A recent New York Law Journal story, “Circuit Pares Emery Firm’s Fee in Favor of Plaintiffs’ Committee” reports that the long-running dispute over the allocation of attorney fees for attorneys who represented the families of those killed in the 1988 bombing of a plane over Lockerbie, Scotland, has been brought to an end by the U.S. Court of Appeals for the Second Circuit. The Second Circuit upheld a lower court’s decision directing Emery Celli Brinckerhoff & Abady to pay 20 percent of its fee from the settlement of the litigation against Libya, which was accused of orchestrating the bombing, to the plaintiffs’ committee.
Judge Thomas C. Platt in 2009 had rejected the argument of Richard Emery, the lead plaintiffs’ attorney, that the firm should not have to contribute that amount because several non-lead attorneys played no role in a decisive event that led to the settlement—the successful lobbying effort that led Congress to write a terrorism exception into the Foreign Sovereign Immunities Act (FSIA). But the Second Circuit in Emery Celli Brinckerhoff & Abady v. Plaintiffs’ Committee, said “We cannot conclude on this record that the district court abused its discretion in deciding that Emery’s work did not play a ‘substantially instrumental’ role in the FSIA’s amendment or the Libya settlement itself.”
Judge Platt originally dismissed the suit brought in 1995 by two survivors of victims against Libya and two Libyan officials, but the suit was reinstated after Congress changed FSIA to include terrorism exception, promoting a wave of suits that were settled when Libya offered to pay each of 269 decedents $10 million each. In the fee allocation dispute, Judge Platt first directed Emery Celli to pay 21.3 percent, or $1.44 million, of the contingency fee, to the plaintiffs’ committee, a portion equal to 3 percent of its clients’ settlement award. Emery appealed. The Second Circuit reversed saying Platt improperly relied on a settlement proposal in resolving the fee dispute.
On remand, Platt ordered the firm to pay 20 percent of its fee and Mr. Emery appealed again, but this time the circuit upheld Judge Platt. The court said “the question is whether the evidence that Emery’s lobbying conferred a substantial benefit on the class so much greater than that attributable to the other non-committee counsel, or so significant in relation to the efforts of the Committee, as to compel the conclusion that Emery is entitled to be excused, in whole or part, from the same ‘tax’ fairly imposed on other non-Committee counsel to compensate the Committee for its efforts.” And while the Emery firm stated that it had spent “2900 plus” hours prosecuting the case, “it offered no evidence, despite available billing records, regarding how much of that time was spent on lobbying activities.”
Mr. Emery said the 20 percent figure now comes to roughly $1.7 million.