Wilner v. Leopold & Associates, PLLC

Background

The court considered Stern Thomasson’s motion to reconsider its December 12, 2023, order dividing $53,000 awarded under a final class-action settlement for class counsel’s attorney’s fees and litigation expenses. Abraham Kleinman of Kleinman LLC, Philip Stern of Stern Thomasson LLP (STLLP), and Andrew Thomasson of STLLP had appeared for the plaintiffs. After the case settled, Yongmoon Kim of the Kim Law Firm (KLF) filed a notice of appearance to participate in the attorney-fee dispute.

The earlier order allocated costs of $512.60 to Kleinman LLC, $6,021.45 to STLLP, and $40.26 to KLF. It then awarded attorney’s fees of $15,320.48 to Kleinman and $31,105.21 to Philip Stern and KLF. The court explained that the fees were divided proportionally based on the work shown in time records. It also found that Stern completed most, if not all, of the work and was identified as class counsel in the settlement agreement and notice to the class, while Thomasson did not provide proof of hours worked.

Motion for Reconsideration

Under Local Civil Rule 6.3, reconsideration requires the moving party to identify an overlooked matter or controlling decision. The court also stated that reconsideration is generally available only for an intervening change in controlling law, newly available evidence, clear error, or the need to prevent manifest injustice. It described reconsideration as an extraordinary remedy that is granted only in rare circumstances and is not an opportunity to relitigate an issue or take a “second bite at the apple.”

STLLP argued that the court had erred by stating that, because STLLP was a dissolved partnership, it was “now—essentially—Thomasson.” The court clarified that it had not ruled that STLLP was terminated or that STLLP could not seek receivables while winding up its affairs. The court also stated that this issue was not the reason it denied STLLP’s requested fee allocation. Instead, the prior allocation was based on the evidence of work performed and the governing fee-division analysis.

STLLP also argued that KLF and Kleinman had not questioned STLLP’s right to recover fees. The court held that this was not a sufficient basis for reconsideration and that STLLP had identified no overlooked decision or data warranting a different result. Finally, STLLP relied on statements by class representatives Nochum and Etsy Wilner that their attorneys would be paid as directed by the court. The court rejected that argument as an attempt to relitigate an issue already decided and noted that the settlement agreement specifically identified Abraham Kleinman and Philip D. Stern as class counsel.

Disposition

The court denied STLLP’s motion for reconsideration. The conclusion refers to the motion as “Plaintiff’s motion,” although the opinion identifies the pending motion as STLLP’s motion. The clerk was respectfully requested to terminate the pending motion, identified as ECF Nos. 189–191.