The fees were awarded by a federal judge. The lion’s share of the fees — more than $51.6 million — goes to Levin, Fishbein, Sedran & Berman of Philadelphia whose top partners took a leading role at every stage of the case. And the interim fees are just a fraction of what the plaintiffs’ lawyers could ultimately earn in the case since it covers only work up to June 30, 2001. In their fee petition, the lawyers asked for $567 million.
In a 43-page opinion announcing the awards in Re: Diet Drug Litigation, U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania said he had appointed a five-member committee to recommend how the interim fees should be allocated.
As a result, Bartle was forced to resolve some contentious disputes from some of the key players in the case who argued that the lawyers on the fee allocation committee had concocted an allocation plan that was designed to benefit their firms the most. Bartle rejected nearly all of the objections, saying “the allocation of fees is not an exact science” and that he was not inclined to disturb the committee’s proposal without “some credible showing that it is unfair or unreasonable.”
Bartle found that “by far the most vocal of all the objectors” was a group led by attorney Roger P. Brosnahan of Winona, Minn., who argued that the fee allocation committee had deliberately exaggerated the relative contribution of its member firms at the expense of their firms.
Brosnahan, who was awarded $3.85 million, filed objections on behalf of his firm and five others whose awards ranged from $8.9 million to $1.75 million.
Bartle said that he respected the positions taken by the Brosnahan group and that he acknowledged the “significant work” they performed during the liability phase of the litigation, but that its objections were “without merit.”
In its brief, Bartle said, the Brosnahan group “unfairly accuses the committee of ‘free riding on the efforts of others,’ self-serving and self-interested behavior, misrepresentation, and ‘abusing the court’s trust by distorting the law in order to reward themselves.'” Bartle noted that the Brosnahan group was asking for 60 percent of the interim fee award.
“While long on rhetoric, the group provides scant detail as to how this 60 percent will be allocated among its member firms other than to suggest that the court permit its members to decide that question for themselves. It fails even to justify why it is entitled to this amount,” Bartle wrote.
“Moreover, it ignores entirely the issue of how the remaining 40 percent should be allocated or what the relative contribution of any other firm should be in its estimation,” Bartle wrote.
The Brosnahan group had objected to the method used by the fee allocation committee in deciding the proposed awards.
The committee consisted of lead counsel Arnold Levin and Michael Fishbein of the Levin Fishbein firm; Elizabeth Cabraser of Lieff, Cabraser, Heimann & Bernstein in San Francisco; Diane Nast of Roda & Nast in Lancaster, Pa.; and Charles Parker of Hill, Parker & Roberson in Houston.
Chaired by Levin, the committee categorized each firm’s participation and commitment to the fen-phen litigation in the four stages — the initiation and organization of the federal multidistrict litigation suit, and the effort to establish liability and develop generic scientific evidence; the efforts involved in achieving class certification and in negotiating, drafting, defending, enforcing and implementing the settlement agreement; case administration in managing all MDL matters and assisting in the process for claims; and efforts in conjunction with the fee litigation.
In deciding on the relative contribution of each firm to the overall outcome of the litigation, the committee said it considered numerous factors including the quality of work performed; the relative skill and efficiency of the attorneys involved; the consistency, quantum, duration and intensity of the firm’s commitment to the litigation; the level at which firm partners participated in the litigation; and the extent to which the firm was engaged in the litigation for the common benefit of the class members independent of any case specific recoveries.
The Brosnahan group suggested instead that the litigation should have been viewed as having occurred in 10 stages.