A recent Law 360 story by Bonnie Eslinger, “Meta Tracking Class Lowers Atty Fee Bid After Judge Criticism”, reports that counsel for Facebook users took another shot at getting approval for the fees they'll receive from Meta's $37.5 million deal settling class claims that it tracked 70 million users' locations, dropping the request by $500,000 since the judge said their $9.3 million request is "not going to happen."  In a renewed motion for attorney fees and expenses filed, class counsel noted that while they initially asked for a 25% cut of the settlement, at the court's urging, they've reduced their request to 23.5%.

The request argues, however, that in light of class counsel's "tremendous effort" and "tremendous recovery" compared to similar class settlements, they shouldn't have to deviate from the one-quarter award that's usually considered a benchmark for such cases.  "But, to demonstrate their unflagging commitment to the interests of the class and their respect for the court, class counsel now request only 23.5% of the common fund," the motion states, later adding that the percentage calculates out to $8.8 million.  The five-year case was not easy to litigate, the plaintiffs' lawyers told the court.

Beyond the briefing to fight Meta's motions to dismiss in the case, "counsel faced a formidable opponent that resisted discovery at every turn," the motion states.  The lawyers for the class invested considerable time and effort to get the evidence they sought from Meta, which was represented by "two of the top defense firms in the world," Gibson Dunn & Crutcher LLP and previously Munger Tolles & Olson LLP, the motion underscores.  Last month, the judge overseeing the case held off giving final approval to the deal, criticizing the 1.3% claims rate as too low and saying the $9.3 million attorney fee request is "just not going to happen."

In the revised attorney fee request, the lawyers for the class also addressed the court's concerns about the fact that time spent on a related case that was dismissed was included in the attorney fee calculation, that the fees of too many lawyers were included in the request, and that additional support was needed to justify counsel's hourly rates.

As to the first concern, class counsel said the two cases "were inextricably intertwined" as of December 2019, when the lawyers who filed each complaint agreed to work together and the cases were related for purposes of coordination.  A significant portion of the discovery requests were done by the lawyers in the dismissed case, the filing adds.  In addition, "numerous factual and legal theories developed" in the dismissed case were used in the case that settled, now before the court, the motion states.

However, in light of the court's comments at the hearing, class counsel told the court that it removed some of the hours specifically associated with the now-dismissed complaint, although it kept some of the time associated with the discovery.  With regard to the court's second concern about the billing including too many lawyers, the motion states that it removed all hours from the tab for attorneys who billed for under 40 hours of work.  The cuts resulted in 1,307 fewer hours and removed from the original fee motion, class counsel told the court.

In their motion, class counsel also argues that the $37.5 million deal is "substantial" and compares to similar data privacy settlements, for which the lawyers were given at least 25% of the fund.  The attorney fee request also highlights the fact that class counsel worked on a contingent basis.  "With no guarantee of recovering anything for their efforts, plaintiffs' counsel advanced 9,839.5 hours and $309,524.79 in expenses, while facing unusually heightened risks of no recovery, for over four years," the motion states.

The filing also argues to the court that class counsel's hourly rates are consistent with market rates.  Documents submitted to the court showed hourly rates for the highest paid lawyers at each class counsel firm that included $997 per hour for Sabita Soneji, a partner with Tycko & Zavareei LLP; $1,050 for Barrett Vahle, a partner with Stueve Siegel Hanson LLP; $1,000 for Franklin Azar of Azar Firm; and $940 for Ivy Ngo of the Law Office of Ivy T. Ngo.

A recent Law 360 story by Chart Riggall, “Flint Class Firms Say Atty Fee Dispute Already Decided”, reports that two law firms that helped negotiate a $626 million settlement over the Flint, Michigan, water crisis urged a Michigan federal judge to dismiss a suit from their former co-counsel claiming the firm had its rightful proceeds from the litigation arbitrarily slashed.  Cohen Milstein Sellers & Toll PLLC and Pitt McGehee Palmer Bonanni & Rivers PC told the court that their former ally in McAlpine PC had ample opportunities to take issue with the fee split, but the firm instead "sat on its hands for years" before bringing a claim.

"McAlpine had a full and fair opportunity to litigate the amount of any attorneys fee award in the appropriate place to do so — the federal Flint class action," the defendants said, arguing McAlpine's claims are barred under the doctrine of collateral estoppel.  A construction firm based in suburban Detroit, McAlpine filed suit — initially in state court — earlier this month claiming it had been paid a paltry sum for its contributions to the litigation.

The class action itself was settled in 2021 when U.S. District Judge Judith Levy gave final approval to a $626 million settlement, a deal expected to provide payments to more than 100,000 people affected by water contaminated by lead.  Government officials were accused of switching the city's water supply to the Flint River despite information cautioning them against doing so, and working to cover up the ensuing public health crisis.

McAlpine argued its work was instrumental to the litigation, contributing about $16 million worth of labor, or about 24% of the total lodestar figure of $84.5 million. But Cohen Milstein and Pitt McGehee offered to pay just $500,000, McAlpine said.  "Defendants breached the co-counsel agreement by failing to distribute an attorney fee award reflecting McAlpine's respective lodestar, in favor of distributing a greater share to themselves," the firm alleged.

The defendant firms, however, said McAlpine should have raised any issues with the fee split first during the negotiations before Judge Levy, which entailed "extensive additional briefing and argument" for nearly a year.  McAlpine could have also raised the issue when a group of objectors appealed Judge Levy's fee order to the Sixth Circuit, where it was later upheld, but failed to do so.

"McAlpine is precluded from asserting this separate action for increased attorneys fees for its work in the federal Flint class action," the firms said.  "McAlpine's [complaint] is, in essence, a collateral attack on the federal Flint class action's fee award order."

A recent Law 360 story by Bonnie Eslinger, “Judge Rips Claims Rate, Fee Bid in $37.5 Meta Tracking Deal”, reports that a California federal judge held off giving final approval to Meta Platforms Inc.'s $37.5 million deal to resolve claims it tracked 70 million users' locations, calling the 1.3% claims rate "overall a poor result" and saying the $9.3 million attorney fee request is "just not going to happen."  During the hearing in San Francisco, U.S. District Judge James Donato was told payouts are going to roughly 907,600 people out of an estimated 70 million possible claimants. He called the number "paltry."

The judge also took aim at the proposal to hand a 25% cut of the settlement — more than $9.3 million — to the plaintiffs' attorneys, saying the bill includes hours for too many attorneys.  "Right now, you want a $9 million chunk out of an already miniscule settlement, and that just strikes me as unfair to the class," the judge said.  He noted the plaintiffs are asking for fees for 66 people who worked on the case.

"I can't approve this," the judge said.  "I have had many, much larger cases, including my multidistrict litigation cases, which resulted in settlements that dwarf this one by hundreds of millions of dollars, and they had 12 people."  The plaintiffs also didn't provide enough support for their billable hour rates, $900 to $1,200 per hour, the judge said.  "The rates are at the high end where most of the work here was done," Judge Donato remarked.  "For some reason, [instead of] the less-expensive associate level."

The judge also said he needed more details about the reimbursement request for $322,464 in expenses.  He asked for more information about the administration fees, which, according to the plaintiffs, were now about $900,000, with another $300,000 bill expected to cover the cost of providing payments to the claimants.  The judge said the costs seemed high.  "I'm going to withhold approval until I see that," Judge Donato said. "I want a complete accounting."

A recent Law 360 story by Adrian Cruz, “Attorneys Seek $94 Million From DuPont PFAS Settlement”, reports that attorneys representing municipalities suing DuPont and other chemical companies over contaminated drinking water from PFAS chemicals have asked a South Carolina federal judge for $94 million in attorney fees.  In a memorandum, the group of attorneys from FeganScott LLC, Douglas & London PC, Napoli Shkolnik PLLC and Baron & Budd PC said their request of $94.8 million in fees is only 8% of the $1.19 billion settlement that was reached with Chemours, DuPont and Corteva in June.  The attorneys added that the 8% request is significantly below the 25% limit allowed by the Fourth Circuit.

Some of the reasons cited for the attorneys' fee request include a workload of nearly 415,000 combined billed hours, the novelty and complexity of the questions being asked throughout the litigation progress, the added challenges posed by the COVID-19 pandemic, and the end result, which settled one of the nation's largest multidistrict litigations, which they said benefits over 100 million Americans due to the drinking water improvements that will be made as a result.

"The DuPont settlement was the result of a years-long, multitrack effort by plaintiffs' counsel who expended hundreds of thousands of combined hours on multiple fronts, including settlement efforts, litigation efforts and MDL case administration, without any guarantee of a recovery," the memorandum said.  "This three-pronged approach was necessary given the highly complex nature of this MDL involving so many defendants, and in order to meet the challenges and obstacles presented by this MDL, including, of course, litigating in the midst of a global pandemic."

Along with the $94.8 million in fees, the attorneys also requested $2.1 million in costs, noting that the amount covers about 10% of the total out-of-pocket costs spent on the litigation.  The attorneys added that because of the case's size and the involvement of large corporations, it was a risky one for the firms involved as they ultimately spent over $21 million without any guarantee of recouping those costs.

"Considering the expense and time involved in prosecuting this case against well-resourced defense counsel on a purely contingent basis, with no guarantee of a positive result and ever-mounting litigation costs in excess of $21 million, risky cases such as this are not for the faint of heart," the memorandum said.  "Whereas many shied away from this litigation, the court-appointed counsel poured their heart and soul into this litigation and should be rewarded accordingly."  In June, the municipalities reached a $10.3 billion settlement with 3M, which was also sued for its role in manufacturing products using PFAS and the ensuing water contamination that allegedly happened as a result of the chemicals.

"Addressing the PFAS settlements with DuPont and 3M, this wasn't just a case for us at the PEC [plaintiffs' executive committee], but a long, uphill battle spanning half a decade," plaintiffs' attorney Paul Napoli told Law360.  "For five strenuous years, we worked relentlessly without immediate compensation, pouring significant financial resources into the case.  This endeavor saw us navigating vast expanses of documents, managing an overwhelming amount of data, and facing formidable defenses that often seemed insurmountable.  Our proposed 8% fee is not just competitive within the industry, but it reflects the hardships we faced, the risks we took, and the substantial investments we made."

Lead plaintiffs’ counsel spent nearly 415,000 hours on the litigation, according to their fee motion, with a lodestar of more than $300 million, far more than what they were asking for in the DuPont settlement.  The lodestar is the number of hours spent on a case multiplied by the average hourly rate of the lawyers.

In a declaration attached to the fee motion, Vanderbilt Law School Professor Brian Fitzpatrick said the fee request was below the norm, even for settlements worth $1 billion or more.  The average award in 36 class action settlements of that size, between 2006 and 2023, was 12.1%, he wrote.  “Arguably, an even greater percentage fee is warranted,” the motion says, “but class counsel recognizes that their efforts to resolve these claims against DuPont parallel the claims being resolved against 3M.  To request a different percentage of the fund simply because of the size of the fund was not deemed justified.”

The motion states that the fees would be considered common benefit fees and deducted from retainer fees that firms already received through their own contingency contracts.  Lead plaintiffs’ lawyers also asked for $2.1 million in costs relating to the DuPont settlement, about 10% of their total expenses when including the 3M deal.

A recent Law 360 story by Lauren Berg, “Facebook Users’ Attys Get $185M In $725M Meta Privacy Deal”, reports that counsel representing a class of more than 200 million Facebook users will take home nearly $181 million in fees and $4 million in costs after a California federal judge granted final approval to the $725 million deal resolving privacy claims over the Cambridge Analytica data harvesting scandal.  U.S. District Judge Vince Chhabria put his final stamp of approval on the $725 million settlement that the preliminarily certified class reached with Meta Platforms Inc. in December.  Judge Chhabria also awarded class counsel $180.4 million in attorney fees, which equals 25% of the settlement fund, and almost $4 million in costs, according to the simultaneously filed orders.

The fee and costs take into account amounts previously awarded to class counsel as sanctions, according to the order, including in February when Meta and its attorneys at Gibson Dunn & Crutcher LLP were ordered to pay $925,000 over their "unusually egregious and persistent" misconduct delaying discovery and gaslighting of opponents in seeking to extract a lower-priced settlement.

"The court does not take lightly the concern that a fee award equaling 25% of the settlement fund can be inappropriate in cases involving a massive monetary recovery for the class," Judge Chhabria said in the order.  "In many such cases, the 25% benchmark will be too high."  "As a result, the court has viewed the proposed fee award with greater skepticism, and less deference to the 25% benchmark, than in a typical case," he added.  "That said, the court finds that the attorneys' fee award is fair and reasonable under the percentage-of-the-recovery method."

The fee amount represents a 1.99 lodestar multiplier for roughly 150,000 hours of attorney work done over the past five years, which is below average in settlements of comparable size, the order states.  The judge said the settlement is a substantial portion of the maximum amount of damages the class could have recovered after trial and an appeal.  Novel legal issues and complicated facts, as well as Meta's resources and "aggressive approach to litigation," created a risk that the class would take home nothing — a risk shouldered by Bleichmar Fonti & Auld LLP and Keller Rohrback LLP, according to the order.  "The magnitude of the settlement fund is due more to the efforts of counsel than the size of the class," Judge Chhabria said.

The parties secured preliminary approval of the $725 million deal in March, before asking for final approval in July, in which the users touted the nearly 6% claims rate as "well above claims rates approved in other large settlements."  But objectors told the court later that month that the deal was overly broad and unfairly favorable to certain Facebook users.

Class members Stewart Harris and Ryan Cino argued that the likelihood that someone's data was compromised "almost certainly depends" on how many Facebook friends they had, which means users with fewer friends are getting just as much compensation despite having faced less risk.  And Sarah Feldman argued the settlement is too small, saying the potential damages in the case could be $6.25 billion.

At a final approval hearing in September, however, Judge Chhabria lauded the high rate of class participation, saying he was "blown away" that over 17.7 million valid claims have been submitted in what may be the largest response to a U.S. class action.  The judge granted final approval to the settlement, finding that more than 93% of the target audience of 253 million Americans had received notice of the settlement.  He also overruled the settlement's objectors.

A recent Law 360 story by Carla Baranauckas, “NJ Panel Backs Atty Fee For AG in Fight With Ammunition Co.”, reports that a Florida ammunition seller fined for illegally selling large-capacity...

Read Full Post

A recent Law 360 story by Jack Maher, “Epstein Victim Attys Want Third of $290M JPMorgan Deal”, reports that class counsel for the victims of sex trafficking committed by Jeffrey Epstein who...

Read Full Post

A recent Law 360 story by Rose Krebs, “Tesla Calls $230M Fee Bid For Pay Suit Deal ‘Unreasonable’”, reports that Tesla is opposing a $230 million attorney fee request in connection with the...

Read Full Post

A recent Law 360 story by Jeff Montgomery, “Pentwater Appeals $267M Atty Fee Award in Dell Case in Del.”, reports that a private equity investor in Dell Technologies Inc. is appealing a Chancery...

Read Full Post