Position: ETP Holder Limited Partner) COUNTRY: United States of America For internal use only EFTA01416881 Page 2 Watchlists and Blacklists June 9, 2017 LOAD-DATE: June 9, 2017 JOSHUA SKEEN and LAURIE FREEMAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. BMW OF NORTH AMERICA, LLC, a Delaware limited liability company; BMW (U.S.) HOLDING CORP., a Delaware corporation; and BAYERISCHE MOTORENWERK AKTIENGESELLSCHAFT, a foreign corporation, Defendants. Civ. No. 2:13-cv-1531-WHW-CLW UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 2016 U.S. Dist. LEXIS 97188 July 26, 2016, Decided July 26, 2016, Filed NOTICE: NOT FOR PUBLICATION PRIOR HISTORY: Skeen v. BMW of N. Am., LLC, 2014 U.S. Dist. LEXIS 9256 (D.N.J., 2014) CORE TERMS: settlement, attorneys' fees, repair, lodestar, timing chain, notice, billing rate, warranty, reimbursement, class action, settlement agreement, per hour, tensioner, class members, engine, documentation, final approval, replacement, billable, calculation, approving, paralegal, mileage, multiplier, partner, weigh, percentage-of- recovery, discovery, billed, oil COUNSEL: [*1] KUNAL A. MIRCHANDANI, Objector, Pro se, LIGHTHOUSE POINT, FL. JODY WILLIAMS, Objector, Pro se, SAN CARLOS, CA. RICHARD ELLENBOGEN, Objector, Pro se, OLD GREENWICH, CT. JERRY D. PHILLIPS, Objector, Pro se, HEALDSBURG, CA. THOMAS BRISCHLER, Objector, Pro se, MILLER PLACE, NY. ANTHONY MAZZARELLA, Objector, Pro se, MARS, PA. For internal use only EFTA01416882 Page 3 2016 U.S. Dist. LEXIS 97188, * JENEAN C. CORDON, Objector, Pro se, NORTH OAKS, MN. OONA ROBINSON, Objector, Pro se, WESTPORT, CT. GARY L. KAUFMAN, Objector, Pro se, LENEXA, KS. LATONYA CURTIS, Objector, Pro se, UPPER MARLBORO, MA. JAMYE C. BROWN, Objector, Pro se, ACWORTH, GA. JAMES M. WARD, Objector, Pro se, MARYSVILLE, OH. GREGORY MUNRO, Objector, Pro se, MISSOULA, MT. JOHN NEMELKA, Objector, Pro se, PROVO, UT. JAMES JONES, Objector, Pro se, HONOLULU, HI. SHIRLEY STIPE-ZENDLE, Objector, Pro se, SALEM, NC. JULIE ANNE CLIFFORD, Objector, Pro se, LAKE HAVASU CITY, AZ. DONALD MANN, Objector, Pro se, PITTSBURGH, PA. ROBIN MACKEY, Objector, Pro se, SAN FRANCISCO, CA. For JOSHUA SKEEN, LAURIE FREEMAN, on behalf of themselves and all others similarly situated, Plaintiffs: JEFFREY ALAN KONCIUS, LEAD ATTORNEY, Kiesel Law LLP, Beverly Hills, CA; WILLIAM J. PINILIS, LEAD ATTORNEY, PINILIS HALPERN, MORRISTOWN, NJ. For Scott Lamb, [*2] Gina Romaggi, Emmanuel Nomikos, Plaintiffs: WILLIAM J. PINILIS, LEAD ATTORNEY, PINILIS HALPERN, MORRISTOWN, NJ. For PATRICIA CURRAN, Plaintiff Consolidated: BRYAN L. CLOBES, LEAD ATTORNEY, CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP, PHILADELPHIA, PA; WILLIAM J. PINILIS, LEAD ATTORNEY, PINILIS HALPERN, MORRISTOWN, NJ. For BMW OF NORTH AMERICA, LLC, a Delaware limited liability company, BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, a foreign corporation, Defendant: CHRISTOPHER J. DALTON, ROSEMARY JOAN BRUNO, LEAD ATTORNEYS, BUCHANAN, INGERSOLL & ROONEY, PC, NEWARK, NJ; DANIEL ZEV RIVLIN, BUCHANAN INGERSOLL & ROONEY PC, NEW YORK, NY. For internal use only EFTA01416883 Page 4 2016 U.S. Dist. LEXIS 97188, * For BMW (US) HOLDING CORP., a Delaware corporation: CHRISTOPHER J. DALTON, ROSEMARY JOAN BRUNO, LEAD ATTORNEYS, BUCHANAN, INGERSOLL & ROONEY, PC, NEWARK, NJ. JUDGES: William H. Walls, Senior United States District Judge. OPINION BY: William H. Walls OPINION Walls, Senior District Judge In this class action arising from alleged defects in the MINI Cooper, a line of vehicles produced by Defendants BMW of North America, LLC, BMW (U.S.) Holding Corp., and Bayerische Motorenwerk Aktiengesellschaft, Plaintiffs move for final approval of the settlement between Defendants and a nationwide class of vehicle [*3] owners and an award of attorneys' fees and expenses. Defendants do not oppose the motion for final settlement approval but oppose, in part, the motion for attorneys' fees. After conducting a fairness hearing on July 14, 2016, the Court grants final certification of the settlement class, approves the settlement, and grants in part Plaintiffs' motion for attorneys' fees and expenses. FACTUAL AND PROCEDURAL HISTORY I. The second amended complaint A full factual and procedural background of this case is detailed in this Court's January 6, 2016 opinion and order granting preliminary approval of the settlement and is incorporated here. ECF No. 71. This case arises from claims regarding the MINI Cooper, a line of vehicles produced by Defendants. Plaintiffs are owners or lessees of MINI Coopers who allege that, at the time of purchase, their vehicles contained a latent defect in a part of the engine known as the "timing chain tensioner" which causes the part to fail prematurely, eventually requiring replacement of that part or even the entire engine. Second Amended Complaint, ECF No. 53 ¶¶ 6-7, 61. The cars at issue are "second generation" MINI Coopers with an N12 or N14 engine: the MINI Cooper [*4] R56 (Cooper Hardtop), 20072010 model years; the MINI Cooper R55 (MINI Clubman), 2008-2010 model years; and the MINI Cooper R57 (MINI Cooper Convertible), 2009-2010 model years. Id. at 2, ¶¶ 5152. Plaintiffs allege that Defendants made various misrepresentations and omissions in EFTA01416884 relation to the sales and marketing of the vehicles. Id. ¶¶ 49-50, 57, 64-66. Named Plaintiffs in this case include individuals from Georgia, Illinois, New Jersey, Minnesota, Arizona, Pennsylvania, Florida, New York, Texas, Tennessee, and Arkansas who purchased their vehicles between June 2007 and December 2011. Id. ¶¶ 15-41. In the second amended complaint, filed after this action was consolidated with another case dealing with similar subject matter, Curran v. BMW of North America, LLC, 2:13-cv-4625, see Order of Consolidation, ECF No. 36; and after the Court dismissed several federal and state law claims, see ECF No. 9; the named Plaintiffs bring claims on behalf of themselves and a nationwide class of individuals who leased or purchased the cars at issue. ECF No. For internal use only EFTA01416885 Page 5 2016 U.S. Dist. LEXIS 97188, * 53 at 1. Alternatively, the Plaintiffs bring claims on behalf of themselves and twelve statewide classes of individuals who leased or purchased the cars [*5] at issue in Arizona, Arkansas, California, Florida, Georgia, Illinois, Minnesota, New Jersey, New York, Pennsylvania, Texas, and Tennessee. Id. Plaintiffs bring a total of eighteen causes of action, including claims for breach of express warranty, id. ¶¶ 98-105, breach of implied warranty, id. ¶¶ 106-119, and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., id. ¶¶ 132-38, on behalf of themselves and the entire nationwide class. Plaintiffs also bring state law claims on behalf of the twelve statewide classes. Id. ¶¶ 120337. On April 17, 2014, Plaintiff Richard Kahn filed a putative class action against Defendants in the United States District Court for the Eastern District of New York dealing with similar subject matter. Kahn v. BMW of North America, LLC, 2:14-cv-02463-ADS-ARL. Plaintiff Kahn's action has not yet been consolidated with this one. II. The N14 Class settlement agreement On November 30, 2015, Plaintiffs filed an unopposed motion for preliminary approval of class settlement with respect to owners and lessees of vehicles with an N14 engine only (the "N14 Class"). ECF No. 70. On January 6, 2016, the Court granted preliminary approval, certifying the settling Class for purposes [*6] of settlement only and issuing instructions to begin notifying Class members. ECF No. 72. On July 14, 2016, the Court presided over a fairness hearing as required by Federal Rule of Civil Procedure 23(e). In the interim, 5,310 Class members submitted claims under the settlement, 23 class members objected to the settlement, and 123 opted out. P. Mot. Final Approval Settlement Agreement, Supp. Decl. Matthew J. McDermott in Support Supp. Mot. Approve Settlement ("Supp. McDermott Decl."), ECF No. 107-1 ¶¶ 13-18. No objections were raised at the fairness hearing. A. The N14 Class The settlement agreement defines the "N14 Class" and "N14 Vehicles" as: [a]ll persons or entities in the United States, the District of Columbia, EFTA01416886 and Puerto Rico who currently own or lease, or previously owned or leased, a model-year 2007 through 2009 MINI Cooper 'S' Hardtop (R56), a model-year 2008 through 2009 MINI Cooper 'S' Clubman (R55), or a model-year 2009 through 2010 MINI Cooper 'S' Convertible (R57) vehicle, manufactured at any time from start of production in November 2006 through July 2010. Declaration Raymond P. Boucher, ECF No. 69-3 Ex. 1, Settlement Agreement and Release at 4 (the "N14 Class Vehicles" and the "N14 Class"). Named Plaintiffs who [*7] purchased only vehicles containing N12 engines are not included in the N14 Class. Id. at 2 n.l. Also excluded from the N14 Class are: Defendants, as well as Defendants' affiliates, employees, officers and directors, attorneys, agents, insurers, their-party providers of extended warranty/service contracts, franchised dealers, independent repair/service facilities, fleet owners and operators, rental companies and vehicles, the attorneys representing Defendants in this case, the Judges and Mediator to whom this case is assigned and their immediate family members, all persons who request exclusion from (opt-out of) the Settlement, vehicles deemed a total loss (other than vehicles whose engines failed or were damaged due to timing-chain tensioner and/or timing chain failure), vehicles whose true mileage is unknown, all persons who previously released any claims encompassed in this Settlement, and vehicles transported outside the United States. Id. at 4-5. For internal use only EFTA01416887 Page 6 2016 U.S. Dist. LEXIS 97188, * B. The settlement terms 1. Relief for N14 Class members If the Court grants final approval to the settlement agreement, Defendants agree to dismiss this action with prejudice with respect to all Plaintiffs, and N14 Class members "will be forever barred and enjoined [*8] from pursuing any claims" resolved by the settlement. Id. at 16, 31-33. In consideration, Defendants have agreed to provide N14 Class members with four primary types of relief. First, N14 Class Vehicles will receive a warranty extension for the timing-chain tensioner and timing chain for seven years or 100,000 miles from the date when the vehicle was first placed into service, whichever comes first, subject to certain exceptions. Id. Second, N14 Class members who submit claims by the relevant deadlines are entitled to reimbursement for out-of-pocket expenses incurred before the effective settlement date for repair and/or replacement of the timing chain and/or timing-chain tensioner, subject to certain limitations. Id. at 17-18. Class members are entitled to 100% of costs incurred at authorized MINI dealers and up to $120 for timing-chain tensioners and $850 for timing chains repaired or replaced at independent service centers. Id. Third, N14 Class members who submit timely claims are entitled to reimbursement for up to $4,500 in out-of-pocket expenses incurred before the effective settlement date for repair and/or replacement of an engine because of timing-chain tensioner and/or timing chain failure, subject to [*9] discounts based on mileage and the amount of time since their vehicle was first placed into service, as well as certain other limitations. Id. at 19-20. Finally, N14 Class members who submit timely claims are entitled to compensation of up to $2,250 if they had to sell their vehicle at a loss before the effective settlement date due to an unrepaired damaged or failed engine caused by timing-chain tensioner and/or timing chain failure, again subject to discounts based on mileage and the time since their vehicle was first placed into service, as well as certain other limitations. Id. at 21-22. EFTA01416888 The settlement requires N14 Class members to complete and submit a claim form, either online or by mailing a hard copy, providing information and documentation about their N14 Vehicle(s), routine maintenance, repairs, and sale. P. Mot. Final Approval Settlement Agreement, ECF No. 92 at 15; see also Notice and Claim Form, Decl. Matthew 3. McDermott in Support Mot. Approve Settlement ("McDermott Declaration"), ECF No. 92-4 Ex. A. If the Court grants final approval to the settlement agreement, the Settlement Administrator will review each timely claim and initially decide whether to grant or deny each claim. ECF No. 92 at [*10] 15; ECF No. 92-4 Ex. A § K. Granted claims will be submitted to Defendants for final approval. ECF No. 92 at 15-16; Settlement Agreement and Release, ECF No. 69-3 Ex. 1 ¶ III.E.2. The Settlement Administrator will notify each Class member whose claim is denied, in whole or in part, of the reason for the denial and the steps the Class member may take to cure any deficiencies in his or her claim. ECF No 92 at 15; ECF No 69-3 Ex. 1 ¶ III.E.1. Class members who cannot cure the deficiencies may notify Class Counsel of their wish to appeal the denial, eventually submitting any dispute to an agreed-upon Special Master for a binding determination. ECF No. 92 at 16; ECF No. 69-3 Ex. 1 ¶ III.E.3. For internal use only EFTA01416889 Page 7 2016 U.S. Dist. LEXIS 97188, * 2. Attorneys' fees and expenses The Parties agreed that, if the Court grants final approval of the settlement agreement, Class Counsel may seek an award of up to $2,320,000 in fees and expenses. ECF No. 693 Ex. 1 ¶ VIII.B. Defendants will not object to an award of up to $1,820,000. Id. Class Counsel may also move for service awards of up to $4,000 for each of the Named Plaintiffs in the Class without objection from Defendants. Id. ¶ VIII.C. All attorneys' fees and expenses, service awards, and expenses [*11] incurred administering the settlement agreement shall be paid by Defendants in addition to, and will not reduce, any relief paid to Class members who submit valid claims. Id. ¶ VIII.A. C. Notice to N14 Class members In its order granting preliminary approval of the settlement agreement, this Court directed the parties to serve notice of the settlement on all N14 Class members by February 20, 2016, 45 days after the order, and set a deadline of June 20, 2016 for Class members to submit claims, request exclusion from the Class, or object to the settlement. ECF No. 72 at 2 The Parties selected Class Action Administration LLC ("CAA") as the Claims Administrator for this settlement. ECF No. 92-4 ¶ 1; ECF No. 107-1 ¶ 1. CAA located records for 186,031 N14 Class members representing 80,224 N14 Class Vehicles. ECF No. 92-4 ¶ 4. Of these, 185,582 records had mailing addresses, and 111,893 had email addresses. Id. CAA emailed notices of the settlement to addresses associated with 111,843 Class Vehicles on February 19, 2016 and 50 Class Vehicles on May 2, 2016. Id. ¶ 8. Delivery failed for 631 of these addresses, resulting in a success rate of over 94 percent. ECF No. 107-1 ¶ 4. Before February [*12] 19, 2016, CAA also established a website, www.TimingChainTensionerSettlement.com , containing information about the settlement and blank copies of the claim form for N14 Class members, ECF No. 92-4 ¶ 10, and a tollfree telephone number for Class members to seek information about the settlement. Id. ¶ 12. Telephone operators took 3,992 calls from Class members and other individuals between February 19, 2016 and July 6, 2016, and the website had 116,591 EFTA01416890 Because of a obtaining Class member see Letter Request for and claim forms 92-4 ¶ 6. CAA mailed an 26, 2016, 11,366 notice 2016, and 794 notice packets on May 19, 2016, for a total of to Class members. Id. After multiple attempts, delivery [*13] addresses, resulting in a success rate of over 96 percent. ECF No. 107-1 ¶ 7. At the request of the Parties, this Court extended the deadline for N14 Class members to submit claims to July 21, 2016 for Class members from Kansas, New Hampshire, Oklahoma, and Pennsylvania; ECF No. 89 at 1-2; August 29, 2016 for Class members For internal use only document downloads and page views during the same period. ECF No. 107-1 ¶¶ 6-9. "communication error" between the Parties and CAA and delays contact information from several state motor vehicle agencies, Supplemental Notice Program, ECF No. 88 at 1, CAA mailed notices to only 80,000 N14 Class members on February 19, 2016. ECF No. additional 92,201 notice packets packets on March 23, 2016, 1,221 to Class members on February notice packets on May 2, 185,582 notice packets mailed failed for 6,581 of these EFTA01416891 Page 8 2016 U.S. Dist. LEXIS 97188, * from Hawaii, id. at 2; and July 1, 2016 for all other Class members, id. at 2; and extended the deadline for all Class members to opt out of or object to the settlement to July 1, 2016. Id. at 1. CAA updated the settlement website to reflect the extended deadlines before June 20, 2016. ECF No. 107-1 ¶ 11. On June 20, 2016, CAA mailed supplemental notice postcards to a total of 13,141 Class members in Kansas, Oklahoma, New Hampshire, Pennsylvania, and Hawaii, and emailed a supplemental notice to all 111,893 email addresses on file. Id. ¶ 12. D. N14 Class member claims, requests for exclusion, and objections According to Plaintiffs, as of July 6, 2006, a total of 5,310 N14 Class members have submitted claims under the settlement agreement, and 2,064 claims have been approved. The remaining claims are under review or are awaiting supplemental documentation from Class members Id. ¶¶ 17-18. One [*14] hundred and twenty three Class members have opted out of the settlement, and 23 Class members have submitted objections to the settlement on various grounds. Id. at ¶¶ 13-16; see ECF Nos. 75, 77-85, 96-98, 100-01, 103-04, 106. The Court will address each of these objections individually in this opinion. E. Motions for final approval of settlement and attorneys' fees On May 19, 2016, Plaintiffs moved for an award of $2,320,000 in attorneys' fees and expenses for Class Counsel. ECF No. 86. Defendants filed a brief in opposition on June 16, 2016, arguing that the Court should award Class Counsel only $1,820,000 in attorneys' fees and expenses. ECF No. 90. On June 20, 2016, Plaintiffs filed an unopposed motion seeking an order granting final certification of the N14 Class for settlement purposes, final approval of the settlement, and relief for N14 Class members under the terms of the settlement agreement. ECF No. 92. Plaintiffs filed a supplemental motion on July 7, 2016 containing updated information about Class member responses and discussing objections filed after June 20, 2016. ECF No. 107. The Court held a fairness hearing regarding both issues as required by Federal Rule of EFTA01416892 Civil Procedure 23(e) on July 14, 2016. DISCUSSION [*15] Before granting approval of the settlement agreement, the Court must consider: (1) whether the N14 Class can be certified under Federal Rule of Civil Procedure 23; (2) whether notice to the Class was adequate; (3) whether the settlement is fair, reasonable, and adequate; and (4) whether Plaintiffs' proposed provision for attorneys' fees and costs is reasonable. I. Final Class certification is appropriate The Court earlier granted conditional N14 Class certification, and now "final settlement depends on the finding that the class met all the requisites of Rule 23." In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Products Liab. Litig. ("GM Truck Prods."), 55 F.3d 768, 797 (3d Cir. 1995). Under Rule 23(a), the Court must find that (1) the Class is so numerous For internal use only EFTA01416893 Page 9 2016 U.S. Dist. LEXIS 97188, * that joinder of all members is impracticable, (2) there are questions of law or fact common to the Class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the Class, and (4) the representative parties will fairly and adequately protect the interests of the Class. Fed. R. Civ. P. 23(a) Rule 23(b)(3), under which Plaintiffs seek class certification, additionally requires that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that [*16] a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). Plaintiffs bear the burden of demonstrating that Rule 23's requirements are met by a preponderance of the evidence, and the Court "must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 306 (3d Cir. 2008). 1. Numerosity Rule 23(a)(1) requires that it be impracticable to join all class members, but there is "no minimum number of members needed for a suit to proceed as a class action." Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 595 (3d Cir. 2012). Though Rule 23(a)(1) "requires examination of the specific facts of each case," the numerosity requirement is generally met "if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40." Id. (citations omitted). Here CAA identified 186,031 N14 Class members representing 80,224 N14 Class Vehicles. ECF No. 92-4. ¶ 4. The Court finds that the numerosity requirement is satisfied. 2. Commonality Under Rule 23(a)(2), the Named Plaintiffs must "share at least one question of law or fact with the grievances of the prospective class." Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001) (citations omitted). Class claims "must depend upon a common contention . . . of such a nature that it is capable of classwide [*17] resolution -- which means that determination of its truth or falsity will resolve an issue that is central EFTA01416894 to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011). The commonality requirement is met here. Because, as Plaintiffs represented when seeking preliminary approval of the settlement, "[a]ll Class Vehicles had the allegedly defective timing chain tensioner installed," P. Mot. Preliminary Approval, ECF No. 70 at 21, "the claims of the Class Representatives and the Settlement Class are predicated on the core common issue as to whether Defendants are liable for the damages suffered" by Class members as a result of the defective part. Id. 3. Typicality Under Rule 23(a)(3), the Named Plaintiffs' claims must be "typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). "The typical inquiry is intended to assess . . . whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented." Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57-58 (3d Cir. 1994). "This investigation properly focuses on the similarity of the legal theory and legal claims; the similarity of the For internal use only EFTA01416895 Page 10 2016 U.S. Dist. LEXIS 97188, * individual circumstances on which those theories and claims are based; and the extent to which the proposed representative [*18] may face significant unique or atypical defenses to her claims." In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 597-98 (3d Cir. 2009). Plaintiffs' claims, "for settlement purposes only," are identical to the Class claims. ECF No. 70 at 22. Plaintiffs Defendants knowingly placed Class Vehicles stream of commerce and refused to honor its Members assert the same or similar legal Id. The Court finds that the typicality requirement 4. Adequacy of representation The Court must determine whether adequately protect the interests of the class." Fed. R. Civ. considers whether the Named Plaintiffs have "the ability and the claims of the class vigorously, that [they have] obtained adequate conflict between the [Named Plaintiffs'] claims class." Hassine v. Jeffes, adequate. 846 F.2d 169, Plaintiffs 179 (3d Cir. 1988). In this case, counsel is claim that counsel are "exceedingly experienced and competent in complex litigation and have an established track record suits." [*19] ECF No. 70 at 22. As discussed, Plaintiffs' all N14 Class members, and Plaintiffs "have no at 23. Though the Named Plaintiffs stand to recover payments of $4,000 each above the other consideration provided in the proposed settlement, thereby out-recovering other Class members, "this amount accords with the effort Plaintiff[ s have] taken to purse the class' claims." Weissman v. Gutworth, 2015 U.S. Dist. LEXIS 8543, 2015 WL 333465 at *4 (D.N.J. May 26, 2015) (Walls, J.). The Court finds that the adequacy requirement of Rule 23(a)(4) is represent that 101 Class Members assert that containing the alleged defect into the warranty obligations" N14 and that "all Class theories of liability against is satisfied. "the representative Defendants." parties will fairly and P. 23(a)(4). The Court incentive to represent the counsel, and that there and those asserted is no on behalf of the in litigating complex class action claims are also representative of those of interests antagonistic to the class." Id. EFTA01416896 satisfied. 5. Rule 23(b)(3) Rule 23(b)(3) includes common to class members predominate and that a class action is superior to other efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). demands that "proposed classes representation." Amchem v. Windsor, 521 U.S. (1997). "[T]he focus of the predominance common as to all of the class members, harmed by the defendant's conduct." Sullivan (3d Cir. 2011). As explained, Plaintiffs alleged [*20] that Defendants installed the defective Vehicles. ECF No. 70 at 21. Because the claims of and/or state law -- proceed from this common factual turn on "(a) whether Defendants knew or should have known contained the For internal use only two requirements: that "questions of law or fact over any questions affecting only individual members, available methods for fairly and The are sufficiently cohesive 591, 624, 117 S. "predominance" requirement to warrant adjudication by Ct. 2231, 138 L. Ed. 2d 689 inquiry is on whether the defendant's conduct was and v. whether all DB in of the class members were Investments, their Inc., 667 F.3d 273, 298 motion for preliminary approval timing chain tensioner in all N14 Class each N14 Class member -- under federal nucleus, all of the claims uniformly that the Class Vehicles EFTA01416897 Page 11 2016 U.S. Dist. LEXIS 97188, * alleged defect when it placed them into the stream of commerce; (b) whether Defendants have a duty to honor its warranty on the Class Vehicles; and, (c) whether Defendants, in refusing to honor the Class Vehicles' warranty, violated applicable federal and state consumer protection laws." Id. at 24. The Court finds that these common questions of law or fact predominate over any questions affecting only individual class members. The Rule 23(b)(3) superiority terms of fairness and efficiency, the merits of available methods of adjudication." In re Warfarin 391 F.3d 516, 533-34 (3d Cir. 2004) (citations and quotations omitted). The Court "(1) the interest of individual members of the classes in controlling the prosecution of the action, (2) the extent of litigation [*21] commenced elsewhere by class members, (3) the desirability of concentrating claims in a given forum, and (4) the management difficulties likely to be encountered in pursuing the class Co., 543 F.3d 141, 149-50 (3d Cir. 2008). Considering these factors, the again superior method of adjudicating N14 Class members' relief to the class members and averts the undue their claims individually." Weissman, 2015 U.S. Out of the nearly 200,000 members of the N14 Class, over 5,000 submitted claims after receiving notice of the settlement. ECF No. 92 at 2. It is far more desirable to allow these Class members to obtain relief under the terms of the settlement in this district than to require them to file an additional 5,310 actions in courts across the country. And although Defendants admit that they faced some initial difficulties obtaining motor vehicle records and notifying Class members of the settlement, see ECF No. 88, the Court has no reason to doubt that "management difficulties" will prevent Defendants processing Class action." Court claims. costs Dist. requirement "asks the court to balance, in a class action against those of alternative Sodium Antitrust Litig. ("Warfarin Sodium"), Danvers Motor Co. v. Ford finds that a class action Motor is the The class action "offers prompt they would incur in prosecuting LEXIS 8543, 2015 WL 333465 at *5. from looks at EFTA01416898 members' claims. Because the Court has found that the proposed class action satisfies the requirements [*22] of Rules 23(a) and (b), the Court will certify the Class defined in the parties' settlement agreement. II. Class notice was proper Members of a class certified under Rule 23(b)(3) must be provided with "the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2)(B). Due process requires that notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." In re National Football League Players Concussion Injury Litig., 821 F.3d 410, 435 (3d Cir. 2016) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). The notice must "clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; For internal use only EFTA01416899 Page 12 2016 U.S. Dist. LEXIS 97188, * and (vii) the binding effect of a class judgment on members under Rule 23(c)- (3)." Fed. R. Civ. P. 23(c)(2)(6) The notice provided to N14 Class members met those requirements. It described the proposed settlement, its terms, and the nature of the claim filed on behalf [*23] of the Class. See 92-4 Ex. A. It also described Class members' right to be excluded from the settlement, to object, and to be heard at the final fairness hearing. Id. at 1, 6, 7. The notice also advised Class members of the binding effect the settlement would have on individuals who did not opt out of the Class. Id. at 6. Though the hearing was rescheduled from its original date, see ECF No. 76, the notice informed Class members that "the date and time of the hearing are likely to change" and directed them to visit the settlement website or call the toll-free number for updated information. Id. at 7. Class members were also provided with email notice of the change in hearing date and claim submission deadlines. See ECF No. 107-1 ¶ 12. Notice forms were emailed to 111,893 individuals and delivery failed for 631, for a 94 percent email success rate. ECF No. 107-1 ¶¶ 4-5. Notice forms were also mailed to 185,582 individuals, and 6,581 were returned as undeliverable, for a 96 percent success rate. Id. ¶¶ 3-3. The Court finds that the notice met the requirements of Fed. R. Civ. P. 23(c)(2)(6). See, e.g., Weissman, 2015 U.S. Dist. LEXIS 67477, 2015 WL 3384592, at *4 (Class notice was proper where Defendants mailed notice forms with 86 percent success rate). III. The settlement is fair, reasonable, and adequate [*24] A. Legal standard District courts must review settlement terms in a class action and, "if the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). The court "acts as a fiduciary, guarding the claims and rights of the absent class members." Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir. 2010). The Third Circuit Court of Appeals identified EFTA01416900 nine factors that bear on this analysis in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975): (1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation. For internal use only EFTA01416901 Page 13 2016 U.S. Dist. LEXIS 97188, * GM Truck Prods., 55 F.3d at 785-86 (citing Girsh, 521 F.2d at 157). In addition to the Girsh factors, the Third Circuit encourages district courts to consider additional factors, such as the probable outcome of a trial on the merits, the probable outcome of claims by other classes, and the reasonability of any provisions for attorneys' [*25] fees. In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions ("Prudential"), 148 F.3d 283, 323 (3d Cir. 1998). The "Prudential considerations are just that, prudential." In re Baby Products Antitrust Litig. ("Baby Products'), 708 F.3d 163, 174 (3d Cir. 2013). Finally, the Third Circuit has guided that an important consideration is "the degree of direct benefit provided to the class," including "the size of the individual awards compared to claimants' estimated damages." Id. Though a district court must vigorously protect the interests of absent class members, it also owes deference to a settlement as the negotiated agreement of private parties. As the Third Circuit explained, "[s]ettlements are private contracts reflecting negotiated compromises. The role of a district court is not to determine whether the settlement is the fairest possible resolution [but only whether] the compromises reflected in the settlement . . . are fair, reasonable and adequate when considered from the perspective of the class as a whole." Id. at 173-74 (citation omitted). B. Analysis The Court finds that the Girsh factors and Prudential considerations weigh in favor of approving the settlement. 1. Girsh factor one: Complexity and duration of litigation The first Girsh factor considers the complexity and likely [*26] duration of litigation without settlement. GM Truck Prods., 55 F.3d at 785. This factor favors approving a settlement when resolution of the claims by trial would require "additional discovery, extensive pretrial motions addressing complex factual and legal questions, and ultimately a complicated, lengthy trial." Warfarin Sodium, 391 F.3d at 536. The action here, which has been pending for over three years, would require the analysis of records from "hundreds of consumers," expert opinions on complex mechanical issues, and the resolution of claims EFTA01416902 under federal law and the laws of several different states. ECF No. 92 at 20-21. The first Girsh factor favors final approval of the settlement. 2. Girsh factor two: reaction of the Class The second Girsh factor "attempts to gauge whether members of the class support the settlement." Prudential, 148 F.3d at 318. Although the Third Circuit has warned that district courts should be "cautious about inferring support from a small number of objectors in a sophisticated settlement," Warfarin Sodium, 391 F.3d at 536 (quoting GM Truck Prods., 55 F.3d at 812), courts typically "analyze this factor by counting the number of objectors and weighing the vociferousness of their objections," as well as by counting the number of Class members who submit claims. Martina v. L.A. Fitness Intern., LLC, 2013 U.S. Dist. LEXIS 145285, 2013 WL 5567157, at *5 (D.N.J. Oct. 8, 2013) (Walls, J.) (citing Prudential, 148 F.3d at 318; GM Truck Prods., 55 F.3d at 812). For internal use only EFTA01416903 Page 14 2016 U.S. Dist. LEXIS 97188, * Of the 186,031 N14 Class [*27] members, 5,310 submitted claims, 123 opted out, and 23 submitted objections.1 ECF No. 107-11111 13-18. The percentage of Class members who submitted a claim is small, a factor that this Court has previously held may "cancel[ ] out" a low objection rate. Martina, 2013 U.S. Dist. LEXIS 145285, 2013 WL 5567157, at *5-6. As Plaintiffs point out, however, the low response rate in this case is perhaps expected: according to Defendants, the defect rate in Class Vehicles is "in the single digits," so the vast majority of Class members did not suffer harm and may have no reason to seek repair or replacement of their timing chains or timing chain tensioners. Id. at 21 n 9. 1 Plaintiffs reference 20 total objections, excluding the objections of Richard Ellenbogen, ECF No. 78, Timothy Fitzgerald, ECF No. 92-5 Ex. 11, and Donald Mann, ECF No. 104, for lack of standing because the three opted out of the N14 Class; the objection of Shirley M. Stipe-Zendle, ECF No. 102, because objection is actually an erroneously filed claim; and the objection of Marika Hamilton, ECF No. 107-2 Ex. 11 for unknown reasons; and including objections from Gerald Maloney and Sarah H. Beeby that have not been filed on ECF or otherwise provided to the Court. ECF No. 107-1 Ex. B. The Court considers the [*28] 23 objections that have been filed with or otherwise provided to the Court. Twenty-three Class members, or approximately 0.01 percent of Class, objected to the settlement. Most of the objectors argue either that (a) the settlement's warranty extension is inadequate because it does not cover their vehicles, or (b) the requirement that Class members provide documentation of their vehicles' service history to receive repair reimbursements is unduly burdensome The Court considers the 23 Class member objections individually: a. Objection of Kunal A. Mirchandani Class member Kunal A. Mirchandani submitted an objection on February 29, 2016, arguing that the settlement agreement puts an unreasonable burden on Class members to provide documentation of the service histories of their Class Vehicles. ECF No. 75. Mr. Mirchandani claims that the requirement that Class members document their Vehicles' maintenance and repair history to receive reimbursement is unfair to the owners of used vehicles, who may not have the previous owners' service records, as well as EFTA01416904 to individuals who "may simply have discarded the records." Id. at 2-3. Although Mr. Mirchandani acknowledges that Class members may submit an affidavit [*29] of service from a mechanic in lieu of other documentation, he argues that mechanics are unlikely to remember servicing vehicles and that requiring Class members to obtain multiple affidavits if multiple mechanics have serviced a Vehicle is unreasonable. Id. at 3-4. The Court agrees with Plaintiffs that the settlement's documentation requirement is not unreasonable. Plaintiffs claim that, even if individual mechanics do not recall servicing individual vehicles, "most, if not all, mechanics have access to a database . . . which would allow them to quickly and easily search the maintenance history of any given car that had service performed at that shop." ECF No. 92 at 22. The claims of 2,064 Class members have already been approved, demonstrating that the burden is not unduly onerous. ECF No. 107-1 1$ 17-18. Finally, despite Mr. Mirchandani's claim that "Defendant is in a better position [than Class members] to research and review service records through its own dealership network," ECF No. 75 at 2, Plaintiffs claim that Defendants are not in a better position because they "do not have a central registry of dealer records or access to them." ECF No. 92 at 22 For internal use only EFTA01416905 Page 15 2016 U.S. Dist. LEXIS 97188, * b. Objection of Jody Williams Class member [*30] Jody Williams filed an objection to the settlement agreement on March 10, 2016, arguing that the warranty extension provided by the settlement is too short and will not protect her 2007 MINI Cooper S hard top if it begins to "show signs of the timing chain problem in a year or two." ECF No. 77. Ms. Williams also states that she contacted her local MINI dealership to have her vehicle inspected, but that the dealership "won't even look at my vehicle unless it shows symptoms of the timing chain problem." Id. at 1. Plaintiffs do not deny that the warranty on Ms. Williams's vehicle, the very first model year in the Class, has already expired even under the extended terms of the settlement. ECF No. 92 at 22-23. The Court agrees with Plaintiffs, however, that the Court's job is "not to determine whether the settlement is the fairest possible resolution." Baby Products, 708 F.3d at 173 (emphasis added). With regard to the amount of relief offered under the settlement and the Class members receiving that relief, "lines must be drawn somewhere." ECF No. 92 at 23 (quoting Alin v. Honda Motor Co., Ltd., 2012 U.S. Dist. LEXIS 188223, 2012 8751045, at *12 (D.N.J. Apr. 13, 2012) (finding that class settlement with auto manufacturer was reasonable where the "largest [*31] category of objections comes from customers whose cars were too old, or had too many miles to be eligible for recovery according to the lines drawn in the agreement)). Ms. Williams does not convince the Court that the seven-year warranty provided by the settlement, though perhaps not the fairest possible resolution, is unreasonable. The limited warranty extension reflects the reality that cars decline in value over time. See, e.g, In re Dispirito, 371 B.R. 695, 701 n.6 (Bankr. D.N.J. 2007) ("Whether a vehicle is driven 30,000 miles a year, or only on Sundays by an elderly parent to go back and forth to church, there can be no dispute that a vehicle's value is likely to decrease daily."). A warranty extension need not be indefinite to be reasonable. In any event, the settlement provides Ms. Williams with other forms of EFTA01416906 relief: as Plaintiffs point out, the settlement allows Class members to receive reimbursement for repairs and replacements on their timing chains and timing chain tensioners regardless of the age or mileage of the Class Vehicle, along with a graduated reimbursement for engine replacements. ECF No. 92 at 22. According to Plaintiffs, Ms. Williams and other Class members had notice of the alleged defects in their vehicles and were [*32] encouraged to seek free inspections and repairs long before the beginning of the claims period: Defendants instructed Class members to seek inspections of their vehicles in October 2013, informing them that any necessary timing chain and tensioner repairs would be done "at no cost" to the Class members, and MINI mechanics were instructed to provide inspections and repairs of the timing chain and timing chain tensioner free of charge. Id. at 22-23; see also Decl. Raymond P. Boucher in Support P. Mot. Attorneys' Fees, ECF No. 86-6 Ex. 1 (sample letter informing Class member that "your vehicle may have been fitted with a faulty chain tensioner which may lead to an insufficiently tightened timing chain," instructing Class member to "contact your authorized MINI dealer at your earliest convenience to arrange an appointment," and informing Class member that "the repair will be done at no cost to you"). That Ms. Williams's dealership allegedly refused to inspect her For internal use only EFTA01416907 Page 16 2016 U.S. Dist. LEXIS 97188, * vehicle is troubling and may indicate non-compliance with the terms of the settlement agreement, but this does not affect the fairness, reasonability, or adequacy of the settlement itself. c. Objection of Richard I. Ellenbogen Richard I. Ellenbogen [*33] filed an objection on March 11, 2016, arguing that the settlement is unreasonable because the extended warranty does not cover vehicles, like his, that fall outside the time limit but have low mileage and may display defects in the future. ECF No. 78. Mr. Ellenbogen seeks either an extension of the warranty to 75,000 miles without regard to the number of years or a complete recall repair of all Class Vehicles. Id. Plaintiffs note that Mr. Ellenbogen submitted a written request for exclusion on June 22, 2016. See ECF No. 107-1 Ex. C (opt-out list identifying Mr. Ellenbogen). Because Mr. Ellenbogen has requested exclusion from the N14 Class, he no longer has standing to object to the settlement. In re Ins. Brokerage Antitrust Litig., 282 F.R.D. 92, 110 (D.N.J. 2012) ("The case law does not suggest that a class member requesting exclusion from a settlement may nonetheless object to that settlement.") d. Objection of Jerry D. Phillips Jerry D. Phillips filed an objection to the settlement on March 11, 2016, arguing that the service record documentation requirement is "particularly onerous" for the same reasons mentioned by Mr. Mirchandani, that MINI should turn over any service records it possesses to Class Members, and that the warranty extension is insufficient [*34] for the same reasons mentioned by Ms. Williams and Mr. Ellenbogen. ECF No. 79. For the reasons discussed, none of these arguments renders the settlement unfair, unreasonable, or inadequate.2 2 Mr. Phillips also claims that "MINI sold their customers an engine containing parts that were 100% guaranteed to fail; the only thing uncertain was when it would fail." ECF No. 79 at 1 (emphasis in original). The Court's fairness analysis might be different if the failure of each Class Vehicle were guaranteed. As discussed, however, Plaintiffs acknowledge that the defect rate of the Class Vehicles is merely "in the single digits," so the engines in most Class Vehicles will not fail because of the defect at issue. EFTA01416908 ECF No. 92 at 21. e. Objection of Thomas Brischler Thomas Brischler filed an objection on March 23, 2016, arguing again that the warranty extension is too short ECF No. 80. Mr. Brischler acknowledges that, even though his vehicle does not fall under the extended warranty, he is eligible for reimbursement for timing chain and timing chain tensioner repairs or reimbursements, but states that he has not sought repairs because he will not be entitled to reimbursement if this Court rejects the [*35] settlement agreement. Id. at 1-2. Mr. Brischler seeks a warranty extension and an extension of the claims period after the effective settlement date. Id. at 2. Mr. Brischler is correct that the finality of the settlement depends on the Court's approval, but this is not reason for the Court to withhold its approval. f. Objection of Anthony Mazzarella For internal use only EFTA01416909 Page 17 2016 U.S. Dist. LEXIS 97188, * Anthony Mazzarella filed an objection on April 8, 2016, arguing that his 2007 Base/Standard MINI Cooper, which is not a Class Vehicle, should be included in the N14 Class. ECF No. 81. As Plaintiffs argue, Mr. Mazzarella has no standing to make an objection on the basis of this vehicle because it is not a Class Vehicle. ECF No. 92 at 24. g. Objection of Jenean C. Cordon Jenean C. Cordon filed an objection on April 12, 2016, arguing that the warranty should be extended to ten years after the in-service date. ECF No. 82. For the reasons discussed, the Court finds that this does not demonstrate the settlement agreement is unreasonable, unfair, or inadequate. h. Objection of Oona Robinson Oona Robinson filed an objection on April 15, 2015, arguing that the settlement should "compensate people fully for the financial impact incurred" as a result of the alleged defects. [*36] ECF No. 83. Ms. Robinson seeks a payment of $49,500, representing approximately $4,500 in repairs for her Class Vehicle over five years of ownership and $45,000 that she spent on a new car to replace her Class Vehicle. To repeat, Ms. Robinson is entitled, with limitations, to reimbursement for repairs and replacement of the timing chain, tensioner, and engine. See ECF No. 92. As to Ms. Robinson's request that Defendants be required to compensate Class members in full for the purchase of "replacement" vehicles, the Court finds that this would be unreasonable: not only, as Plaintiffs argue, does this argument "not take into account the nature of a settlement," which generally involves some sort of compromise, ECF No. 92 at 25, but it would provide a windfall to Class members whose replacement vehicles were more expensive than their Class Vehicles. This requirement would also ignore that, because vehicles decline in value with time and mileage, individuals are always likely to spend some amount of money when purchasing a new vehicle to replace an old one, even if the old vehicle is free of defects. i. Objection of Gary Kaufman Gary Kaufman filed an objection on April 11, 2016, arguing that [*37] the warranty EFTA01416910 extension is inadequate because it does not cover his vehicle. ECF No. II. It is unclear whether, at the time he filed the objection, Mr. Kaufman had taken his vehicle in for repairs or whether he had declined to repair it, believing that he would have to pay for engine repairs himself. Id. at 1. In any event, the Court repeats that Mr. Kaufman, like all Class Members, is eligible for reimbursement for part repairs and replacements made before the effective date of the settlement. See ECF No. 92 at 25. j. Objection of LaTonya Curtis LaTonya Curtis filed an objection on May 16, 2016, arguing that the general terms of the settlement are insufficient. ECF No. 85. Ms. Curtis is the owner of a 2010 MINI Cooper Clubman S, which is not an N14 Class Vehicle. Ms. Curtis lacks standing to challenge the settlement. k. Objection of Timothy Fitzgerald For internal use only EFTA01416911 Page 18 2016 U.S. Dist. LEXIS 97188, * Timothy Fitzgerald submitted an objection to Defendants on June 3, 2016, arguing, for reasons already discussed, that the warranty extension is not long enough. ECF No. 92-5 Ex. 11. In the event the Court does not extend the warranty, Mr. Fitzgerald requests to be excluded from the N14 Class. Id. at 1 The Court grants this request. 1. Objection of James. [*38] M. Ward On June 13, 2016, James M. Ward filed an objection to the settlement, arguing that the settlement should include compensation for Class members who sold their Class Vehicles at a loss after repairing the engine. ECF No. 97. Mr. Ward seeks compensation for "all or part of the $18,559.43" price at which he bought his Class Vehicle. Id. at 1. Again, this objection ignores the reality that even non-defective cars decline in value after their purchase. As discussed, Mr. Ward is also entitled to reimbursement for repairs and replacements made on his Class Vehicle. m. Objection of Jamye C. Brown On June 20, 2016, Jamye C. Brown filed an objection to the settlement agreement, arguing again that the extended warranty is too short and does not cover her Class Vehicle and that the engine repair provision is unreasonable. ECF No. 96. Ms. Brown states that, in response to MINI's 2013 recall, she brought her vehicle to a "qualified Mini dealership," where the timing chain tensioner was repaired free of charge. See id. at 1, 5. Damage to the engine rendered the vehicle unusable, however, and Ms. Brown did not replace the engine because she would be entitled to reimbursement for only ten percent of the cost. See [*39] id. at 4, 5 (2009 model, 57,125 miles); ECF No. 92 at 13 (engine repair or replacement schedule). Again, the Court agrees with Plaintiffs that the reimbursement schedule and warranty limitation reflect a need to "draw the line" somewhere and the reality that vehicles decline in value over time. n. Objection of Gregory Munro On June 20, 2016, Gregory Munro filed an objection to the settlement. ECF No. 98. Mr. Munro, a law professor, argues that (a) the warranty extension is not long enough to EFTA01416912 provide relief to owners of old or high mileage Class Vehicles under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., (b) there has been "inadequate discovery into the conduct of defendants" regarding the alleged defects and defendants' knowledge of the defects, and (c) the settlement does not include reimbursement for other expenses, including towing charges, travel expenses, and the cost of substitute vehicles, that might be available as "consequential damages" in a tort action. Id. at 1. Mr. Munro also argues that the settlement agreement "does not address" an allegedly defective oil system in the Class Vehicles "that may have been a substantial factor in the timing chain failures." Id. at 4-5. Mr. Munro is correct that the owners of Class Vehicles [*40] who repaired or replaced failed engines or who sold their vehicles at a loss when the vehicles had certain combinations of mileage and age, see ECF No. 92 at 13, 14, are not entitled to compensation for the engine repairs or sales under the terms of the settlement. ECF No. For internal use only EFTA01416913 Page 19 2016 U.S. Dist. LEXIS 97188, * 98 at 2, 4. Mr. Munro claims this is unreasonable because the Magnuson-Moss Warranty Act "does not place mileage restrictions on the remedies for damages," so the settlement does not provide owners of high-mileage or older vehicles with the maximum award that they could collect under the statute. Id. at 2. Mr. Munro also argues that the settlement does not allow Class members to collect the "myriad consequential damages," such as towing and travel charges, that are sometimes available as tort remedies. Id. at 1. The Court repeats, however, that settlements need not provide maximum relief to be reasonable and fair. "Settlements are private contracts reflecting negotiated compromises," including the elimination of risk for both parties associated with litigation, and they need not be the "fairest possible resolution." Baby Products, 708 F.- 3d at 173. As the Court will explain, the eighth and ninth Girsh factors require the Court to weigh the "range of reasonableness [*41] of the settlement in light of the best recovery," against the "the range of reasonableness of the settlement in light of all the attendant risks of litigation." GM Truck Prods., 55 F.3d at 785. The Court analyzes the fairness of the settlement in light of these factors, not simply by looking at the "best recovery" alone. Mr. Munro also suggests that the settlement is unreasonable because the Parties did not engage in sufficient factual discovery. ECF No. 98 at 4. Mr. Munro claims that he submitted information about his vehicle to Class Counsel and was told that counsel would be "unable to provide any assistance." Id. As a result, he is "dubious about whether enough outreach" was performed "to allow any kind of a statistical analysis of the extent of the problem to advise the settlement." Id. The Court will not question the veracity of Plaintiffs' claim that "Plaintiffs' Counsel not only had the benefit of the input and service records from their approximately two dozen clients but also communicated with hundreds of consumers . . . who had experienced the defect." ECF No. 69-3 11 11. In any event, even if Class Counsel did not select Mr. Munro as a Named Plaintiff, Class Counsel did EFTA01416914 communicate with Mr. Munro and did [*42] receive information from him about his vehicle. Mr. Munro also speculates that because "defendants made no responses to the discovery propounded to them and no depositions were taken," Plaintiffs had little factual basis for their settlement. ECF No. 98 at 4. As the Court will discuss in its analysis of Girsh factor three, however, other courts have found this amount of discovery adequate to support a settlement agreement. Finally, Mr. Munro objects to the settlement because it does not require Defendants to disclose that the Class Vehicles featured an allegedly defective oil system, including dip sticks that are "difficult if not impossible to read." ECF No. 98 at 4. Mr. Munro claims this oil system "may have been a substantial factor in the timing chain failures." Id. This allegation seems to stem entirely from Mr. Munro's own experience seeking service for his own vehicle. Id. at 3-4. Plaintiffs' second amended complaint does not allege that the oil systems in any of the Class Vehicles were defective, and Plaintiffs deny receiving any notice of allegedly defective oil systems from the mechanic they retained as an expert in this cast. ECF No. 53; ECF No. 107 at 6. The Court will not require [*43] Defendants to make admissions about subjects that are not at issue in the case. o. Objection of John Nemelka For internal use only EFTA01416915 Page 20 2016 U.S. Dist. LEXIS 97188, * John Nemelka filed an objection to the settlement date June 15, 2016, objecting to the caps on reimbursements for Class members whose timing chain or timing chain tensioners were repaired at independent service centers. ECF No. 100. Mr. Nemelka states that, in December 2015, he had his Class Vehicle repaired at an independent service center, rather than at his local BMW dealership, to "save money." Id. at 1. The repair cost $1,778.45. Id. Mr. Nemelka correctly states that, had the repair been done at the BMW dealership, he would be entitled to a full reimbursement under the settlement terms. Because the repair was conducted by a third party, he is entitled to only $970. To repeat, Defendants informed Class members of the alleged timing chain and tensioner defect in October 2014 and instructed them to seek repairs, free of charge (and subject to a full reimbursement), at authorized MINI service centers. See ECF No. 86-6 Ex. 1. Plaintiffs explain that Defendants required a cap on reimbursements for repairs from thirdparty service centers because they have no control over the prices charged [*44] at thirdparty centers. Particularly in light of the early disclosure about repairs at authorized MINI service centers, the Court finds that the cap on reimbursements for repairs at independent service centers is not unreasonable. p. Objection of James Jones James Jones submitted an objection, dated June 19, 2016, that was filed in this Court on June 29, 2016. ECF No. 101. Mr. Jones objects to the settlement on three grounds: first, that the settlement does not provide relief for owners of Class Vehicles that have not yet displayed any defects; second, that the documentation requirement for reimbursement is unduly burdensome, especially for the owners of used Class Vehicles; and third, that the final approval hearing should not be held until the deadline to submit objections has expired. The Court disagrees with Mr. Jones's first and second objections for the reasons already discussed; the settlement allows Class members to receive repairs and replacements of EFTA01416916 allegedly defective parts even if their vehicles have not displayed damage, and Class members are in a better position than Defendants to document their vehicles' histories. With regard to the third objection, the fairness hearing [*45] was held on July 14, 2016, after the July 1, 2016 deadline for N14 Class members to submit objections under the Court's supplemental notice program. See ECF No. 89. q. Objection of Shirley M. Stipe-Zendle Docket number 102, filed as an objection to the settlement on June 29, 2016, appears instead to be a claim for reimbursement for timing chain tensioner/timing chain repair or replacement submitted by Class member Shirley M. Stipe-Zendle. ECF No. 102. The document contains no objection to the settlement. Plaintiffs state that they have provided the document to the Claims Administrator for processing as a claim. ECF No. 107 at 7. r. Objection of Julie A. Clifford Julie Ann Clifford submitted an objection to the settlement that was filed on June 29, 2016. ECF No. 103. Ms. Clifford objects to the settlement on three grounds: (a) the documentation requirement for engine repair reimbursement unreasonably requires the For internal use only EFTA01416917 Page 21 2016 U.S. Dist. LEXIS 97188, * servicing mechanic to acknowledge that the problems were caused by a defective timing chain, something that MINI has "every incentive not to confess," id. at 1; (b) the total reimbursement amounts are unreasonably low; and (c) the claims period is unreasonably short. Although it is true [*46] that Defendants could theoretically avoid having to reimburse any Class members for repairs made at MINI servicing centers by instructing mechanics not to attribute engine failure to timing chain or tensioner defects, Defendants' voluntary October 2014 acknowledgment that Class vehicles "may" have these defects suggests that this is unlikely. See ECF No. 86-6 Ex. 1. In any event, Class members whose claims are denied by the Settlement Administrator for lack of documentation may appeal the decision to a Special Master, giving them some recourse for unreasonable denials. ECF No. 92 at 16; ECF No. 69-3 Ex. 1 ¶ III.E.3. For reasons discussed, the Court finds that the reimbursement amounts included in the settlement are not unreasonably low. In any event, Ms. Clifford states that her total cost of repairs to date is actually lower than the amount she is entitled to be reimbursed. ECF No. 103 at 2. Though she will not be reimbursed for incidental expenses, Ms. Clifford may receive a full reimbursement for the repairs and replacements she has paid for. The Court disagrees that the claims period is unreasonably short. Under 28 U.S.C. § 1715(d), the Court may grant final approval of a proposed settlement as early [*47] as 90 days after notice is given to the appropriate federal official and state officials of each state in which class members reside. 28 U.S.C. § 1715(d). Although Plaintiffs initially requested a claims period of 90 days, see ECF No. 69-2 ¶ 8, the Court extended this period to 120 days following the Court's preliminary approval of the settlement. See ECF No. 72 at 1-2. s. Objection of Donald Mann Donald Mann submitted a notice that was filed with this Court on June 29, 2016. ECF No. 104. Mr. Mann incorrectly appears to assume that the settlement "offers a reimbursement EFTA01416918 of $850 less a reduction for age conducted at an authorized MINI service center chain tensioner is less than the amount quoted to Class Vehicle. Id. at 1. In any event, Mr. Mann Class for purposes of this settlement, settlement. Id. t. Objection of Robin Mackey Robin Mackey submitted an objection, this Court on July 5, 2016. history documentation routine oil changes is irrelevant to the Plaintiffs and Defendants that documentation is relevant to claims of defects and damage in those repeats that this documentation requirement is not u. Objection of Kimberly Winkler For internal use only and mileage" for timing chain repairs and objects that the retail cost of a timing him by the service center to examine his states his intent to be excluded from the N14 so he has no standing to object to the dated July 1, 2016, that was filed in ECF No. 106. Mr. Mackey objects to the settlement's service [*48] requirement; arguing specifically that documentation of claims at issue. Id. The Court of the routine maintenance of vehicles, see ECF No. unduly burdensome. agrees with Class Vehicles 107 at 7-8, and EFTA01416919 Page 22 2016 U.S. Dist. LEXIS 97188, * Kimberly Winkler submitted an objection, dated June 28, 2016, that was filed in this Court on July 5, 2016. ECF No. 106-1. Mr. Winkler describes a litany of problems with his Class Vehicle, including timing chain malfunctions, and seeks an extension of his warranty and reimbursement for out-of-pocket expenses and other costs. Id. at 2. Mr. Winkler does not object to anything specific about the terms of the settlement, and Plaintiffs point out that because his extended warranty does not expire until 2017, Mr. Winkler is already entitled to reimbursement for all past repairs. ECF No. 107 at 8. v. Objection of Marika Hamilton Marika Hamilton mailed an objection to counsel for Defendants on March 14, 2016. ECF No. 107-2 Ex. 11. Ms. Hamilton alleges damage to her Class Vehicle's timing [*49] chain tensioner -- a repair or replacement for which she is entitled to full reimbursement under the settlement -- but does not otherwise object to the settlement. w. Objection of Susan Von Struensee Susan Von Struensee submitted an objection to counsel for Defendants on June 22, 2016. ECF No. 107-2 Ex. 12. Ms. Von Struensee objects to the settlement on the grounds that (a) she did not receive notice of the settlement and (b) Class members are unreasonably required to submit documentation that they changed the oil in their Class Vehicles at least once every 2,000 miles, even though dealers only advise owners to seek oil changes every 15,000 or 10,000 miles. Id. at 1. With regard to the first objection, the Court repeats that CAA provided notice by mail to over 96% of Class members and by email to over 94%. 107-1 ¶¶ 4, 7. Plaintiffs explain that they discussed Ms. Struensee's second objection with her by phone and clarified that Class members seeking reimbursement are not required to submit documentation of oil changes every 2,000 miles. ECF No. 107 at 8; see also ECF No. 69-3 Ex. 1 Ex. B at 5 (Claim form, explaining that Class members must provide evidence of "regular oil changes (within 2,000 [*50] miles of recommended schedule)"). The 23 objectors make arguments that raise several legitimate Girsh factor considerations. EFTA01416920 Ultimately, however, because of the relatively small number of objections and exclusions compared with the total number of Class members, the reaction of the N14 Class to the settlement supports a finding of fairness. 3. Girsh factor three: State of proceedings and amount of discovery completed The third Girsh factor "captures the degree of case development that class counsel had accomplished prior to the settlement," so that the Court may "determine whether counsel had an adequate appreciation of the merits of the case before negotiating." Warfarin Sodium, 391 F.3d at 537. Here, according to Plaintiffs, the Parties reached their settlement after (a) the Court ruled on a motion to dismiss the first amended complaint, see ECF No. 39; (b) Plaintiffs filed a second amended complaint, ECF No. 53; (c) the Parties exchanged initial disclosures and discovery requests; and (d) the Parties engaged in a full-day mediation with the Honorable Theodore Katz (Ret.) and a settlement conference with Magistrate Judge Cathy L. Waldor. ECF No. 92 at 26. The Court finds that all Parties have an "adequate appreciation [*51] of For internal use only EFTA01416921 Page 23 2016 U.S. Dist. LEXIS 97188, * the merits of the case," so this factors weighs in favor of settlement. See Martina, 2013 U.S. Dist. LEXIS 145285, 2013 WL 5567157, at *6 (finding adequate appreciation of merits when parties "exchanged initial disclosures and arrived at the Settlement after negotiation before a retired federal judge."). 4. Girsh factors four and five: the risks of establishing liability and damages The fourth and fifth Girsh factors require the Court to balance the Parties' relative likelihood of success in establishing liability and damages against the immediate benefits derived from a settlement. See Prudential, 148 F.3d at 319. The Court weighs these factors against the best and worst possible outcomes for Plaintiffs. In re Cendant Corp. Litig., 264 F.3d 201, 237-39 (3d Cir. 2001). Although Plaintiffs survived an initial motion to dismiss, see ECF No. 39, the Court has not yet ruled on the substantive issues underlying the litigation -- namely, whether Defendants caused defective timing chain tensioners to be installed in the Class Vehicles and whether they are liable for damages. The Court lacks the factual record necessary to determine Plaintiffs' likelihood of success on the merits, but Plaintiffs claim that "all parties," including Defendants, "remain confident of their chance at prevailing at trial." ECF No. 92 at 26-27. Plaintiffs state that [*52] their best possible outcome would likely involve "years of litigation," including an appeal to the Third Circuit after Plaintiffs received a favorable decision in this Court Id. at 27. This would require "a very substantial expenditure in attorneys' fees and costs by both parties," but would likely "not result in an increased benefit to the Class." Id Though it is difficult to accurately estimate Plaintiffs' likelihood of success in establishing either liability or damages, the Court finds that the fourth and fifth Girsh factors weigh in favor of approving the settlement. 5. Girsh factor six: the risks of maintaining a class action The sixth Girsh factor "measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial. A district court retains the authority to decertify or modify a class at any time during the litigation if it proves EFTA01416922 to be unmanageable." Warfarin Sodium, 391 F.3d at 537 (citing Prudential, 148 F.3d at 321). Because of this, the "specter of decertification makes settlement an appealing alternative." O'Brien v. Brain Research Labs, LLC, 2012 U.S. Dist. LEXIS 113809, 2012 WL 3242365, at *18 (D.N.J. Aug. 9, 2012). Plaintiffs maintain -- and the Court agrees, at this point -- that this action could be properly maintained as a class action ECF No. 92 at 27. Although Plaintiffs speculate that there are "myriad [*53] risks of maintaining class action status," including potential arguments Defendants may raise involving individualized issues, id. at 28, the Court is not convinced that this factor weighs in favor of approving the settlement. 6. Girsh factor seven: the ability of Defendants to withstand a greater judgment The seventh Girsh factor considers "whether the defendants could withstand a judgment for an amount significantly greater than the [s]ettlement." In re Cendant, 264 F.3d at 240. Still, the fact that a defendant "could afford to pay more does not mean that it is obligated For internal use only EFTA01416923 Page 24 2016 U.S. Dist. LEXIS 97188, * to pay any more than what . . . class members are entitled to under the theories of liability that existed at the time the settlement was reached." Warfarin Sodium, 391 F.- 3d. at 538. Here, as Plaintiffs state, "Defendants operate a successful, well-known, multi-national automobile business." ECF No. 28. Even if all 5,310 Class members who submitted claims were entitled to the maximum claim amounts for each type of repair, replacement, or sale, the total amount of the settlement would likely be insignificant when compared with Defendants' total revenues. This factor does not favor approval of the settlement. 7. Girsh factors eight and nine: the reasonableness of the settlement in light of the best recovery [*54] and all the attendant risks of litigation The final two Girsh factors "test two sides of the same coin: reasonableness in light of the best possible recovery and reasonableness in light of the risks the parties would face if the case went to trial." Warfarin Sodium, 391 F.3d at 538 (citing Prudential, 148 F.3d at 322). The Court determines "whether the settlement represents a good value for a weak case or a poor value for a strong case." Id. In cases where plaintiffs seek primarily monetary relief, "the present value of the damages plaintiffs would likely recover if successful, appropriately discounted for the risk of not prevailing, should be compared with the amount of the proposed settlement." Id. (quoting Prudential, 148 F.3d at 322). In the second amended complaint, Plaintiffs seek, among other things, (a) an order requiring Defendants to notify Class members of the alleged timing chain tensioner defect and to repair the defect or reimburse Class members for the repairs; (b) an injunction requiring Defendants to stop refusing to repair the defect, at no charge; (c) an award to Plaintiffs and Class members of compensatory, exemplary, and/or statutory damages; and (d) an award of restitution. ECF No. 53 ¶ 338. Although the settlement does not provide Class members with [*55] damages, it does provide Class members with much of the relief they seek: (a) notice of the alleged defect, provided at the expense of Defendants; (b) free repairs or full reimbursement for repairs of EFTA01416924 the timing chain and timing chain tensioner; (c) full or partial payment for engine repairs for some, but not all, Class Vehicles, as determined by vehicle mileage and age; (d) a warranty extension that provides an extended period of coverage for some, but not all, Class Vehicles, as determined by vehicle mileage and age; and (e) full or partial reimbursement for some, but not all, Class members who sold their un- repaired Class Vehicles at a loss, as determined by vehicle mileage and age. See ECF No. 69-3 Ex. A at 3-4. As the Court has discussed, several Class members object that the settlement provides fewer benefits to the owners of high-mileage or older Class Vehicles than to the owners of new, low-mileage vehicles. See, e.g., ECF Nos. 77-80, 82, 84, 92-5 Ex. 11, 96, 98. This is true, but the Court repeats that the line must be drawn somewhere. Because the value of vehicles decreases with age and mileage, see Dispirito, 371 B.R. at 701 n.6, the Court finds that the settlement is reasonable in light of Plaintiffs' [*56] original requests for relief and the not insubstantial chance that Plaintiffs would not prevail on all of their claims at trial. Girsh factors eight and nine weigh in favor of granting final approval to the settlement. 8. Prudential considerations For internal use only EFTA01416925 Page 25 2016 U.S. Dist. LEXIS 97188, * The Prudential considerations -- the probable outcome of a trial on the merits, the probable outcome of claims by other classes, and the reasonability of any provisions for attorneys' fees -- also weigh in favor of approving the settlement. 148 F.3d at 323. As discussed, the Court cannot estimate the probable outcome of a trial on the merits for the N14 Class or for the owners of N12 vehicles because it has not yet ruled on any dispositive issues, but both Parties represent that they "remain confident of their chance at prevailing at trial." ECF No. 92 at 26-27. As the Court will discuss, the attorneys' fees sought by Plaintiffs are reasonable. Most relevant for the Prudential consideration, Plaintiffs represent that the settlement is not limited by a fixed amount -- the total amount Defendants pay will be determined by the claims submitted by Class members -- and the fees and expenses awarded to Class Counsel, along with the incentive awards granted to the Named [*57] Plaintiffs, will not reduce the amount available for Class members. ECF No. 92 at 29. The Court finds that the Prudential factors weigh in favor of approval of the settlement. 9. Baby Prods.: the degree of direct benefit provided to the class The Court also considers the "degree of direct benefit provided to the class," including the "number of individual awards compared to both the number of claims and the estimated number of class members, the size of the individual awards compared to claimants' estimated damages, and the claims process used to determine individual awards." Baby Prods., 708 F.3d at 174. The Court repeats that 5,310 of 186,031 Class members have submitted claims. Though this is a relatively small percentage, but Plaintiffs and Defendants estimate that fewer than ten percent of Class Vehicles have actually exhibited the alleged defects, potentially explaining why many Class members did not submit claims. ECF No. 92 at 21. Of the 5,310 Class members who have submitted claims, all who submit sufficient documentation and are eligible for awards should receive rewards; the total amount paid by Defendants to Class members is not limited by a fixed fund amount, nor will the attorneys' EFTA01416926 fees and costs or [*58] awards granted to the Named Plaintiffs reduce the amount available to Class Members. ECF No. 92 at 29-30. This analysis favors approval of the settlement. After considering all of the factors, the Court finds the proposed settlement fair, reasonable, and accurate. IV. Attorneys' fees In the settlement, Plaintiffs agree not to seek an award of attorneys' fees and expenses in an amount greater than $2,320,000, and Defendants agree not to object to an award of up to $1,820,000. ECF No 69-3 Ex. 1 ¶ VIII.B. The settlement also provides that Defendants will not oppose service awards of $4,000 each to the Named Plaintiffs serving as N14 Class Representatives. Id. VIII.C. Plaintiffs now seek service awards for eighteen Named Plaintiffs and $2,320,000 in attorneys' fees and expenses. ECF No. 86. Defendants do not oppose the service awards but argue that the Court should award Plaintiffs only $1,820,000 in attorneys' fees and expenses. ECF No. 90. The Court now determines whether Plaintiffs' request is reasonable. For internal use only EFTA01416927 Page 26 2016 U.S. Dist. LEXIS 97188, * A. Legal standard Federal Rule of Civil Procedure 23(h) provides that, "[i]n a certified class action, the court may award reasonable attorney's fees that are authorized by law or by the parties' agreement." Fed. R. Civ. P. 23(h). A "thorough judicial [*59] review of fee applications is required in all class action settlements." GM Truck Prods., 55 F.3d at 819. "Determining an appropriate award is not an exact science," and the "facts of each individual case drive the amount of any award." In re AremisSoft Corp. Sec. Litig. ("AremisSoft"), 210 F.R.D. 109, 128 (D.N.J. 2002). The Third Circuit has established two methods for evaluating an award of attorneys' fees: the percentage-of-recovery method, which involves giving attorneys a portion of the total damages awarded to plaintiffs, and the lodestar method, which involves multiplying the number of hours reasonably worked on a case by the reasonable billing rate for the services. Prudential, 148 F.3d at 333; In re Ins. Brokerage Antitrust Litig. ("Ins. Brokerage"), 579 F.3d 241, 280 (3d Cir. 2009) (citing In re Rite Aid Corp. Sec. Litig. ("Rite Aid"), 396 F.3d 294, 302 (3d Cir. 2005)). The percentage-of-recovery method is generally favored in cases involving a common fund, while the lodestar method "is more commonly applied in statutory fee-shifting cases." Prudential, 148 F.3d at 333. The lodestar method may also be applied "in cases where the nature of the recovery does not allow the determination of the settlement's value necessary for application of the percentage-of recovery method." Id. (citing GM Truck Prods., 55 F.3d at 821). The court should perform a "cross-check" by comparing the fee award [*60] calculated under the chosen method with the award calculated under the alternative method. Ins. Brokerage, 579 F.3d at 280 (citing Rite Aid, 396 F.3d at 300). "The party seeking attorney's fees has the burden to prove that its request for attorney's fees is reasonable.'" Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). "In a EFTA01416928 statutory fee case, the parting opposing the fee award then has the burden to challenge . . . the reasonableness of the requested fee." Id. (citing Bell v. United Princeton Props., Inc., 884 F.2d 713 (3d Cir. 1989)). B. Analysis 1. The Court applies the lodestar method of fee calculation The Court agrees with all Parties that the lodestar method is the proper method of fee calculation for this matter. See ECF No. 86 at 17; ECF No. 90 at 1. Plaintiffs bring a cause of action on behalf of the entire N14 Class under the Magnuson-Moss Warranty Act, which provides for statutory fee-shifting. ECF No. 86 at 17 (citing 15 U.S.C. § 2310(d)(2) (allowing consumers to recover "a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have reasonably incurred by the plaintiff . ."). The lodestar method is also appropriate because the settlement award to N14 Class members also does not consist of a single, predetermined, common fund from which a percentage-of-recovery can [*61] be easily calculated. Instead, the settlement includes a "non-monetary" provision -- the For internal use only EFTA01416929 Page 27 2016 U.S. Dist. LEXIS 97188, * warranty extension -- along with monetary awards that will not be calculated in the aggregate until all claim submission periods have ended and Defendants have processed the claims. ECF No. 86 at 18. 2. The lodestar calculation supports an award of between $1,917,673.40 and $2,320,000 in fees and expenses Plaintiffs seek attorneys' fees and expenses in the total amount of $2,320,000, which is 31.5 percent less than their lodestar calculation of $3,387,328.75. ECF No. 86 at 22.3 Defendants do not argue that Class Counsel is entitled to less than the lodestar amount, but instead argue that Plaintiffs' $3,387,328.75 lodestar calculation is itself incorrect, based on unreasonably high billing rates and insufficient documentation of the hours reportedly billed by Class Counsel. ECF No. 90 at 1. 3 In their reply brief in further support of their motion for attorneys' fees, Plaintiffs submit that this sum has increased by an additional $113,606. ECF No. 105 at 1, 1 n.1 (citing Norton v. Wilshire Credit Corp., 36 F. Supp. 2d 216, 219 (D.N.J. 1999) ("Prevailing parties may also collect reasonable attorney's fees for time spent preparing the fee petition.") (citing Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 924-25 (3d Cir. 1985)). Because Defendants [*62] address the hours and billing rates reported in Plaintiffs' original motion, and because this calculation adequately supports the award Plaintiffs seek, the Court performs its analysis using the hours and billing rates reported in the original motion. The Court calculates the lodestar amount by multiplying the number of hours "reasonably worked" on a client's case by a "reasonable hourly billing rate for such services based on the given geographical area, the nature of the services provided, and the experience of the attorneys." Ins. Brokerage, 579 F.3d at 280 (quoting Rite Aid, 396 F.3d at 302). "To examine the lodestar factor properly, a Court should make explicit findings about how much time counsel reasonably devoted to a given matter, and what a reasonable hourly fee would be for such services." Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 199200 (3d Cir. 2000) (citations omitted) With regard to the hours worked by class counsel, the court may exclude from its calculation hours that are "not reasonably expended," such as hours attributable to overstaffing, EFTA01416930 hours that appear excessive in light of the experience and skill of the lawyers, and hours that are redundant or otherwise unnecessary, as well as hours that are not "adequately documented." Norton v. Wilshire Credit Corp., 36 F. Supp. 2d 216, 219 (D.N.J. 1999) (Walls, J.) (citing Hensley at 433-34). Although a "fee petition should [*63] include 'some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates," Rode, 892 F.- 2d at 1190 (quoting Lindy Bros. Builders, Inc. of Phila. v. American Radiatory & Standard Sanatory Corp., 487 F.2d 161, 167 (3d Cir. 1973)), "it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney." Id. To determine whether an attorney's billing rate is reasonable, a 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." Id. (citations omitted). For internal use only EFTA01416931 Page 28 2016 U.S. Dist. LEXIS 97188, * Local Civil Rule 54.2, which governs attorneys' fee applications in "all actions in which a counsel fee is allowed by the Court or permitted by statute," requires counsel to submit affidavits or other documents along with their motion for attorneys' fees that set forth: (1) the nature of the services rendered, the amount of the estate or fund in court, if any, the responsibility assumed, the results obtained, any particular novelty or difficulty about the [*64] matter, and other factors pertinent to the evaluation of the services rendered; (2) a record of the dates of services rendered; (3) a description of the services rendered on each of such dates by each person of that firm including the identity of the person rendering the service and a brief description of that person's professional experience; (4) the time spent in the rendering of each of such services; and (5) the normal billing rate of said persons for the type of work performed. L.Civ. R. 54.2(a). Local Civil Rule 54.2(c) permits district courts to order that plaintiffs need not provide one or more of the items in L. Civ. R. 54.2(a) in order to receive attorneys' fees. "After arriving at this lodestar figure, the district court may, in certain circumstances, adjust the award upward or downward to reflect the particular circumstances of a given case." Yong Soon Oh v. AT&T Corp., 225 F.R.D. 142, 146 (D.N.J. 2004). "All of these calculations should be reduced to writing." Id. Courts frequently apply a "lodestar multiplier," which "attempts to account for the contingent nature or risk involved in a particular case and the quality of the attorneys' work" by increasing the attorneys' fee awarded beyond the lodestar amount Ins. Brokerage, 579 F.3d at 280 (quoting Rite Aid, 396 F.3d at 305-06). This multiplier "need not fall within any pre-defined range, provided that [*65] the District Court's analysis justifies the reward." Id. (quoting Rite Aid, 396 F.3d at 307). a. Class Counsel billable hour and rate submissions Plaintiffs calculate a lodestar amount of $3,387,328.75 for 5,100.75 hours of time expended by attorneys and paralegals at nine Class Counsel law firms. ECF No. 86-6 II 29. In support of this calculation, Plaintiffs submit signed declarations from supervising attorneys at each of the nine Class Counsel firms detailing (a) the billing EFTA01416932 rates for partners, associates, and paralegals at the firm; (b) the total hours billed by each individual; (c) the relevant experience of the firm and the billing attorneys; (d) a breakdown of the billable hours by each partner, associate, and paralegal into eleven general categories of work, and (e) a breakdown of expenses.4 See ECF No. 86-6; Decl. Bryan L. Clobes in Support P. Mot. Attorneys' Fees, ECF No. 86-2; Decl. David S. Markun in Support. P. Mot. Attorneys' Fees, ECF No. 86-3; Decl. Jeffery A. Koncius in Support. P. Mot. Attorneys' Fees, ECF No. 86-4; Decl. John A. Yanchunis in Support. P. Mot. Attorneys' Fees, ECF No. 86-5; Decl. Tina Wolfson in Support. P. Mot. Attorneys' Fees, ECF No. 86-7; Decl. William J. Pinilis in Support. [*66] P. Mot. Attorneys' Fees, ECF No. 86-8. 4 The firms break down their work into: (1) "Analysis/Strategy/Attorney Meetings," (2) "Case Management," (3) "Court Appearance," (4) "Discovery," (5) "Document Review," (6) "Experts -- Work or Consult," (7) "Client Meeting," (8) "Research," (9) "Fact Investigation/Development," (10) "Pleadings/Motions," and (11) "Settlement." See, e.g., ECF No. 86-2 Ex. 1. For internal use only EFTA01416933 Page 29 2016 U.S. Dist. LEXIS 97188, * Cafferty Clobes Meriwether & Sprengel LLP reports a total of 509.6 billable hours from eight attorneys and two paralegals with billing rates between $240 and $750 per hour, for a total lodestar amount of $335,975.00. ECF No. 86-2 11 7 (listing billing rates and hours billed of individual attorneys and paralegals). The firm also reports litigation expenses of $9,626.66. Id. 11 11. Markun Zusman Freniere & Compton, LLP reports a total of 976.50 billable hours from eight attorneys and one paralegal with billing rates between $250 and $650 per hour, for a total lodestar amount of $574,325.00. ECF No. 86-3 11 7. The firm also reports litigation expenses of $47,192.00. Id. 11 11. Kiesel Law LLP reports a total of 1,572.1 billable hours from ten attorneys and six paralegals with billing rates between $150 [*67] and $1,100 per hour, for a total lodestar amount of $756,859.50. ECF No. 86-4 11 7. The firm also reports litigation expenses of $30,568.95. Id. 11 11. Morgan & Morgan, PA reports a total of 38.3 billable hours from one attorney with a billing rate of $900 per hour and 84.2 billable hours from one paralegal with a billing rate of $150 per hour, for a total lodestar amount of $47,100.000. ECF No. 86-5 11 17. The firm also reports litigation expenses of $1,455.56. Id. Raymond Boucher, currently of the Law Office of Raymond Boucher, APC and Boucher, LLP, and formerly of Khorrami Boucher Sumner, LLP and Khorrami Boucher, LLP, reports (a) a total of 952.9 billable hours from one attorney at the Law Office of Raymond Boucher, APC at billing rates between $925 and $1,100 per hour, for a total lodestar amount of $1,039,947.50, ECF No. 86-6 11 36, along with expenses of $7,100.12, id. 11 37; (b) a total of 147.8 billable hours from four attorneys, one law clerk, and one paralegal at Boucher, LLP at billing rates between $185 and $750 per hour, for a total lodestar amount of $92,792.50, id. ¶ 40, along with expenses of $16,601.82, id. 1I 41; and (c) a total of 269.2 billable hours from eight attorneys [*68] and one law clerk at Khorrami Boucher Sumner, LLP and/or Khorrami Boucher, LLP at billing rates between $185 and $625 per hour, for a total lodestar amount of $139,078.25, id. 11 EFTA01416934 44, along with expenses of $17,003.15. Id. ¶ 45.5 Ahdoot & Wolfson, PC reports a total of 349 2 billable hours from seven attorneys at billing rates between $415 and $810 per hour, for a total lodestar amount of $235,408.50. ECF No. 86-7 ¶ 7. The firm also reports litigation expenses of $3,303.86. Id. ¶ 11. PinilisHalpern, LLP reports a total of 193.90 billable hours from one attorney at a billing rate of $625 per hour, for a lodestar amount of $121,187.50. ECF No. 86-8 ¶ 7. The firm also reports litigation expenses of $516.27. Id. ¶ 11. The attorneys represent that Boucher, LLP, lead Class Counsel, reviewed time records from the other Class Counsel firms "for accuracy and removal or time that, although incurred, the lawyers determined in their discretion should not be included in this fee application." ECF No. 86-2 ¶ 6. 5 Due to a default judgment and court-appointed receivership in New York State Supreme Court against Khorrami Boucher Sumner Sanguinetti, LLP and/or Khorrami Boucher, LLP, Mr. Boucher seeks an [*69] award of only 68% of the lodestar amount for work performed by those firms. ECF No. 86-6 1 46. b. The Knapton Declaration Plaintiffs also submit a declaration from Gerald G. Knapton of the law firm Ropers, Majeski, Kohn & Bentley. Decl. Gerald G. Knapton in Support. P. Mot. Attorneys' Fees, ECF No. 86-9. Mr. Knapton declares that he is an expert on "the reasonableness and necessity of attorneys' fees," id. ¶ 2, states that he interviewed Class Counsel attorneys For internal use only EFTA01416935 Page 30 2016 U.S. Dist. LEXIS 97188, * and reviewed their timekeeping records, id. ¶¶ 12, 16-23, and offers his expert opinion that both the combined Class Counsel lodestar calculation of $3,387,328.75, and the combined Class Counsel expense calculation of $133,358.39 are reasonable. Id. ¶ 11. Mr. Knapton claims that the total time of 5,100 hours "is similar to the range of hours [he has] seen in other class actions that are resolved without trial." Id. 1 17. Mr. Knapton notes that the average billing rate for the Class Counsel attorneys and paralegals is $664.15 per hour, which he states "appears to be in the range of what New Jersey Courts have found to be reasonable in other class action matters." Id. ¶ 28 (citing cases). Mr. Knapton also observes that Class Counsel's [*70] requested billing rates have been approved in the Northern and Central District of California, the Southern District of Florida, and California state courts. Id. ¶1 31-37. Finally, Mr. Knapton compares the requested billing rates of Class Counsel attorneys with the "2015 Real Rate Report Snapshot" rates of the third quartile6 of attorneys in similar positions at their firms (i.e., partner or associate), with similar levels of experience, in the same metropolitan areas.7 who bill on a contingency basis are typically "awarded rates by courts at about 1.2 to 1.3 times the current, prevailing non-contingent rates because of the risk of contingency."8 39. 6 The third quartile is the quartile between the median billing rate and the highest 25 percent of billing rates. ECF No. 86-9 ¶ 44. 7 According to Mr. Knapton, the 2015 Real Rate Report Snapshot was created by TyMetrix/LegalVIEW by compiling anonymized data on over $9.8 billion in legal fees billed and paid between 2012 and 2014 and was published by the Wolters Kluwer Company. ECF No. 86-9 ¶ 43. 8 Although Mr. Knapton builds this contingency multiplier into his lodestar calculation, [*71] see ECF No. 86-9 ¶ 50, the "contingent nature or risk involved in a particular case" is a factor for the Court to consider in assessing the reasonability of a multiplier after calculating the lodestar amount. Ins. Brokerage, 579 F.3d at 280. Mr. Knapton reports that, of the 47 attorneys reporting billable hours in this matter, a total of 17 request billing rates higher than the relevant third-quartile 2015 EFTA01416936 Real Report Snapshot rates. See id ¶ 48. Of the 17 billing at high rates, all but John Yanchunis of Morgan & Morgan ($900 per hour), Daniel Herrera of Cafferty Clobes Meriwether & Sprengel LLP ($600 per hour), and Kelly Tucker of Cafferty Clobes Meriwether & Sprengel LLP ($550 per hour) request billing rates lower than 1.3 times the relevant third-quartile 2015 Real Report Snapshot rates. See id. Mr. Knapton gives his expert opinion that the "total reasonable & necessary lodestar is $3,387,328.75 based on 5,100.3 hours of time as reasonable and justified hourly rates," with a "reasonably expended and explained" number of hours that are "similar to what I have seen for other class action matters that settle before trial" and reported work that was "useful and of a type of ordinarily necessary to secure the final [*72] result obtained from the litigation." Id. ¶ 50. c. The number of hours submitted by Plaintiffs is reasonable The Court finds that Plaintiffs' submission of 5,100.75 billable hours is reasonable for a three year-old consumer class action involving claims under federal law and the laws of For internal use only Id. ¶¶ 43-49. Mr. Knapton also opines that class action lawyers Id. EFTA01416937 Page 31 2016 U.S. Dist. LEXIS 97188, * twelve separate states, though it accepts the number with hesitation. Plaintiffs' submissions meet the Rode standard, providing "fairly definite information as to the hours devoted to various general activities." Rode, 892 F.2d at 1190. As discussed, Plaintiffs provide a breakdown, by attorney and paralegal, of the hours spent engaging in eleven categories of legal work. See, e.g., ECF No. 86-2 Ex. 1. Plaintiffs also provide a chronological description of the work performed, collectively, by Class Counsel, including the investigation leading up to the drafting and filing of the first complaint, Plaintiffs' response to Defendants' motion to dismiss, the drafting of amended complaints, continued investigation and discovery, and the negotiations leading to this settlement. See ECF No. 86 at 7-10. However, Plaintiffs do not provide the specific dates of their services rendered, as required by L. Civ. R. 54.2(a)(c). Defendants argue, generally, that [*73] Plaintiffs' application for fees is insufficient because some courts within the Third Circuit have approved attorneys' fees based on more detailed documentation than Plaintiffs submit here, including itemized, hourly billing records for each attorney ECF No. 90 at 3-4 (citing cases). Defendants argue specifically that the Court should not accept Plaintiffs' aggregate submission of 1,225.5 hours of billable work for "Analysis/Strategy/Meetings" without further documentation of the precise number of meetings, dates, times, individuals present, and descriptions of "what was actually done" at the meetings. ECF No. 90 at 6. The Court does not deny that Plaintiffs could submit further documentation, and Plaintiffs have offered to submit detailed time records for the Court's in camera review if so required. ECF No. 105 at 6. But "it is not necessary" for the Court to "know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney" in order to determine whether the number of hours billed was reasonable. Rode, 892 F.2d at 1190. In any event, as Plaintiffs suggest, "what was actually done" at these meetings likely EFTA01416938 includes protected attorney [*74] work product. ECF No. 105 at 9. The Court will not require Plaintiffs to submit further documentation of their meetings. Defendants also suggest that the 679.1 total hours of "Research" reported by Plaintiffs is an unreasonable number because Class Counsel attorneys were already "presumably[ ] intimately familiar" with the relevant issues in this matter, reducing their need to conduct research. ECF No. 90 at 6-7. The Court agrees with Plaintiffs, however, that "[l]egal research is part of the job." ECF No. 105 at 9. Particularly in a multi- state class action involving federal and state law statutes, consolidated cases, a motion to dismiss, and an amended complaint, Class Counsel is expected to conduct a significant amount of legal research. Given the lack of individual and task-based detail in Plaintiffs' billing summaries, the Court finds that Plaintiffs' submission of 5,100.75 billable hours is reasonable but accepts the number with some hesitation. d. The billing rates submitted by Plaintiffs are high for the relevant community To repeat, the average requested billing rate for Class Counsel attorneys is $664.15 per hour, ECF No. 86-9 ¶ 28, with individual rates (including for paralegals) ranging [*75] from $150 to $1,100 per hour. See id. ¶ 30. Partners request a mean rate of $745 per hour, while associates request a mean rate of $423 per hour. ECF No. 90 at 9-10. The Court For internal use only EFTA01416939 Page 32 2016 U.S. Dist. LEXIS 97188, * determines whether these fees are reasonable by assessing the "experience and skill of the prevailing party's attorneys" and comparing "their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Rode, 892 F.2d at 1190. Courts in this district have approved a wide range of billing rates as reasonable, and both Plaintiffs and Defendants cite cases where courts confirmed fee rates similar to the ones they seek. See, e.g, ECF No. 105 at 10 (citing In re Merck & Co. Vytorin ERISA Litig., 2010 U.S. Dist. LEXIS 12344, 2010 WL 547613 (D.N.J. Feb. 9, 2010) (approving rates up to $835 per hour)); ECF No. 90 at 10 (citing, e.g., Port Drivers Federation 18, Inc. v. All Saints, 2011 U.S. Dist. LEXIS 93700, 2011 WL 3610100, at *4 (D.N.J. Aug. 16, 2011) (reducing partner's billing rate from $595 to $475 per hour and citing cases approving a range of $250 to $400 per hour)). See also Saini v. BMW of North America, LLC, 2015 U.S. Dist. LEXIS 66242, 2015 WL 2448846, at *15 (D.N.J. May 21, 2015) (approving average rates of $421.73 and $540.31 in class action against BMW for failure to provide warranties). As discussed, Plaintiffs also argue, through the Knapton Declaration, that the requested billing rates for most Class Counsel attorneys are lower than the third - quartile rates in the geographic [*76] areas where the attorneys are located. See ECF No. 86-9 ¶ 48; ECF No. 86-9 Ex. 9 (Real Report Snapshot "High-Level Data Cuts" for U.S. cities). Under this analysis, the requested billing rates are reasonable. Defendants, however, argue that a more appropriate comparison is between the requested billing rates and the 2015 Real Report Snapshot rates for partners and associates practicing "General Liability" law in New York and Philadelphia, the practice area and two cities that best correspond with the legal work in this matter and geographic location of this Court. ECF No. 90 at 8-9 (citing ECF No. 86-9 Ex. 7 (Real Report Snapshot "Practice Area Analysis: General Liability")). Defendants urge the Court to average the Real Report EFTA01416940 Snapshot rates for New York and Philadelphia partners and associates practicing "General Liability" law, arriving at mean and top-quartile partner rates of $425 and $609 per hour, respectively, and mean and top-quartile associate rates of $284 and $345 per hour, respectively. Id. at 10. The Court agrees with Defendants that the average Class Counsel billing rate of $664.15 is higher than the average rate approved by many recent courts in this district. Defendants do not [*77] calculate the effect their proposed mean and top-quartile "General Liability" rate adjustments would have on the lodestar. Using the Knapton Declaration's fee schedule, ECF No. 86-9 Ex 2,9 the Court calculates that Class Counsel partners billed a total of 3,542.1 hours; that the "associate class," including associates, law clerks, local counsel, and of-counsel attorneys, billed a total of 1,323.55 hours; and that paralegals billed a total of 234.7 hours. Adjusting all associate and partner billing rates to the mean and top-quartile rates proposed by Defendants would result in lodestars of $1,917,673.40 and $2,649,473.15, respectively. Id. 9 There are several discrepancies between the hours reported in the Class Counsel affidavits and the hours used by Mr. Knapton to calculate Plaintiffs' lodestar of 3,387,328.75. Most notably, John A. Yanchunis of Morgan & Morgan reports that he billed 38.3 hours at a rate of $900 per hour and that Teresa Ponder, a paralegal, billed 84.2 hours at a rate of $150, for a firm lodestar of $47,100. ECF No. 86-5 ¶ 17; ECF No. 86-5 Ex. B (time report). The Knapton Declaration calculates Plaintiffs' For internal use only EFTA01416941 Page 33 2016 U.S. Dist. LEXIS 97188, * proposed lodestar and billable hour totals based on 96.5 hours [*78] from Mr. Yanchunis at $900 per hour and 32.7 hours from Ms. Ponder at $150 per hour, for a firm lodestar of $91,755. See ECF No. 96-9 Ex. 2. As discussed, the Court may apply a multiplier to the lodestar "to account for the contingent nature or risk involved in a particular case and the quality of the attorney's work." Rite Aid, 396 F.3d at 306. The multiplier "need not fall within any pre-defined range, provided that the District Court's analysis justifies the award," id., but courts "routinely find in complex class action cases that a lodestar multiplier between one and four is fair and reasonable." Saini, 2015 U.S. Dist. LEXIS 66242, 2015 WL 2448846, at *16 (approving multipliers of 1.09 and 1.13); see also Boone v. City of Philadelphia, 668 F. Supp. 2d 693, 714-15 (E.D. Pa. 2009) (approving multiplier of 2.3); McCoy v. Health Net, Inc., 569 F. Supp. 2d 448, 479 (D.N.J. 2008) (approving multiplier of 2.3). Because Plaintiffs report a total of $133,358.30 in expenses, ECF No. 86 at 2, the portion of the total $2,320,000 award attributable to attorneys' fees alone is $2,186,641.70. The lodestar multiplier for Defendants' proposed mean rate fee, obtained by dividing $2,186,641.70 by $1,917,673.40, would be approximately 1.14. This multiplier falls well within the range approved by courts in this Circuit for complex, multi-state cases such as this one. 3. The percentage cross-check supports an award in [*79] the lodestar range Having determined a range of attorneys' fees under a lodestar analysis, the Court now cross-checks this analysis using the percentage-of-recovery method. See Ins. Brokerage, 579 F.3d at 280; Saini, 2015 U.S. Dist. LEXIS 66242, 2015 WL 2448846, at *16 (performing percentage-of-recovery cross-check after adopting lodestar method to award attorneys' fees). The Third Circuit has identified a non-exhaustive list of factors that a district court should consider in its percentage-of-recovery analysis: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the EFTA01416942 amount of time devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases. Rite Aid, 396 F.3d at 301 (quoting Gunter v. Ridgewood Energy Corp., 223 F.- 3d 190, 195 n.1 (3d Cir. 2000)). The Court need not apply the Gunter factors in a formulaic way and may afford some factors more weight than the others. Id. at 302. The Court finds the Gunter factor to be especially relevant in this case. As discussed, the settlement agreement does not create a class fund of defined size, and the total benefit to N14 Class members [*80] will depend on the number and type of claims ultimately received and approved. Additionally, as discussed, the settlement agreement provides some Class Members with nonmonetary benefits, including a warranty extension on their Class Vehicles. At the July 14, 2016 fairness hearing, Class Counsel stated that it could not give a precise value of the settlement, and that even estimating an "approximate" value would be difficult. Counsel stated, however that a value of between $10 and $30 million would be a reasonable estimate. The Third Circuit has recognized that fee percentage-of recovery fee awards commonly range from 19 percent to 45 percent of the settlement fund. GM Truck Prods., 55 F.3d at 822. Using the rough $10-$30 million settlement For internal use only EFTA01416943 Page 34 2016 U.S. Dist. LEXIS 97188, * estimate, a reasonable percentage-of-recovery fee in this case would be between $1,900,000 and $13,500,000. The fee award sought by counsel and the lodestars calculated under Defendants' proposed New York-Philadelphia mean and fourth- quartile billing rates all fall within this range. For the second factor, the Court incorporates its Girsh analysis of Class member objections and notes that no Class members have objected to the proposed Class Counsel award. This factor weighs in [*81] favor of fee approval. The Court also finds that the third and fourth, and sixth Gunter factors weigh in favor of approving a fee award within the ranges sought by Plaintiffs and Defendants. As discussed, Class Counsel spent 5,100 hours over three years litigating this case, survived a motion to dismiss, and obtained a fair and reasonable settlement in a complex, multi-state consumer class action involving uncertain legal issues. The fifth Gunter factor -- risk of nonpayment -- weighs in favor of approving the award sought by Plaintiffs because Class Counsel undertook this case on a contingency basis and accepted the potential risk of non-payment. ECF No. 86 at 20-21. Finally, with regard to the sixth Gunter factor, the $2,230,000 award sought by Plaintiffs and Defendants' proposed lodestar calculations are similar to awards approved in similar cases. See, e.g, Henderson v. Volvo Cars of N. Am., LLC, 2013 U.S. Dist. LEXIS 46291, 2013 WL 1192479, at *13 (D.N.J. Mar. 22, 2013) (approving award of $3,000,000 in attorneys' fees in class action providing class members with reimbursements and warranty extensions in connection with alleged defects in automobile transmission systems); O'Keefe v. Mercedes-Benz USA, LLC, 214 F.R.D. 266, 304 (E.D. Pa. 2003) (approving award of $4,896,783 in attorneys' fees in class action involving allegedly defective rear liftgate hatch in [*82] automobiles). 4. The expenses sought by Plaintiffs are reasonable In further support of their petition for a $2,320,000 award, Plaintiffs submit that Class Counsel incurred a total of $133,358.30 in expenses. ECF No. 86 at 2.10 "Counsel for a class action is entitled to reimbursement of expenses that were adequately EFTA01416944 documented and reasonably and appropriately incurred in the prosecution of the class action." In re Safety Components Intel, Inc., 166 F. Supp. 2d 72, 108 (3d Cir. 2001) (citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir. 1995)). Courts have held that photocopying expenses, telephone and facsimile charges, postage, and expert witness fees are all reasonably incurred in the prosecution of a large litigation. See id. (citing cases). 10 Again, Plaintiffs indicate that this amount has increased by $15,549.32 since the filing of their motion for attorneys' fees and costs, see ECF No. 105 at 1, but the Court will perform its analysis using the $133,358.30 number in the original motion. Plaintiffs submit expense reports through the Class Counsel declarations, breaking expenses down into categories such as "Filing/Misc. Fees," "Mediation Fees," "Postage," "Photocoyping," "Expert Fees," and "Transportation/Meals/Lodging." See, e.g., ECF No. 86-2 11 11, Ex. 2 (Cafferty Clobes Meriwether & Sprengel, LLP Expense Report [*83] through March 21, 2016). Some firms provide itemized lists of individual expenses. See, e.g, ECF No. 86-3 Ex. 2 (Markun Zusman Frenier & Compton, LLP "Pre-bill" for Tom Monreal). Although Defendants challenge the level of detail provided by Plaintiffs and the For internal use only EFTA01416945 Page 35 2016 U.S. Dist. LEXIS 97188, * necessity of some expenses, see ECF No. 90 at 11 (questioning, as example, Markun Zusman Frenier & Compton, LLP's request for reimbursement for travel, meals, and hotels for an "investigation" trip to Oregon because this matter does not involve claims under Oregon law),11 the Court finds that Class Counsel's expenses are adequately documented, proper, and reasonable. The proposed expense amount supports the award Plaintiffs seek. 11 The Court observes that Markun Zusman Freniere & Compton, LLP maintains an office in Portland, Oregon. See ECF No. 86-3 Ex. 3 (overview of firm). 5. The Court approves an award of fees and expenses in the amount of $2,100,000 As discussed, courts have approved a wide range of awards for attorneys' fees and expenses in cases similar to this one. This Court will award Plaintiffs a total of $2,100,000 in attorneys' fees and expenses. This award represents an attempt by the Court to reconcile Plaintiffs' proposed [*84] fee submissions with Defendants' objections to the amount of detail in Class Counsel's billing records, the high billing rates of Class Counsel attorneys relative to other attorneys working on similar matters in this community, the potential application of a modest lodestar multiplier, and the difficulty of estimating an accurate percentage-of-recovery calculation against which to cross-check the Parties' proposed lodestar calculations. CONCLUSION The Court finds that the proposed settlement between Plaintiffs and Defendants is fair, adequate, and reasonable. Plaintiffs' motion for final approval of the N14 Class settlement, final approval of Class Counsel, and certification of the N14 Class is granted. Plaintiffs' motion for an award of attorneys' fees and expenses is granted in part: Plaintiffs are awarded a total of $2,100,000 in attorneys' fees and expenses and service awards of $4,000 each for the eighteen Class Representatives is granted. An appropriate order follows. DATE: 26 July 2016 /s/ William H. Walls EFTA01416946 William H. Walls Senior United States District Court Judge ORDER Walls, Senior District Judge This matter having come before the Court on Plaintiffs' Motion for Final Approval of Settlement [*85] and Related Relief, ECF No. 92, and Plaintiffs' Motion for Attorneys' Fees and Expenses, ECF No. 86, for the reasons expressed in the accompanying Opinion, it is hereby ORDERED that: For internal use only EFTA01416947 Page 36 2016 U.S. Dist. LEXIS 97188, * 1. The Court hereby certifies a class solely for the purposes of settlement under Federal Rules of Procedure 23(a) and 23(b)(3) as defined in the Settlement Agreement and Release, ECF No. 69-3 Ex. 1, as amended by the Court's Orders of June 15, 2016, ECF No. 89, and June 21, 2016, ECF No. 95; 2. The individuals who submitted timely notices of their intent to opt out of the settlement class, see ECF No. 107-1 Ex. C, are hereby excluded from the settlement class and are not bound by the terms of the Settlement Agreement and Release or this Order; 3. The Court hereby grants final approval to the Settlement Agreement and Release, ECF No. 69-3 Ex. 1, as amended by the Court's Orders of June 15, 2016, ECF No. 89, and June 21, 2016, ECF No. 95; 4. Defendants shall pay Class Counsel, as appointed in the Court's January 6, 2016 Order, ECF No. 72, the sum of $2,100,000 as attorneys' fees and expenses; and 5. Defendants shall pay $4,000 each to the Named Plaintiffs Joshua Skeen, Laurie Freeman, Scott Lamb, Gina Romaggi, Emmanuel Nomikos, Gregory Abbott, Vicki [*86] Blasucci, Scott Bookhout, Michelle Colberg, Kevin Kebabjian, Marta Motel, Ginger Roach, James Stoecker, Heather Swango, Patricia Curran, Maryanne Howland, Candi Sossa, and Richard Kahn as service awards. Date: 26 July 2016 /s/ William H. Walls William H. Walls Senior United States District Court Judge Citibank, N.A., etc., Appellant, vs. Martin and Jitka Olsak, Appellees. No. 3D15-1032 COURT OF APPEAL OF FLORIDA, THIRD DISTRICT 208 So. 3d 227; 2016 Fla. App. LEXIS 17683; 41 Fla. L. Weekly D 2658 November 30, 2016, Opinion Filed PRIOR HISTORY: [**1] An Appeal from the Circuit Court for Monroe County, Lower Tribunal No. 09-1063-K. Donald C. Evans, Senior Judge. CASE SUMMARY: OVERVIEW: HOLDINGS: [1]-In a foreclosure action, reversal was required because the trial court based its standing conclusion exclusively on an expert's legal opinions regarding matters of questionable relevance, and opinion testimony of experts amounting to conclusions of law was inadmissible because the determination of such questions was exclusively within the trial court's province; [2]-Furthermore, while the expert testified that EFTA01416948 For internal use only EFTA01416949 Page 37 208 So. 3d 227, *; 2016 Fla. App. LEXIS 17683, **; 41 Fla. L. Weekly D 2658 trust documents did not allow for inclusion of notes that had been endorsed in blank, the borrower was not a party to those trust documents and therefore lacked standing to challenge them. OUTCOME: Reversed and remanded. CORE TERMS: mortgage, legal conclusions, endorsement, foreclosure, endorsed, blank, expert witness, inception, holder, final judgment, legal opinions, attorney- in-fact, substantial evidence, promissory note, expertise, borrower, involuntarily, impermissibly, questionable, post-trial, conclusory, relevance LexisNexis(R) Headnotes Civil Procedure > Justiciability > Standing Civil Procedure > Appeals > Standards of Review > De Novo Review Civil Procedure > Appeals > Standards of Review > Substantial Evidence [HN1] Generally, the determination of whether a plaintiff has standing is a legal issue subject to de novo appellate review. To the extent that the trial court's standing determination involves factual findings, an appellate court upholds such findings only if supported by competent, substantial evidence. Civil Procedure > Justiciability > Standing Real Property Law > Financing > Mortgages & Other Security Instruments > Foreclosures Contracts Law > Negotiable Instruments > Negotiation > Indorsement > Blank Indorsements Contracts Law > Negotiable Instruments > Negotiation > Indorsement > Special Indorsements Contracts Law > Negotiable Instruments > Transfers [HN2] To have standing, a plaintiff who is not the promissory note's original payee must have possession of the note at the inception of the foreclosure case. This plaintiff also must provide the trial court with either an assignment in favor of the plaintiff or a note that bears either an endorsement in blank or a special endorsement in favor of the plaintiff. Evidence > Testimony > Experts > Admissibility Civil Procedure > Appeals > Standards of Review > Reversible Errors [HN3] Witnesses, even witnesses qualified as experts, generally are precluded from providing testimony in the form of legal conclusions. Regardless of the expertise of the witness, generally, and his familiarity with legal concepts relating to his specific field of EFTA01416950 expertise, it is not the function of the expert witness to draw legal conclusions. That determination is reserved to the trial court. Opinion testimony of experts amounting to conclusions of law are inadmissible because the determination of such questions is exclusively within the court's province. And, it constitutes reversible error for a trial judge to rely upon expert testimony to determine questions of law. For internal use only EFTA01416951 Page 38 208 So. 3d 227, *; 2016 Fla. App. LEXIS 17683, **; 41 Fla. L. Weekly D 2658 Real Property Law > Financing > Mortgages & Other Security Instruments > Foreclosures Civil Procedure > Justiciability > Standing [HN4] Florida courts have repeatedly held that borrowers cannot defeat a foreclosure plaintiff's standing by relying upon trust documents to which the borrower is not a party. COUNSEL: Carlton Fields Jorden Burt, P.A., and Michael K. Winston, Dean A. Morande, and Alana Zorrilla-Gaston (West Palm Beach), for appellant. W.J. Barnes, P.A., and Jeff Barnes (Boca Raton), for appellees JUDGES: Before SUAREZ, C.J., and SHEPHERD and SCALES, JJ. OPINION BY: SCALES OPINION [*228] SCALES, J. Appellant, plaintiff below, Citibank, N.A., as trustee for the BSARM 2007-2 trust (the "Trust"), appeals a final judgment involuntarily dismissing the Trust's foreclosure complaint post-trial. The trial court entered final judgment against the Trust based exclusively on Appellees' expert witness who testified at trial that the Trust was not, and never had been, the holder of the subject note. We reverse because the trial court impermissibly relied upon the expert's legal conclusions rather than competent, substantial evidence. I. Facts In September of 2006, the now defunct Orion Bank loaned Appellee Martin Olsak $540,000. Orion Bank's loan was memorialized with a promissory note (the "Olsak Note"), and secured with a mortgage (the "Olsak Mortgage") encumbering Olsak's real property in Key West, Florida. After Olsak defaulted [**2] on the note and mortgage by failing to make a required installment payment, the Trust which had allegedly acquired the Olsak Note and Mortgage -- filed a foreclosure action in Monroe County Circuit Court in June of 2009. Prior to trial, the Trust filed with the Court the original Olsak Note payable to Orion Bank. The Olsak Note was endorsed by the loan's servicer, Wells Fargo, as Orion Bank's attorney-in-fact, and then endorsed in blank by Wells Fargo. The Trust introduced into evidence a September 2006 mortgage assignment showing that the Olsak Mortgage and Olsak Note were assigned by Orion Bank to Wells Fargo on the same day the EFTA01416952 loan was originated. In addition, the Trust introduced into evidence a Wells Fargo "screen shot" purportedly showing that the loan was placed into the Trust on June 28, 2007. Olsak called one witness, Richard Kahn, a mortgage foreclosure fraud investigator and securitization auditor. Over the Trust's objections, Kahn, a non-lawyer whom the trial court treated as an expert witness, gave opinion testimony that the Trust documents did not allow for the Trust to acquire a note, like the Olsak Note, that had been endorsed in blank. [*229] Kahn also testified that the [**3] Olsak Note endorsements violated IRS provisions related to real estate mortgage investment conduits ("REMICs") such as the Trust. While For internal use only EFTA01416953 Page 39 208 So. 3d 227, *; 2016 Fla. App. LEXIS 17683, **; 41 Fla. L. Weekly D 2658 Kahn was unable to identify who held the Olsak Note, he testified, in conclusory fashion, that the Trust was not the holder of the Olsak Note. After allowing for post-trial submittals by the parties, and relying exclusively on Kahn's testimony, the trial court entered the final judgment on appeal concluding that the Trust "[n]ever acquired any interest in either the Note or the mortgage" and, therefore, never acquired standing to institute the action. Citibank timely appealed. II. Standard of Review [HN1] Generally, the determination of whether a plaintiff has standing is a legal issue subject to de novo appellate review. Reynolds v. Nationstar Loan Servs., LLC, 190 So. 3d 219, 221 (Fla. 4th DCA 2016). To the extent that the trial court's standing determination involves factual findings, we uphold such findings only if supported by competent, substantial evidence. Verneret v. Foreclosure Advisors, LLC, 45 So. 3d 889, 891 (Fla. 3d DCA 2010). III. Analysis [HN2] To have standing, a plaintiff who is not the promissory note's original payee must have possession of the note at the inception of the foreclosure case. This plaintiff also must provide the trial court with either an assignment in favor of the plaintiff or a note that [**4] bears either an endorsement in blank or a special endorsement in favor of the plaintiff. See McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012); see also § 673.3011, Fla. Stat. (2016) (stating that a "person entitled to enforce" an instrument includes "[t]he holder of the instrument"); Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 321-22 (Fla. 5th DCA 2013). While the Trust had possession of the Olsak Note bearing a blank endorsement, the trial court nonetheless determined that the Trust never acquired any interest in the Olsak Note. The record reflects that the trial court's conclusion was based exclusively on Kahn's testimony. Specifically, Kahn opined that: (i) the terms of the Trust documents required all notes held by the Trust to contain specific endorsement language not contained on the endorsed EFTA01416954 Olsak Note; (ii) the language of the 2006 mortgage assignment did not comport with the requirements of the Trust documents; (iii) Wells Fargo's purported endorsement of the Olsak Note as attorney-in-fact for Orion Bank was invalid because Kahn had not located a recorded power of attorney document in which Orion Bank had appointed Wells Fargo as its attorney-in-fact; and (iv) the alleged infirmities regarding the Olsak Note's endorsements and 2006 mortgage assignment violated IRS rules governing REMICs. At the outset, it bears noting [**5] that [HN3] witnesses, even witnesses qualified as experts, generally are precluded from providing testimony in the form of legal conclusions. See Palm Beach Cty. v. Town of Palm Beach, 426 So. 2d 1063, 1070 (Fla. 4th DCA 1983) ("Regardless of the expertise of the witness, generally, and his familiarity with legal concepts relating to his specific field of expertise, it is not the function of the expert witness to draw legal conclusions. That determination is reserved to the trial court."). Opinion testimony of experts amounting to conclusions of law are inadmissible because the determination of such questions is exclusively within the court's province. Thundereal Corp. v. Sterling, 368 So. 2d 923, 928 (Fla. 1st DCA 1979) (internal quotations and For internal use only EFTA01416955 Page 40 208 So. 3d 227, *; 2016 Fla. App. LEXIS 17683, **; 41 Fla. L. Weekly D 2658 citations [*230] omitted). And, it constitutes reversible error for a trial judge to rely upon expert testimony to determine questions of law. Devin v. City of Hollywood, 351 So. 2d 1022, 1026 (Fla. 4th DCA 1976). Kahn's testimony was devoid of facts to assist the trial court in making its own legal conclusions regarding the Trust's standing. Rather, Kahn simply provided legal opinions -often of dubious relevance and in conclusory fashion -- related to the Trust's operating documents and the IRS tax code's treatment of REMICs. Interestingly, when Kahn was asked on cross-examination if an endorsed-in-blank note is a transferrable instrument, the trial court sustained Olsak's [**6] objection that the question called for a legal conclusion. We are compelled to reverse the trial court's determination that the Trust lacked standing, because the trial court based its standing conclusion exclusively on Kahn's legal opinions regarding matters of questionable relevance. Furthermore, Kahn testified that the Trust documents did not allow for inclusion of notes that had been endorsed in blank. Olsak, however, is not a party to those Trust documents and therefore, lacks standing to challenge same. Castillo v. Deutsche Bank Nat'l Trust Co., 89 So. 3d 1069 (Fla. 3d DCA 2012) (Mem). [HN4] Florida courts have repeatedly held that borrowers cannot defeat a foreclosure plaintiff's standing by relying upon trust documents to which the borrower is not a party. Id. Similarly, Kahn testified that certain IRS and banking provisions would have precluded the Trust from receiving favorable tax treatment if the Trust owned the Olsak loan. Absent a relevant factual basis, however, this legal opinion, while certainly interesting, has questionable probative value on the dispositive issue in this case: whether the Trust actually held the Olsak Note at the inception of the case. On remand, the trial court must determine, along with any other contested issues, whether the Trust [**7] had standing to bring the action at the case's inception. McLean, 79 So. 3d at 173. In making this determination, any facts upon which the trial court relies should be EFTA01416956 supported by competent, substantial, relevant evidence, and not merely legal conclusions of a party's expert. IV. Conclusion Because the record on appeal reflects that the trial court impermissibly relied upon Appellees' expert's legal conclusions, we reverse the trial court's final order involuntarily dismissing the Trust's claim, and remand for further proceedings consistent with this opinion. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY *** Copyright 0 2016 CourtLink Corporation UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK (Central Islip) For internal use only EFTA01416957 Page 41 Kahn V. Bmw Of North America, Llc 2:14cv2463 Kahn V. Bmw Of North America, Llc PLAINTIFF: Richard Kahn DEFENDANT: BMW of North America, LLC DOCKET CASE NUMBER: 2:14cv2463 FILING DATE: 4/17/2014 JURISDICTION: Diversity JUDGE: Arthur D. Spatt REFERRED TO: Magistrate Judge Anne Y. Shields NATURE OF SUIT: 370 Fraud FILING TYPE: Civil - Class Action CAUSE: Diversity-Fraud28 USC 1332 JURY DEMAND: Plaintiff DEMAND: $ 5,000,000 STATUS: Case Closed PLAINTIFF ATTORNEY(S): Tina Wolfson [LEAD ATTORNEY;ATTORNEY TO] Ahdoot & Wolfson, P.C. 1016 Palm Avenue West Hollywood, CA, USA 90069 310-474-9111 Fax: 310-474-8585 Email:[email protected] Wendy R. Stein [LEAD ATTORNEY;ATTORNEY TO] (Terminated 9/29/2014) Gibbons P.C. One Gateway Center Newark, NJ, USA 07102 Paul C. Whalen [LEAD ATTORNEY;ATTORNEY TO] Law Offices of Paul C. Whalen, P.C. 768 Plandome Road 3 Manhasset, NY, USA 11030 516-426-6870 Fax: 212-658-9685 Email:[email protected] For internal use only EFTA01416958 Page 42 Kahn V. Bmw Of North America, Llc 2:14cv2463 DEFENDANT ATTORNEY(S): Christopher J. Dalton [LEAD ATTORNEY;ATTORNEY TO] Buchanan Ingersoll & Rooney PC 550 Broad Street Suite 810 Newark, NJ, USA 07102 973-273-9800 Email:[email protected] Rosemary J. Bruno [ATTORNEY TO BE NOTICED] Buchanan Ingersoll & Rooney PC 550 Broad Street Suite 810 Newark, NJ, USA 07102 973-273-9800 Fax: 973-273-9430 Email:[email protected] THE COURT UPDATED THIS RECORD ON: 04/16/2015 12:00:00 AM For internal use only EFTA01416959