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Category: Fee Agreement

Judge Calls Fee Disclosure in Voya Class Settlement 'Inadequate'

January 14, 2022

A recent Reuters story by Allison Frankel, “N.Y. Judge Calls Out Susman Godfrey for “Inadequate Fee Disclosure,” reports that Manhattan federal judge Kevin Castel refused this week to grant preliminary approval of a proposed $92.5 million class action settlement to resolve allegations that Voya Retirement Insurance and Annuity Company breached its contract with more than 46,000 life insurance policyholders who were subjected to a “cost of insurance” rate increase when Voya’s predecessor sold the policies to Lincoln Life and Annuity Company of New York.

The judge’s beef was not with the terms of the proposed settlement itself, which class counsel from Susman Godfrey described in a brief backing preliminary approval as “extraordinary.”  Susman Godfrey’s brief certainly establishes the firm’s tenacity in more than five years of litigation, all the way through class certification and summary judgment rulings.  The cash portion of the proposed agreement, Susman said, will provide at least as robust a recovery for policyholders as settlements that have previously been approved in other cost of insurance class actions.  And here, the firm said, the money will go straight to policyholders, who don’t even have to assert a claim to receive their share of the settlement fund.

Susman Godfrey said it intended to request a fee award of less than one-third of the settlement.  More specifically, the proposed notice to class members, attached as an exhibit to a declaration from the claims administrator, said Susman “will file a motion seeking an award for attorneys’ fees not to exceed one-third of the gross benefits provided to the settlement class.”

That mention of "gross benefits" caught Castel’s attention.  In the memo requesting preliminary approval, Susman touted the value of the non-monetary benefits it had obtained in the proposed settlement, including Voya’s pledge not to raise cost of insurance rates for class members for five years.  In an analogous class action mentioned in Susman’s motion, similar benefits were valued at more than $90 million.

Castel said it wasn’t clear from the language of the proposed class notice whether Susman Godfrey would ask for less than 33% of the cash value of the settlement – a number that would be simple for class members to calculate – or 33% of some as-yet unknown total settlement value.

“No hint is given as to the methodology that class counsel plans to employ,” Castel said, pointing out that if Susman Godfrey evaluated the non-monetary settlement provisions as generously as they were viewed in the class action cited in class counsel’s brief, one-third of the “gross benefits” could be as much as $62 million – which would give Susman Godfrey two-thirds of the cash in the settlement.  “If this is what counsel has in mind – or anything close to it – class members and the court should know it now,” Castel said.

Castel had to connect some dots to understand the potential gap between fees based on just the $92.5 million cash recovery for the class and an award that included the value of the non-cash benefits.  Susman’s memo requesting preliminary approval of the settlement does not put a dollar figure on those benefits.  Castel must have obtained the valuation figure he cited in this week’s opinion from a declaration filed by Susman’s Seth Ard.

Castel also took issue with class counsel’s proposed explanation to class members of the consequences of opting out of the settlement.  The proposed notice advised class members that they could tell the judge what they didn’t like about the settlement but would still be bound by the deal.  “This statement is fundamentally misleading,” Castel said.  “The purpose of an objection is to persuade the court not to approve the proposed settlement.  A successful objection means that the objector and other members of the class are not bound.”

Susman’s Steven Sklaver told me by email that the firm has taken Castel’s feedback to heart.  Susman intends to file a revised motion for preliminary approval clarifying that its fee request will be based only on the cash payout to class members, not on any additional value from the non-cash benefits.  “We are thankful for the court’s consideration of the matter and guidance,” Sklaver said.

Houston Attorneys Sued for $5M Over Altered Fee Agreement

December 19, 2021

A recent Law360 story by Jessica Corso, “Houston Attorneys Sued for $5M Over Altered Fee Agreement,” reports that three Houston-based attorneys are being sued for around $5 million by a former client who claims that they deceived her into changing their fee agreement during a legal fight over her late father's will.  Caroline Allison sued Jorge Borunda, Nicholas Abaza and Michael Trevino in Harris County District Court on Nov. 9, arguing that the attorneys should return most of the money she paid them to represent her in a probate dispute involving the will of her father, who died in 2017.

Allison claims that she agreed in 2019 to hire the lawyers on an hourly basis but, a year later, they asked for a change to a contingency fee agreement whereby they would get 35% of any money or assets she collected from her father's estate.  According to the lawsuit, the lawyers made Allison believe that the case would go to trial and end up costing a lot of money.  In reality, they knew that her father's second wife, with whom Allison was fighting over the estate, was close to a settlement at the time they asked for the 35% fee, according to the lawsuit.

"By October of 2020, the lawyers determined that the estate was worth more than $18 million," according to the complaint. "Unsatisfied with their current arrangement with Caroline, and with dollar signs in their eyes, the lawyers set upon a course of conduct to fraudulently induce Caroline to change her agreement from an hourly rate to a contingency fee."  Six months after signing the new contingency agreement, the case settled, with Allison and her brother, who had also hired Borunda and Abaza, together receiving around $9.5 million, according to the lawsuit.

Allison claims that she ended up paying the lawyers $1.65 million more than she would have had she stuck to an hourly rate.  She is suing for that money back, plus treble damages she said she was owed under the Texas Deceptive Trade Practices Act.  She is alleging violations of the Texas law, as well as negligence, breach of fiduciary duty and fraud.

Dentons Wants Out of Japanese Billionaire’s $50M Fee Dispute

December 18, 2021

A recent Law360 story by David Thomas, “Dentons Wants Out of Japanese Billionaire’s $50M Fee Fight With Law Firm,” reports that Global law firm Dentons asked to withdraw from representing a Japanese pachinko billionaire in a $50 million legal fee fight with Chicago-based litigation firm Bartlit Beck.  Dentons partners Alex Gude, Meaghan Klem Haller and Robert Richards told U.S. District Judge John Kness in Chicago that there was "an irretrievable breakdown" in their attorney relationship with client Kazuo Okada.

They did not say why the relationship soured but said Okada consents to the firm's withdrawal.  They asked for deadlines in the case to be extended by two months so Okada can find new counsel.  The Chicago-based 7th U.S. Court of Appeals last month appeared skeptical of Dentons' arguments that Okada shouldn't be forced to pay $50 million in legal fees to Bartlit Beck stemming from an earlier court fight with Wynn Resorts Ltd.

Okada hired Bartlit Beck to represent him in a lawsuit against Wynn Resorts after the U.S. casino giant forced Okada's Universal Entertainment Corp to sell back its stake in the company at a discount following an internal anti-corruption investigation.  That case settled in March 2018 for $2.6 billion.

Bartlit Beck, a firm specializing in high-stakes litigation founded by ex-Kirkland & Ellis partners, took Okada to arbitration after he failed to pay $50 million it claimed he owed in legal fees.  Okada withdrew from the arbitration proceedings days before a U.S.-based evidentiary hearing in October 2019, arguing his engagement agreement with the firm was invalid.  Okada also said he was unable to travel due to his health.  The arbitration panel awarded Bartlit Beck $50 million by default in 2019.  Kness ordered Okada to pay Bartlit Beck in March, sparking the appeal.  The 7th Circuit's decision is still pending.

Taylor English Seeks $2.8M in Fees From Former Client

December 15, 2021

A recent Law360 story by Emily Sides, “Taylor English Seeks $2.8M in Fees From Ex-Client,” reports that a Texas-based oil and gas corporation owes Taylor English Duma LLP over $2.8 million for nearly 3,000 unpaid billable hours, expenses and interest, according to a suit the law firm filed in Georgia state court.  Frontera Resources Corp. reneged on its February 2019 retainer agreement with the Atlanta-headquartered law firm, according to the six-page complaint by Taylor English.  In addition to the over $2.1 million for unpaid legal work and expenses and $721,655 in interest, Taylor English wants its ex-client to reimburse the firm's attorney fees for having to pursue the payment litigation.

The complaint alleges one count of breach of contract, one count of unjust enrichment and one count of account stated against Houston-based Frontera Resources.  As part of alleging account stated, Taylor English said that the total sum is the correct amount that Frontera Resources owes. Taylor English referred to a state law that states that a defendant in an action must either deny the debt or reply with how much is truly owed to the plaintiff.  According to Taylor English, the corporation had retained the firm and agreed to pay up to $795 an hour for legal services.

"At [Taylor English's] expense, [Frontera Resources] has been unjustly enriched through the conduct described above, and [Taylor English] is entitled to be compensated for the benefit that [Frontera Resources] has enjoyed and will enjoy as a result of its receipt of the services provided to it under the engagement agreement," Taylor English said in its complaint.  In a two-page letter dated Feb. 8, 2019, Bryce D. Linsenmayer of Taylor English thanked Levan Bakhutashvili of Frontera Resources for agreeing to retain the firm.  Linsenmayer outlined terms of their agreement, including how Frontera was responsible for paying for any legal services provided and for any interest accrued for an unpaid balance.

"Our firm customarily asks for a retainer at the outset for a new client engagement but we have agreed to forgo a retainer at this time," Linsenmayer said in the letter.  "In addition to our fees, you will be responsible for expenses in connection with this engagement, including travel, filing fees, courts costs, postage, online research fees and governmental filing fees, if necessary," Linsenmayer said in the letter.  "You may terminate this agreement with us at any time, but we are entitled to the full amount of fees earned."

Law Firm Accessed of Overbilling in New Jersey Litigation

December 12, 2021

A recent Law360 story by Jeannie O’Sullivan, Sills Cummis Accused of Overbilling in Rock Musician Suit,” reports that the former manager for Nile Rodgers has accused Sills Cummis & Gross PC of overbilling him in connection with contract claims against the musician and then abandoning the case, according to an amended complaint filed in New Jersey state court.  In a filing, Peter Herman said Sills Cummis and firm member Joseph B. Fiorenzo failed to honor negotiated bill corrections, charged "patently unreasonable fees" for unnecessary outside work and then withdrew from the matter, leaving him to fend for himself in court.

The firm has since demanded that the $315,000 settlement in the underlying matter be held in escrow to settle its claim against Herman for fees, according to the complaint, filed in Essex County Superior Court.  "As of the date of this complaint, Herman has received nothing of the settlement proceeds," the complaint said.  Herman hired Sills Cummis under a $20,000 retainer agreement that set forth hourly fees for the lawyers assigned to the case, according to the complaint.  Herman claimed he informed the firm that he only had $100,000 for legal fees.

The firm charged Herman "in excess of" $618,000 in connection with the civil matter and sought to collect on the whole amount, despite an agreement in which the parties had negotiated reductions, the complaint said.  The rates charged "far exceeded rates for similarly situated New Jersey based law firms," the complaint said.  Herman alleged that Fiorenzo informed him that the firm would no longer work on his file and would move to withdraw, forcing Herman "to negotiate directly with Nile Rodgers and accept a settlement far less than what was reasonable."  That settlement is now tied up in escrow, the complaint said.

The seven-count complaint says that the firm violated professional conduct rules requiring attorneys "to charge fair and reasonable fees and disbursements," and that the retainer agreement, which includes an arbitration clause, is "null, void and of no force and effect."  The fact that the settlement is escrowed constitutes a breach of the firm's agreement with Herman, and the firm's failure to cap its fees amounts to converting Herman's assets for its own benefit, the complaint says.

Herman also claimed that Fiorenzo made false statements "regarding his extensive experience and personal involvement" with the matter. The bills showed Fiorenzo "spent little time on the matter," the complaint said.  The complaint goes on to say that a conflict of interest arose when the defendants demanded Herman pay the fees or face a motion to withdraw.  Their service to Herman would be "materially affected by defendants' interest in their fee claim," the complaint said.  Herman wants compensatory and punitive damages, release of the escrow funds, and attorney fees and other costs. 

Article: What is a Legal Fee Audit?

October 7, 2021

A recent article by Jacqueline Vinaccia of Vanst Law LLP in San Diego “What is a Legal Fee Audit?,” reports on legal fee audits.  This article was posted with permission.  The article...

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