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Archive: 2020

NALFA to Conduct Hourly Rate Surveys in 5 Key Practice Areas

January 14, 2020

NALFA conducts custom hourly rate surveys for clients such as law firms, corporate legal departments, and government agencies.  Our surveys provide the most accurate and current hourly rates within a given geography and practice area. 

Starting this year, NALFA will be conducting hourly rate surveys in the nation’s 16 largest legal markets in 5 key practice areas.  These billing rate surveys will show the current average hourly rate range for both plaintiffs’ and defense counsel at partner and associate levels.  These hourly rate surveys will be conducted via email in early 2020. 

The surveys results will generate a collection of data points including the statistical variance between plaintiffs' and defense rates in a given practice area and geography, the statistical variance between partner and associate rates in a given practice area and geography, and the statistical variance of hourly rates among law firm size, just to name three data collection categories.  "This survey data may be the nation's first and only quantitative hourly rate data of its kind," said Terry Jesse, NALFA Executive Director.

The survey results will be available to survey participants and members of the NALFA network at no cost.  The following hourly rate surveys will be available to others for purchase:

The 2020 Class Action Hourly Rate Survey

The 2020 Litigation Hourly Rate Survey

The 2020 IP Litigation Hourly Rate Survey

The 2020 Insurance Coverage Hourly Rate Survey

The 2020 Chapter 11 Bankruptcy Hourly Rate Survey

Federal Circuit: Attorneys Lack Standing to Recover Attorney Fees for Veteran

January 13, 2020

A recent Law 360 story by Kevin Penton, “Fed Circ. Won’t Let Attys Get Fees From Feds on Vet’s Behalf, reports that attorneys lack standing under federal law to sue the federal government on their own to recover fees for work they performed on behalf of a veteran, the Federal Circuit held in a precedential opinion.  The appellate panel rejected arguments by attorneys Meghan Gentile and Harold H. Hoffman III of the nonprofit Veterans Legal Advocacy Group that they could collect over $4,000 in fees after their former client, Matthew Shealey, prevailed in his case, even though he had fired them and had opposed their attempt to collect the money.

The Federal Circuit noted that in a 2010 case known as Astrue v. Ratliff, the U.S. Supreme Court held that under the Equal Access to Justice Act, the “prevailing party” is the actual party in a case, not the individual’s attorneys.  “The fact that the statute awards to the prevailing party fees in which [its] attorney may have a beneficial interest or a contractual right does not establish that the statute ‘awards’ the fees directly to the attorney,” the Federal Circuit said, quoting the Supreme Court.

The Federal Circuit also rejected an alternative argument by Gentile and Hoffman that they had a right to the money under the fee agreement that they had inked with Shealey, as “the fee agreement on its face does not purport to assign Mr. Shealey’s [Equal Access to Justice Act] claim to intervenors, and the intervenors expressly disclaimed such a theory at oral argument.”  The appellate panel also rejected the argument that the attorneys had so-called third party standing to sue for fees on their former client’s behalf, as Shealey revoked his authorization for them to apply for the fees and costs, according to the opinion.

“The interests of a client such as Mr. Shealey — including the ability to resolve their fee claim by settlement with the government and the ability to decline pursuing an [Equal Access to Justice Act] claim at all — would be impaired if their attorneys were afforded standing to file a claim on their behalf when that authority has been revoked,” the Federal Circuit wrote.

$22.5M Fee Award in Mushroom Antitrust Settlement

January 10, 2020

A recent Legal Intelligencer story by Max Mitchell, “US Judge Awards $18M in Attorney Fees After Settlement in Mushroom Antitrust Suit,” reports that the judge handling the litigation over allegations that mushroom farmers conspired to fix prices has agreed to award class counsel more than $18 million for their work in the case.  U.S. District Judge Berle Schiller of the Eastern District of Pennsylvania agreed to award $18.23 million in attorney fees, plus $4.25 million in expenses to the 11 firms that served as class counsel in the litigation.

In August, the court granted preliminary approval of an agreement to settle seven claims for $33.7 million, after having previously approved settlements with three other defendants for nearly $12 million.  The order should finalize the litigation.

“In prosecuting this action, class counsel have expended more than 42,000 hours of uncompensated time, and incurred substantial out of pocket expenses, with no guarantee of recovery,” Schiller said in the order.  “Class counsel’s hours were reasonably expended in this highly complex case that was vigorously litigated for more than 13 years, and their time was expended at a significant risk of non-payment.”  Schiller’s class counsel award was the same amount that the parties had requested in the motion filed in November seeking attorney fees.

Though Schiller’s 11-page order did not outline exactly how much should be allocated to each firm, the motion requesting attorney fees allocated the lion’s share to New York-based Garwin Gerstein & Fisher.  According to the filing, the firm worked more than 11,000 hours on the case, with Odom & Des Roches working the second largest number of hours at nearly 9,000.  The firm that spent the third largest amount of time on the litigation, according to the filing, was Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, with nearly 6,500 hours.

Schiller’s motion directed Garwin Gerstein to allocate attorney fees and costs among the other firms serving as class counsel.  Several entities that directly purchased mushrooms originally filed the antitrust class action in 2006 against the members of the former Eastern Mushroom Marketing Cooperative.

Class Counsel Says He Was Cheated Out of $2.6M in Attorney Fees

January 9, 2020

A recent Daily Report story by Greg Land, “Lawyer Booted From Class Action Says He Was Cheated Out of $2.6M in Legal Fees,” reports that a Georgia law firm is accused of scheming to cheat its former co-counsel out of nearly $2.6 million in legal fees, according to a series of court filings related to an $80 million MetLife class action settlement.  The court awarded more than $26 million in attorney fees as part of the July settlement, but M. Scott Barrett of Barrett Wylie in Indiana said his share awarded—more than $134,000—is a fraction of what he really should have gotten.

In a series of filings entered after the settlement was approved, Barrett said he was an integral part of the plaintiffs’ team until the lead lawyer, John Bell Jr. of Augusta’s Bell & Brigham “orchestrated” his removal.  Barrett said Bell—with whom he has a long history of co-counseling on class actions—had insisted that any fees he ultimately received would be totally at Bell’s discretion, “if and when there might be a fee.”

When Barrett protested, Bell purportedly manipulated the lead plaintiff and class representative, Laura Owens—whom Barrett had never met—to terminate his representation, which he was obliged to do.  Barrett argued that, his withdrawal notwithstanding, he should be paid 10% of the fee award, not a figure calculated on the hours he put into the case.

“Between April 24, 2014, and May 8, 2017, Barrett was actively involved in the prosecution of this matter,” said his September motion asking the court to allocate fees.  “During that time, over 140 docket entries were made, including multiple declarations from Barrett. Motions to dismiss and for summary judgment had been filed, responded to, and successfully defeated.  Discovery had been completed and an initial motion to certify the class had been filed.”

The settlement agreement approved by U.S. District Judge Richard Story of Georgia’s Northern District allocated $25 million in fees and $1.6 million in expenses to the plaintiffs’ counsel—nine lawyers, including Barrett.  The others include Bell and his partner, Leroy Brigham; Jason Carter and Michael Terry of Bondurant Mixson & Elmore; Cleveland, Georgia, solo Todd Lord; William Dobson and Michael Lober of Lober & Dobson in LaFayette, Georgia; and Oxendine Law Group principal John Oxendine.

Ruling on a motion by the plaintiffs’ counsel, U.S. District Judge Richard Story of the Georgia’s Northern District used the “lodestar” method to calculate Barrett’s portion of the award based on the hours he reported working on the case, rather than on a percentage basis of the fee award.  In his final order approving the settlement, Story specified that the issue of Barrett’s fees would not delay the settlement of the class’ claims.  In a Dec. 26 order, Story said Barrett’s share came to $134,311.

Barrett’s lawyer, Cochran & Edwards partner R. Randy Edwards, said in a motion to reconsider that the judge should at minimum reopen discovery and allow in evidence “because the court’s quantum meruit analysis is devoid of crucial and necessary findings of fact required under [federal rules] and to make an equitable allocation.  “This lack of findings has led to the anomalous result that Barrett’s allocation should be a scant one half-of one percent of the total attorneys’ fee.  How can this be?” Edwards said.

In response, the remaining plaintiffs lawyers argued that well-settled Georgia law makes clear that an attorney discharged from a case before it is resolved is not entitled to a contingency fee.  Further, they said, Barrett has provided “no evidence of any services he actually rendered for the benefit of Ms. Owens or the class she represents.”  Story has not yet ruled on Edward’s Dec. 31 motion.

Barrett filed another motion on Jan. 7 in opposition to Story’s division of fees after the plaintiffs filed a motion to approve it, arguing that “limited discovery and an evidentiary hearing” will allow the court to determine a proper split.  “Alternatively,” it said, “if the court is not inclined to do this, Barrett asks that he be allocated 10% of the total amount of the fee awarded as a minimum allocation.”

In an interview, Edwards said that—should those efforts prove unavailing—he can “virtually guarantee” that there will be an appeal.  The 10% figure, he said, is based upon Barrett and Bell’s “17-year track record of working together on these types of cases.”  As detailed in Barrett’s September motion for allocation, Bell, Barrett and three other lawyers not involved in the MetLife case began working together on retained asset account class actions several years ago.

They originally had a co-counseling agreement that any fee awards would first split 10% to each firm, with the remainder based on hours billed.  Bell became “dissatisfied” with the original arrangement, and it was reworked so that local counsel and the referring lawyer would each get 10% off the top.  Bell’s firm got 50% of the balance, Barrett’s got 30%, with the by then two remaining members splitting the last 20%.

Judge Orders Attorney Fees Dispute to Mediation in Qui Tam Action

January 8, 2020

A recent Law 360 story by Khorri Atkinson, “Hospital, Whistleblower Told to Mediate Atty Fees in FCA Suit,” reports that Health Management Associates Inc. and a whistleblower, whose complaint against the now-defunct hospital chain helped the government secure more than $260 million to settle fraud charges, were ordered by a D.C. federal judge to mediate their dispute over an undisclosed amount in attorney fees.

U.S. District Judge Reggie Walton certified the case for two months of mediation during a brief hearing after attorneys representing HMA and whistleblower Bradley Nurkin admitted they're gridlocked.  The parties are battling over whether the fees racked up throughout the litigation should be calculated based on rates offered in Florida, where the suit was initially filed, or in Washington, D.C., where it was later transferred as part of multidistrict litigation.

If the hospital chain and Nurkin, a former CEO of HMA affiliate Charlotte Regional Medical Center, fail to reach a compromise after the 60-day timeline, Judge Walton told the attorneys he would send the case to the Middle District of Florida.  HMA attorney D. Hunter Smith of Robbins Russell Englert Orseck Untereiner & Sauber LLP initially urged for the case to be remanded immediately because all pretrial matters have been concluded and the only remaining issue is the attorney fees, which Nurkin is entitled to.

The attorney added that Nurkin wants to keep the case in D.C. only because his counsel would receive a higher hourly rate than what is offered in the Sunshine State.  Moreover, a portion of Nurkin's fees were incurred in Florida, Smith said.  But Edward Sanders of Sanders Law insisted that D.C. is the most appropriate location for his client, who filed the whistleblower complaint under seal in December 2011.  The suit alleged that HMA paid local emergency room physicians and pressured them to unlawfully bill false inpatient service claims and fees under Medicare and Medicaid.  The kickback scheme at that facility had cost the government between $100 million and $150 million, according to the complaint.

In response to the hospital chain's remand bid, Sanders said in a recent filing that after the U.S. Department of Justice intervened in Nurkin's case in 2013, and seven other similar whistleblower cases, the litigation was transferred to D.C. at HMA's request.  And because the DOJ reached the $280 million settlement with HMA in 2018 in the district, "qui tam rates commonly charged" in D.C. should be used to determine the attorney fees, Sanders said. Nurkin had received $15 million from the settlement.