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Category: Fee Expert / Member

The Nation’s Top Attorney Fee Experts of 2020

June 24, 2020

NALFA, a non-profit group, is building a worldwide network of attorney fee expertise. Our network includes members, faculty, and fellows with expertise on the reasonableness of attorney fees.  We help organize and recognize qualified attorney fee experts from across the U.S. and around the globe.  Our attorney fee experts also include court adjuncts such as bankruptcy fee examiners, special fee masters, and fee dispute neutrals.

Every year, we announce the nation's top attorney fee experts.  Attorney fee experts are retained by fee-seeking or fee-challenging parties in litigation to independently prove reasonable attorney fees and expenses in court or arbitration.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted to and verified by us.  Here are the nation's top attorney fee experts of 2020:

"The Nation's Top Attorney Fee Expert"
John D. O'Connor
O'Connor & Associates
San Francisco, CA
 
"Over 30 Years of Legal Fee Audit Expertise"
Andre E. Jardini
KPC Legal Audit Services, Inc.
Glendale, CA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Fox Rothschild LLP
Chicago, IL

"Widely Respected as an Attorney Fee Expert"
Elise S. Frejka
Frejka PLLC
New York, NY
 
"Experienced on Analyzing Fees, Billing Entries for Fee Awards"
Robert L. Kaufman
Woodruff Spradlin & Smart
Costa Mesa, CA

"Highly Skilled on a Range of Fee and Billing Issues"
Daniel M. White
White Amundson APC
San Diego, CA
 
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
Craig W. Smith
Robbins Arroyo LLP
San Diego, CA
 
"Highly Experienced in Dealing with Fee Issues Arising in Complex Litigation"
Marc M. Seltzer
Susman Godfrey LLP
Los Angeles, CA

"Total Mastery in Resolving Complex Attorney Fee Disputes"
Peter K. Rosen
JAMS
Los Angeles, CA
 
"Understands Fees, Funding, and Billing Issues in Cross Border Matters"
Glenn Newberry
Eversheds Sutherland
London, UK
 
"Solid Expertise with Fee and Billing Matters in Complex Litigation"
Bruce C. Fox
Obermayer Rebmann LLP
Pittsburgh, PA
 
"Excellent on Attorney Fee Issues in Florida"
Debra L. Feit
Stratford Law Group LLC
Fort Lauderdale, FL
 
"Nation's Top Scholar on Attorney Fees in Class Actions"
Brian T. Fitzpatrick
Vanderbilt Law School
Nashville, TN
 
"Great Leader in Analyzing Legal Bills for Insurers"
Richard Zujac
Liberty Mutual Insurance
Philadelphia, PA

Federal Judge: More Needed for $3B Fee Request in Opioid MDL

June 3, 2020

A recent Law 360 story by Mike Curley, “Opioid MDL Judge Orders More Briefing on $3B Atty Fees” reports that an Ohio federal judge overseeing sprawling opioid multidistrict litigation adopted the recommendation of a Harvard Law School professor that more information is needed before he can approve a request for a common benefit fund setting aside $3.3 billion in attorney fees.  U.S. District Judge Dan Aaron Polster ordered more briefing following a report from William B. Rubenstein, the professor who was brought in to assess the plaintiffs' request.  The judge issued a set of questions based on the report to the plaintiffs and other interested parties.

Rubenstein told the court in his report that the MDL's "truly unique" structure and nature means the court should proceed cautiously, saying the request for a common benefit fund "tests uncharted waters."  While a common benefit fund is usually put in place in anticipation of an aggregate settlement, at this point in the opioid MDL, it's unclear whether such a settlement is even feasible, what structure it would take, and which defendants will settle, Rubenstein said.

In addition, there are numerous different types of suits in the MDL, some with many plaintiffs and some with few, and dozens of defendants involved in different aspects of the pharmaceutical chain, Rubenstein said.  As such, smaller settlements that might be taxed to support the benefit fund could take very different forms, he said.  "A single common benefit assessment levied on multiple different types of settlements involving many different types of plaintiffs and multiple defendants runs the risk of being too crude an approach," he said.

That many of the plaintiffs include states, counties, cities and tribal governments could pose other difficult legal questions in establishing the fund, he added.  There are also ongoing settlement negotiations going on in the MDL that could be impacted by the establishment of such a fund, Rubenstein said, citing warnings from the National Association of Attorneys General, who suggested the fee might "disrupt" settlement negotiations "irreparably."

To resolve the issues involved, Rubenstein recommended the court seek briefing from the plaintiffs and other interested parties answering questions on how an aggregate settlement might take shape, how likely parties and lawyers in the smaller cases are to reach an agreement on how much to contribute to such a fund, and how much of the fund should go toward the attorneys, given the size of the MDL and the potential size of such a settlement.  Four attorneys general in October unveiled a proposed $48 billion deal with major drug companies and the nation's largest drug distributor, after which drug companies said 7% of the settlement would amount to more than $3.3 billion in fees.

The idea of a common benefit fund has come under fire in recent months. Opioid manufacturers and distributors — including Johnson & Johnson and McKesson Corp. — pounced on the proposal in February, saying it was nothing more than a "transparent" attempt by lawyers on the plaintiffs' executive committee to grab settlement funds.

Rubenstein, who previously worked on the multimillion-dollar NFL concussion settlement and subsequent fee fight, was tapped in March by Judge Polster to help the court decide whether to approve the $3.3 billion in fees.  "A common benefit order is a widely accepted reality in complex MDLs based on the fundamental fairness of recognizing a distinction between those who work the soil and those who grab the fruit," Paul Geller of Robbins Geller, who represents plaintiffs in the MDL, told Law360.

Federal Judge: Accept Fee Award or Hire Fee Expert

May 28, 2020

A recent Law 360 story by Chris Villani, “Judge Makes Schlichter Bogard $5M Fee Offer It Won’t Refuse” reports that Schlichter Bogard & Denton LLP and two other firms will receive nearly $5.25 million in fees after a federal judge during a hearing offered the attorneys representing Massachusetts Institute of Technology workers in an $18 million ERISA settlement a choice: take the deal or pay for a special master.  The fee award is less than the $6 million Schlichter Bogard, Fair Work PC and the Law Offices of Michael M. Mulder sought for guiding the class to a settlement with MIT on the eve of trial last fall.  But it's more than U.S. District Judge Nathaniel M. Gorton typically hands out in cases like these.

Judge Gorton had already rejected the firms' bid for a 33% cut.  And he told them again that while he had no issue with the nuts and bolts of the settlement itself — including awarding the firms $522,000 in expenses and giving $25,000 each to four named plaintiffs — he does have a problem with the $6 million fee ask.  "The custom of the courts is generally to award between 20 and 30% and the custom of this particular session is to award no more than 25%,"  Judge Gorton said, noting those numbers have held up even when the lawyers achieved certain "nonmonetary" benefits for the class, as was the case here.

"After careful consideration, I have decided to split the difference," Judge Gorton said, offering the firms 29%, or $5,249,000.  He then made them an offer: They could either accept the 29% fee or pay for the appointment of a special master whose recommendation would guide Judge Gorton in the apportionment of fees, though the report would not be binding.

Speaking for the firms, Schlichter Bogard's Jerome Schlichter took the deal on the spot.  "We will accept the court's ruling that the 29% fee will be what the court awards rather than go down the road of having a special master," Schlichter said.  Prior to Judge Gorton's fee ultimatum, Schlichter touted the lawyers' success in achieving the largest settlement of its kind.  Schlichter Bogard effectively pioneered class action suits against prominent universities over retirement plan fees.  None of the cases his firm has filed has achieved a settlement of $18 million, and suits filed by other firms against Brown University and the University of Chicago were settled for $6 million and $3.5 million respectively, Schlichter said.

$245M Fee Award in DePuy Hip Implant Mass Tort

May 11, 2020

A recent New Jersey Law Journal story by Amanda Bronstad, “DePuy Hip Implant Mass Tort Yields $245 Million Fee Award” reports that a federal judge has approved an estimated $245 million in fees and costs to lawyers leading the multidistrict litigation over DePuy’s Pinnacle hip implants, of which more than 75% will go to the five firms in charge of allocating the award.

The March 5 order by U.S. District Judge Ed Kinkeade of the Northern District of Texas approved a special master’s report last month that recommended a disbursement of $215 million, which is the amount calculated from settlements so far, including $182.5 million in “common benefit” fees to about 40 law firms whose work assisted in 10,000 lawsuits over the Pinnacle.  The amount also includes nearly $7.9 million in expenses and $24.7 million for reimbursements of contributed assessments.

“This was unlike any litigation of my 35 years,” wrote Mark Lanier, whose firm, The Lanier Law Firm, is set to receive $77.2 million in fees after winning billions of dollars in verdicts against DePuy Orthopaedics Inc., a unit of Johnson & Johnson.  “Nine years of litigation; five trials, generally of three months each; over 30 million dollars spent; and a defendant that refused to engage in settlement discussions until the very end.  Many firms abandoned the litigation, as reflected by time entries and failure to pay assessments.  The judge’s distribution tracked carefully the time, money and level of work and commitment of firms,” Lanier added.

Lanier is one of five lawyers on a fee committee tasked with reviewing how much each firm should get.  He is co-lead counsel in the multidistrict litigation with Larry Boyd, of Houston’s Fisher, Boyd, Johnson & Huguenard, which is set to receive $17.2 million in fees.  Another firm, Neblett, Beard & Arsenault of Alexandria, Louisiana, is set to receive $47.9 million in fees.  Partner Richard Arsenault, who is on the plaintiffs executive committee, noted in an email that Kinkeade specifically mentioned in a Sept. 11 order that “the fee committee was composed of the primary hands-on lawyers.”  “Additionally, as a consequence of many firms abandoning the litigation, the fee committee members were required to bear over 90% of the litigation’s costs and contributed over 83% of the common benefit hours,” Arsenault wrote.

Another executive committee member, Jayne Conroy, is from Simmons Hanly Conroy in New York, to which the special master allocated $32.1 million, along with $11.4 million to its predecessor, Hanly Conroy Bierstein Sheridan Fisher & Hayes.  The fifth lawyer on the fee committee, Steve Harrison, is from Harrison Davis Steakley Morrison Jones, of Waco, Texas, which the special master ordered would receive nearly $2.7 million in fees.

In 2014, Johnson & Johnson won the first bellwether trial, but federal juries in Dallas followed with verdicts of $502 million, $1.04 billion and $247 million.  Johnson & Johnson agreed to pay nearly $1 billion to settle more than half of the cases in 2019.  In 2018, the U.S. Court of Appeals for the Fifth Circuit reversed the $502 million jury award, finding that Kinkeade had committed “serious evidentiary errors” and allowed Lanier to make “misrepresentations” before the jury.

In a prior ruling, a split Fifth Circuit also criticized Kinkeade for committing “grave error” in asserting jurisdiction over certain bellwether trials, which have featured plaintiffs in California and New York.  In a July 22 order approving a 10% holdback on all future settlements for common benefit fees following a contested fee fight, Kinkeade gave a stinging rebuke of Johnson & Johnson’s lawyers, whose “actions increased both time and expenses incurred for the common benefit throughout every phase of this litigation.”

He cited two motions for sanctions that plaintiffs attorneys had filed earlier last year that accused Johnson & Johnson’s lawyers of failing to disclose discovery that would have demonstrated “ghostwriting” of scientific studies, among other things.  “Those documents are a bombshell,” plaintiffs’ attorneys wrote in one of the sanctions motions, and represented a “long-standing problem” in the cases.  “Throughout the course of this MDL, defendants’ conduct has repeatedly followed a pattern of obfuscation and obstruction.”

Kinkeade also cited the novelty of the issues and the “undesirability” of the cases in approving the holdback.  “Plaintiffs could have agreed to a settlement that devalued their claims,” the judge wrote. “Instead, plaintiffs’ counsel fought through years more discovery, three more trials, two mandamus proceedings, and three appeals just to reach this settlement.  The court is aware that some plaintiffs’ firms declined to participate in common benefit assessments after the first trial; those that stayed well deserve their fees and costs.”

Federal Judge Scolds Apple, Cisco for Fee Request

May 7, 2020

A recent Law 360 story by Hannah Albarazi, “Alsup Scolds Apple, Cisco for ‘G-R-E-E-D’ in Atty Fee Bid,” reports that U.S. District Judge William Alsup admonished Apple and Cisco during a telephone hearing, asserting that the tech giants tried to land inflated attorney fee awards after beating Straight Path IP Group's infringement litigation and saying they used "abusive" tactics and were motivated by "greed, G-R-E-E-D."

"You played games," Judge Alsup told Cisco Systems Inc. and Apple Inc., referring to their initial bid for $10 million in attorney fees and costs last year that led him to order that they redo their bids and to appoint a special master to determine fees.  "It is so upsetting to me that I almost denied it completely," Judge Alsup said.  He took the motion for fees under submission and said he intends to get an order out in a week.

The judge's admonishing words came nearly three years after Apple and Cisco defeated on summary judgment Straight Path's claims that the Silicon Valley companies had infringed its internet telephone patents.  Last summer, Judge Alsup refused to award Apple and Cisco the $10 million in attorney fees and costs they sought, questioning whether they had overstated costs.  "The law should be that we deny and give you zero," he said at the time.

The judge ordered the companies to resubmit bids for attorney fees and appointed as special master BraunHagey & Borden LLP partner and co-founder Matthew Borden — who once clerked for the judge — to determine a reasonable amount of fees and costs.  Borden recommended that Baker Botts LLP and Desmarais LLP, representing Cisco, get $1.9 million — half of its initial request.

The special master said Cisco failed to provide documents requested by the court to support its fee bid and that the alternative methods for fees proposed by Cisco didn't provide "a meaningful check against overbilling."  "Cisco has not carried its burden of proving that it is entitled to the amount it claims," Borden wrote in his report and recommendations.

Apple, on the other hand, followed the court's order when it redid its bid and provided transparency into its billings, Borden said.  Hogan Lovells, representing Apple, lowered its original request from $3.9 million to $2.4 million. Borden recommended Apple get $2.3 million.  But Judge Alsup slammed the tech giants for not bringing the court a reasonable bid from the get-go.  Judge Alsup called out Apple's in-house counsel during the telephone hearing, saying, "I'm blaming you too."

Justin P.D. Wilcox of Desmarais LLP defended Cisco's requested fee, telling Judge Alsup that the company paid more than $5 million to defend itself in this case.  But Judge Alsup gave Apple and Cisco a stern warning, saying if they ever appear before his court again and don't submit reasonable attorney fee requests from the get-go, he will deny them in their entirety.  "It will be zero," Judge Alsup warned.