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Judge Approves $150M in Fees in Decades Long Rocky Flats Litigation

April 10, 2017 | Posted in : Contingency Fees / POF, Expenses / Costs, Fee Award, Fee Award Factors, Fee Request

A recent Law 360 story by Suevon Lee, “Judge OKs $150M in Fees in Dow, Boeing Nuke Pollution Suit,” reports that counsel for the Colorado residents who achieved a $375 million settlement with Dow Chemical Co. and a Boeing-owned former Rockwell subsidiary over nuclear waste pollution secured $150 million in attorneys’ fees Friday when a federal judge signed off on the bid.

The fees represent 40 percent of the total settlement, a figure justified by the case’s lengthy history — it is nearly three decades in the making — class counsel’s decision to take on the case on a contingency basis and a slew of other factors, including the number of published decisions generated by the district court, two separate appeals and two separate rounds of briefing before the U.S. Supreme Court, Senior U.S. District Judge John L. Kane said.

“Other courts, including within this circuit, have acknowledged that a forty percent fee falls within an acceptable range of fee awards, even though none of those other cases even approached the considerable risk, length, and complexity of this litigation,” he wrote in the order.  In addition to the $150 million in fees, the court granted class counsel’s request for $7 million in costs per a separate order.

The landmark settlement — reached in May 2016 -- relates to a 1990 lawsuit filed by Colorado residents who lived near a nuclear weapons facility known as the Rocky Flats nuclear weapons plant.  They brought claims of personal injury and property damage, soon after a 1989 Federal Bureau of Investigation raid that unearthed evidence of environmental crimes.  The plant, located 16 miles outside Denver, and which shuttered in 1992, was established by the federal government to produce nuclear weapons during the Cold War.  Dow operated the plant from 1952 to 1975, and Rockwell operated it from 1975 to 1989.

The 27-year-old case carved out a lengthy procedural history, including a 2006 jury verdict that awarded the class $177 million that was overturned by the Tenth Circuit, Dow’s petitions to the Supreme Court and 14 published opinions at the district court level.  The case generated more than 2,400 entries at the district court level that earned it the distinction of wielding the largest docket of any District of Colorado case to date, the court noted in May 2016.

The Colorado federal jury had found Dow and Rockwell liable under trespass and nuisance theories, awarding $177 million in compensatory damages and $200 million in punitive damages.  Four years later, the Tenth Circuit vacated the judgment, remanding the case to the district court where it was then completely dismissed by the presiding judge.  The plaintiffs appealed, and in 2015, the Tenth Circuit issued a second ruling saying the plaintiffs could proceed with their lawsuit under state nuisance claims.

Dow and Boeing petitioned the U.S. Supreme Court in December 2015, arguing that state nuisance claims are preempted by the federal Price-Anderson Act, which covers liability claims for personal injury and property damage caused by commercial nuclear facilities. 

The parties reached the $375 million settlement, just one day before the Supreme Court was scheduled to convene.  The district court granted preliminary approval in August and the class sought final approval of the deal in a March filing.

Class counsel’s bid for fees under a 40 percentage amount generated just one objection from a single class member, Kathleen Snapp, who urged Judge Kane to issue a much smaller amount.

But the court agreed with class counsel that $150 million was proper.  He pointed out that the $375 million was more than twice the $176.8 million the jury had awarded, plus other factors including the four-month jury trial, the 67 expert reports, 151 lay witness and 45 expert witness depositions and “raft of novel and unsettled legal issues” that were presented.  He said class counsel collectively spent more than 160,000 hours working on litigation and also cited lawyers’ decision to take on the case on a contingency basis at a significant risk. 

“If the case had failed, they would have received nothing, no matter how many years, hours, and millions of dollars had been expended,” Judge Kane said.

The case is Cook et al. v. Rockwell International Corp. et al., case number 1:90-cv-00181, in the U.S. District Court for the District of Colorado.