PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 21-2093 

 

ARTEM V. GELIS; BHAWAR PATEL; ROBERT 

MCDONALD; JAMES V. OLSON; GREGORY HEYMAN; 

SUSAN HEYMAN; DEBRA P. WARD; DARRIAN 

STOVALL; ALEX MARTINEZ; AMANDA GOREY; 

CHRIS WILLIAMS; ASHOK PATEL; KENNETH 

GAGNON; MICHAEL CERNY; MARIA MEZA; ANDRE 

MALSKE; NICOLE GUY; DAVID RICHARDSON; 

STACEY TURNER; ERIC T. ZINN, individually and on 

behalf of all others similarly situated 

v. 

BMW OF NORTH AMERICA, LLC, 

 

 Appellant

 

Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil Action No. 2-17-cv-07386) 

Magistrate Judge: Cathy L. Waldor 

 

 
2 

Argued on June 7, 2022 

Before: AMBRO, RENDELL, and FUENTES, Circuit 

Judges 

(Opinion Filed: September 9, 2022) 

Christopher J. Dalton (Argued)

550 Broad Street, Suite 810 

Newark, NJ 07102 

Jacqueline M. Weyand 

Buchanan Ingersoll & Rooney 

640 5th Avenue, 9th Floor 

New York, NY 10019 

Counsel for Appellant 

Jay I. Brody 

Gary S. Graifman (Argued)

Kantrowitz Goldhamer & Graifman 

135 Chestnut Ridge Road, Suite 200 

Montvale, NJ 07645 

Randee Matloff 

Bruce H. Nagel (Argued)

Nagle Rice 

103 Eisenhower Parkway 

Roseland, NJ 07068 

Thomas P. Sobran 

7 Evergreen Lane 

Hingham, MA 02043 

Counsel for Appellees 
3 

 

OPINION 

 

AMBRO, Circuit Judge 

After the dust settles in a class action lawsuit, lawyers 

often remain to squabble over class counsel fees. Trying to 

avoid that fate, the parties here made an agreement: Appellant 

BMW of North America, LLC would not object to an award 

up to $1,500,000, and class counsel would not request an award 

above $3,700,000. BMW now appeals the District Court’s 

approval of a fee award at the upper limit of that range. It 

argues (1) that the Court’s calculation of the “lodestar” 

(essentially a multiplication of the hours counsel reasonably 

bill on a case by a reasonable hourly rate) was based on an 

insufficient record, and (2) that the Court erred in applying a 

lodestar multiplier to the fee award. We agree with BMW that 

the lodestar was based on an insufficient record and so vacate 

the District Court’s judgment and remand for further 

proceedings. 

I. Background 

This appeal stems from the settlement of a consumer 

class action suit filed in 2017 against BMW and its German 

parent,1

 claiming they knowingly manufactured and sold 

vehicles equipped with defective N20 and N26 engines. After 

the District Court granted in part and denied in part BMW’s 

1

 The parties later stipulated to the dismissal of BMW’s parent, 

Bayerische Motoren Werke Aktiengesellschaft, as a defendant. 
4 

motion to dismiss, the named plaintiffs filed a Second 

Consolidated Amended Complaint bringing 20 causes of 

action under federal and state law, including an alleged breach 

of warranty under the Magnuson-Moss Warranty Act, 15 

U.S.C. § 2301 et seq. (a federal fee-shifting statute), breach of 

the implied warranty of merchantability, violation of various 

state consumer fraud and deceptive trade practice statutes, and 

unjust enrichment. 

The parties subsequently engaged a mediator and 

reached a settlement to reimburse class members for expenses 

incurred and provide them extended warranties. Because they 

did not know how many consumers would be eligible or make 

claims for certain benefits, the total value of the settlement was 

unknown. The District Court nonetheless concluded it was 

worth at least $27 million. As part of the settlement, the parties 

“agree[d] to submit the issue of attorneys’ fees” to a Magistrate 

Judge “for final evaluation and decision of the exact amount of 

. . . fees . . . that should reasonably be awarded in this case.” 

While the Court would have the final say, the parties decided 

to resolve the fee issue with a “high-low” provision, stipulating 

that 

Settlement Class Counsel may apply to the Court 

for an award of attorneys’ fees . . . and [BMW] 

may object to or oppose that application, 

although [BMW] will not object to Settlement 

Class Counsel’s application for an award of 

attorneys’ fees [of] . . . up to $1,500,000 in the 

aggregate. While not agreeing to the total 

amount of such an award, the Parties have agreed 

that Settlement Class Counsel may apply for an 
5 

award of attorneys’ fees . . . not to exceed 

$3,700,000 in the aggregate. 

Id. 

 Class counsel sought $3.7 million in attorneys’ fees, the 

maximum allowable under the high-low provision, submitting 

to the Magistrate Judge three charts (one for each plaintiffs’ 

firm) detailing at a summary level the time devoted to various 

categories of legal work, aggregated across the entire threeyear litigation period. 
6 

Id. at 218–19. 

Id. at 241. 
7 

Id. at 254. In addition, class counsel filed declarations that 

added more detail about the work completed while still not 

specifying the time spent on particular tasks, who did those 

tasks, or the dates they were performed, and declarations that 

described the experience of each lawyer who billed for the 

case. BMW objected to the maximum fee request. It argued, 

among other things, that (1) class counsel did not provide 

enough documentation to support the requested lodestar award, 

and (2) a lodestar multiplier (a factor by which a lodestar award 

is enhanced) was unwarranted here. 

 The Magistrate Judge held a telephonic hearing. After 

listening to the parties’ arguments, the Court ruled that the 

summary charts were “more than sufficient” and provided “a 

good indicator of the time spent.” Id. at 436. Applying the 

lodestar approach, it adopted class counsel’s requested lodestar 
8 

amount of $1,934,000. It then applied class counsel’s 

requested multiplier of 1.9 to reach a total fee award of $3.7 

million—the full amount class counsel sought. BMW now 

appeals. 

II. Standard of Review2

Though we look anew (or de novo) at the legal standards 

used by the Court to calculate a fee award, “so long as it 

employs correct standards and procedures and makes findings 

of fact [that are] not clearly erroneous,” a district court has 

discretion to decide the amount of an award. In re Rite Aid 

Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir. 2005) (quoting 

Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 

1179, 1184 (3d Cir. 1995)). We also require that district courts 

“clearly set forth their reasoning for fee awards so that we will 

have a sufficient basis to review for abuse of discretion.” Id. 

at 301. 

III. Discussion 

A. Waiver of the right to appeal the District Court’s fee 

determination 

Before addressing the merits of BMW’s arguments, we 

address a threshold issue: whether BMW waived its right to 

appeal the District Court’s attorneys’ fees ruling through (1) its 

purported judicial admissions, or (2) by agreeing to submit the 

issue of attorneys’ fees to the District Court “for final 

evaluation and decision,” Appx. at 199. We conclude no. 

2

 The District Court had jurisdiction under the diversity 

provision of the Class Action Fairness Act of 2005, 28 U.S.C. 

§ 1332(d). We have jurisdiction under 28 U.S.C. § 1291. 
9 

 

As to the former, class counsel contends the “doctrine 

of ‘judicial admissions’” bars BMW’s appeal here. Appellee 

Br. 24 n.18. They point to an exchange between the Court and 

Christopher Dalton (BMW’s counsel) that occurred 

immediately after it granted class counsel’s motion for 

attorneys’ fees. The Court asked Mr. Dalton if there was 

“anything you need—or I need to put on the record for your 

purposes.” Appx. at 437. Mr. Dalton replied: “Your Honor 

has already gone through her bases and rationale for making 

this determination. We put it in the hands of the Court, and 

you’ve made your decision, Judge.” Id. 

Case law requires that judicial admissions be 

“unequivocal” or “deliberate, clear, and unambiguous.” In re 

Motors Liquidation Co., 957 F.3d 357, 360 (2d Cir. 2020) (per 

curiam) (collecting cases). As Mr. Dalton’s statements can be 

plausibly construed as merely acknowledging the adverse 

result of the hearing, they do not meet this standard. 

Alternatively, class counsel argues BMW waived its 

right to appeal by agreeing “to submit the issue of attorneys’ 

fees” to the Magistrate Judge “for final evaluation and 

decision” of the fee amount “within the $1,500,000 to 

$3,700,000 range agreed upon by the Parties.” Appx. at 199 

(emphasis added). But the plain language of this provision 

does not explicitly waive either party’s right to appeal. Rather, 

it provides only that the District Court would decide the issue 

after briefing and argument,3

 plus it is silent as to appellate 

rights. 

3

 Class counsel also points to non-published decisions from our 

Court dealing with high-low fee provisions—Vargo v. 
10 

Our inquiry does not end here, however. We must also 

consider whether BMW waived its right to appeal by not 

explicitly reserving that right in the agreement. To this, In re 

Odyssey Contracting Corp., 944 F.3d 483 (3d Cir. 2019), is 

instructive. There we considered whether Odyssey waived its 

right to appeal a bankruptcy court’s determination of a 

payment dispute in an adversary proceeding. It had signed a 

stipulation stating that if the Court made a certain 

determination, “all of the Parties’ pending claims will be 

withdrawn and disposed of in their entirety with prejudice,” 

and the proceeding “shall be deemed to be finally concluded in 

all respects.” Id. at 487–88. The stipulation was silent on the 

specific right to appeal. Id. at 488. After the Bankruptcy Court 

made the relevant determination, Odyssey appealed the 

dismissal of its claims to the District Court and, eventually, our 

Court. Id. at 486. We held Odyssey had waived its right to 

appeal because “the party seeking to appeal must make its 

intent to do so clear at the time of the stipulation.” Id. at 489. 

In that ruling we distinguished the stipulation in 

Odyssey from class action settlement cases in which other 

Mangus, 94 F. App’x 941 (3d Cir. 2004), and Bryan v. Erie 

Cnty. Off. of Children & Youth, 637 F. App’x 693 (3d Cir. 

2016)—and a New Jersey Supreme Court decision discussing 

high-low agreements in the context of jury trials—Serico v. 

Rothberg, 189 A.3d 343, 349–51 (N.J. 2018). But because the 

attorneys’ fees provision at issue here does not include an 

unambiguous, explicit waiver of appeal, the Third Circuit cases 

fall off point. Serico is also out of place, as it merely involved 

enforcing the upper bound of a high-low agreement according 

to the agreement’s plain language. Id. 
11 

circuits have required express waiver of the right to appeal 

when the parties have stipulated that a court will decide a 

certain issue. Id. (citing In re Deepwater Horizon, 785 F.3d 

986, 997 (5th Cir. 2015); Montez v. Hickenlooper, 640 F.3d 

1126, 1132 (10th Cir. 2011)). We explained that “[t]he interest 

at stake in those cases was different from that at issue” in 

Odyssey because “[i]n class actions, settlement agreements 

cannot be approved unless the court determines that they are 

fundamentally fair, reasonable, and adequate, the purpose of 

which is to protect unnamed members of the class from unjust 

or unfair settlements.” Id. at 489–90 (internal quotation marks 

omitted). “[T]hat interest d[id] not apply in [Odyssey], which 

involve[d] a dispute between sophisticated business entities.” 

Id. at 490. 

As our case presents a situation closer to the class action 

cases distinguished in Odyssey, we hold that stipulations 

regarding attorneys’ fees in class actions must contain an 

express waiver of appeal. This tracks our case law in this area, 

which recognizes that the “unique relationship among 

plaintiffs’ counsel, plaintiffs, and defendants in class actions 

imposes a special responsibility upon appellate courts to hear 

challenges to fee awards.” In re Cendant Corp. PRIDES Litig., 

243 F.3d 722, 728 (3d Cir. 2001). Because BMW did not 

expressly waive its right to appeal the District Court’s fee 

determination, it preserved that right. 

 

B. Sufficiency of the record underlying the District 

Court’s lodestar calculation 

With waiver out of the way, we turn to the merits. 

BMW argues the District Court granted class counsel’s fee 

request on an insufficient record. We agree. 
12 

For context, there are two main ways to calculate 

attorneys’ fees: the percentage-of-recovery method and the 

lodestar method. See Cendant, 243 F.3d at 732. The former is 

as simple as it’s named. “Lodestar,” though, is a term-of-art 

used by courts to denote an award that is “calculated by 

multiplying the number of hours [the lawyer] reasonably 

worked on a client’s case by a reasonable hourly billing rate 

for such services based on the given geographical area, the 

nature of the services provided, and the experience of the 

attorney[].” Rite Aid, 396 F.3d at 305. These approaches are 

typically employed in different contexts. While the 

“percentage-of-recovery method is generally favored in cases 

involving a common fund,” the lodestar method, pioneered by 

our Court in Lindy Brothers Builders, Inc. of Philadelphia v. 

American Radiator & Standard Sanitary Corp., 487 F.2d 161 

(3d Cir. 1973), “is more commonly applied in statutory feeshifting cases . . . .” In re Prudential Ins. Co. Am. Sales 

Practice Litig., 148 F.3d 283, 333 (3d Cir. 1998). The lodestar 

approach may also be used in cases, such as here, “where the 

nature of the recovery does not allow the determination of the 

settlement’s value necessary for application of the percentageof-recovery method.”4

 Id. 

As such, was the District Court’s calculation of the 

lodestar award based on a sufficient record? Our case law 

requires that “[a]ny hours to be used in calculating attorneys’ 

fees . . . be detailed with sufficient specificity.” Keenan v. City 

of Philadelphia, 983 F.2d 459, 472 (1992). In other words, the 

4

 As BMW does not challenge the District Court’s choice to 

use the lodestar method, we do not question that aspect of its 

ruling. 
13 

fee application must “be specific enough to allow the district 

court to determine if the hours claimed are unreasonable for the 

work performed.” Rode v. Dellarciprete, 892 F.2d 1177, 1190 

(3d Cir. 1990) (internal quotation marks omitted). The petition 

should therefore “include ‘some fairly definite information as 

to the hours devoted to various general activities, e.g.[,] pretrial 

discovery, settlement negotiations, and the hours spent by 

various classes of attorneys, e.g., senior partners, junior 

partners, associates.’” Keenan, 983 F.2d at 473 (quoting Rode, 

892 F.2d at 1190). “[I]t is not necessary,” however, “to know 

the exact number of minutes spent nor the precise activity to 

which each hour was devoted nor the specific attainments of 

each attorney.” Rode, 892 F.2d at 1190 (internal quotation 

marks omitted). 

BMW argues the summary charts submitted by class 

counsel cannot justify the award because they “do not detail in 

any explicit manner how the total hours worked . . . were 

generated.” Appellant Br. at 14. In particular, it contends the 

charts “provided no dates to inform the District Court of when 

the task was performed; nor . . . information to show what any 

specific activity was, how much time was devoted to any 

specific activity, on any specific date, by which specific 

individual, for a particular charge.” Id. at 15 (citing Appx. at 

218–19, 241, 254) (emphases in original). As an initial 

observation, we note that the summary charts total only three 

pages but purport to summarize hours billed across a threeyear period. And while the charts do provide some information 

about the hours devoted to litigation activities (such as 

“Discovery Activities,” “Pre-Litigation Investigation,” 

“Drafting Complaints (original/amended)”), the hours billed 

by each attorney are aggregated across the entire three-year 

litigation period. Appx. at 218–19, 241, 254. That sort of 
14 

aggregation, without more detail, is an insufficient basis for an 

attorneys’ fee award.5

 See Keenan, 983 F.2d at 473 (portion of 

fee petition consisting of summaries detailing “only monthly 

cumulative totals of [attorney’s] hours” was not “sufficiently 

specific”).6

 We simply cannot discern from the charts whether 

certain hours are duplicative (a determination that is 

particularly crucial here, given that three plaintiffs’ firms seek 

fees for performing the same categories of work) or whether 

the total hours billed were reasonable for the work performed. 

In a last-ditch attempt to salvage the award, class 

counsel asserts they “offer[ed] to provide the [District Court] 

with several hundred pages of contemporaneous billing 

records,” but it declined the offer. Appellees Br. at 30. While 

5

 Class counsel caution against restricting our review to the 

summary charts, pointing to, among other things, their 

declarations “describing discrete tasks engaged in by each 

firm.” Appellees Br. at 30. But the declarations do not 

associate the discrete tasks with particular time-keepers or the 

time spent on the tasks detailed therein. More fundamentally, 

there is no way to use those declarations with the summary 

charts (and other information provided) to discern whether the 

hours reported by class counsel were reasonable for the work 

performed. 

6

 BMW also argues the summary charts “do not comply with 

the District of New Jersey’s requirements for fee applications,” 

as laid out in that Court’s local rules. See Appellant Br. at 30; 

D.N.J. L. Civ. R. 54.2. While we may overturn a district 

court’s ruling for failing to abide by its own local rules in some 

circumstances, see Advanced Fluid Systems, Inc. v. Huber, 958 

F.3d 168, 181 (3d Cir. 2020), we need not reach this issue here, 

as we are overturning the fee award on an alternative ground. 
15 

not required, “contemporaneously recorded time sheets are the 

preferred practice.” Keenan, 983 F.2d at 472 (alteration 

adopted) (quoting Webb v. Cnty. Bd. of Educ., 471 U.S. 234, 

238 n.6 (1985)). And that preference is especially strong here, 

where class counsel’s summary charts were so condensed, 

high-level, and lacking in specific detail that we would likely 

need the underlying billing records to parse them. So class 

counsel’s mere offer to provide the District Court more 

documentation does not cure the Court’s failure to take counsel 

up on that offer and review the complete records. As its 

lodestar award was thus based on an insufficient record, we 

vacate its order and remand for further proceedings. 

C. The propriety of applying a lodestar multiplier to 

the fee award

BMW also argues the District Court improperly applied 

a lodestar multiplier to class counsel’s fee award. It cites 

Perdue v. Kenny A. ex rel. Winn, in which the Supreme Court 

held that “there is a ‘strong presumption’ that the lodestar 

figure is reasonable, but that presumption may be overcome in 

those rare circumstances in which the lodestar does not 

adequately take into account a factor that may properly be 

considered in determining a reasonable fee.” 559 U.S. 542, 

554 (2010). Because Perdue concerned federal fee-shifting 

statutes, id. at 547, the parties disagree about whether it applies 

here. Class counsel maintains Perdue does not govern, as our 

matter “is not a pure statutory fee shifting case because it 

encompasses common law counts including unjust enrichment, 

equitable relief claims, and breach of express and implied 

warranty counts which survived BMW[’s] motion to dismiss.” 

Appellees Br. at 38. BMW, on the other hand, contends 

“multipliers are inappropriate where fees are based on a fee-
16 

shifting statute, determined by a lodestar calculation, as they 

were here.” Reply Br. at 11. 

As we vacate and remand the District Court’s fee award 

because the lodestar calculation was based on an insufficient 

record, we decline to decide whether the District Court was 

bound by the strictures of Perdue in considering a fee 

enhancement. We do, however, note two things for the parties 

and the Court to consider on remand. First, we think the 

parties’ focus on the statutes under which named plaintiffs sued 

is misplaced, as the “Court awarded the attorney’s fees 

pursuant to a contract—the settlement agreement—not 

pursuant to a statute.” In re Home Depot Inc., 931 F.3d 1065, 

1082 (11th Cir. 2019); see also Brytus v. Spang & Co., 203 

F.3d 238, 246 (3d Cir. 2000) (“When there has been a 

settlement, the basis for the statutory fee has been discharged, 

and it is only the fund that remains.”). Second, we urge the 

District Court on remand to provide additional reasoning for 

its decision whether to add a lodestar multiplier. In the fee 

hearing, the Court explained it would add a multiplier of 1.9 

because it “is well within approved multipliers in our 

jurisdiction,” and because the award “falls well within the 

appropriate Gunter factors.” Appx. at 437 (citing Gunter v. 

Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000)). This 

is not enough reasoning to give us “a sufficient basis to review” 

its fee enhancement. Rite Aid, 396 F.3d at 301. 

* * * 

In their class action settlement the parties agreed to 

cabin class counsel’s attorneys’ fees request within a high-low 

range, subject to final determination by the District Court. 

Though it granted a fee award at the high end of that range, its 

calculation was not supported by the record before it. Because 
17 

we cannot tell whether the hours class counsel billed were 

reasonable for the work performed, we vacate the Court’s order 

and remand for further proceedings.