A recent Law 360 story by Kevin Penton, “3rd Circuit Urged to Revive Pelvic Mesh Atty Fee Suit” reports that the Third Circuit should correct a mistake by a New Jersey federal court that allowed Texas law to be used to bless the collection of excessive attorney fees in pelvic mesh litigation against Johnson & Johnson and its Ethicon unit, two women have asserted.  According to a brief, the appellate court should recognize that if the underlying cases were filed in New Jersey, the attorneys should not be allowed to turn around and use Texas law to administer the settlements just so they could collect a higher percentage of the payouts, plaintiffs Debbie Gore and Doris Lance-Smith said.

"This manipulation of the process cannot be allowed by this court, as it would set a dangerous precedent that would allow contingency fee attorneys to file cases in New Jersey, then retreat to other jurisdictions in order to have the settlements 'administered' and 'approved' so that they can circumvent the New Jersey court rules and charge the clients excessive fees and expenses," the brief reads.  U.S. District Judge Madeline Cox Arleo in March nixed a proposed class action against Potts Law Firm, Nagel Rice LLP and other firms, saying Texas law governed the claims and permitted the fees.

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."

Gore, a Texas resident, and Lance-Smith, an Alabama resident, both retained Texas firms to pursue claims that they suffered injuries from allegedly defective pelvic mesh products, according to court documents.  While Gore and Lance-Smith each filed a master short-form complaint in New Jersey state court in 2014 as part of the litigation, Judge Arleo noted in March that "no litigation activities occurred" in the Garden State beyond those filings.

Fee arrangements in the case allowed the women's lawyers to receive 40% of their settlements, as Texas law has no particular cap on contingent fees, according to court documents.  Under a relevant 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.  Those fees must be based on the "net sum recovered" after deducting expenses.