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In re Ameriquest Mortgage Co.

December 10, 2008

IN RE: AMERIQUEST MORTGAGE CO. MORTGAGE LENDING PRACTICES LITIGATION
AMERIQUEST MORTGAGE CO., A DELAWARE CORPORATION, AND ARGENT CENTRALIZED BEFORE THE MORTGAGE CO. LLC, A DELAWARE LIMITED LIABILITY CO., DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
NORTHWEST TITLE AND ESCROW CORPORATION, A MINNESOTA CORP., ET AL., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MDL No. 1715

MEMORANDUM OPINION AND ORDER

On May 5, 2008, certain Third-Party Defendants filed a Motion for Entry of Order Appointing Liaison Counsel and Participation in Fees and Costs ("Motion"). (Dkt. No. 2135.) We granted this Motion in part on June 4, 2008, approving the proposed organizational structure for these Third-Party Defendants and appointing LandAmerica Parties'*fn1 counsel as Liaison Counsel. (Dkt. No. 2178.) On September 8, 2008, we continued the Motion with respect to Liaison Counsel's request for $110,000 in attorneys' fees as reimbursement for work performed for the benefit of Third-Party Defendants prior to its appointment. (Dkt. No. 2347.) Pursuant to that order, on September 29, 2008, Liaison Counsel submitted their Supporting Documentation Detailing Liaison Counsel Fees and Expenses Prior to June 4, 2008 ("Supporting Documentation"). (Dkt. No. 2423.) On October 17, 2008, one Third-Party Defendant -- Mortgage Information Systems, Inc. ("MIS") -- filed an objection to Liaison Counsel's reimbursement request. As discussed below, we find merit in several of MIS' arguments. Accordingly, we grant LandAmerica Parties' Motion in part, and deny it in part.

BACKGROUND

As set forth in the Motion, Supporting Documentation, and response to MIS' objection, Liaison Counsel has incurred $159,154.25 in attorneys' fees for work performed prior to their appointment on June 4, 2008, which has been paid thus far by their client, LandAmerica Parties. (Supp. Doc. at 2-3.) LandAmerica Parties now seeks reimbursement for those payments. (Dkt. No. 2135.) Through compromise among Third-Party Defendants (except MIS), LandAmerica Parties agreed to limit its total reimbursement for this initial portion of Liaison Counsel's work to $110,000.*fn2 (Mot. at 8-9; Supp. Doc. at 2-3; Liaison Counsel Resp. to Obj. at 1-2.)

LandAmerica Parties state that their counsel has served as de facto liaison counsel since October 2007. (Mot. at 6.) By way of history, on October 23, 2007, Third-Party Plaintiffs' filed their Motion Regarding Certain Case Management Issues with Respect to Defendants' Third-Party Complaint, asking that we bind Third-Party Defendants to certain prior orders and require them to organize and identify lead counsel ("Case Management Motion"). (Dkt. No. 1396.) Liaison Counsel asserts that, therefore, "it became apparent that Third-Party Defendants were going to have to work through Liaison Counsel by October 2007." (Liaison Counsel Resp. to Obj. at 3.) On December 10, 2007, we ordered Third-Party Defendants -- a non-homogeneous group that consists of three primary subsets -- to coordinate and file a consolidated motion to dismiss. (Dkt. No. 1779.) Thereafter, on February 11, 2008, we granted Third-Party Defendants the opportunity to develop an organizational structure that suits the needs of the various types of defendants. (Dkt. No. 1958.) On May 5, 2008, LandAmerica Parties filed the Motion proposing Third-Party Defendants' organizational structure, which we approved on June 4, 2008. (Dkt. Nos. 2135, 2178.)

In their informal role prior to their June 4, 2008 appointment, Liaison Counsel spearheaded coordination of Third-Party Defendants, prepared and briefed Third-Party Defendants' Consolidated Motion to Dismiss (Dkt. No. 2034), and filed other case management documents to facilitate the third-party action, among other things. (Mot. at 7-8; see also Supp. Doc., Ex. A, Decl. of Keith Verges at Ex. 1 ("Time Entries").) Liaison Counsel represents that no Third-Party Defendant -- not even MIS -- has objected to the quality of their representation. (Mot. at 6.)

Although MIS does not quarrel with Liaison Counsel's appointment, MIS contends that Third-Party Defendants participating in the committee structure approved by the Court should pay their own fees and expenses. (MIS Partial Opp. to Mot. at 2-3.) MIS points out that Liaison Counsel voluntarily assumed their leadership role in October 2007, two months before MIS filed its appearance. (Id. at 3.) MIS further argues that all of Third-Party Defendants' counsel "spent time communicating and coordinating with counsel for the other Third-Party Defendants during that time" but billed "their own clients for that work." (Obj. at 4.) As a result, MIS posits that Liaison Counsel is not entitled to fees incurred before their appointment on June 4, 2008, "much less fees that were incurred before the Court even asked for consolidated briefing or committee structure." (Id. at 3.) In the alternative, MIS challenges Liaison Counsel's reimbursement requests based on alleged deficiencies in the Time Entries. (Id. at 5-10.)

ANALYSIS

Despite MIS' objection to the contrary, we have the discretion not only to appoint Liaison Counsel, but also to order Third-Party Defendants to reimburse Liaison Counsel for reasonable expenses incurred in their performance of work for the common benefit. See, e.g., Manual for Complex Litigation § 14.11 (4th ed. 2004) (hereinafter "MCL") (stating that "the court may award fees to lead counsel, liaison counsel, and other attorneys designated to perform tasks on behalf of a group of litigants"); Alba Conte & Herbert Newberg, Newberg on Class Actions § 9:33 (4th ed. 2002) (providing that "liaison counsel is usually entitled to be compensated for liaison functions"). Such representatives receive compensation because typically they "have been appointed by the court to perform functions necessary for the management of the case but not appropriately charged to their clients." MCL § 14.215. Under these circumstances, we may order Third-Party Defendants to reimburse LandAmerica Parties*fn3 for Liaison Counsel's efforts (past and future) but will not do so unless we are confident that those efforts were legitimate and designed to benefit Third-Party Defendants as a group.

A. Fees Incurred Prior to February 11, 2008 Are Not Reimburseable

Here, we agree with MIS that Liaison Counsel is not entitled to reimbursement for fees it incurred prior to February 11, 2008, at which time we first ordered Third-Party Defendants to designate counsel leadership. (Dkt. No. 1958.)

In doing so, we recognize that Liaison Counsel had voluntarily stepped into a leadership role prior to February 11, 2008. For example, on December 28, 2007, Liaison Counsel filed Third-Party Defendants' Response to the Case Management Motion and Motion to Reconsider December 10 and 12, 2007 Minute Entries on behalf of a large group of defendants, including MIS. (Dkt. No. 1841.) In that brief, Liaison Counsel indicated that "Third-Party Defendants have conferred on many occasions" and had been "working on the formation of committees to draft consolidated pleadings." (Resp. to Case Mgmt. Mot. & Mot. to Reconsider at 3, 8.) Along the same lines, MIS has noted that "[i]n January 2008, LandAmerica Parties submitted a draft motion to dismiss and asked the other Third-Party Defendants to review that motion and join if they so desired." (MIS Partial Opp. to Mot. at 3.) Our February 11, 2008 order expressly cites Third-Party Defendants' "mutual cooperation to date" in granting their Motion to Reconsider, and surely that cooperation resulted in part from Liaison Counsel's efforts.

As MIS suggests, however, coordination of Third-Party Defendants would be impossible without their mutual participation. For example, each active Third-Party Defendant may have participated in conference calls scheduled early on by Liaison Counsel, but they have presumably paid their counsels for that individual representation. (See Obj. at 4.) In response, Liaison Counsel contends that "it became apparent that Third-Party Defendants were going to have to work through Liaison Counsel by October 2007." (Liaison Counsel Resp. to Obj. at 3.) Although it became apparent by late 2007 that Third-Party Defendants were going to have to work together per our orders, the eventual leadership ...


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