Ford Motor Co. is opposing Kiesel Law’s motion for attorneys’ fees in consolidated powershift transmission litigation at the Central District of California, arguing the firm is trying to finagle an unjustified windfall.
“Kiesel Law fails to apportion fees in any meaningful way,” wrote attorney Amy Maclear on behalf of Ford in the Dec. 21 brief. “It merely asks the Court to issue an order directing Ford to pay a lump sum of $1.25 million for Kiesel Law’s common work attorneys’ fees purportedly incurred from the start of this MDL until the present.”
Ford is asking U.S. District Judge Andre Birotte to deny all attorneys’ fees Kiesel is seeking in its "haphazardly stitched together fee motion." In part, Ford argues that the Beverly Hills-based firm has made at least seven different fee proposals over the course of two years.
It claims that Kiesel was hired by Knight Law Group (KLG) of Los Angeles to represent KLG’s interests before the multi district litigation even started. According to Ford's brief, Kiesel used its leadership role on the MDL to ignore warranty-only cases, to focus solely on fraud cases.
The Song-Beverly Consumer Warranty Act - the state's "lemon" law - was enacted in 1970 to help consumers find resolutions to defective vehicle issues and requires a manufacturer to replace or purchase a car from the owner if unable to fix the flaw.
The litigation presided over by Birotte involves transmissions of 2012-2016 Ford Focus vehicles and 2011-2016 Ford Fiestas.
In September, Birotte granted Ford's motion for judgment on pleadings on claims brought under Song-Beverly, finding plaintiff's allegations of intentional and negligent misrepresentation and fraudulent omissions failed.
In August, Birotte reversed a $23,155 jury verdict in a trial he presided over in December 2019. He granted Ford's move for judgment as a matter of law in the case of plaintiffs Yvonne and Salvador Quintero, finding that evidence their lawyers submitted was insufficient "to establish that Ford failed to repair or replace their vehicle after a reasonable number of repair opportunities."
For more than five years, Ford and other auto makers have been fighting a vast number of cases in California courts.
The litigation consolidated in Birotte's court once exceeded 1,000 cases. In June, Ford settled approximately 760 MDL cases with the law firm Consumer Legal Remedies (CLR) of Beverly Hills.
Maclear wrote in the brief filed on Monday that at a hearing on Kiesel's application to be among lead counsel, Paul Kiesel "made an explicit representation to the Court that he would not seek common fees on behalf of his firm. However, for undisclosed reasons, over the last two years, Kiesel Law has insisted on recovering its “common work” fees by a series of ever-changing proposals."
She wrote that plaintiffs have conceded their "common work" was related to and focused on the fraud-based claims which do not allow fee-shifting..
Maclear included in her brief several categories of fraud focused work that should be excluded from the fee request including taking depositions from more than 20 Ford witnesses.
“Because Plaintiffs’ efforts to depose numerous Ford witnesses were in furtherance of fraud and punitive damages, all fees pertaining to Ford witness depositions are not recoverable,” Maclear alleges. “This includes all fees pertaining to motion practice regarding the depositions, preparation for the depositions inclusive of all document review, taking or attending the depositions, reviewing deposition transcripts, and preparing deposition summaries.”
Maclear also wrote that Kiesel's claim for work performed elsewhere in parallel state court proceedings should not be recoverable.
“Kiesel Law claims fees for remand motions in Hightower/Picton/Matthews even though this court awarded and Ford paid Plaintiff fees for those remand motions,” she wrote.
In the event the court does permit any free recovery, Maclear recommends a $607,106 reduction in excessive hourly rates, a $5,500 deduction for double billing, a $154,423.88 deduction for activities allegedly conducted in pursuit of fraud, a $50,321.88 deduction for vague billing entries, a $35,964.50 cut for multiple attendances at hearings, a $3,187.50 cut for multiple attendances at depositions, a $25,195.63 cut for administrative and clerical tasks and a $43,981.75 deduction for block-billing.
“Kiesel Law’s hourly rates for Lemon Law cases are unreasonable, particularly Messrs. Kiesel and Koncius’ inflated hourly rates of $1,100 and $895, as courts have held in other opt-out litigation pursuing fraud claims,” Maclear states.
A hearing is set for March 24, 2021, at 10:00 a.m. in courtroom 7B before Birotte.