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Category: Class Action / MDL

$3.8M in Attorney Fees Sought in Sorin MDL

March 30, 2020

A recent Law 360 story by Matthew Santoni, “Anapol Weiss Seeks Much of $3.8M Sorin MDL,” reports that Anapol Weiss is seeking nearly $2 million for helping clients reach a global settlement over allegations that the former Sorin Group USA’s heater-coolers put heart surgery patients at greater risk of contracting dangerous bacterial infections, according to a filing in Pennsylvania federal court.  In its filing, the firm sought approval of a total of $3.8 million in fees and $441,000 in expenses for itself and 14 other firms that had worked toward a $225 million global settlement with Sorin, now known as Livanova PLC, which would leave about $334,000 in a common fund established for payment of fees and expenses to benefit all the cases gathered together under the multidistrict litigation.

“The size of the global settlement fund is approximately [$225 million] and a substantial number of individuals benefitted from the settlement program devised by lead counsel and members of the [plaintiffs’ executive committee], including plaintiffs with suits in the MDL and various state courts as well as others with unfiled claims,” the petition said.

As lead counsel, Anapol Weiss sought $1.7 million in fees and more than $250,000 in expenses for nearly 2,000 hours of “common benefit” work, with other firms —  including Johnson/Becker PLLC, Hayes Lorenzen Lawyers PLC and Chaffin Luhana LLP —  claiming the rest of the request for $3.8 million in fees and $440,000 in expenses from the fund.  Anapol Weiss also asked U.S. District Judge John E. Jones III to reduce the 6 percent assessment he’d put on all monetary recoveries in the MDL that fed into the common benefit fund.

In the original lawsuit, filed in 2016, lead plaintiffs Edward Baker and Jack Miller had sought medical monitoring and a declaration from the court that the Sorin 3T heater-cooler device, used to control the temperature of a patient’s blood during open-heart surgeries, was defective.  The devices allegedly made patients more susceptible to a slow-growing but potentially fatal bacterial infection from a family of bacteria known as nontuberculosis mycobacterium, or NTM.

Spearheaded and hosted by Johnson/Becker, the executive committee gathered data on potential claimants and negotiated the proposed settlement with Livanova, the petition said. Livanova and Anapol Weiss announced that they had reached a global settlement in March 2019, while the Baker case reached its own settlement in October.

The petition said the fees were reasonable given the amount of work required, the complexity of the case and the relative size of the global settlement.  “The current request for a total fee award of $3,750,000 represents less than 2% of the global settlement and is well within the range deemed reasonable in similar cases,” the petition said.

An earlier case management order had set an assessment of 6%  from each claimant’s monetary awards, including 2% for common-benefit fees and 4% for expenses.  Though it did not set a new target, Anapol Weiss requested that the court lower the assessment based on costs so far, and streamline the allocation of money from the fund.

“The actual common benefit costs were only 0.19% of each claimant’s gross monetary award,” the petition said. “Lead counsel requests that CMO 5 be modified to reduce the cost assessment and eliminate the need for a CPA to review the time and expenses as there is an agreement for the allocation among all counsel receiving a common benefit fee award and/or common benefit expense reimbursement.”  The remainder of the common benefit fund would be reserved for any future common work and the estimated $3,200-a-month cost of maintaining an online document repository, the petition said.

Law Firms Win Suit Over Pelvic Mesh Attorney Fees

March 27, 2020

A recent Law 360 story by Bill Wichert, “NJ, Texas Law Firms Beat Suit Over Pelvic Mesh Atty Fees,” reports that a New Jersey federal judge nixed a proposed class action against Potts Law Firm, Nagel Rice LLP and other firms over allegedly excessive attorney fees in pelvic mesh litigation against Johnson & Johnson and its Ethicon unit, saying Texas law governed the claims and permitted the fees.  U.S. District Judge Madeline Cox Arleo granted the firms' motions to dismiss an amended suit from plaintiffs Debbie Gore and Doris Lance-Smith over claims their retainer agreements ran afoul of a New Jersey rule capping contingent fees, noting that the fees were paid as part of settlement awards approved by a special master and a state judge in the Lone Star State.

The Garden State rule "does not apply and the fees awarded to defendants were entirely consistent with Texas law," Judge Arleo said in her written opinion.  The fee arrangements allowed the women's lawyers to receive 40% of their settlements, but Texas law has no particular cap on contingent fees, the judge said.  Under the New Jersey rule, an attorney can collect a fee of 33.33% of the first $750,000 recovered and then smaller percentages for subsequent amounts, and those fees must be based on the "net sum recovered" after deducting expenses.

Gore and Lance-Smith cited no authority for extending that rule "to litigation settled in a foreign court by out-of-state lawyers representing out-of-state plaintiffs who sustained injuries outside of New Jersey," according to the judge's opinion.  Nagel Rice, which is based in New Jersey, did not receive any of the fees in question, but Potts and other Texas firms did, the opinion said.

Gore, a Texas resident, and Lance-Smith, an Alabama resident, both retained Texas firms to pursue claims they suffered injuries from allegedly defective pelvic mesh products, the opinion said.  Lance-Smith retained Potts in June 2012 to litigate such claims, the opinion said.  The following May, Gore retained a firm then known as Steelman & McAdams PC and partner Annie McAdams to pursue similar claims, the opinion said.

About two months later, Gore agreed to McAdams working and splitting attorney fees with a firm then known as Bailey Perrin Bailey LLP, the opinion said.  In July 2014, Gore and Lance-Smith each filed a master short-form complaint in New Jersey state court "as part of the New Jersey iteration of the mesh litigation," the opinion said.  Nagel Rice and firm partner Andrew L. O'Connor were listed as the women's attorneys, with Potts and firm partner Derek Potts listed as co-counsel, the opinion said.

Those complaints represent the only connection in the current matter to New Jersey, but beyond them being filed, state dockets indicate that "no litigation activities occurred" and that those matters are now closed, Judge Arleo noted.  The settlements and fee awards at issue stem from a master settlement agreement reached in August 2016 between Potts Law Firm, among other firms, and J&J and Ethicon, the judge said.  That deal was administered through a Texas state court case, the judge said.  Judge Arleo pointed to that Texas link in finding that that state's law governed the proposed class action.

The judge noted that "the complex settlement process, which plaintiffs consented to after ample opportunity for objection, was reached by negotiations between Ethicon and Texas law firms and was administered by the Texas state court and a Texas special master."

"Indeed, no New Jersey law firms or lawyers were even listed as receiving contingency-based attorneys' fees as part of plaintiffs' settlements," the judge said.  "As such, the state with the most-significant relationship to the substantive claims at issue is Texas."

Adam M. Slater of Mazie Slater Katz & Freeman LLC, representing Gore and Lance-Smith, on Wednesday said they would appeal the judge's decision.  "When a case is filed in New Jersey, the New Jersey Court Rules apply, including the contingency fee rule.  According to this decision, the New Jersey contingency fee rule can be easily side stepped, allowing personal injury plaintiffs to be charged 40% contingency fees, in an MDL or any other New Jersey case," Slater told Law360.

Class Counsel Earn $8.3M in Fees in Resistor Antitrust Action

March 25, 2020

A recent Law 360 story by Nadia Dreid, “Cotchett Pitre Gets $8.3M in Fees in Resistor Antitrust Fight,” reports that Cotchett Pitre & McCarthy LLP will walk away with $8.3 million for its role in securing a $33.4 million deal for indirect buyers who say that Panasonic Corp. and other electronics companies overcharged them for resistors.  A California federal judge gave the settlement and accompanying attorney fee request his final blessing, finding that both were "fair and reasonable" and that the firm asked for less than it could have.

"Counsel for [indirect purchaser plaintiffs'] requested fee award represents less than 73% of their reasonable lodestar, a negative multiplier.  This further supports the reasonableness of class counsel for [indirect purchaser plaintiffs'] attorney fee request," U.S. District Judge James Donato said in his ruling.  The firm requested — and will be pocketing — about 25% of the settlement as attorney fees, as well as an additional $1.4 million as reimbursement for expenses, according to the court's order.

Class counsel ended up going with the percentage method to calculate its fees.  In cases where classes opt for the percentage method, 25% is normally used as a benchmark in California, with a possibility for attorneys to receive up to 30% of the settlement fund, depending on the circumstances.  But Cotchett Pitre won't get all those funds yet.  A quarter of the $8.3 million in attorney fees will be held back until the firm has finished up its post-distribution accounting, Judge Donato said in his order.

The fee approval was smooth sailing for the indirect purchaser attorneys compared to the ordeal faced by their colleagues representing direct purchasers of the resistors.  Judge Donato ripped into their $10 million fee bid for being "insufficient" in a September order, scolding Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC for failing to provide enough detail and reasoning in their fee request in what he called a "disservice to the class and the court."  The judge did eventually greenlight the $10 million in attorney fees at a second hearing, after receiving billing charts that assured him everything was on the up-and-up.

Judge Reduces Attorney Fees in Target Class Action

March 24, 2020

A recent Law 360 story by Brian Dowling, “Target Class Settlement Doesn’t Merit Hefty Fee, Judge Says,” reports that a Massachusetts federal judge has slashed a plaintiffs' firm's cut of a $2.3 million class action settlement with Target over harassing debt collections calls by nearly a third, saying the case wasn't as risky as lawyers claimed and not complex enough to warrant the $758,333 requested.  Approving the settlement, U.S. District Judge Timothy S. Hillman trimmed back the fees requested by Lemberg Law LLC, citing the quick six months it took to settle.  Judge Hillman also rejected the firm's arguments that the "high risk" case warranted taking 33% of the settlement fund.

"The mere fact that there was some risk does not justify a fee request of such magnitude when contrasted with the lack of complexity of the present case and the relatively short time between the filing of the complaint and a negotiated settlement in principle," Judge Hillman wrote.  Instead, the judge awarded $523,250 to the attorneys, representing 23% of the total settlement, plus about $7,000 for expenses.  The judge gave the named plaintiff, Gabrielle Carlson, an incentive award of $7,500.  With about 5,500 claims filed as of December, that leaves enough in the settlement funds for about $315 per claim.

Lemberg said in a statement to Law360 the firm is happy the state's consumer protection statute is being enforced and "thousands of people will receive money" from the settlement.  The finalized settlement wraps up the class action that Carlson filed against Target Enterprises Inc. in 2018, claiming the retailer violated debt collection regulations and the state's consumer protection laws by calling Massachusetts residents more than twice in a single week.

Judge Hillman held the Target settlement up against a handful of others that lawyers took on contingency but still resulted in lower than a 33% cut from the overall fund.  Lemberg attorneys Sergei Lemberg and Stephen Taylor, and one paralegal, together filed for 570 hours in the case, at rates ranging from $650 for Lemberg to $125 for the paralegal, according to the order.

In addition to the case being less complicated, the firm didn't offer the court "full and specific accounting of the tasks performed by each attorney, the dates of performance, [and] a breakdown of the number of hours spent on specific tasks," Judge Hillman said, another factor that led to the court reducing the attorneys' cut.

$7.3M in Attorney Fees in Fitbit Class Action

March 20, 2020

A recent Law 360 story by Mike Curley, “Atty Awarded $7M Fee in Fitbit Sleep-Tracker Class Suit,” reports that a California federal judge approved just over $7 million in fees to attorneys representing a class that sued Fitbit over an allegedly faulty sleep-tracking function in its wrist-mounted devices, trimming the initially requested award by about $300,000.  In a final order approving a settlement between the class, led by named plaintiff James P. Brickman, and Fitbit, U.S. District Judge James Donato slashed the lodestar amount for the suit from $3.85 million to $2.75 million, but increased the multiplier from 1.9 to 2.5, resulting in a dip from the initially requested $7.3 million to just more than $7 million.  The $7 million includes $6.9 million in fees, and $151,610 for all costs, according to the order.

In a separate order approving the attorney fees, Judge Donato noted the unusually good recovery in the settlement, which sees each class member receiving a $12.50 payment, while the maximum recovery they could have expected through litigation would have been $15.  Also included in the settlement are $5,000 service awards for named plaintiffs Brickman and Margaret Clingman and $500 service awards for each of the other seven named plaintiffs.

Patrick J. Perotti of Dworken & Bernstein Co. LPA, representing the proposed class, told Law360 that the judge recognized it was a very complicated case as well as the amount of work that class counsel put into litigating the unusual claim.  "The outcome is excellent and extraordinary because there's never been a case in history which has addressed and challenged sleep-tracking in an app or otherwise, as a consumer function," Perotti said.  "The case was extremely hotly contested by Morrison & Foerster and its client."

Customer James P. Brickman filed suit in May 2015, claiming customers paid extra — at least $30 more than what they would've paid for the basic Fitbit Zip — for Fitbit's premium sleep-tracking products, according to court filings.  But an academic study found that Fitbit devices overcount sleep time by about 67 minutes per night compared to the most accurate sleep-measuring technology, Brickman said in the complaint.  Margaret Clingman, another lead plaintiff, joined the suit later.  They alleged Fitbit violated California and Florida consumer protection statutes by falsely claiming the devices track sleep time, sleep quality and when users wake up.

Following several rounds of pleading and Fitbit's failed motion to dismiss, the court certified a Florida class and California class in November 2017. The classes included consumers who purchased and registered online a Fitbit Flex, a Fitbit One or a Fitbit Ultra between 2009 and October 2014, according to the filings.  In August 2018, Fitbit reached a deal with customers, which was then rejected before an amended deal garnered approval in October 2018.

In May 2019, class counsel for the customers requested the $7.3 million in attorney fees along with $367,000 in reimbursement of out-of-pocket costs, according to the plaintiffs' motion.  In June, Fitbit moved to reduce the fees, arguing the $7.3 million request for fees and court costs amounts to 133% of the total $5.52 million settlement and was "excessive, unsupported and disproportionate" to the class' recovery.