billable hours

Lawyers in a suit over allegedly misleading billing practices by Jacoby & Meyers have reopened a debate over whether the case should be consolidated with a related suit.

Plaintiffs’ counsel sought the permission of a federal judge in Newark on Tuesday to renew their motion to consolidate two cases, Harding v. Jacoby & Meyers and Smalls v. Jacoby & Meyers.

In each of the suits, plaintiffs assert that the defendant firms outsource certain litigation tasks to a related entity as a means to get a cut of litigation settlements that are larger than the typical one-third share. In Smalls, the plaintiff claims Jacoby & Meyers took a second helping of fees from her personal injury settlement by billing her for outsourcing certain litigation-related tasks to a separate company, Total Trial Solutions. In Harding, the plaintiffs claim Finkelstein & Partners of Newburgh, New York, took an extra cut from proceeds of their personal injury settlements by outsourcing litigation tasks to Total Trial Solutions. Jacoby & Meyers was listed as a defendant in the Harding complaint when it was filed but was later dismissed from that case.

A motion by Jacoby & Meyers to dismiss the Smalls case was denied in January 2016. The firm had claimed in that case that the extra charge was made due to a clerical error.

The suits claim Andrew Finkelstein, the owner of Total Trial Solutions, is also a principal of both Jacoby & Meyers and Finkelstein & Partners.

An earlier motion for consolidation was denied in October 2016, based on a finding that the Harding case had progressed far ahead of the Smalls case. But a ruling Monday denying class certification in the Harding case brings the two cases closer together, plaintiff counsel Olimpio Lee Squitieri said in a letter to the court. Defendants in the two cases opposed consolidation the first time around and are expected to take the same position this time as well, Squitieri said.

Plaintiffs in the Harding case were charged for tasks performed by Total Trial Solutions such as ”review file/drafting, $2,599,” “file/review/editing, $1,018″ and “locate liability expert, $225.”

U.S. District Judge John Michael Vazquez ruled Monday that plaintiffs in the Harding case had failed to provide evidence to support their theories that Total Trial Solutions was performing legal work that should have been carried out by Finkelstein & Partners, and whether Total Trial’s rates were unreasonably high. Their motion for class certification was denied without prejudice.

Plaintiffs only stated that they intend to call an expert on those issues, Vazquez said. They need evidence to support their position that jobs should not be farmed out and plaintiffs should not be charged extra for doing so, Vazquez said.

“Unfortunately, plaintiffs as lay persons are not in position to opine as to what work a personal injury law firm normally does itself,” Vazquez said.

Squitieri said Tuesday in a letter to U.S. Magistrate Judge Mark Falk that conditions have changed since the court’s prior ruling on consolidation.

Now, “the two cases are in very similar procedural postures”—fact discovery is complete in Harding, and is complete or nearly complete in Smalls, Squitieri said.

Lindsey Taylor of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland, who represents Jacoby & Meyers, Finkelstein & Partners and Total Trial Solutions, did not return a reporter’s call. But Squitieri said Taylor told him that the defense will oppose the renewed motion for consolidation.

Squitieri said Jacoby & Meyers and Finkelstein & Partners are “separate entities, but we claim they are so intertwined, they are alter egos.”

Coordinating the cases provides advantages for the parties and the court, Squitieri said, adding that putting the cases together “saves a lot of paper” and “you can coordinate the depositions better. Discovery taken in one case can be used in the other case. If they won’t consolidate, we think it’s a good idea but we don’t really care,” he said.