Picht v. James Hardie Building Products, Inc.

Filing 111

PRETRIAL ORDER NO. 3: Attorneys' fees and expenses. (Written Opinion). Signed by Chief Judge Michael J. Davis on 10/3/12. (Attachments: # 1 Appendix)Associated Cases: 0:12-md-02359-MJD-LIB et al.(GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

In Re HardiePlank Fiber Cement Siding
Litigation,

MDL File No. 12-md-02359-MJD-LIB

This document relates to:
All Actions
PRETRIAL ORDER NO. 3

This Order establishes a protocol for the submission and review of attorneys' fees
and expenses in this MDL. Each attorney submitting a monthly time or expense report
pursuant to this Order shall be considered as representing to the Court, under oath, that
the time and expense submitted meets the criteria set forth below.

The following

protocol shall be used by any counsel who intends to seek attorneys' fees and/or expense
reimbursement from settlements/judgments relating to the HardiePlank Fiber Cement
Siding litigation.
I.

GENERAL PROVISIONS

Each firm is required to maintain contemporaneous and detailed time and expense
records. The Court approves the Time and Expense Report Form attached as Exhibit A.
The initial time and expense report shall cover the time period from inception of
the MDL through September 30, 2012 and shall be submitted by October 20, 2012 1.
Thereafter, Counsel shall, by the 20th day of each month, electronically submit to Lead
Counsel a report of their time and expense records for the preceding month in the manner
and format set forth herein. Failure to keep time and expense reporting current will be
grounds for denying any subsequent request for reimbursement.

1

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See also § V, infra.

A.

Authorization Required

Only time and expenses authorized by Lead Counsel and incurred on matters that
advance the common benefit effort will be considered as compensable. “Read and
review” time will not be compensated unless you were assigned to work on the
submission or otherwise had a compelling reason to do so. No time or expense spent on
developing or processing your case for an individual client will be considered or should
be submitted.
B.

An Overview of Compensable Time

Although all common benefit attorney fee requests will be viewed through the
Johnson 2 prism, the analysis first requires identifying “compensable” time through an
illustrative list of germane questions such as those that follow:
•

Was the activity authorized?

•

Was the time properly described?

•

Was it necessary?

•

Was it reasonable?

•

Was it excessive?

•

Was it duplicative?

•

Did the activity actually advance the common benefit effort?

2

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The Johnson
factors for determining the amount of an attorney fees award are: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the political undesirability of the
case; (11) the nature and length of the professional relationship with the client; and (12) awards
in similar cases.

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Essentially, the only common benefit time that is compensable is time which (1) is
properly and timely documented; (2) authorized; and (3) was necessary, reasonable and
actually advanced the common benefit effort.
C.

Categories of Time That Will Not be Compensated

The following categories are examples of time that will not be compensated absent
extraordinary circumstances.



Time spent by each firm creating and compiling the monthly time and
expense reports in this Order.



All time and expense descriptions that are incomplete.



Clerical time related to file maintenance.



II.

Read and review time for persons not overseeing or directly participating in
a project.

Time billed by two or more people in the same firm unless both people are
required to attend the same court hearing or meeting or are specifically
requested to attend or work on a project together.

EXPENSE REPORTS/COSTS

Expense reports should itemize out-of-pocket, case-related expenses in the column
for the current monthly amounts and the column for the cumulative amounts. If there is a
“Miscellaneous/Other” expense item on a report, the item must describe on that month’s
report the nature of the “Miscellaneous/Other” item. Routine office supplies are not
compensable expenses. Good judgment shall be used on travel and other expenses, and
shall be kept within reasonable limits. Personal expenses such as entertainment will not
be allowed. Airline travel is to be billed at coach fare; any upgrades will be at the
individual’s own expense.
A.

Expense Reporting: Rules Regarding Shared and Held Costs
1.

Receipts. Unless otherwise addressed below, each expense claim
must be properly documented by a receipt or some other form of
proof of payment acceptable for ultimate presentation and approval
by the Court. Copies of receipts need to be submitted on a monthly
basis. Originals must be available for production upon request.
Cash advances will not be considered for reimbursement without
evidence of payment made with the case.

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2.

Common Shared & Held Costs. Costs advanced by a firm will be
deemed as either common “Shared” or “Held.”
a.

Shared Costs are costs that will be paid out of a separate
Plaintiffs’ MDL No. 2359 Fund account established by
Plaintiffs’ Counsel at U.S. Bank, and to be funded by Lead
Counsel and all members of the Executive Committee and
others as determined by the Executive Committee. The MDL
No. 2359 Fund account will be administered by Plaintiffs’
Lead Counsel.

b.

Generally, costs in the categories below shall be considered
Common Shared Costs.
1.
2.
3.

4.
5.
6.
7.
8.
9.
10.
11.
12.
3.

Court, filing and service costs of common pleadings
Deposition and court reporter costs of common
pleadings
Document Depository; Creation and Administration Equipment for Executive Committee Administrative
Matters (including but not limited to LexisNexis
service, website, etc.)
Equipment and leases for group common expenses
(e.g., computer equipment)
Expert witness and consultant fees
Extraordinary postage (mass mailing)
Printing, copying, coding, scanning (outside vendor or
extraordinary and related solely to common issues)
Executive Committee group meetings and expenses as
approved by the Executive Committee
Research by outside third party
Telephone conference calls (third party)
Common Witness expenses including travel
Translation Cost

Held Costs. Costs generally not considered common Shared Costs
shall be Held Costs. Held Costs are those that will be carried by
each attorney in MDL No. 2359 and reimbursed as and when
determined by Lead Counsel and the Executive Committee. No
specific client-related costs can be considered as held costs. All
costs of a substantial nature that meet these requirements and fall
under the following categories shall be considered Held Costs and

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qualify to be submitted for consideration by the Lead Counsel and
the Executive Committee or its designee(s) for future
reimbursement. An illustrative list includes:
1.
2.
3.
4.
5.
6.

7.
8.
9.
B.

Fax charges (only actual long distance charges)
Postage, Shipping, Courier, Certified Mail
Printing & Photocopying (in-house) (not to exceed $0.15 per
page)
Computerized research - Lexis/Westlaw
Telephone - local and long distance
Travel:
a.
Airfare (Coach rate)
b.
Reasonable ground transportation
c.
Reasonable hotel
d.
Reasonable meals
e.
Reasonable other (e.g., parking)
Assessments
Car rentals, cabs, etc.
Investigative Services

Assessments:

Lead Counsel and each member of the Executive Committee shall contribute to
the MDL No. 2359 Fund at times and in amounts sufficient to cover Plaintiffs’
expenses for the administration of the MDL. The timing and amount of each
assessment will be determined by Lead Counsel, with the advice and consent of
the Executive Committee, and each assessment will be paid to Plaintiffs’ Lead
Counsel. Failure to pay assessments will be grounds for suspension from the
Executive Committee or a position within the Plaintiffs’ leadership structure in the
litigation and bar the firm from performing work in MDL 2359.
C.

Non-Travel Limitations: The following apply:
1.

Long Distance and Cellular Telephone: Long distance and cellular
telephone charges must be documented. Copies of the telephone
bills must be submitted with notations as to which charges relate to
MDL No. 2359.

2.

Shipping, Courier, and Delivery Charges: All claimed expenses
must be documented with bills showing the sender, origin of the
package, recipient, and destination of the package.

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3.

4.

Telefax Charges: Contemporaneous records should be maintained
and submitted showing faxes sent and received.

5.

In-House Photocopy: A contemporaneous photocopy log or other
supporting documentation must be maintained and submitted. The
maximum copy charge is $0.15 per page.

6.

Secretarial and Clerical time: An itemized description of the task
and time spent must be submitted for secretarial and clerical time.
All overtime must be approved before submission by the Lead
Counsel.

7.

Computerized Research–Lexis/Westlaw:
Claims for Lexis,
Westlaw, and other computerized legal research expenses should be
in the exact amount charged to the firm for these research services.
Copies of all computerized research bills must be submitted with
notations as to which charges relate to MDL No. 2359.

8.

III.

Postage Charges:
A contemporaneous postage log or other
supporting documentation must be maintained and submitted.
Postage charges are to be reported at actual cost.

Equipment Purchases. Purchases of equipment, including laptop
computer purchases for and utilized by the individual attorneys and
their staff, even if used primarily for MDL No. 2359, are not to be
claimed, absent special circumstances approved by the Lead
Counsel.

SUBMISSION OF SHARED EXPENSES
An expense request shall be completed and submitted with copies of receipts and

logs.
IV.

SUBMISSION OF HELD EXPENSES

The expense report attached as Exhibit B shall be completed and submitted with
copies of receipts and logs.
V.

SUBMISSION OF TIME REPORTS

Time and expense reports shall be submitted electronically to Lead Counsel at
[e-mail], with a copy to [e-mail]. The first report covering
all time through September 30, 2012 shall be due on or before October 20, 2012. If

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reports have been submitted to Lead Counsel previously, only the monthly updates as
specified in this Order need to be submitted. If sent by mail, the reports should be
directed to:
Robert K. Shelquist
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: [phone]
Fax: [phone]
The time report must list the name and title of all persons in the submitting firm
who work on the case, together with the number of years the attorney has been in
practice, the current number of hours each individual worked for the reported month, the
current rate in effect for each individual for that month, the current monthly lodestar (fee)
amount, the cumulative hours, and the cumulative lodestar. Once an individual appears
on the time report, they shall remain on the time report with at least the cumulative
amounts carried forward on all future reports. The cumulative columns are running totals
based on historical amounts. Changes to the cumulative amounts only occur when new
monthly amounts are added to the cumulative amounts from the previous report. If there
are no new current amounts, the cumulative totals remain the same.
A listing of all time shall be submitted by the 20th of each month denoting:
I.
II.
III.
IV.

Date
Description
Timekeeper name
Time (.1 hour increments)

IT IS SO ORDERED.

Dated: October 3, 2012

s/ Michael J. Davis
Chief Judge Michael J. Davis

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