Satisfied with the attorneys’ explanation of their requested fees, a federal judge awarded $7.5 million to the plaintiffs’ lawyers who negotiated a $25 million settlement with three of the defendants in a case alleging price-fixing among egg producers.
U.S. District Judge Gene E. K. Pratter of the Eastern District of Pennsylvania awarded the fees, which amount to 30 percent of the settlement, as they had initially been requested, finding that the lawyers had given her enough information to properly weigh the 10 factors for approving a percentage-of-recovery award, rather than the lodestar method, laid out by the U.S. Court of Appeals for the Third Circuit.
Pratter had declined to rule on the award in July, shortly after she had approved of the settlement, because she hadn’t been provided sufficient information.
Now, though, she said, “plaintiffs’ counsel’s supplemental brief in support of their motion for fees and costs includes dozens of declarations that identified the attorneys and staff who worked on the case, their experience, their hourly rates, and the number of hours they worked on the case.”
Pratter held in In re Processed Egg Products Antitrust Litigation that nearly all 10 of the factors weighed in favor of awarding the fees as well as about $435,000 in costs.
In a 2009 opinion in In re Diet Drugs Products Liability Litigation, the Third Circuit set out 10 points for district courts to consider when deciding what makes a reasonable percentage-fee award, according to the opinion.
The first factor asks courts to evaluate the size of the fund created by the settlement and the number of beneficiaries drawing from it. Pratter found that it weighs in favor of the 30-percent award because part of the settlement obligates the defendants — including Moark, Norco Ranch and Land O’Lakes, which are collectively called Moark — to cooperate with the plaintiffs as they prepare their case against the remaining defendants in the multidistrict litigation.
“Such cooperation could help egg purchasers recover additional monies in the future,” Pratter said.
The second factor, regarding the number of objections from the class members, Pratter also found weighed in favor of the fees since there were no objections to the proposed award.
The third factor, evaluating the skill and efficiency of counsel, went in favor of the award as well.
“Here, the robust cash value obtained by the Moark settlement and the cooperation procured from Moark indicate that, at least in this regard, plaintiffs’ counsel have handled their obligations to this point and their clients’ interests skillfully,” Pratter said.
Similarly, the judge favored granting the award on the fourth factor, addressing the complexity and duration of the case. Like most antitrust cases, this one is complex, Pratter said, noting that there had been more than three years of litigation before the settlement was approved.
“Given the complexity that necessarily accompanies consolidated antitrust litigation and the duration of the case, the court finds that this factor favors granting the motion,” Pratter said.
Again, like many antitrust class actions, the plaintiffs’ lawyers took on a high degree of risk of nonpayment by undertaking the case, Pratter said, holding that the fifth factor weighed in favor of the award.
On the sixth factor, the amount of time lawyers devoted to the case, Pratter held that it weighed “strongly” in their favor.
“Upon reviewing the declarations submitted by 35 different law firms, it appears that these firms collectively spent 22,772.81 hours working on this matter through February 28, 2011, the date the court held a final fairness hearing for the Moark settlement. … The amount of time spent on this case prior to final approval of the settlement most likely reflects the complexity of the plaintiffs’ claims, not the inefficiency of their counsel,” Pratter said, noting also that the case kept lawyers from working on other issues.
The seventh factor, asking courts to consider the amount of awards given in similar cases, weighed in favor of the motion, Pratter said.
The eighth factor weighs only partially in favor of the award, Pratter said. It asks the court to consider how much of the settlement is attributable to the lawyers versus other actors, like government investigation. Because the supplemental brief only asserts that counsel acted “‘without the benefit of a governmental investigation or related indictments’” and brought claims “‘wholly unrelated’” to public reports, Pratter quoted from the brief, without giving further explanation, that factor lent only partial support to the requested award.
The ninth factor, which asks the court to compare the percentage fee to the likely private contingent fee that would have been negotiated, weighs in favor of the award with support from case law, Pratter said.
Finally, the last factor doesn’t weigh on the opinion because the settlement included no innovative terms, Pratter said.
She bolstered her opinion with a lodestar cross-check.
“Plaintiffs’ counsel represent that, based on their hourly rates and hours worked, their total lodestar through the date of the final fairness hearing on the Moark settlement amounts to $11,001,332.40. In performing an independent calculation of the lodestar, the court calculates it as $10,817,088.90. The difference between these two figures is insignificant,” Pratter said.
Steven Asher of Weinstein Kitchenoff & Asher in Philadelphia was the interim co-lead counsel for the plaintiffs and declined to comment.
(Copies of the 13-page opinion in In re Processed Egg Products Antitrust Litigation, PICS No. 12-2163, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •