A recent Law.com story by Brad Kutner, “Attorney Push Back on Proposed Camp Lejeune Act Attorney Fee Cap,” reports that bipartisan efforts in both the House and Senate aim to add a cap to attorneys fees on lawsuits linked to exposure to toxic chemicals at a North Carolina marine base. But attorneys who are already working with clients to get some of the $6.1 billion made available via legislation passed last summer say the suggested caps are unreasonably low and the market will better police the process.
“Passing the Camp Lejeune Justice Act was an important step toward providing long denied justice for veterans, their families, and civilian workers,” said Rep. Jerry Nadler, D-New York, when he announced the Protect Access to Justice for Veterans Act earlier this year. He said “bad actors” looking to take advantage of elderly vets were to blame for the bill.
The Camp Lejeune Justice Act signed by President Joe Biden in August, nixed the statute of limitations on claims related to hazardous chemical and water exposure at the North Carolina marine base from the 1950s until the late 80s. It defined the illnesses that can be covered and superseded the Feres doctrine, which would otherwise preclude suits from military personnel against the government. But it also lacked any cap on attorneys fees, an issue that has stirred debate among lawyers as much as elected officials.
Nadler’s effort would cap attorneys fees between 17 and 33%, depending on the services and timeline for completion of a claim. Another effort sponsored by Republicans in the Senate, the Protect Camp Lejeune VETS Act, caps fees at 12 or 17%. “In my eight years in the U.S. Senate, there are few issues I’ve been involved with that more desperately cry out for a just resolution,” said Sen. Dan Sullivan, R-Alaska, about his effort, which includes Minority Leader Mitch McConnell, R-Kentucky, among its co-sponsors.
Efforts to limit fees were also submitted last fall after the act was signed, but they failed to gain traction before the end of the 117th Congress. Now in the 118th congressional session, both bills have only been introduced, but that’s enough for lawyers working in the space to start speaking up. “These are individual cases; every one is unique,” said Baird Mandalas Brockstedt Federico & Cardea partner Philip Federico in a phone interview, about the effort his firm has already put in for the clients he’s representing in Camp Lejeune claims.
But, as Federico and other attorneys pointed out, the individual nature of every claimant and the law’s language precluding class action claims will require a lot of work. “We prepare as though we’re trying the cases,” said Beasley Allen principal Rhon Jones. His firm, along with vet disability firm Bergmann & Moore, are representing over 10,000 vets in claims under the act. Many are still in the administrative process, and he’s still weighing his options for those who may now file suit.
“There’s a lot of unknowns there. We want to be prepared to represent our clients,” he said. Notably the bill created an administrative process, managed by the U.S. Navy Judge Advocate General’s Corps, for vets to file claims with before going to court. But as the six-month window for responses has come to an end for the earliest filers, the lawsuits have started steaming in.
According to a Court Listener search, at least 47 such suits have been filed in the U.S. District Court for the Eastern District of North Carolina, where all such complaints must be filed. But the number of claims could skyrocket, with hundreds of thousands of people possibly impacted, as the administrative process has so far yielded only denials for the lawyers the National Law Journal spoke to.
In a statement, Patricia Babb, public affairs officer for the Office of the Judge Advocate General of the Navy. said the office intaking claims was “closely monitoring the number of CLJA claims it receives each week, and also continually assessing its adjudication procedures.” When asked whether any administrative claims had received payouts yet, she said no claims had “been fully adjudicated.”
As for concerns about resources to address the demand, a theory posited by Federico, Babb said the office was “taking appropriate actions to address staffing issues … when needed.” Steven German, managing partner with Scout Law firm, has about 160 clients with Camp Lejeune claims. He’s among those who’ve yet to see an approved administrative claim. But even before that administrative process starts, German said his firm is putting in work that requires reasonable compensation.
“Lots of victims are dead, so you’re working with family members. And it gets trickery when you get into the succession of the victim,” German said. He also said finding medical records, some destroyed after 10 years, can be another challenge. “It’s harder than people think, and these are the things that keep me up at night,” he said.
German also argued that concerns about unreasonable attorneys fees are overblown. Liens, hospital bills, Medicaid-owed funds and reimbursement claims such as workers’ compensation claims and veterans disability claims, can all get taken out from any settlement. “The government gets all their money back,” he said. “And the liens come off the top.”
So what may start as a 40% fee on $60,000 win, $24,000, turns into $12,000 just as quickly. “That’s a big haircut,” he said, also noting language in the bill can cause attorneys to forfeit up to one-third in fees..
Federico also expressed concern about reportedly high fees: “My father was an attorney and he always said ‘don’t tell me what you made, tell me what you ended up with,’” he said. To that end he’s promised to cap his firm’s handling of these cases at 25%, but he called the GOP-led effort to cap fees well below that “grossly unfair.”
One solution Federico offered was court intervention via a mediation process. Once the court starts taking in complaints, a judge can make a matrix for awards and injuries and start sorting claims. “We don’t need to take a decade to have this play out,” he said of the alternative. Jones, meanwhile, is hoping once suits start rolling the system will work itself out. With his thousands of clients, he’s got plenty of work to do.. “We are in the process of preparing a lot of lawsuits,” he said.