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Category: Fee Award

Class Counsel Earn $3.6M in Fees in CBS #MeToo Case

November 14, 2022

A recent Law 360 story by Katryna Perera, “CBS Investors Attys Get $3.6M in Moonves #MeToo Case” reports that counsel from Robbins Geller Rudman & Dowd LLP have been awarded $3.6 million for their work securing a $14.7 million settlement for a class of CBS Corp. investors who claimed the company's former CEO Les Moonves' alleged sexual misconduct tanked the broadcasting giant's shares.  U.S. District Judge Valerie Caproni issued an order granting the attorney fee request along with $354,000 in litigation expenses.  However, she declined to award fees or expenses to Johnson Fistel LLP, which she noted did not appear as counsel to any plaintiff in the instant case or in a related matter.

Judge Caproni also granted a $2,250 service award to lead plaintiff, the Construction Laborers Pension Trust for Southern California, but declined to grant a request for $20,000 in legal fees for the lead plaintiff's outside counsel, which the order does not identify.  In awarding Robbins Geller $3.6 million in fees, the judge said the attorneys devoted more than 5,000 hours to the case, with a lodestar value of $4.6 million.  She also noted that class members filed no objections to the fees or expenses.

The $14.7 million settlement between the class and CBS was reached in April.  Investors argued that the deal was a "very good" one given that it represents between 7% and 9% of their estimated reasonably recoverable damages.  The investors alleged in their August 2018 suit that a statement Moonves made at the Variety Innovate Summit industry event in late 2017 kept CBS' share price artificially inflated until explosive July 2018 news reports detailed his alleged history of workplace sexual harassment.

$145M Opana Antitrust Settlement Merits $50M in Fees

November 11, 2022

A recent Law 360 story by Nadia Dreid, “Opana Buyers’ $145M Deal With $50M in Atty Fees Gets Final OK” reports that the attorneys who secured a $145 million settlement for direct purchasers of Endo Pharmaceuticals's Opana ER who said they overpaid generic-drug maker Impax Labs for the prescription painkiller because of a pay-for-delay deal will walk away from the litigation with more than $50 million for their trouble.  U.S. District Judge Harry D. Leinenweber gave the settlement his final approval, solidifying the agreement that will give class counsel Garwin Gerstein & Fisher LLP and Berger Montague PC more than a third of the settlement fund for their work over the last eight years.

The $50,528,470.66 in attorney fees amounts to 36% of the settlement fund, after the class awards and the $4.3 million in costs that the firms will also receive are subtracted, according to the opinion.  Direct purchases Value Drug Co. and Meijer Inc. will each receive $150,000 for their trouble.

The deal was reached just as trial was set to start back in June in the multidistrict litigation over a 2010 deal Endo and Impax reached to settle patent infringement claims Endo laid against the generics maker.  One group of direct purchasers — CVS Pharmacy Inc. and Walgreen Co. among them — opted out of the class, but ended up reaching their own settlement mid-trial, though the details were never made public.

Impax ended up getting around $112 million from Endo for delaying its generic version of Opana ER by about three years, with Endo promising not to launch an authorized generic version of the drug once Impax's version went to market, according to the current suit.  According to the Federal Trade Commission and the Opana ER buyers that make up the various proposed classes, the settlement constituted an illegal reverse payment.

The claims have been working their way through Illinois federal court since late 2014 when they were folded into the court by the U.S. Judicial Panel on Multidistrict Litigation.  The buyers said they lost money by paying more for the brand name when a cheaper, generic version could have been available to them.

Chancery Ponders $5.3M Fee Request in $21.6M Class Settlement

November 7, 2022

A recent Law 360 story by Jeff Montgomery, “Chancery Delay $21.6M Class Deal, Fee OK in Presidio Suit” reports that a Delaware vice chancellor put off final approval of a $21.6 million settlement for a class challenge to the sale of tech services provider Presidio Inc., agreeing with the deal but ordering clarifications and saying he wanted to ponder a proposed $5.3 million attorney fee.  Vice Chancellor J. Travis Laster said class attorneys had achieved "a very good result" after more than 2½ years of litigation over the company's $2.1 billion sale to an affiliate of private equity firm BC Partners.

The suit accused Presidio of snubbing a competing offer under pressure from BC Partners and controlling shareholder Apollo Global Management Inc.  The Firefighters' Pension System of the City of Kansas City, Missouri Trust agreed to the settlement after mediation and a recommendation from the mediator.  "I'm going to go ahead and approve the settlement" pending "tweaks" of the agreement, the vice chancellor said.  "I'm going to think more about the attorney fee issue and put a number in when I get the final order."

At issue were sections of the settlement that the vice chancellor viewed as redundant, murky or unnecessary and — in the case of the fee — a question of "how good is good" when considering an award that amounted to about 25% of the total settlement.  The share would stand near the upper end of Chancery Court awards for settlements before trial but after extensive litigation.

J. Daniel Albert of Kessler Topaz Meltzer & Check LLP, counsel to the class, told the vice chancellor that the court has approved a 25% fee for cases "procedurally less developed" than the Presidio action, and said that "for policy reasons, the court should want to incentivize these types of results."  The fee reflected about 9,250 hours of attorney work that involved nearly $233,000 in expenses, with a fee translating into a $578-per-hour rate "well below" that seen in similar litigation, Albert said.

The lawsuit initially named the board members, outside directors and Apollo as defendants, but in January 2021 Vice Chancellor Laster dismissed them from the suit.  "I do understand your argument that when you get up to 100% or more of the [potential] trial result you should get the high end" of fee award ranges, he said, adding that he also understood the potential for expenses lost to "front end" books and records demand litigation in support of the case.

The fee, Albert argued, exceeded what the settlement motion described as the "likely provable damages under plaintiff's primary theory of liability against the defendants: that the auction between BCP and CD&R was tainted by the alleged tip-off of CD&R's offer price to BCP by LionTree."

First Circuit Deepens Circuit Split on SSA Fee Award Timing

November 3, 2022

A recent Law 360 story by Hayley Fowler, “Abortion Protesters Keep Atty Fees in 4th Circ. Picketing Row” reports that the First Circuit deepened a circuit divide on how long attorneys have to seek fees in district court after winning a Social Security Administration benefits dispute, adopting a "reasonable time" standard also used in the Tenth Circuit rather than a more rigid limit used in four other circuits.  The court affirmed a finding that the attorney in question waited too long under either approach to seek fees for successfully representing a client in a benefits dispute with the agency.

But in a matter of first impression for the circuit, the court said fee petitions brought under 42 USC § 406(b), for representation in court on disability benefits challenges must be brought within a reasonable time.  That puts the First and Tenth Circuits on one side of a divide opposite the Second, Third, Fifth and Eleventh circuits, which say such fee petitions must be brought within 14 days of judgment.

The problem with that 14-day time limit is that after a district court decides a benefits dispute, often the case is remanded to the agency for a benefits determination, making it impossible to know how much the client will recover and thus impossible to calculate a contingency fee, the court noted in an opinion written by Judge O. Rogeriee Thompson.  "In scanning the out-of-circuit precedent, we have observed that in practice, accomplishing justice in most § 406(b) cases seems to inevitably require some exercise of the district court's discretion and powers in equity," the court said.

Some of the circuits that follow the 14-day rule toll that deadline until the SSA makes a final benefits determination.  Others recognize the district court's power to grant discretionary relief from that strict deadline.  The First Circuit said it makes more sense to use the "reasonableness" standard applied to fee motions made under Federal Rule of Civil Procedure 60(b) – the rule for relief from a final judgment – rather than the 14-day time limit that comes from Federal Rule of Civil Procedure 54(d)(2), the rule for judgments that include attorney fees.

Attorney fees in disability benefits cases are not comparable to "loser pays" types of attorney fee awards typically addressed in motions for judgment under Rule 54(d)(2), the court said. Instead, the disability benefits statute allows for attorney fees of up to 25% of the awarded benefits, in what the First Circuit said "implies that the fees are awarded as a part of a district court's judgment for the claimant, rather than as a separate judgment allowing the party to recuperate costs underlying the action."  "Here it is clear to all parties that, in the event of success before the agency on remand, a subsequent amendment to the district court's judgment to award attorneys' fees is highly likely," the court said.

The dispute arose from Green & Greenberg's successful representation of a client in court and before the SSA who eventually was recognized to have a disability and awarded benefits.  The firm represented client Jose Pais on a contingency basis for 25% of his award.  After he won, the SSA set aside just over $29,000 for potential legal fees.  When the firm sought to collect its fees through the SSA, it claimed only about $7,000 for its work at the administrative level. During oral argument, the firm's David Spunzo told the court a paralegal mistakenly claimed 25% of the money available for fees, rather than 25% of the total award.

The SSA then several times notified the firm that it was continuing to retain about $22,000 from Pais's total award as the contingency fee.  By the time the firm sought the remaining amount of the available attorney fees for its work in court, 26 months after the SSA notified Pais of the benefits award, the district court determined it was too late.  The SSA did not take a position in the litigation on which approach to the timing of fee motions is correct, in-house counsel Timothy Bolen told the court during oral argument.  Bolen said the agency's role is to act as quasi-trustee for the claimant and reserve 25% of the award for potential payment of attorney fees, while the question of how much in fees to award is left to the district court.

Fourth Circuit Affirms Fee Award for Abortion Protestors

November 2, 2022

A recent Law 360 story by Hayley Fowler, “Abortion Protesters Keep Atty Fees in 4th Circ. Picketing Row,reports that the Fourth Circuit affirmed an attorney fee award for abortion protesters in a suit challenging the constitutionality of a North Carolina city's picketing ordinance, finding the sidewalk ministry had notched some semblance of a win in the parties' consent agreement.  In a published opinion, a three-judge panel said the consent decree allows Cities4Life Inc. to hand out pamphlets at an abortion clinic where they were previously banned from doing so, meaning the legal relationship between them and the city of Charlotte altered in such a way that Cities4Life was a "prevailing party" under the agreement.

The Fourth Circuit's decision allows the ministry to keep its $39,811 in attorney fees awarded by the district court.  "Contrary to the city's assertion at oral argument, this was no 'technical victory' — plaintiffs' previous inability to distribute literature to vehicles at the center was central to their claim," U.S. Circuit Judge Albert Diaz wrote.  "Thus, we hold that the consent judgment here granted plaintiffs 'some relief on the merits' sufficient to establish this prerequisite for fee shifting."

Cities4Life had accused Charlotte police in 2019 of enforcing the city's picketing ordinance too liberally outside an abortion clinic that the Fourth Circuit said "performs the most abortions in the southeastern United States," where anti-abortion volunteers were allegedly inundated with citations.

One of the activities under scrutiny involved protesters stepping into the road to give literature to patients visiting the clinic. Police said it was a safety hazard that violated a city ordinance barring disrupting, blocking, obstructing or otherwise interfering with traffic.  But Cities4Life had argued police were infringing on their volunteers' First Amendment rights.  The parties reached a consent decree 17 days before the case was set to go to trial in 2020, the Fourth Circuit said.

Under the agreement, Cities4Life could approach cars with some caveats and would be issued an initial warning instead of an immediate citation if any of those conditions were violated.  The parties did not, however, settle the issue of attorney fees, which was decided at a later date by the district court.  Cities4Life had sought more than $150,000 in fees, which the judge ultimately slashed by 75% to land at the $39,000 figure.

On appeal, Charlotte argued the agreement had been a "practical resolution." Counsel for the city specifically said during oral arguments that the consent decree went "out of its way" to dismiss all the ministry's claims with prejudice, which he argued was a win for Charlotte — not the other way around.  But the Fourth Circuit said dismissing the claims with prejudice is typical of parties wanting to "ward off future litigation" and is a "poor indicator" of which one prevailed.

The panel found the decree "easily passes" its four-part test for determining fee awards, saying the parties had reached a consent decree that grants Cities4Life some relief, materially alters their legal relationship and is enforceable by the court.  In doing so, the Fourth Circuit dismantled the city's claim that an admission of liability is necessary to award attorney fees, which wasn't present in the consent decree, saying such an admission is not always necessary because judges have a "special degree" of oversight.