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 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 Celeste Bott, “7^th Circ. Scraps $57M Chicken Price-Fixing Atty Fee”, reports that the Seventh Circuit threw out a $57 million attorney fee award in a $181 million deal for chicken buyers in sprawling antitrust litigation, saying that the district court failed to consider bids made by class counsel in auctions in other cases and fee awards in different circuits.  Objector John Andren had taken issue with the roughly one-third cut of the settlement that Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC were to receive in a deal the firms had struck with Fieldale Farms, Peco Foods, George's, Tyson Foods, Pilgrim's Pride and Mar-Jac Poultry in the sprawling antitrust case.

A three-judge Seventh Circuit panel complimented the lower court for its "fine job of shepherding" the complex litigation, but said it made a mistake when it discounted bids made by one of the two firms serving as class counsel in other cases because the proposals had declining fee scale award structures.  The published opinion concluded that "it was error to suggest that this court has cast doubt on the consideration of declining fee scale bids in all cases."

"In the district court's view, this court has explained that these awards do not reflect market realities and impose a perverse incentive insofar as they ensure that attorneys' opportunity cost will exceed the benefits of seeking a larger recovery, even when the client would otherwise benefit," the panel said.  "Yet, this court has never categorically rejected consideration of bids with declining fee scale award structures.  Rather, the nature of the typical costs in litigation must be assessed in determining whether counsel and plaintiffs would have bargained ex ante for such a structure."

The Seventh Circuit has observed that such a fee structure, where the amount being awarded in fees goes down as the settlement amount goes up, can present certain advantages, and the appellate court took that approach in another case — In re: Synthroid Marketing Litigation — which was a class action suit against the manufacturer of a synthetic thyroid drug.

"Fees do not always decline for securing a larger recovery, and in those instances, counsel will have an incentive to seek more," the panel said.  "Accordingly, the appropriateness of a declining fee scale award structure may depend on the particulars of the case.  It was an abuse of discretion to rule that bids with declining fee structures should categorically be given little weight in assessing fees."

Andren had also argued that the lower court should have taken into account that class counsel frequently did work in Ninth Circuit district courts, which employ a lower 25% "benchmark" for presumptively reasonable attorney fees.  The appellate panel agreed that the district judge shouldn't have categorically assigned less weight to Ninth Circuit cases in which counsel was awarded fees under a mega-fund rule.

"It is true that this court has rejected the application of a mega-fund rule.  Yet, continued participation in litigation in the Ninth Circuit is an economic choice that informs the price of class counsel's legal services and the bargain they may have struck," the panel said.  "The district court should have considered where class counsel's economic behavior falls on this spectrum and assigned appropriate weight to fees awarded in out-of-circuit litigation."

In addition to vacating the fee award, the panel remanded the matter for "greater explanation and consideration" of the factors it laid out, noting that it expressed no preference as to the amount or structure of the award, just the need for further review.

A recent Law 360 story by Bonnie Eslinger, “Del Taco ‘Perplexed’ By Atty Fee Bid in $50M Deal”, reports that a California judge who tentatively awarded Del Taco workers' attorneys $12.5 million in fees for their work securing a $50 million wage deal said he's "perplexed" by their arguments for $16.7 million, saying they should have included legal authorities supporting the higher amount in an earlier court filing.  In his tentative ruling, Alameda County Superior Court Judge Evelio Grillo largely signed off on the $50 million deal, which settles wage and hour claims filed on behalf of more than 50,000 workers and also allegations of California labor code violations filed under the state's Private Attorneys General Act.  With regard to attorney fees, the court awarded a 25% cut of the $50 million, less than the one-third share requested.

At the start of a hearing held via Zoom, Judge Grillo told lawyers for the fast-food workers that he had tried to be responsive to arguments they had previously made in support of their fee request, but "I understand that you're still not happy with what I did."  Matthew Matern of Matern Law Group PC, a lawyer for the workers, said while they appreciated the court's consideration of their arguments, there was no reason not to award 30% or more in fees.  Among the cases he cited in support of his argument was a 2006 decision in Allapattah Services, Inc. v. Exxon Corp, awarding attorneys 31.33% of a $1.075 billion settlement.

"There were many other cases," Matern told the court. "And in many of those cases, the multipliers were very high as well."  Judge Grillo noted that the last time plaintiffs' counsel argued for a higher fee percentage they cited two cases.  "You argued successfully that the court should consider a higher multiplier," the judge said.  "And that's what I did."

Matern argued that the multiplier — an amount the total fees are multiplied by in determining a fee award — should be used simply as a "cross-check" to see whether the percentage awarded of the total settlement is reasonable.

Judge Grillo asked what the multiplier would be for in the case before him if he was to award 30% of the settlement to the lawyers. Matern said it would be about 6.5.  "There are many cases where it's over that," Matern told the court, saying that in the 1995 Weiss v. Mercedes-Benz of North America ruling has a 9.3 multiplier for the attorney fees.

The judge could find additional cases in support of the fee argument cited within a 2017 district court decision In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation, which was affirmed by the Ninth Circuit, Matern said.  Another case in support of high multipliers, Matern told the court, is In re Merry-Go-Round Enterprises, Inc., a 2000 case in Maryland federal court.

"That one was a bankruptcy case, and they awarded a 19.6 multiplier on a 40% fee out of a $185 million fund," Matern said.  Ultimately, the court should grant the requested fees, because the lawyers for the Del Taco workers achieved an exceptional result, Matern argued.

"It was obtained for the class and this wouldn't have happened without the exceptional work we did and the substantial risk," the lawyer said.  Judge Grillo said he'd look at the other cases the lawyer cited.  "I'm a little bit... 'perplexed' is not the right word, but for lack of a better word, perplexed because you did cite me a couple of cases and I did read them," the judge said.

The judge had previously suggested that a multiplier used in a case affirmed by the Ninth Circuit, Vizcaino v. Microsoft Corp., was appropriate, Mattern noted.  Then, after the plaintiffs had highlighted a different case for the court, Steiner v. Am. Broad. Co., in which the Ninth Circuit concluded that a 6.85 multiplier "fell within the range of multipliers that courts have allowed," it appeared that Judge Grillo had picked a multiplier between those two, the lawyer said.  But in the Vizcaino case that was a 28% fee cut, so the court used the 3.96 multiplier, "because that's what it took to get to the 28% that they awarded," the lawyer said. "So it was merely just cross-checking."

The judge said he understood the argument, and he would put out a ruling later.  "You gave me the authorities, I considered them, and now you're suggesting that there are other authorities that I should consider," the judge said. "I'll do that.  But you know, it would have been nice to have them, to have those arguments initially."  According to the judge's tentative ruling, the lawyers for the plaintiff told the court they spent 3,140.8 attorney hours and 1,231.0 support staff hours for a total of 4,371.8 hours on the case.

The settlement also proposed a service award of $20,000 to the main plaintiff, Karolina Torrez.  In his tentative ruling, the judge said after factoring in administration costs, a PAGA payment of $1.5 million, awards for other plaintiffs, and litigation expenses, the amount left to distribute to the class would be just over $30.7 million, providing an average payment per class member of about $615.

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