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The state Superior Court has upheld $4.1 million in plaintiffs’ attorney fees awarded by a Philadelphia judge in a Kia Motors faulty-brake class action. Last fall, the Superior Court panel that upheld the verdict in Samuel-Bassett v. Kia Motors America Inc. asked Philadelphia Common Pleas Judge Mark I. Bernstein to issue a supplemental 1925(a) opinion to support why he awarded $4.13 million in counsel fees and $267,513 in expenses in January 2006. The panel of Judges Richard B. Klein, John T. Bender and Susan Peikes Gantman said in its decision Friday that there was no palpable abuse of discretion by Bernstein in his award decision and that it should be upheld. The panel echoed Bernstein’s reasoning that the plaintiffs’ attorneys’ award was reasonable considering the rates the defense counsel charged. “As noted by the trial court, the time records produced by defense counsel , although incomplete, demonstrated that defense counsel had expended over 7,100 hours defending the case, and partners had billed at rates ranging from $560 to $595 per hour, higher than the rates requested by plaintiffs’ counsel,” the unpublished memorandum opinion said. The panel also echoed Bernstein’s dismissal of the chief defense witness used to challenge the plaintiffs’ attorney fees as dishonest: John Marquess of Legal Cost Control Inc., a Haddonfield, N.J., firm that helps entities reduce and manage legal and accounting fees. Marquess said that the plaintiffs’ fee request should be reduced by 86 percent to $662,667.15 for a case that was litigated for five years, during which it was removed to federal court, remanded to state court and tried, The Legal previously reported.”We conclude that the record supports Judge Bernstein’s findings. We need not repeat the detailed findings of Judge Bernstein explaining why he did not credit Mr. Marquess’ testimony,” the memorandum opinion said. “Just as an example, Mr. Marquess refused to concede that Michael D. Donovan, Esquire, plaintiffs’ lead counsel from the inception of the case, should receive a fee for his trial work. It goes without saying that someone has to be in court to try the case and should be compensated for the time and work expended.” “The Superior Court’s decision was well-reasoned as was the underlying decision of Judge Bernstein,” Donovan of Donovan Searles said Friday. Co-class counsel Alan Feldman of Feldman Shepherd Wohlgelernter Tanner & Weinstock called the Superior Court decision a vindication of Bernstein’s findings. “One of the principal bases for the Superior Court’s affirmation is Judge Bernstein’s rejection of the testimony of a defense expert who had no credibility with the court,” Feldman said. James C. Sargent Jr. of Lamb McErlane in West Chester said in an e-mailed comment that: “Kia is disappointed with the result. The Superior Court fails to address the significant federal law issues regarding the appropriateness of an award of attorneys fees when only a single plaintiff is involved. There is also no precedent and no reason for awarding legal fees which are 73 percent of the underlying award. This is especially true where the only supposed evidence of breach of Kia’s express limited warranty for the class came from Kia’s records that showed that it did in fact pay for repairs under warranty for this class. The lack of logic of this holding is overwhelming.” Bernstein said the attorney award in the Kia case was reached from a base of $3 million calculated from the prevailing market rate and a 1.375 multiplier reflecting the higher risks from a contingent fee case than hourly fee cases, The Legal previously reported. The appellate court upheld the merits of the case last fall: a $5.6 million jury verdict against Kia in which a jury found that 9,402 class members’ 1995 to 2001 Kia Sephias had brakes prone to wear and tear that needed replacement about every 5,000 miles, which was much more frequently than normal, and violated the express warranty of 36,000 miles or 36 months. The jury awarded a total of $5.64 million, or $600 a piece, to the class members. Kia has appealed the Superior Court’s denial of a request for an en banc re-argument to the state Supreme Court, Sargent said. The plaintiffs’ lawyers in this case also have similar class actions pending against Kia in New Jersey and Florida. ( Copies of the seven-page opinion in Samuel-Bassett v. Kia Motors , PICS No.08-0198, are available from The Legal Intelligencer . Please refer to page 12 for ordering information.)

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