October 17, 2023
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.