Montera v. Premier Nutrition Corporation

Background

Mary Beth Montera sought attorney’s fees and expenses incurred while defending the class-action judgment on appeal. The Ninth Circuit affirmed Premier Nutrition Corporation’s liability to the plaintiff class for deceptive advertising of Joint Juice in violation of New York law. It vacated the award of prejudgment interest and remanded Premier’s due-process challenge to the statutory-damages award. The Ninth Circuit also denied Premier’s petition for rehearing by the full court after previously denying Premier’s request to certify questions to New York’s highest court.

Montera moved for fees under Ninth Circuit Rule 39-1.6 and New York General Business Law §§ 349 and 350. She requested $928,455, which represented a 1.5 multiplier of class counsel’s $618,970 lodestar, plus $3,053.39 in expenses. A lodestar is the number of hours reasonably worked multiplied by a reasonable hourly rate. Premier did not dispute that Montera was entitled to some fees and costs, but argued for a 25 percent reduction and opposed any multiplier.

Court’s analysis

The court rejected Premier’s objections to class counsel’s billing practices. Premier argued that quarter-hour billing inflated the recorded time, but did not identify problematic entries or inflated tasks. It also argued that assigning most work to partners inflated the billing rate. Montera explained that the distribution resulted from the proceedings’ complexity and the firm’s small size, and the court found that explanation adequate. Finally, Premier challenged block billing and vague descriptions, but did not identify specific problematic entries. The court found the identified entries reasonable and concluded that the descriptions allowed it to review the work performed.

The court then considered whether to increase the lodestar with a multiplier. It found that the appeal involved nineteen issues and sub-issues, and that Montera obtained affirmance of nearly every order and ruling challenged by Premier, losing outright only on prejudgment interest. The court concluded that the appeal’s complexity, the results obtained, class counsel’s skill, and the contingent risk of continuing the long-running litigation supported a 1.5 multiplier. It rejected Premier’s argument that applying a multiplier would improperly count the same factors twice.

Ruling

Judge Richard Seeborg granted class counsel attorney’s fees on appeal in the amount of $928,455 and awarded $3,053.39 in non-taxed expenses.