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Court Considers Sliding Scale for Attorney Fees in Antitrust Action

August 7, 2021 | Posted in : Expenses / Costs, Fee Award, Fee Calculation Method, Fee Jurisprudence, Fee Request, Fees & Judicial Discretion, Fees by Tiers / Scale, Interim Fees, Practice Area: Class Action / Mass Tort / MDL, Settlement Data / Terms

A recent Law 360 story by Celeste Bott, “Court Mulls Sliding Scale for Fees in Chicken Antitrust Suit”, reports that the Illinois federal judge overseeing price-fixing litigation against major broiler chicken producers said he's considering awarding fees on a sliding scale as class counsel seeks an interim payment of $57 million in attorney fees from a $155 million settlement.

U.S. District Judge Thomas Durkin, when granting final approval in June for a combined deal reached by a group of broiler chicken buyers and Tyson Foods and Pilgrim's Pride, held off on approving a bid by class counsel for that interim fee payment and for litigation expenses of $4.5 million, saying he may need more information before making a decision.

In a minute order, Judge Durkin said he was likely to apply a sliding scale approach in awarding class counsel fees, citing the Seventh Circuit's approach in In re Synthroid Marketing Litigation , where the amount being awarded fees went down as the settlement amount went up.  "Several courts in this district have applied the scale suggested in Synthroid.  The court's current intent is to apply such a scale to the fee award in this case," Durkin said in the order.

For example, that approach was used by an Illinois federal judge in awarding fees to class counsel who won a $34 million settlement on behalf of Chase Bank customers who claimed they were contacted on their cellphones without their permission, in one of the cases Judge Durkin cited in the district.  He ordered class counsel for the direct purchaser plaintiffs to file a brief addressing whether the application of a sliding scale is appropriate in the case and what the sliding scale should be if the court chooses to apply one, asking them to focus on any recent authorities on the issue, preferably in antitrust cases, the district and circuit.