Firm again seeks attorney fees in overcharges suit; BMV files opposition

The Indiana Bureau of Motor Vehicles is once again challenging an Indianapolis law firm’s motion to collect attorney fees in the class action it brought against the BMV for years of customer overcharges.

After plaintiff’s counsel in Tammy Raab v. Kent W. Abernathy, Indiana Bureau of Motor Vehicles, 49D11-1310-PL-038001, filed a motion for attorney fees for creating a $28.75 million common fund to benefit customers who had been overcharged for BMV services for several years, the BMV’s counsel filed an opposition to the motion on Tuesday, saying that the common fund does not exist and that Cohen & Malad, the firm representing the class, is trying to capitalize on a moot lawsuit.

Earlier in September, Levin filed an application for a temporary restraining order and a preliminary injunction for the attorney fees, a motion the BMV also opposed. The Marion Superior Court rejected that application on Sept. 16.

In a memorandum of support filed along with the motion for attorney fees on Sept. 19, Irwin Levin, a Cohen & Malad attorney who has acted as lead plaintiff’s counsel in the class action, said that because a $28.75 million common fund was created for the refunds as a direct result of his firm’s efforts in the suit, he and the firm are entitled to one-third of the total as attorney fees.

In his filing, Levin wrote that the efforts of the class’s counsel in the suit had forced the BMV to identify more than 100 additional customer overcharges in 2015 that the bureau had not previously identified. Because the plaintiff’s counsel had led to the identification of the additional overcharges, a $28.75 million common fund had been created, and existing caselaw required that part of that fund be put toward attorney fees, Levin said.

In his Tuesday response to Levin's latest filing, Carl Hayes, lead counsel for the BMV in the case, maintained that the common fund does not exist.

The Indiana Court of Appeals has held that a common fund exists when a class action ends in a settlement or a judgment for the class, two things that have not happened in the Raab v. Abernathy case, Hayes wrote.

Further, Hayes argued that a common fund must exist “under the supervision of the court.” The BMV began distributing the funds one month before the class-action suit was filed, Hayes said, so the refunds were never under court supervision.

In his September filing, Levin had argued that the BMV began distributing the $28.75 in refunds without court approval in an attempt to “execute an end-run around the Court and the certified Class, to avoid facing a determination of liability by the Court and the prevent the Court from awarding attorneys’ fees to Class Counsel for their efforts in obtaining the very benefits sought through this lawsuit.”

But Hayes argued in his Tuesday filing that the class action was moot at the time of its filing in October 2013. The BMV had already begun the refund process in September 2013, Hayes wrote, so the suit had no legal merit.

“Plaintiff’s Counsel presumes they are entitled to fees for filing and litigating a moot, legally deficient lawsuit that never had the potential to benefit anyone but Plaintiff’s Counsel,” Hayes wrote in the opposition filing.

A bench trial was held Sept. 28 on the case in Marion Superior Court, Civil Division 11. The judge, John Hanley, asked for additional time to issue a ruling on the case.