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Category: Contingency Fees / POF

$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.

Attorneys Seek $11.5M in Fees in Veteran Home COVID Case

November 9, 2022

A recent Law 360 story by Chris Villani, “Attys Want $11M for $58M Vets’ Home COVID Outbreak Deal” reports that attorneys who led a class of veterans and their families to a nearly $58 million settlement with the state of Massachusetts following a deadly COVID-19 outbreak at a veterans' home asked a judge to approve their $11.5 million fee request.  Lawyers from the western Massachusetts firm of Lesser Newman Aleo & Nasser LLP told U.S. District Judge Mark G. Mastroianni that their fee request, which is unopposed by the commonwealth, is on the low end among similar settlements in the First Circuit.

The $11,512,500 request is just under 20% of the $57,912,500 legislative appropriation that covers veterans who became ill or died of COVID-19 at Holyoke Soldiers' Home between March 1, 2020, and June 23, 2020.  None of the 164 members of the settlement class have objected to the fee request, the lawyers said.  "Bringing a lawsuit of this nature is a daunting task," the memorandum states.  "It should be rewarded with a full attorney fee award, particularly in this case, where the requested fee is on the low end of the range of attorney fee awards recoveries in common fund class actions in the First Circuit and a full attorney fee award will not decrease the amounts to be received by the class members."

The settlement for the class members and the fee award were also negotiated separately in this case, the attorneys said, with just over $46 million set aside for the individual victims and their families.  Their awards, therefore, would not be reduced by the fee request, according to the memorandum.  The class lawyers also argued that awarding a lower fee could provide a disincentive for the commonwealth to settle future similar cases or take steps to prevent such tragedies from happening in the first place.  The fee award would also encourage lawyers to tackle tough cases when people are harmed by state action, the attorneys argued.

"In taking this case on, counsel was aware that the likelihood of prevailing at trial and actually recovering a judgment was, at best, difficult, [and] numerous other attorneys had declined to represent the veterans who had died of COVID-19 at the Holyoke Soldiers' Home," the document states.  "And, if the case went to trial, the firm would end up spending several million dollars' worth of billable hours, as well as incurring a minimum of $500,000 in expert fees."

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.

Construction Firm Challenges Utah’s Attorney Fee Request

October 31, 2022

A recent Law 360 story by Caleb Symons, “Utah’s $100K Atty Fee Bid Excessive Construction Co. Says” reports that one of the federal contractors working on a Colorado gold mine when it ruptured in 2015 denies owing the state of Utah more than $100,000 in attorney fees for mishandling certain records, calling the request "unreasonable" because it avoided a harsher punishment for that infraction.  The sanctions dispute — part of multidistrict litigation over the Gold King Mine blowout, which released 3 million gallons of toxic waste — centers around Utah officials' claim that Harrison Western Construction Co. withheld documents detailing its construction plans at the mine.

U.S. District Judge William P. Johnson ruled earlier this year that Harrison Western must pay the state's attorney fees in those proceedings, but the company now seeks to substantially reduce an estimate of its obligation.  Noting that the judge declined to issue a more severe punishment, the Denver-based construction firm said last week that Utah should not be allowed to recoup its full legal bill after achieving only "relatively minimal success" on its March 7 sanctions request.

Rather than covering more than $100,000 in attorney fees — which includes Utah's estimate of future expenses in the ongoing spat — Harrison Western proposed paying the state less than $29,000 for those costs.  "Given Utah did not prevail on the two primary sanctions it sought, it should not be awarded fees on fees," the company said.  "At most, it should be awarded only one-third of the attorney fees and costs sought for preparation of its fee request, as it prevailed on only one of three sanctions sought."

State authorities asked Judge Johnson in early October to approve their $105,578 sanctions bill, claiming that Harrison Western "refused to participate in a good-faith effort to resolve this motion for an award of attorneys' fees without requiring judicial intervention."  The company responded that Utah is entitled to only a fraction of that sum because the judge had approved only the "least severe" of its sanction requests.

Moreover, the state's compensation formula — based on an hourly fee of $795 for partners and $550 for associates — is well above the typical rate in both New Mexico, where the MDL is located, and the Rocky Mountain region, according to Harrison Western.  Nor has Utah shared enough information about the hours worked by its King & Spalding LLP lawyers to prove an accurate accounting, the company added.