In re: General Motors LLC Ignition Switch Litigation

Filing 434

OPINION AND ORDER re: (8415 in 1:14-md-02543-JMF) MOTION Approval of Allocation of Attorneys' Fees and Costs re: (8307) Order, Terminate Motions, Notice of Motion and Economic Loss Class Counsel's Motion for Approval of Allocation of Attorneys' Fees and Costs filed by GM Ignition Switch MDL Plaintiffs, (8387 in 1:14-md-02543-JMF) MOTION for Summary Judgment on the Claims of Norma Robinson as Administrator of the Estate of Cleon Davis. filed by General Motors LLC. For the reasons stated above, the first two sets of objections from the Objectors are overruled, but the Court reserves judgment on their third set of objections and, by extension, on Class Counsel's motion for approval of their proposed allocations of fees and costs pending the additional submissions described above. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/19/2021) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:
GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
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14-MD-2543 (JMF)
14-MC-2543 (JMF)
OPINION AND ORDER

[Relating to the Allocation of Economic Loss Counsel’s Fees and Expenses]
JESSE M. FURMAN, United States District Judge:
In December 2020, the Court granted final approval to the class action settlement of economic
loss claims in this long-running multidistrict litigation (“MDL”) arising out of defects in, and the recall
of, millions of General Motors vehicles. The Court also awarded Plaintiffs’ counsel more than $24
million in attorneys’ fees and nearly $10 million for expenses, but deferred the question of how to
allocate these funds among the many law firms involved in litigating the class members’ claims
pending a proposal from Class Counsel. Now pending is Class Counsel’s request for approval of a
proposed allocation that assigns the fifty-three relevant law firms to one of three tiers and awards the
firms in each tier a specified percentage of its “lodestar.” Notably, of the fifty-three law firms that
would receive fees or costs under Class Counsel’s proposed allocation, only three object. For the
reasons that follow, the Court overrules the principal objections of these three law firms, but reserves
judgment on final approval pending some additional information needed to evaluate the proposal.
BACKGROUND
The procedural history of this complex litigation has been recounted in a host of prior opinions
and orders, familiarity with which is assumed. In February 2014, General Motors LLC (“New GM”)
announced the recall of certain General Motors vehicles that had been manufactured with a defective
ignition switch that moved too easily from the “run” position to the “accessory” and “off” positions,
causing moving stalls and disabling critical safety systems. In the months that followed, New GM
recalled millions of other vehicles, some for reasons relating to the ignition switch and some for other

reasons. Not surprisingly, litigation followed, in both state and federal courts. The federal cases were
ultimately consolidated in this Court by the Judicial Panel on Multidistrict Litigation.
A. MDL Order Nos. 8 and 13
At the outset of the litigation, the Court entered several case management orders relevant here.
First, in MDL Order No. 8, the Court appointed Steve W. Berman, Elizabeth J. Cabraser, and Robert
C. Hilliard as Lead Counsel for Plaintiffs and appointed ten other attorneys to serve as a Plaintiffs’
Executive Committee. See ECF No. 249 (“MDL Order No. 8”), at 3. 1 Second, the Court entered
MDL Order No. 13, which, “define[d] the authority, duties, and responsibilities” of the Plaintiffs’
leadership and “set specific guidelines and rules for staffing, fees, expenses, and billing records.” ECF
No. 304 (“MDL Order No. 13”), at 1. The Court explained that “Lead Counsel will be responsible for
prosecuting any potential common benefit claims, as well as coordinating the pretrial proceedings
conducted by counsel for the individual Plaintiffs.” Id. at 1-2. The Order then listed nineteen specific
tasks and duties with which Lead Counsel was entrusted, including “determin[ing] . . . and present[ing]
. . . to the Court and opposing parties the position of the Plaintiffs on matters arising during the
coordinated pretrial proceedings”; “coordinat[ing] the initiation and conduct of discovery on behalf of
the Plaintiffs”; “delegat[ing] specific tasks to other counsel”; “organiz[ing] themselves and agree[ing]
on a plan for conducting the MDL on behalf of all Plaintiffs”; “brief[ing] and argu[ing] motions for the
Plaintiffs and fil[ing] opposing briefs and argu[ing] motions and proceedings initiated by other parties
(except as to matters specifically directed to individual Plaintiffs and their counsel)”; “maintain[ing]
time and expense records for work performed, costs incurred and other disbursements made for any
potential common benefit claim”; and “monitor[ing] work performed by the Executive Committee,
Liaison Counsel, and Federal/State Liaison Counsel and those whose work it has specifically

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Unless otherwise noted, all docket references are to 14-MD-2543.
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authorized.” Id. at 2-3. The Court clarified that “Mr. Berman and Ms. Cabraser w[ould] focus on
economic class claims and Mr. Hilliard w[ould] focus on individual Plaintiffs.” Id. at 4.
MDL Order No. 13 further explained that “[t]he recovery of common benefit attorneys’ fees
and cost reimbursements will be limited to ‘Participating Counsel’” — defined as “the Lead Counsel,
Liaison Counsel, and State/Federal Liaison Counsel, the members of the Executive Committee (along
with members and staff of their respective firms), any other counsel authorized by Lead Counsel who
desire to be considered for common benefit compensation, or counsel who have been specifically
approved by this Court as Participating Counsel prior to incurring any such cost or expense.” Id. at 7.
The Order provided that Participating Counsel would be “eligible to receive common benefit
attorneys’ fees and reimbursement of costs and expenses only if the time expended, costs incurred, and
activity in question were (a) for the common benefit of Plaintiffs; (b) appropriately authorized by Lead
Counsel; (c) timely submitted; (d) reasonable; and (e) approved by this Court.” Id. It also explained
that, “[u]nless specifically and explicitly authorized in writing, no time spent on developing or
processing individual issues in any case for an individual client (claimant), and no time spent on any
unauthorized work, will be considered or should be submitted.” Id. at 8.
Counsel were warned “that no application for approval to incur common benefit fees, costs, or
expenses will be considered by this Court unless counsel have first obtained approval from Lead
Counsel.” Id. at 7. The Order required “Participating Counsel who seek to recover Court-awarded
common benefit attorneys’ fees, costs, and expenses in connection with this litigation” to “keep a
daily, contemporaneous record of their time and expenses, noting with specificity the amount of time,
billing rate, and particular activity, along with a brief note indicating the source of authorization for the
activity in question.” Id. at 7-8. Participating Counsel were required to make “[t]ime submissions . . .
to Lead Counsel on a monthly basis, by deadlines to be set by Lead Counsel, in accordance with the
guidelines set forth” in MDL Order No. 13. Id. at 11. “The failure to secure authorization from Lead
Counsel to incur Common Benefit time and expenses, or to maintain and timely provide such records
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or to provide a sufficient description of the activity, will be grounds for denying the recovery of
attorneys’ fees or expenses in whole or in part.” Id. at 12.
B. The Class Action Settlement and Attorney’s Fees and Costs Award
On April 27 and May 4, 2020, the Court preliminarily approved a class action settlement
resolving Plaintiffs’ economic loss claims. See ECF Nos. 7877, 7892. On December 18, 2020,
following a fairness hearing conducted on the record remotely by telephone, the Court granted final
approval of the settlement and confirmed the appointment of Berman and Cabraser as “Class Counsel”
for settlement purposes under Rule 23(g)(3) of the Federal Rules of Civil Procedure. See In re Gen.
Motors LLC Ignition Switch Litig., Nos. 14-MD-2543 (JMF) et al., 2020 WL 7480323, at *4 (S.D.N.Y.
Dec. 18, 2020) (ECF No. 8306). By separate Order entered the same day, the Court granted Class
Counsel’s motion, pursuant to Rule 23(h), for attorney’s fees and expenses, and awarded “Plaintiffs’
counsel (i) $24,585,272.06 in attorneys’ fees and (ii) $9,914,727.94 to reimburse expenses incurred in
connection with this litigation (and that have not been previously reimbursed from the Common
Benefit Fund).” In re Gen. Motors LLC Ignition Switch Litig. (“Rule 23(h) Order”), Nos. 14-MD-2543
(JMF) et al., 2020 WL 7481292, at *4 (S.D.N.Y. Dec. 18, 2020) (ECF No. 8307). Applying the
factors set forth in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), the Court
determined that the aggregate $24.6 million fee award was reasonable. See Rule 23(h) Order, 2020
WL 7481292, at *2-3. In doing so, the Court observed that “[t]he requested $24,585,272.06 for
Economic Loss Class fees results in a multiplier of negative .31 of the total lodestar reported by
Economic Loss Plaintiffs’ Counsel ($78,148,898.77)” — thus, “Economic Loss Plaintiffs’ Counsel
will fall far short of being reimbursed their collective lodestar.” Id. at *3.
The Court directed Class Counsel “to allocate the fees and costs among eligible Plaintiffs’
counsel in a manner that Class Counsel believe, in good faith, reflects the contributions of counsel to
the prosecution and settlement of this Action.” Id. at *4. “The allocation among Plaintiffs’ counsel
shall require approval by th[e] Court, after which Class Counsel shall distribute the fee and expense
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award as directed by the Court.” Id. Pursuant to the briefing schedule adopted by the Court, ECF No.
8330, Class Counsel first circulated an initial proposed allocation to Participating Counsel on February
5, 2021, soliciting feedback and making revisions as appropriate, ECF No. 8417 (“Cabraser Decl.”),
¶¶ 3-4. Class Counsel then submitted its proposed allocations of attorney’s fees and costs and
expenses among Participating Counsel to the Court on March 5, 2021. ECF No. 8415. The proposal
submitted to the Court “provides for greater expense recovery than originally communicated to all
counsel, while fee recovery is identical for most counsel (and more favorable for some based on minor
adjustments). Only Co-Lead Counsel’s overall recovery has been reduced; the overall recovery of all
other counsel has increased.” Cabraser Decl. ¶ 4.
C. The Proposed Allocation
Class Counsel proposes a tiered structure for allocating the $24.6 million in attorney’s fees,
pursuant to which each firm would be reimbursed a specified percentage of its “adjusted reported
lodestar” depending on the tier. ECF No. 8416 (“Class Counsel Mem.”), at 3-4. The two Co-Lead
Counsel firms would make up “Tier 1”; “Tier 2” would consist of the members of the Executive
Committee, Liaison Counsel, and Bankruptcy Counsel; and all remaining Participating Counsel would
constitute “Tier 3.” Id. at 3. Tier 1, Tier 2, and Tier 3 firms would collectively be awarded
$15,410,185.92, $8,920,490.47, and $254,595.67, respectively, and, subject to one exception, each
Tier 1 firm would receive approximately 35% of its relevant lodestar; each Tier 2 firm would receive
approximately 19.3%; and each Tier 3 firm would receive the greater of $1,000 or approximately
7.85% of its relevant lodestar. Id. at 3-4. 2 The one exception is Brown Rudnick, which would receive
23.362% of relevant lodestar, despite being a Tier 2 firm, given its “contribution, (as reflected in its

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This allocation “excludes lodestar and expenses (including the two Co-Leads’) specifically
reported in association with the personal injury/wrongful death (‘PI/WD’) trials.” Cabraser Decl. ¶ 10.
Class Counsel “anticipate[s] making an application on behalf of all Economic Loss Counsel for
compensation in some amount from the Common Benefit Fund for lodestar and expenses specifically
reported in association with the PI/WD trials.” Id.
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lodestar, which is substantially higher than other firms in its tier) as lead bankruptcy counsel, and given
the intensive proceedings in the Bankruptcy Court.” Id. The proposed allocation of the $9.9 million in
costs and expenses is more straightforward: Participating Counsel would “receive most of their
unreimbursed costs back, and each firm will be reimbursed the same pro rata share of expenses.”
Cabraser Decl. ¶ 9. In total, Class Counsel propose to allocate the fee award among fifty-three firms
and the costs and expenses award among forty-three firms. See ECF No. 8418-1 (“Proposed Fee
Allocation”); ECF No. 8240-1 (“Proposed Expense Allocation”). 3
Class Counsel explain that they “recogniz[ed] that the award [of attorney’s fees i]s substantially
less than the total time reported under Orders 8 and 13 for work relating to the economic loss class
claims.” Class Counsel Reply 1. “More specifically, the fee award for all Economic Loss Counsel is
approximately 26 percent of the relevant, reported total lodestar of almost $93 million.” Cabraser
Decl. ¶ 5. Thus, in crafting the proposed allocations, Class Counsel determined that “fairness to all
meant adherence to the two primary principles embodied in Order 13: the work must have been done
for the common benefit of the class, and the work must have been appropriately reported to, and
authorized by, Lead Counsel.” Class Counsel Reply 1. They contend that the proposed allocations are
“equitable given the relative quantity and quality of effort and investments in responsibilities, time, and
costs (and hence ongoing risk) made by the firms in each tier, including the overall contribution to the
ultimate outcome and ongoing responsibilities to finalize, administer, and enforce the Settlement on
the part of the Co-Lead firms.” Class Counsel Mem. 4. As examples of “touchstones” reflecting this
equitable distribution, Class Counsel note that “the two Co-Lead firms’ accumulated lodestar of close
to $44 million is nearly equal to the collective lodestar of all Tier 2 firms combined” and “the two CoLead firms continued to pay cost assessments after July 2017 when Executive Committee firms were

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Class Counsel’s reply states that “43 law firms” are “impacted by the proposal.” ECF No. 8441
(“Class Counsel Reply”), at 1. Although that is the number of law firms listed in the Proposed
Expense Allocation, ECF No. 8420-1, the Proposed Fee Allocation lists 53 firms, ECF No. 8418-1.
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no longer assessed, and the two Co-Lead firms still have over $8.5 million in unreimbursed expenses
outstanding.” Class Counsel Mem. 4. Similarly, “[t]he collective, relevant lodestar of all nondesignated firms in Tier 3 was $3,133,442, or just 7.1% of Lead Counsel’s lodestar. . . . Lead Counsel
have unreimbursed, relevant expenses of $8,605,959, whereas the Tier 3 firms have unreimbursed,
relevant expenses of $380,672, or 4.4% of Lead Counsel’s unreimbursed expenses.” ECF No. 8442
(“Second Cabraser Decl.”), ¶ 9.
D. The Objections
Notably, only three firms filed objections to Class Counsel’s proposed allocation by the March
12, 2021 deadline: (1) Golenbock Eiseman Assor Bell & Peskoe LLP (“Golenbock”), see ECF No.
8432 (“Golenbock Opp’n”); (2) Wolf Haldenstein Adler Freeman & Herz LLP (“Wolf”), see ECF No.
8435 (“Wolf Opp’n”); and the “Peller Group” (defined as “counsel who worked in conjunction with
Gary Peller, who coordinated their work and reviewed and submitted hours on their behalf”). ECF No.
8436 (“Peller Opp’n”), at 1 n.1. All three objectors (together, the “Objectors”) are categorized as Tier
3 firms under Class Counsel’s proposal. Under that proposal, Golenbock, Wolf, and the Peller Group
would be awarded $10,709.17, $50,087.68, and $26,614.14 in fees, respectively, see Proposed Fee
Allocation, and $1,146.31, $18,474.39, and $9,327.92 in costs and expenses, respectively, see
Proposed Expense Allocation.
Notably, the Objectors do not take issue with Class Counsel’s proposal to use a tiered approach
to allocation of the awards. Instead, they raise three complaints with respect to their fate under the
proposed plan. First, the Peller Group contends that “the proposed discount rate of 7.85% applied to
the work of non-Lead Counsel [in Tier 3] is so steep in comparison to the 35% discount rate of Lead
Counsel that it fails to fairly compensate all non-Lead counsel in the proposed tier three and threatens
to produce negative incentive consequences for the MDL consolidation process more generally.”
Peller Opp’n 6. It proposes as an alternative using a 12.5% discount rate for Tier 3 firms as “a more
reasonable discount rate that reflects both that the unsupervised pre-consolidation tasks performed by
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non-Lead Counsel should be compensated at a lower rate, but not one so low in relation to leadership’s
fees as to have deleterious policy consequences for the willingness of counsel to undertake
representation of victims of mass torts and consumer fraud, or one so low as to create a disincentive for
counsel to cooperate with MDL proceedings at all.” Id. at 8. Under the Peller Group’s proposal, the
fee allocation to Tier 1 firms would be reduced correspondingly. Peller Opp’n 10-11.
Second, all three Objectors argue that they were assigned to the wrong tier, in whole or in part.
Golenbock and Wolf — which served as co-counsel (with one another) in proceedings in the
Bankruptcy Court — essentially argue that they were on equal footing with Bankruptcy Counsel
during the early stages of the MDL. Golenbock contends that “it should be treated similarly to Brown
Rudnick” — i.e., receive 23.362%, rather than 7.85%, of lodestar — “or at worst, [be categorized] in
Tier 2” and receive 19.3% of lodestar. Golenbock Opp’n ¶ 22. Wolf similarly argues that it should not
be treated any differently from Bankruptcy Counsel, which are assigned to Tier 2. See Wolf Opp’n 67. The Peller Group argues that while some of its work (through October 2014) is appropriately
assigned to Tier 3, it (and its clients) assumed “special risks” and, accordingly, should be compensated
at the Tier 2 level for a significant amount of common benefit work it allegedly performed between
July 2014 and February 2018. Peller Opp’n 10.
Third, all three Objectors claim that the proposed allocation fails to credit them for many hours
of compensable work without adequate explanation. In particular:
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Golenbock argues that “it appears that [its proposed] allocation is only based upon fees and
expenses incurred between October 20, 2014 and February 29, 2016” and that fees and
expenses it incurred for common benefit work between April 7 and September 30, 2014, were
improperly excluded. Golenbock Opp’n ¶¶ 23-26. Thus, Golenbock contends that “the
allocation to it should be based upon fees in the amount of $749,279.06 and expenses in the
amount of $19,314.31,” and that, using these figures, Class Counsel’s proposed allocation
awards Golenbock only 1.43% of its lodestar, not the 7.85% to which it would be entitled as a
Tier 3 firm. Id. ¶¶ 14, 27.

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Wolf similarly argues “that the time spent by Wolf performing Common Benefit Work prior to
August, 2014 . . . was excluded in its entirety by Economic Loss Class Counsel for no disclosed
reason.” Wolf Opp’n 3-4. Wolf contends that its lodestar should actually be $1,341,343.50,
meaning that Class Counsel’s proposed allocation amounts to less than 4% of lodestar. Id. at 8.
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The Peller Group notes that the “proposed allocation would compensate the Peller Group’s
work from June 2014 to February 2015 as submitted,” but “reflects a categorical refusal to
recommend compensation for any work the Peller Group did after February 2015.” Peller
Opp’n 6 & n.14. The Peller Group contends that it continued to perform compensable work
through February 2018 and that its “monthly submissions reflect a total lodestar of $814,760.00
for work done in furtherance of the claims being settled in this litigation” for which it should be
compensated. Id. at 1.

Class Counsel filed a reply on March 19, 2021. Class Counsel Reply. After obtaining leave to do so,
ECF No. 8452, the Peller Group filed a sur-reply, ECF No. 8457, and Class Counsel filed a sur-surreply, ECF No. 8461 (“Class Counsel Sur-Sur-Reply”), shortly thereafter.
DISCUSSION
Interestingly, “there is very little case law concerning the allocation of attorneys’ fees among
co-counsel.” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1224 (S.D. Fla. 2006)
(quoting Hayes v. Haushalter (In re FPI/Agretech Sec. Litig.), 105 F.3d 469, 473 (9th Cir. 1997)).
That said, it is generally accepted that, “[o]nce a class action settlement and aggregate award of
attorneys’ fees have been approved, district courts have discretion to appoint a committee of plaintiffs’
counsel to recommend how to divide the aggregate fee to award ‘reasonable’ attorneys’ fees.” In re
Initial Pub. Offering Sec. Litig., No. 21-MC-92 (SAS), 2011 WL 2732563, at *7 (S.D.N.Y. July 8,
2011) (citing Victor v. Argent Classic Convertible Arbitrage Fund L.P., 623 F.3d 82, 87 (2d Cir.
2010)). “District courts routinely give lead counsel the initial responsibility of devising a fee
allocation proposal ‘as they deem appropriate, based on their assessments of class counsel’s relative
contributions.’” Id. (quoting In re Vitamins Antitrust Litig., 398 F. Supp. 2d 209, 224 (D.D.C. 2005)).
Lead counsel’s proposals “are often afforded substantial deference.” Id.; see Brown v. Am. Home
Prods. Corp. (In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig.),
No. CIV. A. 99-20593, 2003 WL 21641958, at *6 (E.D. Pa. May 15, 2003). That is because “lead
counsel is typically well-positioned to weigh the relative merit of other counsel’s contributions.”
Victor, 623 F.3d at 90; see also In re Vitamins Antitrust Litig., 398 F. Supp. 2d at 231 (“Because CoLead Counsel had first-hand knowledge regarding each firm’s relative contribution to the case, it is
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Co-Lead Counsel, not the court, that is ‘better able to describe the weight and merit of each [counsel’s]
contribution.’” (quoting In re Linerboard Antitrust Litig., Nos. MDL 1261 et al., 2004 WL 1221350, at
*18 (E.D. Pa. June 2, 2004), amended, Nos. MDL 1261 et al., 2004 WL 1240775 (E.D. Pa. June 4,
2004))). At the same time, the Court must still “engage[] in a reasonable analysis” of the fee request,
mindful of the fact that “lead counsel has an incentive to undercompensate non-lead counsel, as such
compensation typically decreases lead counsel’s own recovery.” Victor, 623 F.3d at 89-90. In this
Circuit, such analysis is usually guided by the Goldberger factors, except that in this context, the
“determination of a reasonable and fair allocation of the aggregate award requires a focus on the
relative contributions of each firm.” In re Initial Pub. Offering Sec. Litig., 2011 WL 2732563, at *7-8
(emphasis added).
Applying these standards, the Court finds that the Objectors’ first two objections — regarding
(1) the discount rates for each tier and (2) the Objectors’ tier assignments — are without merit. With
respect to the former, the Court finds that there is no basis to second guess Class Counsel’s proposed
discount rates. Indeed, the treatment of Tier 3 firms — to which the Peller Group primarily objects —
is arguably more generous than it needed to be. The 7.85% discount rate is greater than the Tier 3
firms’ share of lodestar relative to Lead Counsel (7.1%). Second Cabraser Decl. ¶ 9. And, under Class
Counsel’s proposal, all Tier 3 firms would receive a minimum of $1,000. If anything, it is the Peller
Group’s proposal — that Tier 3 firms receive 12.5% of lodestar — that is arbitrary; he himself
provides no argument for that number beyond the conclusory statement that it “is a more reasonable
discount rate.” Peller Opp’n 10. Given Class Counsel’s superior knowledge, and the corresponding
deference owed to its allocation proposal, that is not enough. To the extent that that result leaves the
Peller Group (or any other firm) disappointed, that disappointment is more a function of the overall fee
award than it is a function of Class Counsel’s allocation. Accordingly, the first objection is overruled.
Nor is there any basis to second guess Class Counsel’s assignment of the Objectors to Tier 3
rather than Tier 2. To be sure, each firm did its fair share of work in the early days of the MDL, either
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as part of the related bankruptcy proceedings or in this Court. And there is little doubt that that work
provided some benefits to the class. For those reasons, the Court would probably have overruled Class
Counsel had they sought to exclude the Objectors from the fee allocation altogether, as Class Counsel
argues they could have done. See Class Counsel Reply 7, 9. As Class Counsel note, however, the
primary intended beneficiaries of the Objectors’ work were not the class members generally, but their
individual clients. See id. at 6-7, 9-10. In fact, some of the Objectors’ work was arguably
counterproductive to the class as a whole. See id. at 7, 10-13; Class Counsel Sur-Sur-Reply 1-3. And
in any event, the amount of work done by the Objectors that benefited the class pales in comparison to
the work done by the firms that Class Counsel has assigned to Tier 2 and to Brown Rudnick, as
designated lead bankruptcy counsel. See Proposed Fee Allocation; see also Golenbock Opp’n 7 n.2
(conceding “that it is likely that the time and expenses it spent are a mere fraction of the time and
expenses spent by Bankruptcy Counsel to Lead Counsel”). Class counsel reasonably took account of
these disparities in the time, effort, and risks incurred by counsel and of the leadership roles in the
MDL. See In re Initial Pub. Offering Sec. Litig., 2011 WL 2732563, at *8-10; In re Vitamins Antitrust
Litig., 398 F. Supp. 2d at 236 & n.15; cf. Allapattah Servs., 454 F. Supp. 2d at 1225 (“[T]he
distribution of fees in a fee allocation agreement must be in proportion to the services rendered . . . .”
(citing In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 216, 223 (2d Cir. 1987)). Accordingly, the
Court concludes that Class Counsel reasonably assigned the Objectors to Tier 3.
On the present record, however, the Court cannot resolve the Objectors’ third set of objections
— that Class Counsel failed to credit them for all the compensable work they performed. Class
Counsel explains that, “[w]ithin each tier, fees are allocated pro rata based on adjusted reported
lodestar.” Class Counsel Mem. 3. But Class Counsel does not explain how it arrived at the “adjusted
reported lodestar” figures and whether or to what extent these figures differ from the lodestar figures
that Participating Counsel submitted to Class Counsel. Nor does Class Counsel explain the basis for
their decision to credit the Objectors for work performed only within particular date ranges — namely,
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“all time submitted by the [sic] Golenbock in the ordinary course since June 12, 2014”; “all time
submitted by Wolf in the ordinary course since October 2014”; and “all of Mr. Peller’s time for 2014
and early 2015 (through February 24, 2015) and all expenses.” Class Counsel Reply 7, 16. It does not
suffice for Class Counsel to say, as they do, that none of the Objectors’ work is technically
compensable under MDL Order No. 13 because it was not authorized, see id. at 6, 14-15, and that their
proposal is “made in good faith as a means of avoiding further delay in distributing fees and costs for
work done and expenses incurred by all participating counsel long ago,” id. at 7, 9, 16. Having
proposed an allocation that credits the Objectors for some, but not all, of their work, it is incumbent on
Class Counsel to explain and justify the criteria they used to make these determinations.
Accordingly, no later than June 2, 2021, Class Counsel shall file a document, not to exceed
fifteen pages, (1) listing the total reported lodestar submitted by each Participating Counsel; (2) listing
the “adjusted reported lodestar” Class Counsel used to calculate the fee awards for each Participating
Counsel in the Proposed Fee Allocation; (3) listing the total costs and expenses submitted by each
Participating Counsel; (4) listing the total costs and expenses considered by Class Counsel in
calculating each Participating Counsel’s “pro rata share of expenses”; and (5) to the extent those
figures differ, providing an explanation of the criteria used to determine which hours and expenses
were deemed compensable and which hours and expenses were not, with particular reference to the
Objectors. To be clear, Class Counsel need not submit detailed time and billing records. But their
submission should provide enough for the Court to exercise its “ultimate power to review applications
and allocations and to adjust them where appropriate” and engage in a “reasonable analysis” of the
proposed allocations in light the objections that have been raised. Class Counsel Reply 19 (quoting
Victor, 623 F.3d at 90). The Objectors are granted leave to file responses, not to exceed seven pages
each, no later than June 9, 2021.

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CONCLUSION
For the reasons stated above, the first two sets of objections from the Objectors are overruled,
but the Court reserves judgment on their third set of objections and, by extension, on Class Counsel’s
motion for approval of their proposed allocations of fees and costs pending the additional submissions
described above.
SO ORDERED.
Dated: May 19, 2021
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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