In re Amberly, 21-BG-677 (D.C. 2021)
District of Columbia Court of Appeals
DEC 23, 2021 | REPUBLISHED BY LIT: JAN 3, 2022
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DISTRICT OF COLUMBIA COURT OF APPEALS No. 21-BG-677
IN RE VINCENT M. AMBERLY
2019 DDN 309
A Member of the Bar of the District of Columbia Court of Appeals
Bar Registration No. 365590
BEFORE: Thompson * and Beckwith, Associate Judges, and Fisher, Senior Judge.
ORDER (FILED— December 23, 2021)
On consideration of the certified orders from the state of Virginia suspending respondent from the practice of law in that jurisdiction for a period of seven months; this court’s October 15, 2021, order suspending respondent pending resolution of this matter and directing him to show cause why reciprocal discipline should not be imposed; and the statement of Disciplinary Counsel;
and it appearing that respondent failed to file either a response to this court’s order to show cause or his D.C. Bar R. XI, §14(g) affidavit, it is ORDERED that Vincent M. Amberly is hereby suspended from the practice of law in the District of Columbia for a period of seven months.
It is FURTHER ORDERED that for purposes of reinstatement respondent’s suspension will not begin to run until such time as he files an affidavit that fully complies with the requirements of D.C. Bar R. XI, § 14(g).
*Judge Thompson’s term expired on September 4, 2021, and she will continue to serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-1502 (2012 Repl.).
She was qualified and appointed on October 4, 2021, to perform judicial duties as a Senior Judge and will begin her service as a Senior Judge on a date to be determined after her successor is appointed and qualifies.
On June 1, 2010, the Delaware Supreme Court ordered that Vincent M. Amberly, Esquire, a member of the Delaware Bar admitted in 1980, be suspended for a period of six months and pay the costs of the disciplinary proceedings against him.
Amberly is also admitted to the bars of Virginia and the District of Columbia.
The record before the Delaware Board on Professional Responsibility (“Delaware Board”) reflected Amberly is currently a solo practitioner in Arlington, Virginia, and has not maintained any law practice in Delaware for many years.
The Court’s suspension order was the outcome of a reciprocal disciplinary proceeding brought by the Office of Disciplinary Counsel (“ODC”) pursuant to Rule 18 of the Delaware Lawyers’ Rules of Disciplinary Procedure (“Procedural Rules”).
Amberly was publicly admonished by the Virginia State Bar Disciplinary Board (“Virginia Board”)
for knowingly making false statements of fact to a Virginia state court, to an opposing party in the Virginia litigation, and to counsel for the Virginia State Bar in its investigation of the matter.
The Virginia Board’s findings of ethical violations under the Virginia Rules of Professional Conduct conclusively established Amberly’s violations of Rules 3.3(a)(1), 4.1(a), 8.1(a), and 8.4(c) of the Delaware Lawyers’ Rules of Professional Conduct.
The District of Columbia reviewed Amberly’s professional misconduct as established in the Virginia disciplinary order and imposed a thirty-day suspension.
In objecting to the Delaware Board’s recommendation that Amberly be suspended for thirty days as in the District of Columbia, the ODC argued the Board had erred when it failed to aggregate the several policy concerns raised by Amberly’s acts of dishonesty, and then had concluded that “anything more than a thirty-day suspension will not effectively serve a purpose.”
On this record and in consideration of the Delaware Supreme Court’s precedents, the ODC argued, a suspension of only thirty days was not adequate to serve the important purposes of fostering public confidence in the Delaware Bar, preserving the integrity of the profession, and deterring other Delaware lawyers–including both those who practice in Delaware and those who practice in other jurisdictions–from engaging in similar acts of professional misconduct.
As further reinforcement for its recommendation, the ODC noted Amberly had failed to comply with his obligation under Procedural Rule 18(a) to inform the ODC of the public disciplinary sanctions imposed against him in Virginia.
After reviewing the Delaware Board’s recommendation and the ODC’s objections, the Delaware Supreme Court concluded Amberly’s misconduct in Virginia warranted substantially different discipline in Delaware pursuant to Procedural Rule 18(d), and therefore imposed a six- month suspension as recommended by the ODC.
IN RE: Vincent M. AMBERLY, Respondent.
A Member of the Bar of the
District of Columbia Court of Appeals.
REPUBLISHED BY LIT: JAN 3, 2022
Before KRAMER and FISHER, Associate Judges, and BELSON, Senior Judge.
Timothy J. Battle, Alexandria, VA, for respondent.
William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
In this reciprocal discipline proceeding, the Board on Professional Responsibility (“Board”) recommends that we impose the substantially different discipline of a thirty-day suspension.
We accept the Board’s recommendation.
This proceeding arises from allegations that Vincent Mark Amberly, an attorney licensed to practice law in the Commonwealth of Virginia and the District of Columbia,1
lied about attempting to serve a counterclaim on Martin B. Katz, a self-represented opposing party,
in the General District Court of Fairfax County, Virginia, on September 19, 2005.
The Virginia State Bar Disciplinary Board (“Virginia Board”) specifically found
(1) that Mr. Amberly’s “statements in the certificate of service that he attempted hand delivery of the Counterclaim to [Mr. Katz], and that [Mr. Katz] refused such delivery, were false, and were made by [Mr. Amberly] with knowledge of their falsity”;
(2) that Mr. Amberly “made representation as contained in the foregoing certificate of service in open court ․ in response to [Mr. Katz’s] motion to dismiss the counterclaim”;
(3) that in a December 19, 2005, letter to Bar Counsel in Virginia, Mr. Amberly made “misleading” representations that “were calculated to induce Bar Counsel to conclude
a) that [Mr. Amberly] had in fact furnished [Mr. Katz] with a copy of the Counterclaim on September 19, 2005,
b) that [Mr. Amberly] first learned from [Mr. Katz] on September 30, 2005, that [Mr. Katz] did not have a copy of the Counterclaim.”
In light of these facts, the Virginia Board found by clear and convincing evidence that Mr. Amberly had violated four provisions of the Virginia Rules of Professional Conduct – that he
(1) knowingly made a false statement of fact or law to a tribunal in violation of Rule 3.3;
(2) knowingly made a false statement of fact or law in the course of representing a client (Rule 4.1);
(3) knowingly made a false statement of material fact in connection with a disciplinary matter (Rule 8.1);
(4) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on his fitness to practice law (Rule 8.4).
The Virginia Board ordered “that the Respondent receive an Admonition with Terms” and that he complete six hours of Continuing Legal Education within a year.
Failure to comply with those terms would “result in a hearing to determine what sanctions are appropriate.”
Our Board did not find, and respondent has not established, by clear and convincing evidence, that the proceedings in Virginia deprived him of due process, D.C. Bar R. XI, § 11(c)(1);
that there was infirmity of proof, id., § 11(c)(2);
or that his conduct there would not constitute misconduct here. Id., § 11(c)(5).
“ ‘Thus, we must treat respondent’s misconduct as conclusively established by the decision’ ” of the Virginia Board.
In re Barrett, 966 A.2d 862, 863 (D.C.2009) (citing In re DeMaio, 893 A.2d 583, 586 (D.C.2006)).
Although in his brief and at oral argument, Mr. Amberly’s counsel frequently suggested that the Virginia Board misunderstood the facts, he specifically requests that we impose identical reciprocal discipline.
The Board on Professional Responsibility recommends that we impose the “substantially different discipline of a 30-day suspension.”
“At the outset, we note that the authority of the Board to recommend greater discipline, and of this court to impose it, is well established.[2 ]
Determining whether the ‘substantially different discipline’ exception warrants a greater or lesser sanction involves a two-step inquiry.
First, we must determine if the misconduct would not have resulted in the same punishment here as it did in the disciplining jurisdiction․
Second, if the discipline imposed in the District of Columbia would be different from that of the original disciplining court, we must then decide whether the difference is ‘substantial.’ ”
Barrett, 966 A.2d at 864 (internal citations and quotation marks omitted);
In re Demos, 875 A.2d 636, 642 (D.C.2005).
Nevertheless, where an attorney licensed in the District of Columbia is disciplined in another jurisdiction, there is a presumption in favor of imposing identical discipline here.
See In re Jacoby, 945 A.2d 1193, 1197 (D.C.2008) (There is “a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original jurisdiction.”) (citing Demos, 875 A.2d at 641).
When Bar Counsel recommends a greater sanction than that imposed by another jurisdiction, he bears the burden of demonstrating by clear and convincing evidence that a more severe sanction is appropriate.
See In re Jacoby, 945 A.2d at 1198 (interpreting D.C. Bar Rule XI (f) to allow Bar Counsel to “rely upon the ‘substantially different discipline’ exception [and] argu[e] for a greater sanction”) (citations omitted).
We conclude that Bar Counsel has met his burden here.
“[H]onesty is basic to the practice of law.”
In re Uchendu, 812 A.2d 933, 939 (D.C.2002) (citations and punctuation omitted).
Consequently, it is appropriate for us to discipline an attorney for dishonesty, even where it appears that the attorney had little or nothing to gain by making misleading representations.
See id. at 940 (“[A] deliberate falsification of documents is sufficient to support a finding of dishonesty, regardless of its motivation.”).
“Sanctions for dishonesty range generally from 30 days suspension to disbarment.” Id. at 941 (citing In re Lopes, 770 A.2d 561, 569 (D.C.2001)).
We have imposed a sanction of suspension in numerous cases involving dishonesty.
In Uchendu, for example, we suspended an attorney who falsified signatures on documents he filed with the Probate Division of the Superior Court, some of which he also notarized.
The Board on Professional Responsibility noted several mitigating factors, including that this was Mr. Uchendu’s first disciplinary offense, that he had his clients’ permission to sign their names, that his actions did “not prejudice[ ] his clients or the court’s decisionmaking,” and that the falsified information was not “substantive.” Id. at 936.
The Board also took into account several aggravating factors, including Mr. Uchendu’s “persistence in making false signatures and notarizations”;
his notarization of documents despite being unfamiliar with the rules governing notaries public;
and “his less than truthful recantation before the Hearing Committee of a stipulation he had made.” Id.
In that case we agreed with the Board’s recommendation and imposed a thirty-day suspension. Id. at 942.
In doing so, we recognized that “[a] falsely signed document that is submitted to a court is a false representation because the signature is misleading, even if the substance of the document is accurate.” Id. at 939.
We considered comparable circumstances in In re Reback, 513 A.2d 226 (D.C.1986) (en banc).
After a complaint was dismissed for failure of the respondents to bring it to issue, the two attorneys who worked on the case falsified their client’s signature on an identical complaint, had that document notarized, and filed the complaint in court. Id. at 228.
Taking into account factors of mitigation, including that the attorneys admitted their wrongdoing, were contrite, and cooperated fully throughout the disciplinary proceedings, we determined that a six-month suspension was appropriate. Id. at 233.
Although Reback involved an act of dishonesty in connection with the signature on (but not the substance of) a complaint, we emphasized that “[a] lawyer’s representation to the court must be as reliable as a statement under oath.
The reliability of a lawyer’s pleadings is guaranteed by the lawyer’s membership in the bar.” Id. at 231.
We also imposed a thirty-day suspension in In re Owens, 806 A.2d 1230, 1231 (D.C.2002), where the attorney, in an attempt to avoid embarrassment and any adverse consequences to her client, made false statements to an administrative law judge “to cover up the fact that she had attempted to eavesdrop on testimony in violation of the judge’s sequestration order.”
There, as here, the attorney’s statements were false.
Mr. Amberly has not pointed to any of our own cases where we have imposed a lesser sanction than suspension for conduct comparable to his.
Our case law is replete with instances in which we have suspended attorneys who have engaged in acts of dishonesty, and there should be no doubt that a suspension from the practice of law is substantially different from an admonition.
We recognize that Mr. Amberly has no prior disciplinary history, but his conduct involved serious acts of dishonesty for which a thirty-day suspension is appropriate.
In light of the findings of the Virginia Board and our resolution of original proceedings involving comparable facts, we accept the Board’s recommendation.3
Respondent is hereby suspended from the practice of law in the District of Columbia for thirty days. See D.C. Bar R. XI § 14(f).
For purposes of reinstatement, Mr. Amberly’s suspension shall be deemed to run from the date he files an affidavit in compliance with D.C. Bar R. XI § 14(g).
See In re Slosberg, 650 A.2d 1329, 1331-33 (D.C.1994).
FISHER, Associate Judge
Virginia Judge Behavin’ Like an Outlaw On the Bench, Pulls a Pistol On Counsel During Trial
Judge Hummel then pulled out a black handgun from an over-the-belt leather holster beneath his robe, and started waving it around the room.
A Judge Pulled a Gun in the Courtroom—and Then It Got Weird
“The whole trial was insane,” said one lawyer, who later reported the weapon-wielding jurist to the FBI.
JUL 16, 2022 | REPUBLISHED BY LIT: JUL 17, 2022
During a trial in West Virginia earlier this year, witnesses tell The Daily Beast, a state court judge whipped out his handgun, waved it in the air, and left it on the bench with the barrel pointing directly at the corporate lawyers who had irritated him.
Circuit Judge David W. Hummel Jr., who oversees cases in the tiny city of New Martinsville, repeatedly told The Daily Beast it never happened.
When reached by phone in March, he initially professed shock at the allegations.
On subsequent phone calls, however, his story kept changing as he claimed to recall more details about the incident.
“I did not have my 1911 at any point during that trial,”
he said then, referring to a common type of semi-automatic pistol.
“It was secreted in a drawer on the bench. I never showed my 1911 at the trial whatsoever—at any point during that trial.”
That judge is now under investigation by the state’s judiciary for violating the profession’s code of conduct, according to three witnesses now sharing information with law enforcement and official communications about the investigation reviewed by The Daily Beast.
The judge’s own staff has since told an investigator that the judge did, in fact, display his gun openly during an attorneys-only hearing and boasted about having it in his possession, according to two of those witnesses.
Hummel insisted to The Daily Beast that there was no recording of the incident that would back up these accusations, but two witnesses say the state investigator has acquired a videotape of the interaction.
“You don’t understand what a terrible victimization it is,”
said Lauren Varnado, the attorney who was standing at the podium when the judge pulled out his gun.
“It was pretty traumatic for multiple people. The whole trial was insane.”
“We have no power in this situation,”
“It was way scarier than even just a normal person on the sidewalk.
You need more power over us than you already have right now?
That’s frightening, because he could order us to do whatever.
Why would you ever need to pull out a gun?”
The judge’s show of force was the culmination of months of building tension between him and Varnado’s team of corporate lawyers.
The Daily Beast has reviewed hundreds of pages of court transcripts and spoken to several people involved.
As with many legal battles in West Virginia, it all started with fossil fuels.
“It was too stunning to even process it. My brain didn’t even process it until after the hearing concluded. I was on edge. I don’t know if it was loaded.”
Until the case settled recently, Hummel oversaw a dispute involving West Virginia landowners who sued over the royalty payments they get from the natural gas giant EQT for fossil fuels extracted from the earth hundreds of feet below their property.
But the gas company’s lawyers accused the judge of never disclosing that his parents get gas company royalties that may someday pass on to him—sparking questions about a glaring conflict of interest.
When the gas company’s lawyers sought to disqualify him, court transcripts show he grew increasingly aggravated at Varnado and her team.
At an April 2021 court hearing in which he was asked about his family’s gas interests, the transcript shows how the judge patronized EQT’s lawyers as he detailed his family tree and dismissed their concerns, ranting about how his cousin “Christy” got mad at him for not recognizing her at a wedding.
When the attempt to have higher state courts disqualify him failed, Hummel started the next court hearing in similar fashion.
“Okay. Excellent. And I’m Judge Hummel, and I have no conflicts, Supreme Court said, so here we are. And this time I don’t have to talk about my Aunt Rose’s numerals or which shoe I put on first or anything,”
he said on July 19, 2021, according to another transcript.
The eventual trial was always going to be fiercely contentious.
EQT cut its royalty payments nearly a decade ago, shortly before the energy value of the state’s natural gas production began to overtake coal.
While the state has relied heavily on the exports of coal and oil since the 1800s, natural gas from the fracking of the massive Marcellus Shale underground has the promise to enrich the state.
By the time the two-week trial started in February in New Martinsville, the locals were so angry at how the gas company had cut their royalties in recent years that EQT lawyers felt the need to be escorted by ex-CIA private security contractors, according to three members of that team.
But when lawyers on both sides were called into the century-old sandstone courthouse for a special hearing on Saturday, March 12, bailiffs at the entrance surprised the legal teams with a new rule for the day.
“Trial counsel only today,” they said, according to three witnesses who spoke to The Daily Beast on condition of anonymity, fearing potential reprisal.
Varnado’s private security guard and a paralegal were turned away.
The lawyers made their way into the courtroom on the second floor.
Once there, according to a transcript, the judge castigated the gas company’s lawyers for having private guards, noting that if there were any concerns about safety,
“I promise you, I’ll take care of them.”
“We were never told these folks were security until most recently,”
the judge said, according to a court transcript.
“I got this man here carrying a man purse, which I make fun of him every damn day for wearing such a sissy-ass contraption. And I hear he has blood coagulant. I have blood coagulant up here too, and I’ve got lots of guns. Like, bigger ones too.”
Hummel then pulled out a black handgun from an over-the-belt leather holster beneath his robe, and started waving it around the room, according to Varnado and another person in the room.
Hummel then put it down on his wooden desk, known as a judge’s bench, and left the barrel pointing at Varnado, her New York law partner David R. Dehoney, and their local West Virginia attorney Jennifer Hicks.
The gun stayed there for the rest of the hearing. When the attorneys were directed to negotiate in a private room, they found the handgun still waiting for them when they returned. When lawyers had to approach the judge, the resting gun remained pointed at their faces.
“It’s just a violation of basic gun safety, having it out like that pointing at people,” Varnado said. “It was too stunning to even process it. My brain didn’t even process it until after the hearing concluded. I was on edge. I don’t know if it was loaded.”
Indeed, pointing a firearm at anything but a target violates the National Rifle Association’s primary rule on gun safety, which is to keep a barrel pointed away from people at all times. And the judge seems to have broken a second rule of safe gun handling, which is to check whether a firearm’s chamber is empty and clear of ammunition—then say so out loud.
In the days after the hearing, Varnado reached out to the FBI to report what happened. But she decided to seek help from the feds 100 miles away in Pittsburgh, concerned that local law enforcement might be untrustworthy given the judge’s position of power and influence.
Varnado still feels confident that was the right move. When The Daily Beast reached out to Wetzel County Sheriff Michael L. Koontz, whose deputies provide security outside the courthouse, the sheriff remembered that a special hearing happened that Saturday morning—but denied any knowledge about the judge pulling out the gun.
However, two sources with direct knowledge say a sheriff’s deputy who was in the courtroom that day has since confirmed to the state investigator that the judge brandished his pistol.
When reached by phone a few weeks after the episode, Hummel first denied anything remarkable ever occurred.
“There is no incident… I absolutely, categorically deny I had a gun that day in the courtroom,” he said. “It was just me and the attorneys. I had no reason to have a firearm that day… I’ve never shown a gun in my courtroom to anybody. I don’t want them to know that I have it. I do not display my firearm at any time during trial.”
“My job is not to protect anyone with firearms,” he said. “That’s what my bailiffs and deputy sheriffs are for.”
Minutes later, the judge called back and said he now recalled having a holstered gun on him beneath his robe during the trial the previous week.
But it wasn’t the 1911 pistol, he said.
It was a long, classic-looking revolver that hails from the days of the Wild West.
“I wore the Colt Peacemaker,”
“The Peacemaker never ever came out of the holster during that trial.”
When the judge called back a third time, he acknowledged showing something to the attorneys in the courtroom that day.
But he said it wasn’t a gun.
“I did pull out a small, red first aid kit. But it was casual. I did show her a foiled packet, and said this is blood coagulant. We have preparations for active shooter situations,” he said.
In April, a spokeswoman with the Supreme Court of Appeals of West Virginia told The Daily Beast that she was not aware of the gun incident.
And records showed that Hummel had not been the subject of an admonishment or formal statement of charges.
But in the weeks since, Judicial Investigation Commission of West Virginia investigator David Hudson has been gathering evidence about the incident, asking witnesses to describe the firearm and how they felt about it being displayed by the judge, according to communications reviewed by The Daily Beast.
In a signed affidavit submitted to the investigator, Varnado, who hails from Texas, described the judge’s gun as a “Colt 45,” a widely recognized pistol otherwise known as a 1911.
The judge, his court clerk, a secretary, and a court reporter have all submitted sworn affidavits describing the events that day to the investigator, court reporter Holly A. Kocher told The Daily Beast on Wednesday.
Since March, the FBI’s Pittsburgh field office has repeatedly declined to confirm that a special agent there has been assigned to look into the incident. The judge did not respond to requests for comment on Wednesday.
The state judiciary, citing policy, declined to provide details about the ongoing ethics investigation.
But its staff pointed to its website, which indicates that judges who violate the rules face a one-year suspension.
Virginia Supreme Court Confirms the Need for Independent Judicial Oversight
Neither experience nor logic justified the initial sealing of this proceeding. And nothing in today’s order justifies our continued sealing.
Ex-parole chair challenged suspension as judge, unsealed records show
APR 21, 2022 | REPUBLISHED BY LIT: APR 25, 2022
Judge Adrianne Bennett — the former parole board chairwoman at the center of a scandal — challenged the constitutional authority of a state commission to suspend her from the bench last year, according to records unsealed Thursday by the Supreme Court of Virginia. The court denied her request the next day.
The records were unsealed at the request of the Richmond Times-Dispatch, which made a filing with the court in July asking the court to unseal its sealing order. The court’s 4-2 Thursday decision addressed the sealing order and all the records, and the court unsealed some of the records and provided them to the newspaper. But it left key records under seal.
Bennett was the chair of the Virginia Parole Board during a time it was later found to have violated rules in its process used to release certain people from prison.
The court’s opinion said that “in the interest of openness and transparency, we further unseal the remainder of the case” with the exception of attachments filed by Bennett.
Bennett petitioned the court on May 20, 2021, asking it to take action in a matter then pending before the state’s Judicial Inquiry and Review Commission, a panel that investigates allegations of misconduct against judges. JIRC in April 2021 suspended Bennett from the bench in Virginia Beach, where she is a juvenile court judge, and she asked the Supreme Court to order JIRC to reinstate her.
The Supreme Court denied her request a day later and, without any public notice or listed reasoning, the court ordered the record of her filing to be sealed. The unsealed records reveal Bennett’s legal challenge to JIRC. The records that remain under seal appear to address the substance of JIRC’s investigation of Bennett.
Bennett’s filing at the Supreme Court — called a mandamus petition — was against the members of JIRC and its general counsel, Raymond Morrogh, according to the records the court unsealed on Thursday. She challenged their constitutional authority to suspend her.
The JIRC investigation has concluded. Records of such investigations, by state law, only become public if JIRC makes a filing at the Supreme Court against a judge, which did not happen in Bennett’s case. She remains on the bench in Virginia Beach.
The Supreme Court’s opinion said the General Assembly, as the policymaking branch of government, has determined that records such as the exhibits Bennett filed should be confidential. Bennett’s exhibits “are records of a then pending proceeding before the Judicial Inquiry and Review Commission. By law, records of proceedings before the Commission are kept confidential.”
They quoted a state law that says the record of any JIRC proceeding “filed with the Supreme Court shall lose its confidential character.”
A lawyer for The Richmond Times-Dispatch on Friday urged the court to unseal its order that explained why it closed off the records to the public.
“From the start, Judge Bennett made clear that she did not want anyone but us to see the reason why JIRC had suspended her,” the dissent said.
“The majority holds that Judge Bennett has a statutory right to keep that information secret and that the public has no constitutional right to break the seal of secrecy.”
The dissent also said:
“Neither experience nor logic justified the initial sealing of this ‘proceeding.’ And nothing in today’s order justifies our continued sealing of the JIRC documents.”
Attorney David Lacy represents the newspaper and its publisher, Lee BHM Corp., in the case, and oral arguments were heard in March.
“Today’s decision from the Virginia Supreme Court struck the balance between the fundamental notion of public access to the courts and the statutory safeguards which protect judges from unwarranted complaints,”
said Bennett’s attorney, Lee Floyd, in an email for this story.
“Judge Bennett continues to serve honorably on the Juvenile and Domestic Relations bench in Virginia Beach.”
Bennett, who was elected by the General Assembly as a juvenile court judge in Virginia Beach in March 2020 and took the seat the next month, was at the center of a scandal after the Office of the State Inspector General found the parole board violated law and policy that year, including not properly notifying victims and prosecutors about people being released from prison on parole.
At least two complaints were made about Bennett to JIRC.
One was made in April 2021 by a former parole board employee who alleged Bennett directed parole board staff to copy and paste a previous report about a person who was eligible for parole, to be used in a new review. The employee had never been asked to do that in the past and felt that using a previous report as her own work would result in falsification of the report.
Morrogh, JIRC’s general counsel, signed an order indefinitely suspending Bennett from the bench on April 13, 2021, which was authorized by JIRC’s chairwoman. Bennett had not been charged — and hasn’t been — with any violation of the Canons of Judicial Conduct.
Bennett argued that the Virginia Constitution didn’t allow JIRC to remove her — and that indefinite suspension was de facto removal that only could legally be done by the Supreme Court or General Assembly.
She said the state law that allows JIRC to suspend a judge is unconstitutional. She also argued that while the constitution requires JIRC to have seven members, the commission had only six when she was suspended. And she challenged the suspension order because it was signed by JIRC’s lawyer.
“Until a full Commission is appointed, the Commission lacks the authority to act in future proceedings against Judge Bennett,” Bennett argued in the filing.
She asked the court to suspend JIRC’s investigation of her without a full seven members.
The commission was investigating action that happened between Bennett’s election as a judge by lawmakers and her taking the oath as a judge.
In denying Bennett’s request the day after she filed it, the Supreme Court responded that the constitution and state law gave JIRC jurisdiction over matters of judicial censure and removal, regardless of the number of current members, according to the records unsealed Thursday. (JIRC was down one member because one of its members became a judge.)
The court said it did not have authority to review or vacate the interim suspension order, and agreed to seal Bennett’s filing.
Because JIRC’s records remain secret unless the commission makes a filing against a judge at the Supreme Court, it’s unclear when Bennett’s interim suspension ended.
The parole board scandal became an issue in the 2021 election; Gov. Glenn Youngkin and Attorney General Jason Miyares, both Republicans, campaigned by attacking Democrats on parole.
Miyares is now investigating problems that happened at the parole board.
The lead investigator at the Office of the State Inspector General — the agency that made findings of misconduct by the board — was terminated.
Jennifer Moschetti filed a lawsuit over her termination. The Virginia Mercury reported Thursday that her firing was upheld twice in a state employee grievance process because of information security breaches that happened prior to her attempt at whistleblower protection, according to records filed in her wrongful termination suit.
“Moschetti conceded, under oath, that she sent confidential information to her personal email address on numerous occasions, which included, among other things: mental health information of various incarcerated offenders, identifying information of crime victims, witnesses to crimes and other individuals involved in board matters,” according to a filing from the state officials Moschetti is suing.
Judge Albert Diaz Insults Americans Who Pay His Salary With $35 Payout and $1.3M Attorney Fee Deduction
Judge Albert Diaz insults the American homeowners and Judge Stephanie Thacker endorses opinion along with lower court Judge Tim Cullen.
DEMETRIUS ROBINSON; TAMARA ROBINSON,
Plaintiffs – Appellees,
NATIONSTAR MORTGAGE LLC,
Defendant – Appellee.
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Timothy J. Sullivan, Magistrate Judge. (8:14−cv−03667−TJS)
Argued: October 28, 2021 Decided: February 10, 2022
Amended: February 10, 2022
Before DIAZ and THACKER, Circuit Judges, and Thomas T. CULLEN, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Thacker and Judge Cullen joined.
Michael T. Houchin, LAW OFFICES OF RONALD A. MARRON, APLC,
San Diego, California, for Appellant.
Jonathan K. Tycko, TYCKO & ZAVAREEI LLP, Washington, D.C.;
Erik Wayne Kemp, SEVERSON & WERSON, San Francisco, California, for Appellees.
Ronald A. Marron, LAW OFFICES OF RONALD A. MARRON, APLC, San Diego, California;
Thomas J. Minton, GOLDMAN & MINTON, P.C., Baltimore, Maryland, for Appellant.
Dia Rasinariu, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellee Tamara Robinson.
Jan T. Chilton, SEVERSON & WERSON, San Francisco, California, for Appellee Nationstar Mortgage LLC.
Scott C. Borison, BORISON FIRM LLC, Baltimore, Maryland;
Jennifer S. Wagner, MOUNTAIN STATE JUSTICE, Morgantown, West Virginia, for Amici Curiae.
FEB 11, 2022 | REPUBLISHED BY LIT: FEB 13, 2022
DIAZ, Circuit Judge:
This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members’ mortgage loans.
Following protracted litigation, Nationstar, and the Robinsons negotiated a $3,000,000 settlement.
Pia McAdams, a class member, objected to the settlement, arguing that the class notice was insufficient; the settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.
A magistrate judge (acting on a referral by the district court) overruled McAdams’s objections.
On appeal, McAdams raises those same challenges and questions the magistrate judge’s jurisdiction.
Demetrius and Tamara Robinson filed a class action against Nationstar in the District of Maryland in 2014.
The Robinsons claimed Nationstar violated federal and state law by, among other things, failing to timely acknowledge receipt of class members’ loss mitigation applications,1 respond to the applications, and diligently obtain documents to process them.
The parties litigated the case for nearly six years. In 2020, the Robinsons and Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate
An Insult from Court of Appeals for the 4th Cir. Judge Albert Diaz, joined by Thacker and Cullen.
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The magistrate judge (who had mediated the settlement), granted a motion for preliminary approval of the settlement and scheduled a fairness hearing before final approval.
The negotiated settlement created a relief fund of $3,000,000.
In order of priority, the parties proposed that the fund pay for
(1) administrative expenses up to $300,000,
(2) attorneys’ fees,
(3) a service award to the class representative—Demetrius Robinson,
(4) class claims.
Any remainder would go to a nonprofit that advocates for consumers.
The administrative expenses included the cost of providing class members with notice of the settlement.
The settlement proposed three types of notice—Email, Postcard, and Longform.
Both the Email and Postcard Notice informed class members of the amount of the settlement fund, how to submit a claim, how to opt out of the class, and where to find the Longform Notice.
The Longform Notice notified class members of the attorneys’ fee arrangement.
The notices didn’t estimate the recovery for each class member.
As for attorneys’ fees, Nationstar agreed (in a so-called “clear sailing” provision) not to oppose class counsel’s fee request so long as it didn’t exceed $1,300,000.
Class counsel submitted records accounting for over 3,000 billable hours.
Using the District of Maryland’s presumptively reasonable rates, the records supported $1,261,547.50 in fees.
Class counsel also submitted proof of $217,657.26 in unreimbursed expenses, for a total of $1,479,204.76 in costs and fees.
But counsel requested only a $1,300,000 award.
The value of a class member’s claim is determined by a points system.
Class members receive points for answering two questions—the first about Nationstar’s treatment of their mortgage account and the second about expenses the class member incurred.
The settlement funds remaining, after deducting administrative expenses, attorneys’ fees, and the class representative’s service award, are divided by the number of points claimed.
That number is then multiplied by a class member’s points to arrive at the settlement share for each claimant.
The proposed settlement also includes a release of claims.
Upon entry of the Final Approval Order and Judgment, each Settlement Class Member . . . will be deemed to have completely released and forever discharged the Released Parties, and each of them, from all actions . . . that were or could have been asserted by the Class Representative or Class Members in connection with the submission of loss mitigation applications during the Class Period.
McAdams, an absent class member2 who had sued Nationstar in California state court,3 objected to the settlement. She argued that the class notice was insufficient; the
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settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.
The magistrate judge overruled McAdams’s objections.
The judge found that the distribution of the notice was sufficient because over 97% of the nearly 350,000 class members received notice.
He also found that class members “had information to make the necessary decisions and . . . the ability to even get more information if they so desired.”
In support of that finding, the judge noted the low number of objectors (2), the low opt-out rate (.04%), and the high claims rate (13.8%).4
Turning to the settlement terms, the magistrate judge found them fair, reasonable, and adequate.
The judge considered the three relevant criteria under Federal Rule of Civil Procedure 23(e)(2)(C) and addressed the five adequacy factors from In re Jiffy Lube Securities Litigation, 927 F.2d 155, 159 (4th Cir. 1991).
The judge found: (1) “plaintiffs ha[d] viable claims”; (2) “Nationstar had very strong defenses”; (3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”; (4) “Nationstar can pay the 3 million dollars”; and (5) “[o]nly 137 class members have opted
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out of the settlement, which is about 0.04 percent of the settlement class.”
See J.A. 810– 14.
The magistrate judge also addressed the breadth of the settlement’s release. He found the release was “not too broad” because a class settlement can release “claims based on the identical factual predicate[,] even if those claims” aren’t presented.
But he didn’t opine whether the release would bar class members’ pending claims in other jurisdictions, including McAdams’s California lawsuit.
Finally, the magistrate judge approved the proposed $1,300,000 attorneys’ fee request.
The fee, he said, was based on a presumptively reasonable rate, and using that rate, counsel had shown that their actual costs and fees exceeded their request.
The judge noted that concerns over Nationstar’s agreement not to object to the settlement were misplaced.
And he found “no collusion” between the parties because they negotiated the settlement “at arm’s length in the midst of contentious litigation.”
J.A. 812, 817.
This appeal followed.
McAdams first attacks the magistrate judge’s jurisdiction to approve the class action settlement, alleging that she didn’t consent to have a magistrate judge hear her case.
There’s no dispute that the magistrate judge could approve the class action and enter judgment only by consent of the parties.
28 U.S.C. § 636(c).
McAdams asserts that “parties” for purposes of § 636(c) include absent class members, like her.
This is a question of first impression in this circuit.
But every other circuit to address the issue has concluded that absent class members aren’t parties.
Koby v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1076 (9th Cir. 2017); Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1316 (11th Cir. 2013); Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181 (3d Cir. 2012); Williams v. Gen. Elec. Cap. Auto Lease, Inc., 159 F.3d 266, 269 (7th Cir. 1998).
We now join them, holding that the magistrate judge had jurisdiction to approve the settlement.
We review questions of law de novo, including questions of statutory interpretation.
In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg., Sales Pracs. & Prods. Liab. Litig., 952 F.3d 471, 483 (4th Cir. 2020).
Similarly, “[w]e review . . . a lower court’s determination of its subject-matter jurisdiction de novo.”
Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1007 (4th Cir. 2014) (en banc).
“We begin, as always in deciding questions of statutory interpretation, with the text.”
Othi v. Holder, 734 F.3d 259, 265 (4th Cir. 2013).
28 U.S.C. § 636(c) authorizes magistrate judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case . . . . [u]pon the consent of the parties.”
Congress didn’t define “parties” in § 636.
Nor has the Supreme Court said whether absent class members are parties in this context.
See Devlin v. Scardelletti, 536 U.S. 1, 9–10 (2002)
(“Nonnamed class members, however, may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.”).
“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import.”
Williams v. Taylor, 529 U.S. 420, 431 (2000) (cleaned up).
When Congress adopted the relevant language in § 636, the ordinary meaning of “party” included those whose names are designated as a plaintiff or defendant and those who can control the proceedings.
See Day, 729 F.3d at 1317.
Absent class members aren’t named parties, and they can’t control proceedings.
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985)
(“Unlike a defendant in a normal civil suit, an absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection.”).
So absent class members aren’t within the contemporary, common meaning of the term “parties” as used in § 636.
Nor do we believe Congress intended absent class members to be parties.
Interpreting “parties” to include absent class members would prevent magistrate judges from entering judgment against absent class members who haven’t given their explicit consent.
That reading “would virtually eliminate § 636(c) referrals to magistrate judges” by hindering the judgment’s preclusive effect.
Williams, 159 F.3d at 269.
Congress has limited the preclusive effect of judgments by restricting the definition of a party in other contexts.
See, e.g., 29 U.S.C. § 216(b)
(“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”).
But when it has done so, Congress has spoken clearly. Nothing in § 636 suggests Congress intended to limit the preclusive effect of judgments entered by magistrate judges.
McAdams doesn’t account for the adverse practical effects of administering class actions if her reading were to prevail.
The Ninth Circuit has observed that § 636 uses the term “parties” “multiple times in a way that cannot sensibly be read to include absent class members” because “[t]he identities of all absent class members will often not be known until later in the case.”
Koby, 846 F.3d at 1076; see, e.g., 28 U.S.C. § 636(c)(2)
(“[T]he clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction.”).
“Even if the identities of all absent class members are known,” it would be unduly burdensome on the clerk of court to compile all their contact information and prohibitively expensive “even for the most well-funded district courts.”
Koby, 846 F.3d at 1077.
This case exemplifies the need to have a practical system for administering class actions.
The class here consists of almost 350,000 members.
McAdams’s reading of “parties” for purposes of § 636 would require notifying each of them of the intent to proceed before a magistrate judge.
“We doubt Congress would have imposed these substantial budgetary and manpower burdens on clerks’ offices across the country without making that intent explicit.”
Id. at 1077.
And to what end? In this case, over 97% of class members received notice of the settlement. 13.8% submitted claims. Only .04% opted out. So over 80% of the class received notice but didn’t act on it.
Yet under McAdams’s reading of § 636, the magistrate judge would be powerless to act.
Because the contemporary, common meaning of “parties” excludes absent class members and the statute lacks signs showing any legislative intent to classify them as such, we conclude “parties” as used in § 636 doesn’t include absent class members.
Since Nationstar and the Robinsons consented to having the magistrate judge preside over the fairness hearing, McAdams’s jurisdictional claim fails.5
McAdams next asserts that the settlement notice was inadequate because it didn’t include the attorneys’ fees to be deducted from the settlement fund, estimate individual class members’ recovery, or explain the distribution method.
The parties dispute our standard of review.
We haven’t spoken on this question, and our sister circuits are split.
Two circuits review a district court’s finding on the adequacy of class action notice for abuse of discretion.
Pollard v. Remington Arms Co., 896 F.3d 900, 905–06 (8th Cir. 2018); Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir. 2007).
Three others review the issue de novo.
In re Online DVD-Rental
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Antitrust Litig., 779 F.3d 934, 946 (9th Cir. 2015); DeJulius v. New England Health Care Emp. Pension Fund, 429 F.3d 935, 942 (10th Cir. 2005); Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).
But even assuming de novo review is proper, the class notice was adequate.
McAdams’s challenge to the adequacy of the notice has both a constitutional and a procedural component.
To bind an absent class member, notice to the class must provide “minimal procedural due process protection.”
Phillips Petroleum Co., 472 U.S. at 811–12.
“The [absent class member] must receive notice plus an opportunity to be heard and participate in the litigation.”
Id. at 812.
That notice must be “reasonably calculated, under all the circumstances, to apprise [absent class members] of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
On the procedural front, Federal Rule of Civil Procedure 23(e) governs notice to absent class members. It requires “direct notice in a reasonable manner to all class members who would be bound by the proposal.”
Fed. R. Civ. P. 23(e)(1)(B).
But it doesn’t specify what the notice must say. Rather, the notice need only “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.”
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005) (cleaned up).
Put another way, “Rule 23(e) requires notice that describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.”
In re Online DVD-Rental Antitrust Litig., 779 F.3d at 946 (cleaned up).
Here, the magistrate judge approved three types of notice—Email, Postcard, and Longform.6
The settlement administrator emailed notice to class members for whom it had an email address.
It also mailed notice to class members for whom it had a physical address.
And it searched the National Change of Address database to update the addresses for those whose Postcard Notice was returned as undeliverable.
Both the Email and Postcard Notice informed class members that there was a $3,000,000 settlement fund, explained how to file a claim, and presented the option to opt- out.
They also listed a website and telephone number where class members could get the Longform Notice.
The Longform Notice explained the settlement in greater detail.
Among other things, it stated that class counsel intended to request up to $1,300,000 in attorneys’ fees and costs, that this amount would be deducted before any payout to the class, and that class members submitting valid claims would receive proportionate shares of the settlement fund.7
In other words, the Longform Notice included two of the three pieces of
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information—the attorneys’ fees to be deducted from the settlement fund and the distribution method—which McAdams complains is missing.
Nor was the notice inadequate because it didn’t estimate the class members’ recovery.
In general, it would be difficult, if not impossible, for parties to reliably predict the number of valid claims when drafting notices.
Indeed, the Longform Notice acknowledges this difficulty:
“The amount of this payment will depend on how many Settlement Class Members file valid claims and how each Settlement Class Member answers questions in the Claim Form.”
And even if an estimated recovery is appropriate in some cases, McAdams makes no compelling argument for one here.
There’s nothing in the record suggesting the parties had a reliable method of estimating the percentage of class members who would file claims, let alone the average number of points they would claim.
Nor could the parties know that the magistrate judge would approve the proposed award of attorneys’ fees.
Without some evidence proving an average recovery calculation would be reliable, we think it inappropriate to impose such a requirement.
See, e.g, Does 1-2 v. Déjà Vu Servs., Inc., 925 F.3d 886, 901 (6th Cir. 2019)
(“Objectors cite no authority that requires a notice to state how much money each class member would receive, nor do they explain how the notice could have accurately stated the amount each [class member] was eligible to receive from the cash pool.”).
In sum, we find the methods of notice here fairly apprised class members of the proceedings as well as their options.
Class members had access to information about the total settlement, attorneys’ fees, and distribution method.
The notices also provided them with the means to find more information if they wanted it.
Thus, the notices were adequate.
McAdams next contests the magistrate judge’s finding that the settlement was fair, reasonable, and adequate. She asserts that the magistrate judge neglected to estimate the average recovery, and thus the settlement fund won’t adequately compensate the class members.
“We review a district court’s approval of a class-action settlement for an abuse of discretion.”
In re Lumber Liquidators, 952 F.3d at 483.
Rule 23 requires courts to find that class settlements are “fair, reasonable, and adequate” before approving them.
Fed. R Civ. P. 23(e)(2).
When reviewing the adequacy of a settlement, the court must consider
“(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorneys’ fees, including timing of payment;
(iv) any agreement required to be identified.”
Id. at 23(e)(2)(C).
We have identified five other factors for assessing a settlement’s adequacy:
“(1) the relative strength of the plaintiffs’ case on the merits;
(2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial;
(3) the anticipated duration and expense of additional litigation;
(4) the solvency of the defendant and the likelihood of recovery on a litigated judgment;
(5) the degree of opposition to the settlement.”
In re Lumber Liquidators, 952 F.3d at 484 (citing In re Jiffy Lube, 927 F.2d at 159).
Here, the magistrate judge considered the three relevant Rule 23(e)(2) criteria.8
(i) “[t]here was a great risk [for the plaintiffs] to proceed to trial given the logistical difficulties and Nationstar’s defense”;
(ii) “[t]he point system alloc[a]tion in the settlement agreement ensure[d] that those with the greater loss will be compensated to a greater degree”;
(iii) “the proposed attorneys’ fees and costs in this case [were] fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”
The magistrate judge also weighed the five Jiffy Lube factors.
(1) “plaintiffs ha[d] viable claims”;
(2) “Nationstar had very strong defenses”;
(3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”;
(4) “Nationstar can pay the 3 million dollars”;
(5) “[o]nly 137 class members have opted out of the settlement, which is about 0.04 percent of the settlement class.”
J.A. 810, 813–14.
McAdams doesn’t claim that the magistrate judge failed to address these factors; nor does she argue that he improperly weighed them.
Instead, she complains that the magistrate judge “failed to make a ‘rough estimate’ of what class members would have received had they prevailed at trial.”
Appellant’s Br. at 25.
But we have never required such an estimate.
Even the out-of-circuit cases McAdams cites don’t require an estimate in every case.
See Lusk v. Five Guys Enters. LLC, No. 17-cv-00762, 2019 WL 7048791,
at *7 (E.D. Cal. Dec. 23, 2019)
(explaining that a rough estimate of a plaintiff’s recovery is “meaningless” when one of its components lacks “factual and evidentiary foundation”).
And we’re not persuaded to impose this new requirement here.
In any event, while the magistrate judge didn’t estimate the potential recovery should the case proceed to trial, he found that most class members “probably only had nominal damages.”
That’s consistent with the resulting settlement.
At the fairness hearing, the judge said that 13.8% of the nearly 350,000 class members submitted claims.
He also noted that $1,300,000 in attorneys’ fees and costs would be deducted from the $3,000,000 fund.
Using only that information, one could roughly estimate that the average class member would recover $35, an amount that would adequately compensate a plaintiff with only nominal damages.
We’re satisfied that the magistrate judge correctly analyzed all the relevant Rule 23 criteria and thus didn’t abuse his discretion in finding the settlement agreement adequately compensated the plaintiffs.
McAdams also argues that the settlement release is “ambiguous, overbroad, and beyond the permissible scope of release for class action settlements.” Appellant’s Br. at 17.
A court can approve a release of claims that share an “identical factual predicate” with claims alleged in a case.
Berry v. Schulman, 807 F.3d 600, 616 (4th Cir. 2015).
Claims have an “identical factual predicate” when they “depend upon the very same set of facts.”
TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 460 (2d Cir. 1982) (quoting Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 18 n.7 (2d Cir. 1981)).
We have twice held that a class action settlement can dispose of unalleged claims relying on an identical factual predicate.
In re MI Windows & Doors, Inc., Prod. Liab. Litig., 860 F.3d 218, 225 (4th Cir. 2017); Berry, 807 F.3d at 616.
Here, the release provides that “each Settlement Class Member . . . will be deemed to have . . . discharged the Released Parties . . . from all actions . . . in connection with the submission of loss mitigation applications during the Class Period.”
As the magistrate judge recognized, this is “a broad release.”
It encompasses a large swath of claims that might have been brought.
But nothing on the face of the release purports to apply to cases with a different factual predicate. Rather, the release is tied to cases arising out of a set action and time frame.
Our inquiry ends there.
Neither we nor the magistrate judge can decide the outer limit of the release’s scope. To do so would be advisory.
See Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008)
(“It is well settled that a court adjudicating a class action cannot predetermine the res judicata effects of its own judgment; that can only be determined in a subsequent suit.”).
Whether the release covers claims not alleged in the class action complaint is for a court enforcing the release to decide.
In fact, that’s exactly what happened with McAdams’s California claims.
In that case, McAdams alleges that Nationstar violated California law by falsely telling her that it was processing her loan modification application while it continued to foreclose on her home.
McAdams, 2021 WL 4462909, at *1.
The California court considered the release’s scope and found that her claims weren’t barred. Id. at *4–6.
The magistrate judge didn’t abuse his discretion in approving the release.
Finally, McAdams contends that the magistrate judge abused his discretion by approving the $1,300,000 attorneys’ fee request.
She raises three challenges to this ruling:
(1) the magistrate judge didn’t comply with Rule 23(h)(3)’s requirement that he “find the facts and state [his] legal conclusions”;
(2) the attorneys’ fee award constitutes an unacceptably large portion of the overall award;
(3) the “clear sailing” provision is impermissible.
All three challenges fail.
“We  review an award of attorney’s fees for an abuse of discretion.”
In re Lumber Liquidators, 952 F.3d at 483. Thus, our “review is sharply circumscribed, and [the] fee award must not be overturned unless it is clearly wrong.”
Berry, 807 F.3d at 617 (cleaned up).
McAdams’s first argument is frivolous.
True, the magistrate judge had to “find the facts and state [his] legal conclusions.”
Fed R. Civ. P. 23(h)(3).
But he did so. He stated at the fairness hearing:
“Both sides are represented by skilled counsel[,] and I have concluded that the proposed attorneys’ fees and costs in this case are fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”
The judge elaborated:
I don’t accept and I reject Ms. McAdams’ suggestion that the settlement was somehow collusive with respect to plaintiffs’ attorney fees.
The parties negotiated the settlement at arm’s length in the midst of contentious litigation.
Ms. McAdams complained that because defendants do not object to the attorneys’ fees request, the Court is deprived of the necessary adversary process to determine a reasonable award, the whole clear sailing provision.
But Ms. McAdams herself only presents general arguments about the fee award. She doesn’t cite to any work that counsel performed that was unwarranted or unnecessary or duplicative or provide evidence that the rates charged by counsel are unreasonable.
An award of 1.3 million dollars for attorneys’ fees and expenses is reasonable in this case.
Class counsels’ fee award is based on the presumptively reasonable rate set forth in our court’s local rules.
Class counsel has supported their request of [sic] billing records and other competent evidence to support their request. Lawyers routinely complain that these rates are too low, especially the rates that pertain to more experienced attorneys.
Counsel seeks 86 percent of their reasonable fee under the lodestar method. This is a significant reduction.
The Court has reviewed class counsels’ motion for attorneys’ fees and finds that the fees claimed are reasonable.
Because the magistrate judge “referred to Plaintiffs attorneys’ substantially uncontradicted evidence and arguments that the requested fees are justified by their work on the case,” he complied with Rule 23(h)(3).
CLRB Hanson Indus., LLC v. Weiss & Assocs., PC, 465 F. App’x 617, 619 (9th Cir. 2012).
McAdams’s second argument, that the attorneys’ fees constitute an unacceptably large portion of the overall settlement, fares no better.
There are two main methods for calculating the reasonableness of attorneys’ fees—the lodestar method and the percentage- of-recovery method.
The lodestar method calculates reasonable fees “by multiplying the number of reasonable hours expended times a reasonable rate.”
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (cleaned up).
“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable.”
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).
The percentage-of-recovery method considers the portion of the total settlement fund that will go to attorneys’ fees. In re Lumber Liquidators, 952 F.3d at 481.
A district court may choose the method it deems appropriate based on its judgment and the facts of the case.
See Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 760 (S.D. W. Va. 2009)
(“The Fourth Circuit has neither announced a preferred method for determining the reasonableness of attorneys’ fees in common fund class actions nor identified factors for district courts to apply when using the percentage method.”).
Here, the magistrate judge chose the lodestar method for assessing the fee request.
Using the presumptively reasonable rates set forth in the District of Maryland’s Local Rules, class counsel documented earned fees of $1,261,547.50. See D. Md. Local R. App. B(3).
They also proved $217,657.26 in unreimbursed expenses, for $1,479,204.76 in costs and fees.
But counsel requested only $1,300,000.
As the magistrate judge correctly recognized, we presume that figure is reasonable because it’s less than the lodestar figure.
McAdams doesn’t challenge counsel’s billing practices. Instead, she contends the fee award isn’t reasonable under the percentage-of-recovery method.
Counsel’s fees totaled $1,300,000, 43% of the common fund. We acknowledge that this percentage approaches the upper limit of a permissible recovery.
But it isn’t unheard of.
See In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525, 533 (E.D. Pa. 1990)
(“Courts have allowed attorney compensation ranging from 19 to 45% of the settlement fund created.”).
Because the fee award isn’t so far afield of a standard recovery, we can’t, without more, find that the percentage-of-recovery calculation outweighs the strong presumption that the award is reasonable.
Nor does McAdams’s third argument, that the fee award is unreasonable due to the “clear sailing” provision, hold water.
“[Clear sailing] agreements are troubling because they demonstrate that class counsel negotiated some aspect of their fee arrangement with the defendant, when counsel’s ethical obligation is to the class.”
Newberg on Class Actions § 13:9 (5th ed.).
But they are “not per se unreasonable.”
Bezdek v. Vibram USA, Inc., 809 F.3d 78, 84 (1st Cir. 2015).
“Rather, courts are directed to give extra scrutiny to such agreements.”
Id.; accord In re Southwest Airlines Voucher Litig., 799 F.3d 701, 712–13 (7th Cir. 2015); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 949 (9th Cir. 2011).
That’s precisely what the magistrate judge did here.
He rejected the “suggestion that the settlement was somehow collusive” and found that the parties negotiated the settlement “at arm’s length in the midst of contentious litigation” that spanned six years and included “a Motion to Dismiss, two Motions for Summary Judgment, a contested Motion for Class Certification, numerous discovery motions, [and] numerous depositions.”
J.A. 807, 817.
And he noted that class counsel “supported their request [with] billing records and other competent evidence.”
McAdams doesn’t challenge these findings.
Offering only generalized objections to clear sailing provisions, she doesn’t point to a single example in the over 150 pages of billing records indicating class counsel breached their ethical obligations.
We reject McAdams’s challenge to the fee award.
For the reasons given, the magistrate judge’s judgment is
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Virginia Supreme Court Confirms the Need for Independent Judicial Oversight
Meanwhile In N. Virginia the (Now Dead) Sheriff and Several EDA Staff were Stealing Upwards of $17M
The Virginia State Bar’s Delayed Response is Underwhelming, Erroneous and Transparent.
The Virginia State Bar is Interested in Threesomes but Not Criminal Perjury
Editors Choice4 years ago
Meanwhile In N. Virginia the (Now Dead) Sheriff and Several EDA Staff were Stealing Upwards of $17M
Acceleration3 years ago
The Virginia State Bar’s Delayed Response is Underwhelming, Erroneous and Transparent.
Appellate Circuit3 years ago
The Virginia State Bar is Interested in Threesomes but Not Criminal Perjury