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Category: Legislation / Politics

Article: Why the Catalyst Theory Matters in Class Actions

March 11, 2024

A recent Law.com article by Adam J. Levitt, “Arguing Class Actions: Why the Catalyst Theory Matters”, examines the catalyst theory in class action litigation.  This article was posted with permission.  The article reads:

The story presents a conundrum.  Plaintiffs file a class action, which the defendant initially resists.  Plaintiffs counsel spends hundreds of thousands of dollars (or more) in lodestar and costs prosecuting the case, but after potentially years of hotly contested litigation, the defendant issues a recall or announces a refund program that fixes the problem and then argues that the case is moot.  The question: Should those who filed this case, and consequently induced (or “catalyzed”) the defendant to fix the problem, be paid?

The right answer is obvious.  Of course the plaintiffs lawyers should be paid.  Without plaintiffs counsel’s actions and active litigation threat, the defendant would have never changed its behavior, ultimately for consumers’ benefit.  The law routinely rewards those who confer benefits on others, even in the absence of, say, a contractual guarantee (as with the doctrine of quantum meruit).  In short, nobody works for free.  Nobody, as some would have it, except plaintiffs lawyers.

The Rise and Fall of the Catalyst Theory

Rewarding lawyers for catalyzing a change used to be noncontroversial. See, e.g., Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) (“a plaintiff whose lawsuit has been the catalyst in bringing about a goal sought in litigation, by threat of victory … has prevailed for purposes of an attorney’s fee claim…”); Pembroke v. Wood Cnty., Texas, 981 F.2d 225, 231 (5th Cir. 1993) (recognizing viability of catalyst theory); Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 132 (3d Cir. 1991) (same).

But the law became murkier in May 2001, with the U.S. Supreme Court’s decision in Buckhannon Bd. & Care Home v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S. 598 (2001).  There, an assisted living facility sued West Virginia, arguing that a regulation violated the Fair Housing Amendments Act.  After the suit was filed, the Legislature removed the regulation, mooting the case.

In a 5-4 decision, the Supreme Court ruled that the plaintiff was not a “prevailing party” for purposes of the applicable fee-shifting statute.  Discarding the “catalyst theory,” it ruled that: “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change” sufficient to make the plaintiff a “prevailing party.” Id. at 605.  As Justice Ruth Bader Ginsburg explained in her dissent, the Buckhannon decision frustrates the goals of the catalyst theory because it “allows a defendant to escape a statutory obligation to pay a plaintiff’s counsel fees, even though the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint.” Id. at 622 (Ginsburg, J., dissenting).

The Catalyst Theory Today

Notwithstanding the Buckhannon decision, the catalyst theory remains a powerful tool outside of Buckhannon’s specific context.

First, Buckhannon has no bearing on state causes of action.  In California, Cal. Code Civ. Proc. §1021.5 allows a court to award fees to a “successful” party.  The California Supreme Court has explained it takes a “broad, pragmatic view of what constitutes a ‘successful party,’” Graham v. DaimlerChrysler, 34 Cal. 4th 553, 565 (2004), and explicitly endorsed the “catalyst theory [as] an application of the … principle that courts look to the practical impact of the public interest litigation in order to determine whether the party was successful.” Id. at 566.  In short, it disagreed with the U.S. Supreme Court regarding what it means to “prevail” or “succeed” in a litigation.

The catalyst theory has also largely survived in the context of favorable settlements.  For example, in Mady v. DaimlerChrysler, 59 So.3d 1129 (Fla. 2011), the Supreme Court of Florida considered an award of attorney fees to a consumer who accepted defendant’s offer of judgment, an offer that neither conceded liability nor plaintiff’s entitlement to fees, in a case filed under the Magnuson Moss Warranty Act (MMWA), which guarantees fees to a “prevailing party.” Id. at 1131.  Explicitly considering and distinguishing Buckhannon, the court found that a party may “prevail” with a settlement.  In doing so, it rearticulated the logic underpinning the catalyst theory:

[The plaintiff] achieved the same result with a monetary settlement only after being forced to bear all of the costs and expenses associated with litigation and facing the statutory penalty if the offer of judgment had not been accepted. DaimlerChrysler could have resolved this dispute during the “informal dispute settlement” phase, but instead waited until after [plaintiff] was forced to commence this action and incur the expenses of this litigation. Id. at 1133.

Further, even in federal court, attorney fees may be awarded under statutes other than those limiting such awards to “prevailing” parties.  For example, in Templin v. Indep. Blue Cross, 785 F.3d 861 (3d Cir. 2015), the Third Circuit explained that a fee may be awarded for an Employee Retirement Income Security Act claim under the catalyst theory, because ERISA does not limit fee awards to the “prevailing party.” 785 F.3d at 865.  Including the Third Circuit, at least five circuits have endorsed the catalyst theory under such statutes: Scarangella v. Group Health, 731 F.3d 146, 154–55 (2d Cir. 2013); Ohio River Valley Env’l Coalition v. Green Valley Coal, 511 F.3d 407, 414 (4th Cir. 2007); Sierra Club v. Env’l Protection Agency, 322 F.3d 718, 726 (D.C. Cir. 2003); Loggerhead Turtle v. Cty. Council, 307 F.3d 1318, 1325 (11th Cir. 2002).

Despite the ongoing recognition of the catalyst theory in many contexts, there remains the risk that courts may apply the catalyst theory narrowly, or that defendants may find a way around it. Consider Gordon v. Tootsie Roll Indus., 810 F. App’x 495, 496 (9th Cir. 2020), a “slack-fill” case in which the plaintiff alleged that the defendant’s boxes of Junior Mints were mostly air.  After the plaintiff moved for class certification, the defendant changed the box’s label.  The plaintiffs dismissed and moved for fees.

The fee application was denied because “Gordon’s theory of the case was that the size of the box was itself misleading, and that Tootsie Roll should either fill the Products’ box with more candy to account for the size of the box … or shrink the box to accurately represent the amount of the candy product therein[, and] Tootsie Roll did not make either of these changes.” Id. at 497 (internal quotation omitted).  Considering the disincentives (or, conversely, the moral hazards) that arise from this type of narrow application of the catalyst theory, courts should take a decidedly more equitable view when adjudicating this important issue.

A Way Forward

For practitioners, a few lessons come out of this case law and history.  First, in writing their complaint, attorneys must think through the various paths that a company might take to remedy the purported harm.  Recall that in Gordon, the plaintiff focused entirely on the misleading box, but not on the misleading labeling. Second, favorable settlements and offers of judgment remain viable tools, and may support a catalyst theory attorney-fee payment even if the defendant resists paying fees in the settlement itself.  Finally, despite Buckhannon, the catalyst theory remains readily available under a host of statutes (state and federal).  In relying on citing those statutes, plaintiffs should not shy away from the catalyst theory’s compelling logic.  Courts understand that basic fairness requires that attorneys be paid if their lawsuit ultimately confers a significant benefit.  Nobody should work for free.  Not even plaintiffs lawyers.

Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups.  DiCello Levitt senior counsel Daniel Schwartz also contributed to this article.

Article: Understanding Attorney Fee-Shifting to Mitigate Risk

December 5, 2023

A recent Business Insurance article by Iran Valentin and Allison Scott, “Perspectives: Understanding Attorney Fee Shifting to Mitigate Exposures”, reports on the importance of understanding attorney fee-shifting in litigation to mitigate risk.  This article was posted with permission.  The article reads:

The availability of attorneys fees is a significant concern to policyholders.  Without the potential to recover the fees, most dubious claims and suits related to employment law and consumer protection, for example, would not be pursued.  The potential of a fee recovery also drives up the cost of resultant litigation, settlements and awards.  Thus, a double-headed monster emerges: an increase in the number of claims and an increase in exposure, which can eventually drive up the costs of insurance.

An existential threat that exists for corporations is a “nuclear verdict,” or a runaway jury award.  These huge verdicts grew in the face of incessant legal advertising by plaintiffs attorneys and the resultant slanted narrative effectively desensitized potential jurors to the value of money and preemptively taints prospective jury pools.

Within this context, it is more important than ever for insurance professionals and defense counsel to understand the significance of attorney-fee shifting.  When crafting a defense strategy, many factors are considered, including the nature of the alleged loss, the profiles of the litigants, the reputation of the claimants’ counsel, recent jury verdicts and the jurisdiction.  Equally as important should be considering the effect of fee-shifting, to develop strategies to mitigate that exposure.

Remedial legislation

Basically, fee-shifting requires a losing party in litigation to pay a prevailing party’s attorneys fees.  It represents a departure from the “American Rule,” which generally provides that each party to a litigation will bear their own fees.  However, fee-shifting statutes have continued to grow, especially in the areas of employment and consumer protection, or so-called remedial legislation.

One of the purposes of remedial legislation is to introduce policies intended to benefit the public good, including anti-discrimination, anti-retaliation and consumer protection.  The policies enable fee-shifting provisions so alleged victims have access to competent legal representation.  It is not always the alleged victims who seek vindication, but rather lawyers who make a market in an area where attorneys fees are available.

Fee-shifting is sometimes a misnomer, as the availability of fees under enabling law is often limited to a prevailing plaintiff, as opposed to a prevailing defendant.  Under those laws, legislators seek to avoid the creation of a “chilling effect,” in dissuading potential plaintiffs and their lawyers from pursuing a claim.

Some laws allow for more traditional fee-shifting, by allowing prevailing defendants to recover defense fees for claims that lack merit or are brought in bad faith.  While a prevailing party may be awarded fees under a fee-shifting law, there is often attendant litigation over who constitutes a “prevailing party.”  Generally, a prevailing party is one who achieves a substantial proportion of the relief sought, whether or not that party actually obtains a verdict.  Courts have held that parties may not only prevail by judgment but also by compromise or settlement. 

In at least one jurisdiction, fee-shifting has also been made available in the professional liability context.  In New Jersey, the precedential 1996 case of Saffer v. Willoughby allowed a successful plaintiff to recover attorneys fees in prosecuting a legal malpractice action.  The New Jersey Supreme Court held that a negligent attorney is responsible for resulting legal fees and costs.  Interestingly, those fees were not considered fee-shifting, but “consequential damages” flowing from the attorney’s negligence.  New Jersey courts also allow recovery of fees by a third-party if the attorney intentionally breaches a recognized duty owed to a non-client, such as when serving as a fiduciary. 

The “common fund” and “substantial benefit” doctrines are also court-created fee-shifting mechanisms.  The common fund doctrine applies where litigation has created or preserved a common fund for the benefit of a group of people — such as a class action — and, accordingly, an attorney may be awarded attorneys fees out of that fund.  The substantial benefit doctrine applies if a judgment confers a substantial benefit on a defendant, such as in a corporate derivative action, which could lead to the payment by the defendant of the attorneys fees incurred by the plaintiff. 

Outside of the statutory and court-created fee-shifting framework, parties to a contract may agree to fee-shifting provisions.  Commercial contracts quite commonly contain default provisions that call for the payment of attorneys fees to a prevailing party in a dispute to enforce the terms of the agreement.

In most jurisdictions, attorneys fees that are awarded pursuant to a fee-shifting statute are calculated by setting a “lodestar,” which is the number of hours reasonably expended by an attorney multiplied by a reasonable hourly rate in the jurisdiction. Courts have the flexibility to adjust the lodestar considering certain factors, such as the results obtained by the attorney; the time and labor required to obtain that result; the attorney’s skill; the attorney’s customary fee; the amount of money involved in the claim; and awards in similar cases.

If the prevailing party has only achieved partial or limited success, the requested lodestar may be considered excessive and reduced.  Moreover, the attorney’s presentation of time billed must be set forth with sufficient detail, based on appropriate rates and in compliance with the jurisdiction’s ethical requirements.

Determining exposure

When a claim arises, insurance professionals and defense counsel should determine whether the policyholder is exposed to any court rule, statute, regulation or case law that allows fee-shifting or an award of attorneys fees.  They should also conduct an early assessment of liability and damages and consider early avenues to resolution to mitigate the exposure to fee-shifting.  Depending on the jurisdiction, defense counsel may be able to craft strategies designed to cabin the availability of attorneys fees, helping to drive resolution.  These are good faith strategies and methods employed during a case to drive resolution and also mitigate the exposure to attorneys fees. 

Often, a reasonable settlement curbing increased fees and costs is the second-best result outside of obtaining an early dismissal.  However, it is important to take care during settlement negotiations and the drafting of settlement agreements, releases and stipulations resolving litigation to account for attorneys fees and costs.  Lack of attention or poor drafting could result in unintended consequences, including the imposition of a fee award. 

When an adverse judgment calls for the imposition of an award of attorneys fees, strategies can still be employed to curb a disproportionately excessive fee claim, by relying on mitigation strategies employed at the outset designed to limit the recovery of fees; exposing the limited success of a claimant; exposing an adversary’s wastefulness during the dispute; questioning the proofs submitted in support of the fee claim; and otherwise contesting the reasonableness of the fee claim.

Iram Valentin is co-chair of the professional liability practice group in the Hackensack, New Jersey, office of Kaufman Dolowich LLP.   Allison Scott is an associate at the firm.

Does New Texas Law Cut Out Attorney Fees?

October 6, 2023

A recent Law.com story by Adolfo Pesquera, “Does New Insurance Law Cut Out Attorney Fees? High Court to Decide”, reports that the Texas Supreme Court justices responding to a federal appellate certified question appeared perplexed about the lack of guidance on how or if attorneys could get paid on property-damage insurance claims.  The justices heard oral argument on Rodriguez v. Safeco Ins. Co. of Indiana, a case that came to them from the U.S. Court of Appeals for the Fifth Circuit.  A federal trial court granted the insurer summary judgment and the homeowner appealed.

The appeal argued that when Safeco invoked the policy appraisal provision after litigation began, and paid damages and interest, a Texas insurance law created by the legislature in 2017 did not intend to eliminate attorney fees.  In examining the 2017 Texas Prompt Payment and Claims Act, the Fifth Circuit decided it could not interpret the law and asked the Supreme Court to weigh in on the issue.

Melissa W. Wray of Daly & Black, arguing for the homeowner, said the intent of the law is to promote prompt payment of insurance claims by imposing liability for statutory interest, attorney fees and prejudgment interest on insurers who do not pay claims in accord with the act’s deadline.

“Safeco asks the court to adopt an interpretation of the statute that would, in the context of attorneys fees, ignore the claim payment deadlines that the legislature has put in place and effectively redefine prompt payment of a claim to mean payment of a claim at any time up until the moment before the trial judge enters the final judgment,” Wray said.

Throughout the hearing, the justices grappled with a phrase in the law—”the amount to be awarded in the judgment”—and Justice Brett Busby began by referring to caselaw, Ortiz v. State Farm Lloyds (Texas 2019), where the supreme court said there is no claim for breach of contract when the insurer pays the appraisal award.  “So, wouldn’t the ‘amount to be awarded’ in the judgment for your claim under the insurance policy be zero?” Busby asked.

Wray drew a distinction, moving away from a breach of contract claim, to argue damages was not necessarily relevant to an “amount to be awarded,” because the only defined term in the statute was a “claim.”  “Safeco wants to interpret that as the amount of unpaid policy benefits for which the insurer remains liable at the time of judgment.  Those words aren’t used in the statute,” Wray said.

When Safeco’s representative, Mark D. Tillman of Tillman Batchelor, rose to speak, the justices repeatedly tried to pin him down on when the language of the statute allegedly read attorney fees out of the act.  “There has to be the possibility that a plaintiff can obtain a judgment,” Tillman argued.  “The legislature clearly tied the ability to award attorney’s fees to, in the future, obtain a judgment. That simply cannot happen here.”  Justices Busby, Jeff Boyd and Evan Young took turns arguing that point.

Boyd said Tillman was embracing the absurd argument that, speaking hypothetically, a $50 million building could be destroyed and insurance company disagrees with the amount damages claimed.  “You have five years of litigation, finally get to a jury trial, the jury finds for the insured, and you file your JNOV and the judge denies it and the judge says ‘send me an order.  I’m going to sign a final judgment awarding all this money,’ and your client at that moment can write a check and avoid all attorney’s fees,” Boyd said.

Busby jumped in, “You’re getting back to my question then.  Where is the moment … when you’re looking at what is ‘to be awarded?’  To Boyd’s point, it’s not the day before the judgment is signed.  So in the life of the case, when is it?”

Tillman said that in this particular case, the appraisal amount was paid immediately.  “I understand, but we have to write the rule not just for your case,” Busby said.  Justice Young asked, “What will inform the answer to that question if it’s not in the text of the statute?”  Tillman finally said he did not know.  Then we go right back to Justice Boyd’s hypothetical.  I’m with him.  I don’t understand where the line is if that’s the only thing the statue says and the only thing we’re guided by,” Young said.

Tillman argued Boyd’s hypothetical scenario was an extreme case and one he had never encountered in the real world.  He told the court not to “throw the baby out with the bathwater” using an extreme example to overturn a statute intended to curb abuses by trial attorneys that led to its passage in the first place.  “Then why not just embrace it and say, ‘Yeah, that’s an extreme hypothetical, not going to happen, but the statute says it and if it’s a problem there’s no judicially discernable way to draw that line, leave it to the legislature to fix that,” Young suggested.

In a First, Prevailing Defendant Seeks Fees in BIPA Class Action

July 21, 2023

A recent Law 360 story by Celeste Bott, “In a First, Dior Wants Fee Award For Beating BIPA Suit”, reports that Christian Dior says it should be the first defendant awarded attorney fees in a case under Illinois' biometric privacy law, urging a federal judge who threw out class claims against it to reject the argument that the law only allows for the recovery of fees for prevailing plaintiffs.  U.S. District Judge Elaine Bucklo in February dismissed the Illinois Biometric Information Privacy Act suit brought by lead plaintiff Delma Warmack-Stillwell, holding that an exemption under BIPA for data captured "from a patient in a health care setting" freed Christian Dior Inc. from the suit over its online tool for users to virtually try on sunglasses.

Warmack-Stillwell qualified as a patient because Dior's virtual try-on tool "facilitates the provision of a medical device that protects vision," the judge said.  In May, Dior argued that Judge Bucklo should award it attorney fees and costs, saying BIPA's plain language makes clear that a "prevailing party" may recover its attorney fees and that the Illinois Supreme Court has held that prevailing parties include defendants.

Dior claimed those fees were particularly warranted in this case, citing two other lawsuits that were dismissed by Illinois federal judges under the same health care exemption — one before Warmack-Stillwell's case was filed and one tossed about a week after hers was filed.  "These decisions were dispositive of this case, such that pursuing these claims would necessarily be wasteful," Dior claimed. "Plaintiff filed and pursued a lawsuit premised on a repeatedly-rejected theory of liability and increased the costs of this lawsuit with wasteful discovery demands."

Warmack-Stillwell, meanwhile, contends that no BIPA case has ever awarded fees to a defendant and says that BIPA provides a "prevailing party" may seek to recover its fees "for each violation," a phrase that necessarily implies further the word "proven" and therefore applies only to plaintiffs, she said.

In Dior's response contesting that interpretation, it cited the Illinois Supreme Court's recent holding in Cothron v. White Castle, which said claims accrue each time data is unlawfully collected and disclosed rather than simply the first time.  There, the justices cautioned against an "interpretation-by-assumption approach in the context of BIPA itself" by forbidding parties from creating "new elements or limitations not included by the legislature."

"In Cothron, it acknowledged that its ruling could result in 'annihilative liability' and that 'there is no language in [BIPA] suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business,'" Dior said.  "And yet, because it found the statutory language was clear, those sort of policy judgments are reserved for the legislature. The same result applies here."

Judge Bucklo should also reject the plaintiff's other argument that the term "prevailing party" in BIPA should exclude defendants because the law's purpose is to protect consumers, Dior said in its reply.  "Of course, the Illinois Consumer Fraud Act was also intended to protect consumers, but that did not stop the Supreme Court from holding that its prevailing party provision applied to prevailing defendants as well," Dior said.

Attorneys Push Back on Attorney Fee Cap in Camp Lejeune Act

April 6, 2023

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.