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2011 4:03PM

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FiLED ,,DMSIQN2_
IN THE CIRCUIT COURT OF JACKSON COUNTY, 11550 AT INDEPENDENCE DARREN BERRY, et al, Plaintiffs, v, VOLKSWAGEN OF AMERICA, INC., Defendant. FINDINGS OF FACT. CONCLUSIONS OF LAW, AN]) JUDGMENT The instant cause was flied as a class action in 2005. Eventually, the Court certified the cause to proceed as a class action. The matter was set for trial but settled as to the claims of members of the class. The parties could not agree as to the reasonable value of class counsels attorney fees to be awarded pursuant to the Missouri Merchandising Practices Act, R.S,Mo. Chpt. 407 (2000) (MIvWA), so the Court heard evidence on that issue on December 22 and 23, 2010, and January20, 2011. Findings of Fact 1. 2. This was a hard-fought case. The vigorous defense mounted by Volkswagen was matched by a vigorous prosecution by Plaintiffs counsel, Class counsel spent approximately 7,190 hours in time on this cause with a lodestar value of $3,087,320.00. Counsel also incurred expenses of $550,000.00. 3, Under the terms of the settlement negotiated by counsel, the potential benefit to all class members, assuming a 100% claims rate, was $23,000,000.00. In reality, as is typical in such cases, only a tiny fraction ofthe class members will make a claim, and the reasonably anticipated payout by Volkswagen appears unlikely to exceed $150,000.00. 4. In determining that a multiplier is appropriate at bar, the Court considers, among other things, the following factors: (a) The nature of the defect involved was a novel problem;
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Case Number 0516-CVOI l7l0l Division 2

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(b) The skill requisite to prepare and try this case which the parties

estimated would take three weeks was necessarily high;

(c) Taking this case precluded class counsel from accepting other employnent that would have been less risky; (d) The experience, reputation, and ability of class counsel is outstanding; (e) The fee to be received by class counsel was always contingent, unlike the fees received by counsel for Defendant;

(0

The time required by the demands ofpreparing this cause for trial delayed work on class counsels other work; and

(g) Class counsel adduced evidence that the fee this Court believes is appropriate in this case is not disproportionately excessive in light of the potential benefit conferred on members of the class. S. The 7,190 hours in time incurred in this case by class counsel was reasonable and necessary in light of the vigorous defense mounted by Volkswagen. The hourly rates charged by class counsel were reasonable. Conclusions of Law The MMPA permits a court to award a prevailing party reasonable attorney fees.

407.025.2.
2.

In doing this, the Court first looks at the lodestar amount.

After a court determines a lodestar amount, it may be appropriate to enhance (or, in some cases, reduce) the amount of fees awarded based on a multiplier, considering a number of different factors, Johnson v. Georgia Highway ExDress, Inc., 488 F.2d 714, 7 17-19 (5th Cir. 1974). Johnson was cited with approval by the Missouri Supreme Court in OBrien v, B.L.C. Insurance Company, 768 S.W.2d 64, 71 (en banc, 1989). Such an enhancement is especially congruent with fee awards under the MMPA, which the Supreme Court has described as having been enacted by the Missouri General Assembly as paternalistic legislation designed to protect those that could not otherwise protect themselves, Carstens v. Cbarter Communications, Inc., 290 S.W.3d 721, 725-726 (Mo. en banc. 2009), citing Electrical and Magneto Service Co.
th 8 v. AMBAC International Corp.. 941 F.2d 660, 664 ( Cir. 1991).

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3.

Considering these factors, the Court determines that a multiplier of 2.0 is appropriate in the case sithjudice. Applying that multiplier at bar, the total reasonable attorney fee award is $6,174,640.00.

4.

In making this determination, the Court believes that the reasonableness of the fees

must be measured against the benefit conferred by the settlement rather than the actual amount paid out, Van Gemert v. The Boeing Company. 590 F.2d 433 (2d Cit 1978), affd, 444 U.S. 472 (1980).
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED as follows: (1) The settlement of the parties is declared to be fair and reasonable; (2) Class counsel is awarded $6,174,640.00 as and for their reasonable attorneys fees; (3) Class counsel is awarded $550,000.00 in expenses; and (4) All other court costs are assessed against Defendant.

ICHAEL W. JUDGE, DIVISION 2

Dated: ,2011

I certify a copy of the above was faxed or mailed this

..b...)

day of May, 2011, to

Patrick I. Stueve, Todd Hilton, Jack Mcjnnes, Attorneys for Plaintiffs Fax (816)714-7101 John W Cowden, David Eisenberg, Attorneys for Defendant Fax (816) 472-0288 Damel Gsovski, Attorney for Defendant Fax (212)344-3333 Ena D Lawrence, Law Clerk, Division 2

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