UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION

Transcription

1 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of MARC M. SELTZER () STEVEN G. SKLAVER () DAVID H. OROZCO (0) SUSMAN GODFREY L.L.P. Avenue of the Stars, Suite 0 Los Angeles, CA 00-0 Telephone: () -0 Facsimile: () - Attorneys for Plaintiffs (See Signature Page for Names and Addresses Of Additional Counsel for Plaintiffs) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION 0 IN RE: TOYOTA MOTOR CORP. UNINTENDED ACCELERATION MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Document Relates To: ALL CASES Case No. :-ML-0 JVS (FMOx) JOINT APPLICATION OF ELIZABETH J. CABRASER, STEVE BERMAN AND MARC M. SELTZER IN SUPPORT OF THE CASE ORGANIZATIONAL STRUCTURE SET FORTH IN THE JOINT PRELIMINARY REPORT AND THE APPOINTMENT OF PLAINTIFFS COUNSEL TO LEADERSHIP POSITIONS IN THIS LITIGATION Date: May, 0 Time: :00 a.m. Place: Courtroom of the Hon. James V. Selna W. Fourth Street Santa Ana, CA 0 Courtroom C 0v/0

2 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 Pursuant to the Court s April, 0 Order No. and the Court s April, 0 Order Re Clarifying the Scope of Applications, Elizabeth J. Cabraser, Steve Berman and Marc M. Seltzer are contemporaneously filing their individual applications for appointment as Plaintiffs Co-Liaison Counsel and Co-Lead Counsel for the Economic Loss Cases, respectively. This Joint Application is made in support of the proposed Case Management Structure set forth in Section II.A. of the April 0, 0 Joint Preliminary Report, also being filed today, and in support of appointment of plaintiffs counsel to leadership roles in this litigation. PROPOSED CASE ORGANIZATIONAL STRUCTURE Following the issuance of the Court s April, 0 Order, the undersigned counsel solicited the views of all plaintiffs counsel regarding a proposed organizational structure for these cases designed to implement the Court s orders. To that end, members of our firms participated in every meeting to consider these matters called by other counsel of which they were made aware and engaged in numerous discussions and communications with plaintiffs counsel regarding case organizational issues. As a result of those discussions, and after considering case organizational structures adopted in other MDL proceedings, a proposed case management structure is being proposed by the undersigned counsel, which is set forth in Section II.A. of the April 0, 0 Joint Preliminary Report. In addition, the undersigned engaged in discussions with counsel for defendants to prepare the sections of the Joint Preliminary Report dealing with the description of core discovery and the factual and legal issues presented by the litigation based on the pleadings filed to date and the preparation of a list of all known cases pending in federal and state court in order to comply with the Court s orders. The Joint Preliminary Report submitted today is the product of all of those discussions. It is expected that those issues will be refined by counsel for the plaintiffs following the appointment of lead and liaison counsel for plaintiffs. 0v/0

3 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 The undersigned also participated in numerous discussions with other counsel concerning the recommendations that might be made to the Court for appointment to the leadership structure advocated by them in this matter. As a result of those discussions, the undersigned hereby recommend to the Court appointment of the following counsel to serve in the respective leadership positions below. The proposed functions of those positions are described in the Joint Preliminary Report. Co-Lead Counsel for the Economic Loss Actions:. Wylie Aitken, Aitken*Aitken*Cohn. Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Marc M. Seltzer, Susman Godfrey L.L.P. Lead Counsel Committee ( Economic Loss Committee ):. Wylie Aitken, Aitken*Aitken*Cohn. Richard J. Arsenault, Neblett, Beard & Arsenault. Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, L.P.A.. John R. Climaco, Climaco, Lefkowitz, Peca, Wilcox & Garafoli. Stephen G. Larson, Girardi Keese. Frank M. Pitre, Cotchett, Pitre & McCarthy. Christopher A. Seeger, Seeger Weiss LLP. Marc M. Seltzer, Susman Godfrey L.L.P. Co-Lead Liaison Counsel for the Personal Injury and Wrongful Death Actions:. Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, LLP. Mark P. Robinson, Jr., Robinson, Calcagnie & Robinson, Inc. 0v/0

4 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 Liaison Counsel Committee ( Personal Injury Committee ):. Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, LLP. Lewis Mike S. Eidson, Colson Hicks Eidson. W. Mark Lanier, The Lanier Law Firm. Richard D. McCune, McCuneWright, LLP. W. Daniel Dee Miles, III, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.. Brian J. Panish, Panish Shea & Boyle LLP. Mark P. Robinson, Jr., Robinson, Calcagnie & Robinson, Inc.. Hunter J. Shkolnik, Rheingold, Valet, Rheingold, Shkolnik & McCartney, LLP. Donald H. Slavik, Habush Habush & Rottier, S.C. Each of the foregoing attorneys supports the proposed organizational structure described in the Joint Preliminary Report filed today and also supports the appointment of the attorneys listed above in the various capacities specified. The proposed attorneys constitute a group that combines complex litigation and class action experience. It is anticipated that they will each be filing their own individual applications for appointment by the Court in accordance with the Court s orders. In its Order of April, 0, the Court requested that counsel describe potential fee proposals in this litigation. In light of the applicable law, we wish to advise the Court of our views in that regard. We also wish to note that in the Joint Preliminary Report we propose that there be contemporaneous periodic time and expense reporting requirements imposed on all counsel so that the costs, expenses and time for attorneys services incurred in this litigation can be monitored and supervised on an ongoing basis. We further propose that there be controls over work that may be the subject of application for payment from any common fund, including a requirement that all work for which such compensation will be sought 0v/0

5 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 be authorized in advance by Co-Liaison or Co-Lead Counsel, as applicable. We are very mindful of the size and complexity of this litigation and the need to have this matter litigated in a cost effective and efficient manner in order best to serve the interests of the plaintiffs and of the injured parties they seek to represent. ATTORNEYS FEES AND COSTS Paragraph of the Court s April, 0 Order provides, with respect to applications for Lead and Liaison Counsel Appointments, that where appropriate, applications should also set forth attorney fee proposals, rates, and percentages that applicants that applicants expect to seek if the litigation succeeds in creating a common fund. With respect to attorney fee proposals, rates, and percentages that applicants expect to seek if the litigation succeeds in creating a common fund, we respectfully submit that, as to the matter of an appropriate percentage-of-common-fund award, in the event a class judgment is obtained, or a class settlement is approved, the Ninth Circuit s well-developed common fund jurisprudence provides guidance and an adjustable benchmark, within which the Court s discretion in awarding fees may be predictably exercised. See Hanlon v. Chrysler Corp., F.d, (th Cir. ), citing Paul, Johnson, Alston & Hunt v. Graulty, F.d, (th Cir. ) (the Ninth Circuit has established percent of the common fund as a benchmark award for attorney s fees in cases where a common fund is created). Trial courts may use the lodestar method to cross-check the percentage method to ensure reasonable fees that compensate and incentivize attorneys to undertake difficult and expensive class cases on a contingent basis, while guarding against windfalls. See Hanlon, F.d at ( The resulting figure may be adjusted upward or downward to account for several factors including the quality of the representation, the benefit obtained for the class, the complexity and novelty of the issues presented, and the risk of nonpayment. ). Thus, courts within the Ninth Circuit may utilize the lodestar/multiplier method to cross-check the percentage- 0v/0

6 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 of-the-fund method, in tailoring a fee award that is reasonable under the circumstances of the litigation, and the settlement itself. See Vizcaino v. Microsoft Corp., 0 F.d, (th Cir. 00). The reasonable percentage fee may be informed by the size of the common fund, scaling downward from the benchmark in the largest cases, to incentivize counsel to maximize this fund for the benefit of the class, while, again, ensuring against a windfall, e.g., an attorney s fee that is disproportionate to the value of the class benefit, the quality of the work, the difficulty of the case, or its contingent nature, expense of prosecution, and delay in payment. The percentage-of-the-fund fee methodology is the paradigm for setting the total class counsel fee in relationship to the class benefit. In litigation such as this one, in which multiple firms may be designated and charged with the responsibility of prosecuting the class action, a system of allocation among counsel is appropriate, both to control time and costs on an ongoing basis, and to provide predictability, from the standpoint of both the court and counsel, with respect to potential reimbursement and compensation if the case is successful. Thus, MDL transferee courts, in both class and non-class cases, typically require those counsel working for the common benefit to keep contemporaneous, itemized time and cost records, utilizing a consistent task-coding system, and to submit such records, on a regular basis, to a designated lead or liaison counsel or an independent auditor. See Manual For Complex Litigation, Fourth Edition (Federal Judicial Center 00),., et seq. We recommend such a system be established for these proceedings, with itemized and contemporaneous common benefit time to be submitted, on a monthly basis, to Co-Liaison and Co-Lead Counsel, who will retain an independent auditor to ensure the accuracy and integrity of these time and cost records. The time and cost records would also be submitted to the Court, on a confidential basis, upon 0v/0

7 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 Court request. To avoid excessive, duplicative, or non-productive time, criteria would be developed for common benefit time, including, at a minimum, providing that compensation out of a class recovery will not be permitted for review only time, as well as any time not undertaken pursuant to specific assignment. This MDL proceeding includes, with certain exceptions, two major categories of cases: () wrongful death and personal injury cases, which have been brought as individual cases; and () economic loss and restitution cases, which have been brought as class actions. The core discovery that is common to both types of claims will be overseen and conducted by a Core Discovery Committee, comprised of both personal injury and class counsel. Substantial up-front, contingent assessments will be expected from all appointed counsel. Based on our experience, the cost of document discovery and analysis, experts, depositions, translation, and other out-of-pocket costs that must be advanced to effectively conduct common discovery and trial preparation will be substantial. A fair system must be devised for the sharing of costs and time incurred in litigating personal injury and class claims. In order to provide a source of reimbursement of such up-front common benefit assessments, a back-end percentage assessment on all recoveries (including both the wrongful death and personal injury individual recoveries, and any class action recovery) should be specified at the outset of the case. Such percentage assessments have ranged, in recent MDL proceedings, from %-%. It is anticipated that counsel appointed by the Court to fill leadership positions will recommend to the Court a specific backend percentage assessment to this Court, upon further evaluation of the likely costs of prosecuting the core discovery and other projects that will benefit all the We also propose that defendants be required to submit similar information on a confidential basis upon Court request. 0v/0

8 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of 0 plaintiffs. At this point, however, we anticipate that a back-end percentage assessment at or near the midpoint of this historic range will be requested. Attorneys who are assigned to do such common benefit work will include both wrongful death and personal injury lawyers, and economic loss claim class action lawyers. We recommend that all lawyers performing authorized common benefit work, and complying with time-and-costs reporting requirements, will be eligible to qualify for common benefit fee compensation and cost reimbursement, as approved by the Court. One component of the attorney lodestar calculation is the number of hours incurred; the other is the attorney s hourly rate. In this litigation, because counsel working for the common benefit come from around the United States and will be conducting their work not only in this district, but in their home offices, and, indeed, internationally, we respectfully submit that no uniform hourly rate or hourly rate cap is appropriate. Lawyers labor under widely varying overhead costs, and attempting either a capped rate or a blended national rate will inevitably work an unfairness to some. Accordingly, we respectfully recommend that lawyers keep and report their time at their customary hourly rates. These may always be adjusted by the Court to correct for any disproportionality at a later date; and, of course, are subject to audit and verification. With respect to individual plaintiffs counsels contingent attorneys fee agreements with their clients, we do not recommend a cap at this time. While some MDL courts have imposed caps on private attorneys fees after a global settlement has been reached, most MDL courts historically have not done so, and we do not recommend a cap in this MDL. See, e.g., In re Vioxx Products Liability Litigation, MDL No., 0 F. Supp. d (E.D. La. 00) (Fallon, J.) (% contingent fee cap); In re Bextra/Celebrex Products Liability Litigation, MDL No. (Breyer, J.) (no contingent fee cap). The Court may request information, in confidence, from private attorneys regarding their fees, to assure itself that such 0v/0

9 Case :-ml-0-jvs-fmo Document Filed 0/0/ Page of fees are not unreasonable; however, we respectfully submit that this case presents challenging issues, that all claims will be vigorously defended by Toyota, and that, on the wrongful death and personal injury side, no categorical departure from attorneys customary percentage contingent fees is appropriate. We would be pleased to respond to any questions the Court may have concerning the foregoing. 0 Dated: April 0, 0. 0v/0 Respectfully submitted, MARC M. SELTZER STEVEN G. SKLAVER DAVID H. OROZCO SUSMAN GODFREY L.L.P. By /s/ Marc M. Seltzer Marc M. Seltzer STEVE W. BERMAN Steve@hbsslaw.com HAGENS BERMAN SOBOL SHAPIRO LLP Eighth Avenue, Suite 00 Seattle, WA Telephone: (0) -0 Facsimile: (0) -0 By /s/ Steve W. Berman Steve W. Berman Elizabeth J. Cabraser (State Bar No. 0) ecabraser@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN LLP Battery Street, th Floor San Francisco, CA - Telephone: () -00 Facsimile: () -0 By /s/ Elizabeth J. Cabraser Elizabeth J. Cabraser Attorneys for Plaintiffs