HARDING et al v. JACOBY & MEYERS, LLP et al

Filing 100

OPINION. Signed by Judge John Michael Vazquez on 10/30/2017. (JB, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NANCY HARDING et al,

Plaintiffs,
Civil Action No. 14-5419 (JMV) (MF)
V.

OPINON

JACOBY & MEYERS, LLP, et al,
Defendants.

John Michael Vazguez, U.S.D.J.

This class action comes before the Court on Plaintiffs’ motion for class certification. The
matter arises from a dispute between Nancy and Jeffrey Harding and their former lawyers,
Finkeistein & Partners, LLP (“F&P”). Plaintiffs allege that they were improperly charged for
work performed by Total Trial Solutions, LLC (“Total Trial”), a litigation support company that
is owned by one of the named partners of Finkeistein & Partners. Plaintiffs filed this matter on
behalf of themselves and all others similarly situated. Plaintiffs claim that Total Trial’s work
should have actually been covered by F&P’s contingency fee arrangement with Plaintiff instead,
Plaintiffs were charged for Total Trial’s work as a separate expense. Plaintiffs also seek the
appointment of class counsel. For the reasons stated below, Plaintiffs motion is DENIED.
I. Background & Procedural History

Plaintiffs Nancy and Jeffrey Harding filed their Complaint on August 28, 2014, against
Jacoby & Meyers, LLP, F&P, Total Trial, Andrew Finkelstein, and Kenneth Oliver. D.E. 1
(“Compl.”). Plaintiffs had retained F&P to separately represent them in two unrelated personal
injury lawsuits. Compi. at ¶Jl2, 36. Ms. Harding’s case ultimately settled for $195,000; F&P’s
1

one-third contingency fee was $57,938.60, and $21,183.66 was deducted from the settlement for
litigation expenses. Compl. at ¶29. Mr. Harding’s case was settled for $99,280.00. Compi. at
52. The contingency fee was $29,340.06, and his settlement was reduced by another $11,258.50
for expenses. Id. Part of the deducted expenses in Ms. Harding’s case, $3,870.68, and in Mr.
Harding’s case, $2,968.40,’ were for payments made to Total Trial. Compl. at ¶8, 53-54, Exhibit
B to the Declaration of Olimpio Lee Squitieri in Support of Plaintiffs Motion for Class
Certification (hereinafter “Squitieri Decl.”) at 7.
Both Finkelstein and Oliver are equity partners of F&P. Ex. B to Squitieri Decl. at 7-8.
Total Trial, along with MedTrial Solutions, LLC, and CineTrial Solutions, LLC, were formed in
2009 by Defendants Andrew Finkeistein and Kenneth Oliver as litigation support businesses.2
Ex. D to Squitieri Decl. While all three LLCs are litigation support service businesses, Total
Trial is the focus here. Oliver has since divested his interest in Total Trial. See Ex. B to
Squitieri Decl. at 7-8.
Total Trial performs a number of different services for F&P and Jacoby & Meyers,
including: service of subpoenas, writing and editing client biographies, investigations, photo and
video gathering, locating expert witnesses, research, conducting focus groups, and creating trial
exhibits. See Ex. Ito Squitieri Dccl. Total Trial shares space in the same building as F&P, and

Mr. Harding’s Declaration cites this number but no receipt for the “future special needs” report
is included in Exhibit. Without it, the total deductions for Total Trial expenses equal $2,728.98.
See Ex. T to Squitieri Deci.
2

Joel Finkelstein also owned part of Total Trial, MedTrial, and CineTrial when they were
formed. See Ex. D to Squitieri Dccl. at 42. Finkelstein was an equity partner in Jacoby and
Meyers at the time. The three entities Total Trial, MedTrial, and CineTrial had formerly
been incorporated before being changed to LLCs. Ex. D to Squitieri Decl.
—

—

2

F&P also shares the same computer system with Total Trial.3 Ex. F to Squitieri Deci. at 16-17.
Total Trial performed several tasks on Ms. Harding’s case including the following:
preparing a biography, scanning and printing color photographs, preparing a video, and locating
a liability expert. Declaration of Nancy Harding at ¶6. For Mr. Harding’s case, Total Trial
prepared a biography as well as printed and copied color photographs. Declaration of Jeffrey
Harding at ¶6.
Both Mr. and Ms. Harding signed retainer agreements with F&P that included the
following language under the heading “Litigation Costs and Expenses”:
(b) Costs and Expenses Affecting Contingency Fee
Costs and expenses paid by Law Firm in connection with Client’s
claim shall be reimbursed before the contingency fee is computed

(d) Advancement of Costs
“Law Firm is authorized to incur reasonable costs and expenses in
performing legal services under this Agreement.” In accordance
with applicable law, regardless of the outcome of this matter, Client
shall remain responsible to the Law Firm for such advances. The
Law firm utilizes very extensive trial support services in order to
obtain the best possible verdict or settlement, which can result in
large expenditures by the Law Firm.
(c) Total Trial Solutions, LLC, MedTrial Solutions, LLC, and
CineTrial Solutions, LLC,
Among the independent contractors we use is Total Trial Solutions,
LLC, (“Total Trial”), MedTrial Solutions, LLC (“MedTrial”) and
CineTrial Solutions, LLC (“CineTrial”). Total Trial provides a very
broad menu of litigation support services. These include, but are not
limited to: story and biographical work by accomplished writers,
computerized time lines and trial exhibit creation, forensic
accounting, forensic data base searches, investigation including
scene inspection and witness statements, transportation,
translator/interpreter services, in Court technical support time
coding documents for trial/mediation/arbitration.
.

.

As to sharing the same computer system, Defendants do not challenge the assertion, so the
Court accepts it as true for purposes of the motion.
3

Total Trial, MedTrial and CineTrial are owned in whole or in part
by Andrew Finkeistein and Kenneth Oliver, Partners of the Law
firm. Mr. Finkelstein and Mr. Oliver will benefit from the use of
these services by the Law Firm. Consequently, you have the right
to inquire about the charges for these services and insist that any
such services be obtained from other vendors to avoid any potential
conflict of interest. Be aware, these companies are not a law firm,
are not part of the Law Firm and do not provide legal services.
However, we have found the use of these companies allows for a
seamless offering of services necessary for exemplary trial work.
You should be aware that most of the services obtained from Total
Trial, MedTrial and CineTrial can be obtained from other vendors.
The cost for the services provided by these companies will vary
when provided by other vendors; it is possible that the cost for a
particular services, when offered by other vendors may be less
expensive than those offered by Total Trial, MedTrial or CineTrial.
However, the firm believes Total Trial, MedTrial and CineTrial
provide superior services and you will benefit from the services
provided by these companies notwithstanding this possible added
expense. If at any time the Law firm believes another vendor will
provide comparable service for les it will notify you in order to give
you the option of using another vendor.
Please remember, you should consult independent counsel, if you
deem appropriate, regarding the benefit and propriety of the above
described expenses and the utilization of Total Trial, MedTrial and
CineTrial.
Exs. K & L to Squitieri Declaration. The parties do not dispute that the same, or a substantially
similar, retainer was used by F&P during the relevant period.
As noted, Plaintiffs filed their Complaint in August 2014 on behalf of themselves and
others similarly situated. D.E. 1. The Complaint accuses Defendants of: breach of fiduciary
duty (against F&P, Jacoby & Meyers, Finkeistein and Oliver), aiding and abetting breach of
fiduciary duty (against Total Trial), breach of the duty of good faith and fair dealing (against
F&P, Jacoby & Meyers, Finkelstein and Oliver), violation of N.Y. General Business Law
§349(a) (same), unjust enrichment (against Total Trial, Finkelstein and Oliver), and violation of
N.Y. Judiciary Law §487 (against F&P, Jacoby & Meyers, Finkelstein and Oliver). Compl. at
4

¶69-119.
Defendants filed a motion to dismiss on October 23, 2014. D.E. 15. Judge Arleo granted
and denied the motion in part, dismissing the claim for breach of contract against Oliver and
Jacoby & Meyers, the unjust enrichment claim against Finkelstein and Oliver, and the claim for
violation of New York Judiciary Law §487. D.E. 28. Judge Arleo denied the motion as to the
following counts: breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach
of contract, breach of the duty of good faith and fair dealing, violation of N.Y. General Business
Law §349(a), and unjust enrichment. Id.
Discovery and settlement discussions were ongoing throughout 2015 and 2016. D.E. 2972. Plaintiffs filed a motion to consolidate their case with a parallel case, Srnalts v. Jacoby &
Meyers, et at, Docket No. 15-6559, on March 9, 2016. D.E. 73. Judge F alk denied the motion
and directed Plaintiffs to file their motion for class certification on July 25, 2016. Plaintiffs filed
the instant motion on August 31, 2016.
Plaintiffs request that the following class be certified: “Clients of Finkelstein & Partners
who were billed for litigation support services provided by Total Trial from March 31, 2009 until
the present.” D.E. 80, 81, Brief in Support of Motion for Class Certification at 11 (hereinafter
“Certification Brief’). Defendants filed their Opposition on September 26, 2016, D.E. 85, to
which Plaintiffs replied, D.E. 88. Defendants filed a letter on October 5, 2016, objecting to
Plaintiff having allegedly raised new arguments and including a new class definition in their
Opposition on October 5, 2016. D.E. 944 Plaintiffs replied to the letter the next day. D.E. 95.

Defendants object that Plaintiffs, in their reply, propose a potentially new class definition:
“Clients of finkelstein & Partners who were improperly billed by Total Trial for legal services,
law firm overhead, or otherwise charged an impermissible markup.” See Reply Memorandum of
Law in Further Support of Plaintiffs Motion for Class Certification (hereinafter “Reply Brief’)
at 5 & n.2. They further object that Plaintiffs advanced a new argument in their reply, namely
5

II.

Standard

Plaintiff bears the burden of showing that the proposed class satisfies the four
requirements of Rule 23(a) of the federal Rules of Civil Procedure:
1. The class is so numerous 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); Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). These four prongs are
often referred to as numerosity, commonality, typicality, and adequacy of representation.
Additionally, Plaintiffs must show that at least one of the three requirements of Rule
23(b) is satisfied. See Fed. R. Civ. P. 23(b). Plaintiffs here seek certification under 23(b)(3),
which requires that “questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Id. Rule 23(b)(3)’s
requirements are often referred to as the predominance prong and the superiority prong.
“Careful application of Rule 23 accords with the pivotal status of class certification in
large-scale litigation.” In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 310 (3d Cir.

2008). Rule 23 is not a “mere pleading standard”; Plaintiffs must show that the putative class
meets the requirements through evidentiary proof Id. at 316; Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011). In other words, conformity with Rule 23 is not presumed and a
plaintiff must support its position with evidence. “[A] party’s assurance to the court that it

that “finkelstein & Partners failed to have a process in place to adequately inform clients of
Total Trial Solutions’ services and their costs.” D.E. 94. As discussed below, the Court finds
that Plaintiffs’ motion is lacking and the proposed changes by Plaintiff would not cure the
deficiencies noted.
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intends or plans to meet the requirements is insufficient.” In re Blood Reagents Antitrust
Litigation, 783 F.3d 183, 187 (3d Cir. 2015) (citations omitted).
At the certification stage, a court should not evaluate the merits of either party’s legal or
factual claims. Nevertheless, it maybe necessary “to analyze the elements of the parties’
substantive claims and review facts revealed in discovery in order to evaluate whether the
requirements of Rule 23 have been satisfied.” In Re ford Motor Co. Ignition Switch Products
Liability Litigation, 174 F.R.D. 332, 339 (D.N.J. 1997). In other words, a court does not review
legal and factual claims to determine who will prevail, but a court can consider such claims in
deciding whether Rule 23’s prerequisites are established. Analysis of a motion for class
certification is “rigorous,” and requires the Court to make the finding that each requirement of
Rule 23 is met. In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46, 55 (D.N.J.

2009). Using a preponderance of the evidence standard, the Court must find that each
requirement has been met after thoroughly reviewing relevant evidence, “including expert
testimony.” Id.
III.

Analysis
As an initial matter, Defendants only challenge Plaintiffs arguments for class

certification as to typicality, commonality, predominance, and damages.5 Thus, the Court will
only address those four areas. Defendant’s argument, at base, is that Plaintiff has failed to
present sufficient evidence, expert or otherwise, that would allow the Court to find by a
preponderance of the evidence that the foregoing Rule 23 requirements have been met.
As noted, Plaintiffs cannot simply “propose a method” for showing the Rule 23
requirements “without evidentiary support.” Harnish v. Widener University School ofLaw, 833

In their moving papers, Plaintiff addressed all the requirements of Rule 23(a) and (b)(3).
7

F.3d 298, 304 (2016) (citation omitted) (upholding a district court’s denial of class certification
on the grounds that predominance had not been adequately shown). The Third Circuit explained
that while class certification does not require full analysis of the merits, the district court has to
predict “how specific issues will play out.” Id. “Thus, the task for the District Court [is] to
determine whether the plaintiffs’ proposed class-wide theories and evidence would be
sufficient.” Id. at 305 (emphasis in original); see also In re Hydrogen Peroxide Antitritst

Litigation, 552 f.3d at 31$ (stating that “assurance to the court that [a party] intends or plans to
meet the requirements is insufficient”). Yet, Plaintiffs need not “go so far as to

.

.

.

prove that the

class will succeed on its claims.” Bright v. Asset Acceptance, LLC, 292 F.R.D. 190, 196 (3d Cir.
2013).
Plaintiffs motion suffers from a fundamental defect: the lack of critical evidence to
support their legal theory. Plaintiffs have failed to proffer any evidence (which presumably
would come in the form of an expert) as to the three central issues presented: (i) whether Total
Trial was performing legal work that should have been done by F&P; (ii) whether F&P should
have handled certain Total Trial tasks internally and without additional charge to Plaintiffs; and
(iii) whether Total Trial’s rates were unreasonably high. At best, Plaintiffs only state that they
intend to call an expert on these issues.
For example, Plaintiffs complain that certain activities by Total Trial

—

such as the

writing of client biographies6 and the printing/scanning/saving of colored photographs

—

are

duties that any reasonable personal injury law firm should undertake in the normal course of

6

Defendant also notes that a relatively small percentage of F&P’s clients were charged for Total
Trial’s biography services. If true, this fact could significantly impact the size of the proposed
class and the anticipated damages.
8

representation. In other words, these tasks should not be farmed out and Plaintiffs should
certainly not be charged for the expense of doing so. Plaintiffs, however, need evidence to
support this position. Unfortunately, Plaintiffs as lay persons are not in position to opine as to
what work a personal injury law firm normally does itself. Similarly, as to alleged inflated prices
for other services offered by Total Trial, Plaintiffs completely fail to offer evidence as to which
services, the normal and customary costs for such services, and the amount that Total Trial
overcharged.
Rather than present expert testimony on what, by Total Trial, constitutes the practice of
law, or what kinds of services are typically performed in-house at a personal injury law firm such
as F&P, Plaintiffs instead state that “expert testimony can be used to support Plaintiffs theory of
liability and damages. For instance, an expert specializing in attorney ethics, legal malpractice,
and professional liability could review Total Trial’s work product and opine as to whether
Defendants” either should have performed the work themselves or overcharged Plaintiffs for it.
Certification Brief at 20 (emphasis added).7
I.

Typicality

The typicality requirement measures whether the interests of the lead plaintiff “align with
the interests of the absent members,” and whether the circumstances of the purported class are
the same. See Stewart v. Abraham, 275 F.3d 220, 227 (3d Cir. 2001). Even if there are factual

‘

Total Trial uses 160 different codes when billing, each of which correspond to 110 different
tasks. See Ex. I to Squitieri Decl. Defendants point to this vast array of codes and tasks as proof
that class certification will not be possible. The Court does not necessarily agree; whether
certain codes or tasks can effectively be grouped together for purposes of class certification will
be fact dependent. Of course, if Plaintiffs again move for class certification, they should provide
a more thorough explanation as to why the differing codes and tasks are either irrelevant or can
amalgamated in fashioning the class.
9

differences among the class, typicality can still be satisfied. Id.; see also Newton v. Merrill
Lynch, Fierce, fenner & Smith, Inc., 259 f.3d 154, 183 (3d Cir. 2001) (stating that typicality,
like commonality, is a “low threshold”).
Plaintiffs argue that because all class claims are based on the same legal theory and “stem
from” a “common course of misconduct” by Defendants, the typicality prong is satisfied.
Certification Brief at 15-16. Defendants argue that the two Plaintiffs here are not typical of the
class because “they have not set forth any overarching factual or legal theory as to why any
billing, let alone all billing for [Total Trial’s] services was improper.”8 Opposition Brief at 9
(emphasis in original).
The Court recognizes that typicality requirement is not a high burden, but Plaintiffs
nevertheless fall short. Plaintiffs do point to a common practice or course of conduct by F&P
vis-à-vis the proposed class: the use of the substantially same retainer as well as the hiring of
Total Trial. Yet, Plaintiffs apparently claim that all of Total Trial services were either the
improper practice of law, should not have been billed as separate expenses, and/or were
overpriced. At least, this is apparently Plaintiffs’ position in light of the class they seek to certify
(although Plaintiffs by no means allege deficiencies as to all services). However, due to the
evidentiary void noted above, Plaintiffs have not met their burden. Plaintiffs have not

8

Defendants also argue that Plaintiffs could not present expert testimony on the question of what
constitutes the practice of law as “it is a question of law, not expert opinion.” Defendant’s Brief
in Opposition to Plaintiffs Motion for Class Certification (hereinafier “Opposition Brief’) at 10
& n.6. If true, then Defendants claim that an expert is necessary is erroneous. Nevertheless, the
thrust of Plaintiffs’ claims do not appear to focus on Total Trial’s provision of legal services.
Instead, Plaintiffs seemingly claim that many of services provided by Total Trial should have
instead been performed by F&P so that Plaintiffs’ would not have paid for them as additional
expenses. Nevertheless, because the Court is denying the motion without prejudice, if Plaintiffs
renew their motion in the future, they must specifically designate what Total Trial work they are
alleging to be legal services.
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demonstrated that their claims are typical of all other clients of F&P, in whose cases Total Trial
was used, during the requested period. Plaintiffs have not provided sufficient evidence of which
Total Trial services in their own cases were actually legal services, should have been performed
in-house by F&P, and/or were overpriced. Plaintiffs, as lay persons, cannot opine as to what
constitutes legal services or services that F &P should have performed itself. Similarly, because
Plaintiffs do not indicate that they are personally familiar with the relevant industry (such as
subpoena service), they cannot opine as to which services were overpriced. Without
understanding this critical threshold information, the Court cannot conclude that Plaintiffs’
claims are typical of all other clients of F&P and Total Trial during the period. If Plaintiffs do
submit such evidence in the future, the Court will be in a better position to assess the typicality
prong.
2. Commonality
Typicality and commonality are both broad categories that “tend to merge because they
focus on similar aspects of the alleged claims.” Newton, 259 F.3d at 187. “Commonality
requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.”
Wal-Mart Stores, 564 U.S. at 349-50 (citation omitted). The class claims must rely on a

“common contention” that is capable of being resolved by the class action. Id. at 338. The issue
is not whether the class claims ask the same question, but whether the class action “will generate
common answers apt to drive the resolution of the litigation.” Id. at 350. The claims need not be
identical, and they may have factual differences. In re Prudential Ins. Co. Am. Sales Practice
Litig. AgentActions, 148 F.3d 283, 310 (3d Cir. 1994). However, the lead plaintiffs must share
at least one question of fact or law with the prospective class. Rodriguez v. Nat ‘1 City Bank, 726
F.3d 372 (3d Cir. 2013).

11

Plaintiffs main argument as to commonality of legal issues is that all putative class
members signed the same or similar retainer. Certification Brief at 15. Defendants counter that
the retainer agreement is not enough, because Plaintiffs would need an expert to testify as to
which services rendered by Total Trial—if any—were either legal services, services that the
firms should have performed in-house, or services that the class members were overcharged for.

Opposition Brief at 13-14. Defendant argues that what will result are “hundreds of
individualized trials” instead of a full adjudication of the entire class-wide questions. Id. at 14.
The commonality prong is lacking for the same reasons as the typicality requirement.
The Court is well aware of the commonality concerning the retainer agreements and the use of
Total Trial, but the Court is unable to form the common question (much less answer) as to which
specific Total Trial services are at issue. Again, if Plaintiffs submit the appropriate evidence in
the future, they may be able overcome this relatively low hurdle. For example, Plaintiffs may be
able to produce evidence that any F&P client who was charged for A, B, and C services by Total
Trial were improperly charged because F&P should have performed those services in-house.
Similarly, Plaintiffs may be able to produce evidence that any F&P client who was charged for
X, Y, and Z services by Total Trial were overcharged.9 Yet, to date, Plaintiffs have not
sufficiently done so even as to their own claims.
3. Predominance

The Rule 23(b)(3) predominance requirement is more stringent than the commonality
requirement of 23(a). See In re Hydrogen, 552 F.3d at 311. However, they are often discussed
together. Predominance “tests whether the proposed class[] [is] sufficiently cohesive to warrant

The Court is aware that if such evidence is forthcoming, sub-classes may be necessary.
However, the Court will first determine if such evidence is produced in the first instance.
12

adjudication by representation.” In re Mercedes-Benz, 257 F.R.D. at 72 (citations omitted). A
court must necessarily “formulate some prediction as to how specific issues will play out in order
to determine whether common or individual issues predominate in a given case.” In re
Hydrogen Peroxide Antitrttst Litigation, 552 f.3d at 311. Here, as they have fallen short on

commonality, Plaintiffs have not met their burden as to predominance. See, e.g., Marcus v.
BMW ofNorth America, LLC, 687 f.3d 583, 600-01 (3d Cir. 2012) (reversing the district court’s

grant of class certification for failure to show predominance, despite all of plaintiffs common
law claims having the same theoretical basis).
4. Damages

Even though damages calculations are pertinent to the merits of a class action, the Court
may also consider, at the class certification stage, how Plaintiff intends to show alleged damages
suffered by the class. See Comcast, 569 U.S. at 34. It is “clear that a plaintiff seeking class
certification must present evidence of a reliable methodology for calculating damages on a classwide basis.” Brightv. AssetAcceptance, LLC, 292 F.R.D. 190, 202 (3d Cir. 2013).

At this point, it is not clear how Plaintiffs propose to prove damages because, as noted, it
is not clear which Total Trial services are at issue. Plaintiffs only state that their damages would
be “simply.

.

.

a refund of unlawftilly charged Total Trial fees.” Reply at 11. Such an assertion

begs the essential question of which fees were unlawfully charged. If and when Plaintiffs
provide sufficient evidence as to the suspect charges, then their damage theory may be viable.
IV.

Conclusion

For the reasons stated above, and for good cause shown, Plaintiffs motion for class
certification is DENIED without prejudice. Because the Court is denying the motion, Plaintiffs
motion to appoint counsel is also DENIED without prejudice. An appropriate Order

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accompanies this Opinion.

Dated: October 30, 2017

John Iichae1 Vazque4 1J..D.J.

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