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Category: Contingency Fees / POF

Third Circuit: No Attorney Fees After ‘Outrageously Excessive’ Fee Request

September 12, 2018

A recent Legal Intelligencer story by PJ D’Annunzio, “3rd Circ.: Judge Was Right to Award Nothing After ‘Outrageously Excessive’ $1M Fee Request, reports that a federal appeals court has upheld the denial of a $1 million fee request by a Scranton attorney in an auto insurance case that produced a verdict almost a tenth of the requested legal compensation.  In its denial, the U.S. Court of Appeals for the Third Circuit, joining other circuit courts, also held that it is within a judge’s discretion to award no attorney fees at all, especially if the fee request is deemed “outrageously excessive.”

The ruling stems from plaintiff Bernie Clemens’ bad-faith case against New York Central Mutual Fire Insurance over its handling of his auto accident case.  The claims went before a jury and ended with a $100,000 punitive damages award.  The defendants had settled Clemens’ uninsured motorist claim for $25,000.

The case was handled by Mike Pisanchyn of the Pisanchyn Law Firm in Scranton.  After the case was resolved, Pisanchyn asked the court to award the seven-figure fee amount.  However, U.S. District Judge Malachy Mannion of the Middle District of Pennsylvania was taken aback by the sheer size of the number—so much so that he awarded Pisanchyn and his firm nothing and referred Pisanchyn for disciplinary review.

Reached for comment, Pisanchyn disagreed that his firm’s fee request was excessive.  “In essence, despite us obtaining a $100,000 award on a zero written offer case while we represented the plaintiff over eight to nine years of litigation, the court has determined the plaintiff’s attorney should be awarded nothing,” he said in an email.  “However, we do take comfort in the fact that our clients have been compensated and are extremely happy with our representation of them through this almost decade of litigation.”

James Haggerty of Haggerty, Goldberg, Schleifer & Kupersmith in Philadelphia represented Clemens on appeal.  “The decision is important in that it addresses an issue regarding the award of counsel fees which had not heretofore been considered by the Third Circuit,” Haggerty said, “The court issued a well-reasoned and well written opinion, finding that the district court did not abuse its discretion in refusing to award counsel fees to trial counsel following his successful recovery of bad faith damages from the defendant insurer.”

Mannion’s 100-page opinion went line-by-line through the request, slashing billed fees he deemed vague, duplicative and excessive.  Mannion also took issue with how the firm recreated its timesheets, saying that, while recreating timesheets is allowable if the attorneys did not make them contemporaneously, a number of the entries appeared to be based on guesswork.

The Third Circuit agreed with Mannion’s handling of the request, which found that Pisanchyn and his firm were entitled to recover only 13 percent of the fees they asked for.  “In light of that substantial reduction, the district court deemed Clemens’s request ‘outrageously excessive’ and exercised its discretion to award no fee whatsoever,” Third Circuit Judge Joseph Greenaway wrote for the panel, which also included Judges Luis Felipe Restrepo and Stephanos Bibas.

“Although it was unusual, we cannot say that this decision was an abuse of discretion,” Greenaway added.  ”Review of the record and the district court’s comprehensive opinion makes clear that denial of a fee award was entirely appropriate under the circumstances of this case.  Counsel’s success at trial notwithstanding, the fee petition was severely deficient in numerous ways.”  Mannion had said one of the most “egregious” requests included billing 562 hours for trial preparation, with the plaintiffs attorneys entering between 20 and 22 hours per day on some days.  The Third Circuit examined that figure in detail.

“All the more troubling is the fact that counsel’s (supposedly) hard work did not appear to pay off at trial.  As the district court explained, counsel had ‘to be repeatedly admonished for not being prepared because he was obviously unfamiliar with the Federal Rules of Evidence, the Federal Rules of Civil Procedure and the rulings of th[e] court,” Greenaway said.  “Given counsel’s subpar performance and the vagueness and excessiveness of the time entries, the district court did not abuse its discretion in disallowing all 562 hours.”

Greenaway continued, “Aside from the problems with the hours billed for individual tasks, counsel also neglected their burden of showing that their requested hourly rates were reasonable in light of the prevailing rates ‘in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’”

Judge Erred By Limiting Attorney Fees in Probate Matter in California

September 7, 2018

A recent Metropolitan News story, “Judge Erred By Limiting Fee to 10 Percent of Minors’ Recovery,” reports that the law firm founded by veteran personal injury Ian “Buddy” Herzog was shortchanged by a Los Angeles Superior Court who awarded it only 10 percent of the $18 million settlement it negotiated for its minor clients, despite a contingency fee agreement calling for 40 percent, the Court of Appeal for this district has held.

The unpublished opinion was filed Wednesday.  In it, Presiding Justice Frances Rothschild of Div. One noted that under Probate Code §3600 and §3601, a court, in approving the compromise of a minor’s claim, must determine what are “reasonable” attorney fees, and pointed to California Rules of Court, rule 7.955, which sets forth guidance for trial judges in determining reasonableness.  A 10 percent fee, she said, was unreasonable in light of the contingency fee agreement, the risk the company took in taking the case on a contingency basis, and other factors.

Herzog, Yuhas, Ehrlich & Ardell of Santa Monica represented the wife and four minor children of Rainer Schulz in a wrongful death suit, after the wealthy German businessman crashed his Cessna 750 jet while attempting to land at a small German airport.  The action against various companies was brought on a products liability theory.  Los Angeles Superior Court Judge William F. Fahey apportioned $1 to Schulz’s widow, Silke Schulz, and the remainder of the $18,125,000 to the couple’s four minor sons.

He did not credit the contingency fee agreement which the widow and the chief executive of a company the Schulzes owned negotiated with the Herzog firm.  Under it, the firm was to receive 31 percent of the proceeds if the case were settled at least 30 days before trial and 40 percent after that point.  Although settlement came a few days before trial, the Herzog firm indicated its willingness to accept a 31 percent share.

Fahey said:  “Turning to the issue of attorney’s fees, the Court is not bound by a contingency agreement when considering the best interests of the minors.  Attorney fees must be carefully scrutinized and adjusted if warranted.  Here, the attorneys hired by Silke did a good job in investigating this case.”  He added:“But paying these attorneys their requested $5 million in fees out of the settlement proceeds would be excessive, to the substantial detriment of Rainer’s sons and contrary to this Court’s duty [to] assure that no injustice is done to them.”

Two of the Schulzes’s sons have permanent disabilities as a result of being born prematurely.  Rule 7.955(a)(2) sets forth: “The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor.…”

Rule 7.955(b) lists 14 non-exclusive factors for courts to consider when determining what fee will be reasonable, including the amount of the fee in proportion to the value of services, the experience of the attorney and the amount of time and labor involved.

Rothschild declared: “We conclude the trial court gave too little consideration to California Rules of Court, rule 7.955(a)(2).…In addition, the court did not acknowledge the factors listed in California Rules of Court, rule 7.955(b).  Although these factors are not mandatory, they provide a guide to the considerations relevant to determining whether a fee protects the interests of a minor while allowing an attorney to obtain a fair recovery.”

She continued: “All of these factors support a recovery greater than 10 percent.  One of the two attorneys who primarily worked on the case, Ian Herzog, had 47 years of experience in aviation accident cases, and the other, Thomas Yuhas, had 37 years of experience.  Both attorneys also have many years of experience as pilots, which undoubtedly gave them insight as to the causes of the crash.  In this case, both sides agree that the risk of loss was substantial.  When viewed from the perspective of the time it was signed, the representation agreement thus realistically evaluated the high risk that there could be no recovery at all or one substantially lower than was achieved.”

She noted that the firm advanced more than $300,000 in costs.  In determining the potential for a minor being taken advantage of, the rule counsels, the court should look to the “relative sophistication of the attorney and the representative of the minor.  Rothschild said that Silke Schulz is a highly sophisticated executive who took over the company after her husband’s death.  And who made an informed decision to enlist the services of a firm willing to take the case on a contingency basis.

The jurist noted that rule 7.955 had superseded prior local rules setting the baseline contingency award for minor clients, often at 25 percent.  She drew an analogy to class action attorney fee awards, which have a 25 percent starting point in the Ninth U.S. Circuit and some California courts.  She wrote: “We acknowledge that what is reasonable in applying the factors in California Rules of Court, rule 7.955 in any particular case may comprise a range of percentages.  Under the facts of this case, however, 10 percent was not within that reasonable range.  Although the trial court would be acting within its discretion to award less than 31 percent, we note that 31 percent is not out of line with awards in class actions, which, like this case, involve attorney fees to be paid by a protected class and that require court approval.”

The case is Schulz v. Jeppesen Sanderson, Inc., B277493.

Yahoo Investors Earn $14M in Attorney Fees in $80M Breach Deal

September 6, 2018

A recent Law 360 story by John Petrick, “Yahoo Investors Get $14M Attys’ Fees in $80M Breach Deal, reports that a California federal judge approved $14.4 million to cover lead counsel attorneys' fees as part of an $80 million settlement finalized in a consolidated shareholder action accusing Yahoo of trading stock at artificially high prices while the company covered up large data hacks in 2014 and 2016.

Shareholders had argued for 18 percent to be set aside for attorneys' fees in the case over massive data breaches at Yahoo Inc., noting the settlement approved by U.S. District Judge Lucy H. Koh is significantly larger than a $35 million recovery in a similar suit brought by the U.S. Securities and Exchange Commission.  Shareholders also asserted that if not for the efforts of counsel during the case, the settlement could have been much lower.

Joshua L. Crowell of Glancy Prongay & Murray LLP, a lead counsel for the shareholders, all that’s left to do is go through the process of distributing the settlement.  “We still have to finish the claims administration," Crowell said. "Some will be rejected.  Then there will be a motion to send out the checks.  We think the settlement is a very excellent outcome, and we are very happy the court approved it so that we can start the process of distributing it to class members.” 

The judge denied a request for $235,200 be paid to plaintiff Ben Maher, $7,500 to plaintiff Sutton View Partners LP and $7,500 to lead plaintiff Nafiz Talukder to cover their expenses relating to their representation of the settlement class, finding that “the three named plaintiffs provide conclusory estimates of the hours spent on this case and their billing rates.  The three named plaintiffs have not substantiated their requested hours or billing rates with adequate documentation or evidence.”

The security breaches at Yahoo opened a floodgate of lawsuits and an administrative proceeding by the SEC that led to the $35 million fine levied against Yahoo in April.  In the consolidated shareholder action, which also named former Yahoo CEO Marissa Mayer, Judge Koh rejected Yahoo's motion to dismiss in November, and the parties filed the proposed settlement in March.  The judge gave preliminary approval to the settlement in May, certifying for settlement purposes a class of investors who purchased Yahoo shares between April 2013 and December 2016.

The case is In re Yahoo Inc. Securities Litigation, case number 5:17-cv-00373, in the U.S. District Court for the Northern District of California.

NJ Court: Attorneys Must Advise Clients of Billing Options in Fee-Shifting Litigation

August 30, 2018

A recent New Jersey Law Journal story by Michael Booth, “Lawyers Must Advise Clients of Other Options Before Billing Hourly on Fee-Shifting Case, Court Says,” reports that a New Jersey appeals court voided a retainer agreement between a lawyer and his longtime friend, saying he did not properly disclose hourly fees he would be charging for representing her in a discrimination case.  The three-judge Appellate Division panel, in a published ruling, said Somerville solo Brian Cige did not adequately explain the arrangement, which provided for an hourly billing rate and litigation costs, to his client, Lisa Balducci.

The panel said lawyers who wish to charge hourly fees for work on discrimination or other fee-shifting cases must explain to their clients that there are other competent counsel who will accept those cases on a contingency basis, and who also will advance any litigation costs.

“Ethically then, must an attorney whose fee for undertaking an LAD case that includes an hourly rate component explain both the consequences on a recovery and the ability of other competent counsel likely willing to undertake the same representation based on a fee without an hourly component?  We conclude the answer is yes,” Appellate Division Judge William Nugent said.

The lawsuit filed by Balducci claimed she never fully reviewed the retainer agreement offered by Cige but was shocked when she began receiving bills for hourly services and costs, which included a $1 fee for reviewing incoming emails and sending responses, the court said.  Balducci eventually fired Cige and hired another attorney to represent her and her son in a Law Against Discrimination claim.  The decision didn’t reveal the details of that matter,

Nugent, writing for the court, said a Somerset County Assignment Judge Yolanda Ciccone properly found that Cige violated his professional responsibility to explain the agreement’s material terms to Balducci so that she could reach an informed decision as to whether to retain him.  Thus the retainer agreement was void.  “The hearing recording in this case includes adequate, substantial, credible evidence support the court’s decision,” said Nugent.  Judges Carmen Alvarez and Richard Geiger joined in the ruling.  “There is no dearth of competent counsel attorneys willing to litigate LAD and other fee-shifting cases that do not include an hourly component.

Balducci retained Cige in September 2012 to represent her and her child in the LAD case.  Cige presented her with what he said was a standard retainer agreement stating he could charge up to $7,500 up front, plus $450 an hour.  Balducci signed the agreement despite having “concerns,” according to the decision.  Balducci began complaining when she began receiving bills from Cige for hourly services plus expenses.  He told Balducci to not worry about the bills, because he was using them for purposes of a future fee petition he would demand at the conclusion of what he believed was a successful case.

“We are friends,” Balducci, in depositions, quoted Cige as saying, according to the decision.  “I was at your wedding.  I would never do this to you.  Ignore that.  Don’t worry about.  It is standard info.”  Balducci also complained that she was devoting her time to preparing for depositions while Cige was away attending chess tournaments, the ruling said.  Balducci fired Cige after she complained that it would be impossible for her to advance tens of thousands of dollar for expert witnesses.  Balducci filed a lawsuit against Cige, and he filed a counterclaim seeking more than $286,000 in fees for work he already had done.

“The trial court properly found the agreement was unenforceable and void,” Nugent said.  “There is no dearth of competent, civic-minded attorneys willing to litigate LAD and other statutory fee-shifting cases under fee agreements that do not include an hourly component.  The number of such cases litigated in our trial courts and reported in the case law evidence this, as does—at least as to numbers—advertising on television and radio, in telephone books and newspapers, and on billboards and other media,” Nugent wrote, noting that Balducci’s current counsel in the LAD case is not charging hourly fees.

Investors Seek $63M in Attorney Fees in Latest LIBOR MDL Settlements

August 28, 2018

A recent Law 360 story by Jon Hill, “Investors Seek $63M in Fees in Deutsche, HSBC Libor Deals,” reports that investors who reached $340 million in settlements earlier this year with Deutsche Bank and HSBC in multidistrict litigation over alleged manipulation of the London Interbank Offered Rate have asked a New York federal judge to award nearly $63.4 million in fees and expenses for their counsel, Susman Godfrey LLP and Hausfeld LLP.

The so-called over-the-counter investors told U.S. District Judge Naomi Reice Buchwald that they’re seeking a nearly $62.8 million interim award of attorneys’ fees and a little more than $600,000 for unreimbursed litigation expenses, to be paid out of the fund created by their settlements with Deutsche Bank AG and HSBC Bank PLC.  Those settlements, which Judge Buchwald preliminarily approved in April, put Deutsche Bank and HSBC on the hook for cash payments of $240 million and $100 million, respectively, and come with agreements for them to provide cooperation to the OTC investors as they press forward with their claims against other major banks, like Bank of America and JPMorgan Chase Bank.

“Both the Deutsche Bank and HSBC settlements are excellent results for the OTC class, which has now recovered more than half a billion dollars in total settlements and the right to substantial cooperation from Deutsche Bank and HSBC,” the investors said.  “This outstanding recovery, achieved by class counsel working entirely on a contingent basis, and incurring substantial expenses on behalf of the OTC class, undoubtedly merits the attorneys’ fee award and expense reimbursement requested here.”

The Deutsche Bank and HSBC settlements followed on the heels of deals reached with Citigroup Inc. and Barclays PLC, which agreed to pay a combined $250 million to OTC investors who say they purchased Libor-tied financial instruments during a time when multiple major banks are alleged to have worked together to manipulate the rate.  Those previous two settlements received final approval at the beginning of August from Judge Buchwald, who subsequently approved almost $43.5 million in attorneys’ fees and nearly $14.9 million in expenses to be awarded from the deals.

That fee award represented 18.5 percent of the net amount of the two settlements, and was less than the $50 million that the investors had originally requested.  Although Judge Buchwald acknowledged the case had been complex, risky and time-consuming, she said the larger requested amount “would incur the risk of providing an unwarranted windfall to class counsel at the expense of the class.”  But the investors told Judge Buchwald that their latest requested fee award works out to the same relative size as the one she approved earlier this month.

“OTC plaintiffs’ application for an interim award of 18.5 percent of the net settlement fund is in line with this court’s fee award for the Barclays and Citibank settlements and is well within the range of awards found to be reasonable under the Second Circuit’s prior orders and precedents, aligned with awards regularly approved in comparable multi-defendant antitrust class actions, and will reward class counsel for the outstanding result they have obtained for the OTC class,” the investors said.

The case is Mayor and City Council of Baltimore et al. v. Credit Suisse AG et al., case number 1:11-cv-05450, and the MDL is In re: Libor-Based Financial Instruments Antitrust Litigation, case number 1:11-md-02262, both in the U.S. District Court for the Southern District of New York. 

For more on this MDL, visit https://www.usdollarliborsettlement.com/