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Fee Allocation Dispute in Dow Chemical Nuclear Pollution Class Action

November 3, 2017 | Posted in : Fee Allocation / Fee Apportionment, Fee Award, Fee Dispute, Fee Issues on Appeal, Fee Request

A recent Law 360 story by Juan Carlos Rodriguez, “Class Counsel in Dow Pollution Suit Slam Attys’ Fee Bid,” reports that lead class counsel representing residents in a $375 million settlement with Dow Chemicals Co. in a nuclear pollution suit have told the Tenth Circuit that three individual attorneys who say they were denied a share of $150 million in fees have filed a frivolous claim.

Attorneys at Berger & Montague PC said that the objectors primarily worked on the case while they were employed by Waite Schneider Bayless & Chesley Co. LPA, but that they left the firm in 2012.  By the time the fee petition in the Dow case was filed in January of this year, WSBC “was effectively being operated in bankruptcy,” Berger & Montague said.  “The objectors have filed no claim in the Ohio proceeding for their work on Cook while they were employed by WSBC, although Ohio state court is the proper forum for such claims,” Berger & Montague said.

According to Berger & Montague, WSBC did submit a timely fee application — including for time worked by the objectors — and WSBC was allocated some of the fee award.  But the three former WSBC attorneys never filed a separate petition on their own behalf.  “Nor, in connection with the fee petition filed in this case, did the objectors file anything saying, or even suggesting, that they had some ‘personal’ right to be compensated for time they spent on Cook while they were employed by WSBC," Berger & Montague said.

The three objecting attorneys, who say they worked on the 26-year-long case from 1990 until 2012, earlier this month told the 10th Circuit that it has jurisdiction over their appeal.  The three attorneys say they spent more than 4,500 hours working on the case.  The long-running matter, brought by Colorado residents who claimed injuries from exposure to waste from a nuclear weapons facility, was settled in 2016.

In response to the attorneys’ brief, Berger & Montague acknowledged that a final district court ruling on the attorney fee dispute possibly gives the appeals court jurisdiction, but said the effort remains “frivolous,” and that they may move to dismiss the appeal at the “appropriate time.”

A Colorado federal district court issued final judgment on the suit in April, granting $150 million in attorneys fees and ordering lead counsel Berger & Montague PC to allocate them to various class counsel as reflected by their contributions, according to the objecting attorneys.

“Berger refused to supply appellants with the amounts allocated to all other class counsel,” the attorneys said earlier this month.  “Berger also refused to pay appellants any portion of the $150 million fee on the legal ground that as lead counsel it could only pay fees to the now defunct law firm that employed appellants until 2012, rather than to appellants as individual class counsel.”

The case is Roselle et al. v. Berger & Montague PC, case number 17-1328, in the U.S. Court of Appeals for the Tenth Circuit.