Berry v. Volkswagen Group of America, Inc.
2013 Mo. LEXIS 23
| Mo. | 2013Background
- Volkswagen appeals the trial court’s attorneys’ fees award in a Missouri MMPA class action settlement.
- Class counsel sought a lodestar of $3,087,320 and a 2.6 multiplier; court approved $3,087,320 lodestar and awarded a 2.0 multiplier, total $6,174,640 plus expenses.
- Settlement provided for notification, administration, and reasonable attorneys’ fees; 22,304 class members were notified, 130 claims were found valid, with $125,261 paid to class members.
- Court conducted a three-day evidentiary hearing on fees under §407.025; Volkswagen argued the award was disproportionately large and unsupported by applicable factors.
- Missouri Supreme Court (court of appeals in Missouri) analyzed whether to adopt Perdue v. Kenny A. and how to apply a multiplier under Missouri law; the panel affirmed the multiplier but remanded for specific findings on appeal fees.
- Class filed motion to dismiss Volkswagen’s appeal, which was overruled; on remand, trial court to determine reasonableness of appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lodestar reasonableness | Berry (class) argues lodestar is reasonable given hours/rates. | Volkswagen accepts hours/rates but challenges multiplier-based augmentation. | Lodestar reasonable; no abuse of discretion. |
| Multiplier propriety | Multiplier justified for contingent, high-skill work and potential benefit. | Multiplier based on duplicative factors; Missouri should follow traditional lodestar without federal multiplier guidance. | Multiplier affirmed on remand; factor analysis to be redone with proper separation of lodestar and multiplier considerations. |
| Appeal fees on appeal | Fees on appeal are appropriate under MMPA to promote deterrence. | Fees on appeal should be assessed only if reasonable and necessary. | Remand to the trial court to determine reasonableness of appellate fees. |
Key Cases Cited
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (U.S. 2010) (guidelines for when to apply a multiplier; rare/exceptional circumstances required)
- O’Brien v. B.L.C. Ins. Co., 768 S.W.2d 64 (Mo. banc 1989) (factors for reasonable attorney fees; relation to lodestar)
- Gilliland v. Missouri Athletic Club, 273 S.W.3d 516 (Mo. banc 2009) (factors for determining reasonable value of statutorily authorized fees)
- Hill v. City of St. Louis, 371 S.W.3d 66 (Mo. App. 2012) (enumerated factors for fee award; relationship to lodestar and multiplier)
- Huch v. Charter Communications, Inc., 290 S.W.3d 721 (Mo. banc 2009) (MMPA deterrence purpose; attorney’s fees authorized; guideposts for fees)
- Van Gemert v. The Boeing Co., 590 F.2d 438 (2d Cir. 1978) (consideration of potential benefit in multiplier analysis)
- Williams v. MGM-Pathe Commun. Co., 129 F.3d 1026 (9th Cir. 1997) (consideration of potential benefit in multiplier)
- Strong v. BellSouth Telecomms., Inc., 137 F.3d 844 (5th Cir. 1998) (limits on considering only potential benefit)
- Aitherton v. Gopin, 272 P.3d 700 (N.M. App. Ct. 2012) (context for multiplier debate (alternative jurisdictions))