Francis v. General Motors, LLC
United States District Court, E.D. Michigan, Southern Division
September 30, 2019
RICHARD FRANCIS, WESLEY WON, DENNIS SPEERLY, JOSEPH SIERCIO, MICHAEL PLAFKER, HOWARD YOUNG, and DARRIN DEGRAND, Plaintiffs,
v.
GENERAL MOTORS, LLC, Defendant. KEITH SHELTON, KAREN SHELTON, DANIEL DRAIN, WAVERS SMITH, RICHARD FREEMAN, SAMUEL FORD, KEITH FENSKE, COLTON KELLY, and CHRISOPHER GILES, Plaintiffs,
v.
GENERAL MOTORS, LLC, Defendant. LOUIS RAY, Plaintiff,
v.
GENERAL MOTORS, LLC, Defendant. DENNIS DUFFY, RICHARD SULLIVAN, DANIEL BAPTIST, DENNIS SPEERLY, MICHAEL PLAFKER, JOHN IASIELLO, and BENJI TOMPKINS, Plaintiffs,
v.
GENERAL MOTORS, INC., Defendant. MARISELLA GUTIERREZ, JIMMY HARMAN, MARK KIDD, and JAMES NORVELL, Plaintiffs,
v.
GENERAL MOTORS, LLC, Defendant.
ORDER ESTABLISHING PROTOCOL FOR COMMON BENEFIT WORK
AND EXPENSES
DAVID
M. LAWSON UNITED STATES DISTRICT JUDGE
The
Court entered an order appointing the plaintiffs' Lead
Counsel and the plaintiffs' Steering Committee (ECF No.
40). Among the duties imposed in that order on Lead Counsel
was the obligation to enforce guidelines approved by the
Court as to the keeping of time records and expenses. In this
Order, the Court establishes specific guidelines and rules
for work done and expenses incurred for the common benefit of
all plaintiffs in these consolidated cases. Nothing in this
Order shall be interpreted to affect any proceedings other
than those involving the authorities, duties,
responsibilities, guidelines, and rules of and for the
plaintiffs' counsel, as discussed herein.
I.
Adoption of Case Management Protocols for Common Benefit
Work.
The
Court hereby adopts the following guidelines for the
management of case staffing, timekeeping, cost reimbursement,
and related common benefit issues. The recovery of common
benefit attorney's fees and cost reimbursements will be
limited to Participating Counsel. “Participating
Counsel” means Lead Counsel and members of the
Plaintiffs' Steering Committee (along with members and
staff of their respective firms), any other counsel
authorized by Lead Counsel to perform work that may be
considered for common benefit compensation, and counsel who
specifically have been approved by this Court as
Participating Counsel before incurring any such cost or
expense.
Eligibility
for payment does not pre-determine payment. If and to the
extent that this litigation is certified as a class action
under Federal Rule of Civil Procedure 23 for purposes of
resolution or trial, any award of fees and costs for common
benefit work will be governed by the standards and procedures
of Rule 23, including Rule 23(h). In all events, no award or
payment of common benefit fees or costs shall be made without
this Court's approval.
Participating
Counsel shall be eligible to receive common benefit
attorney's 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 the plaintiffs;
(b) timely submitted; and (c) reasonable. Participating
Counsel, as defined above, must agree to the terms and
conditions herein, including submitting to this Court's
jurisdiction and agreeing that this Court has plenary
authority regarding the award and allocation of common
benefit attorney's fees and expense reimbursements in
this matter.
Lead
Counsel will be responsible for collecting monthly common
benefit time and expense submissions from Participating
Counsel, auditing the submissions for compliance with the
directives set forth in this Order, and informing
Participating Counsel when their submissions do not comply
with the directives set forth in this Order. Lead
Counsel's auditing responsibility notwithstanding, the
ultimate determination of what is compensable common benefit
work, and the extent or rate at which it is compensable, is
reserved to the Court.
In the
event that Participating Counsel are unsure if the action
they are about to undertake is considered Common Benefit
Work, they must ask Lead Counsel in advance as to whether
such time may be compensable.
A.
Compensable Common Benefit Work.
“Common
Benefit Work” includes all work done and expenses
incurred that inure to the common benefit of the plaintiffs
in these consolidated cases.
Examples
of compensable and noncompensable work include:
1. Consolidated Pleadings and Briefs: (a)
factual and legal research and preparation of consolidated
class action complaints and related briefing; (b) responding
to inquiries from class members; (c) communications with
clients in response to Lead Counsel's requests regarding
proposed class representatives; (d) comments and suggestions
regarding the consolidated class action complaints; and (e)
class-related issues and briefing related thereto are
compensable.
2. Depositions: Although it is impracticable
to impose inflexible rules to cover every conceivable
situation, Lead Counsel shall exercise discretion, judgment,
and prudence to designate only the number of attorneys to
participate in any given deposition that is commensurate with
the nature of that deposition so as to avoid over-staffing.
Thus, for example, the deposition of a causation expert
proffered by the defendant would typically justify the
assignment of more attorneys than would the defense of the
deposition of one of the plaintiffs' fact witnesses. Time
and expenses for Participating Counsel not designated as one
of the authorized questioners or otherwise authorized to
attend the deposition by Lead Counsel may not be considered
Common Benefit Work but, rather, work on behalf of such
counsel's individual clients. Unnecessary attendance by
counsel may not be compensated in any fee application to the
Court.
3. Periodic Status Conferences: The Court
intends to hold periodic status conferences to ensure that
the litigation moves forward efficiently, and that legal
issues are resolved with guidance from or formal rulings by
the Court. Individual attorneys are free to attend any status
conference held in open court to stay current on the status
of the litigation, but except for Lead Counsel and members of
the Plaintiffs' Steering Committee or their designees,
attending and listening to such conferences is not
compensable Common Benefit Work. All attorneys have an
obligation to keep themselves informed about the litigation
so that they can best represent their respective clients.
Mere attendance at a status conference will not be considered
common benefit time, and expenses incurred in relation
thereto will not be considered common benefit expenses. The
attorneys designated by Lead Counsel to address issues that
will be raised at a given status conference, or requested by
Lead Counsel to be present at a status conference, will be
working for the common benefit, and their time will be
considered for the common benefit. Similarly, any attorney
whose attendance at a status conference is requested
specifically by the undersigned (or by any other judge
presiding over this matter or any court-appointed Special
Master) to address a common issue may submit his or her time
and expenses for such attendance for evaluation as Common
Benefit Work.
4. Identification and Work-Up of Experts: If
a Participating Counsel retains an expert without the
knowledge and approval of Lead Counsel, time and expenses
attributable to that endeavor may not be approved as Common
Benefit Work. On the other hand, communications with and
retention of experts with the knowledge and approval of Lead
Counsel will be considered common benefit time.
5. Attendance at Seminars: Except as
approved by Lead Counsel after consulting with the Court,
attendance at seminars (e.g., American Association for
Justice Section Meetings, Mass. Torts Made Perfect, Harris
Martin, and similar seminars and Continuing Legal Education
programs) shall not qualify as Common Benefit Work, or the
expenses pertaining thereto as Common Benefit Expenses.
6. Discovery and Document Review: Only
discovery and document review authorized by Lead Counsel and
assigned to an attorney or law firm will be considered Common
Benefit Work. If a firm or attorney elects to review
documents that have not been assigned to them by Lead
Counsel, that review may not be considered Common Benefit
Work. Descriptions associated with “document
review” should contain sufficient detail to allow those
reviewing the time entry to generally ascertain what was
reviewed and include, for example, the custodian, search
query, or number of document folders reviewed.
7. Review of Court Filings and Orders: All
attorneys have an obligation to keep themselves informed
about the litigation so that they can best represent their
respective clients; review of briefs and filings made and
Orders entered in this litigation is part of that obligation.
Only Court-appointed Counsel and those attorneys working on
assignments therefrom that require them to review, analyze,
or summarize those filings or Orders in connection with their
assignments are doing so for the common benefit. All other
counsel are reviewing those filings and Orders for their own
benefit and that of their respective clients and such review
will not be considered Common Benefit Work.
8. Emails and Correspondence: Except for the
Counsel appointed by the Court and their assigned attorneys
and staff, time recorded for reviewing emails and other
correspondence is not compensable unless germane to a
specific task being performed by the receiving or sending
attorney or party that is directly related to that email or
other correspondence and that is for the common benefit of
plaintiffs. Thus, for example, review of an email or other
correspondence sent to dozens of attorneys to keep them
informed on a matter on which they are not specifically
working would not be compensable as Common Benefit Work. All
attorneys have an obligation to keep themselves informed
about the litigation so that they can best represent their
clients, and that is a reason to review emails and
correspondence to a larger group, when they involve a matter
on which the recipient is not directly and immediately
working. Do not bill for receipt of confirming emails from
the Court.
B.
Common Benefit Timekeeping Protocols.
All
time must be accurately and contemporaneously maintained.
Participating Counsel must keep contemporaneous billing
records of the time spent in connection with Common Benefit
Work on these consolidated cases, indicating with specificity
the hours (in tenth-of-an-hour increments) and billing rate,
along with a description of the particular activity (such as
“conducted deposition of John Doe”).
Each
time entry must be categorized using one of the categories in
Exhibit A. In general, when possible, a more specific
category should be used in place of a more general category.
Under no circumstances should a submitting firm make up new
categories for use in its submission. Block billing is not
permitted.
Although
the categories are generally self-explanatory, below are some
further explanations of some of the categories that may ...