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Worried that too many law firms had too many fingers in the pie, the First District Court of Appeal on Thursday sent a $16 million attorneys fee award in a huge vitamin price-fixing case back to San Francisco Superior Court for further review. “In light of the record,” Justice Paul Haerle wrote for the court, “we are concerned that affirmance of the trial court’s award of attorney fees, without further review by that court, might further encourage what we frankly fear happened here: the filing of many substantially duplicative class actions manned by multiple law firms.” Justices J. Anthony Kline and James Lambden concurred. The ruling in In re Vitamin Cases, 03 C.D.O.S. 6532, echoed concerns that the justices had expressed during oral argument on June 11. Berkeley solo practitioner Lawrence Schonbrun had challenged the fee awarded more than 50 plaintiffs firms for reaching an $80 million global settlement with several vitamin manufacturers following a federal criminal investigation into price fixing and market allocation. While the settlement itself has already been approved, Schonbrun argued that the fees were too high and reflected an inefficient process that allowed dozens of law firms to participate. The appeal court agreed, and sent the case back to San Francisco Superior Court Judge John Munter for further consideration. “The large number of law firms involved (including in particular those 20 or so cases in which three or more law firms represented the named plaintiff or plaintiffs) strongly suggests that the participation of some law firms achieved little more than to drive up the award of fees,” Justice Haerle wrote. Schonbrun couldn’t be reached for comment Thursday. William Bernstein, whose firm served as plaintiffs’ co-liaison counsel and had urged the court to affirm the award in its entirety, said the plaintiffs would “provide Judge Munter with the explanation that the court of appeal has requested.” The litigation warranted the fees that were awarded, the Lieff Cabraser Heimann & Bernstein partner added. “It was pioneering.” The appeal court also expressed concern about the fact that Lieff Cabraser and Saveri & Saveri, its co-liaison counsel, intend to distribute the fees to all other firms involved, rather than letting the trial court judge make that decision. “Those issues should be resolved by the trial court before an award of attorney fees,” Haerle wrote, “rather than by co-liaison counsel afterwards.” The appeal court had signaled that it had problems with the case in late April when the justices mailed out a letter asking lawyers on both sides to explain why so many law firms were involved. While the $16 million in fees wasn’t huge considering the $80 million settlement, it still struck the justices as odd that more than 50 firms were asking for part of the award. “The sheer number of private putative class actions resolved by this settlement — 34 — and the number of law firms seeking attorney fees — 52 or more — raises the specter of duplicative and superfluous litigation and hence unnecessary fees and costs,” Haerle wrote. “In fact, the law firms who were not on the executive committee contributed significantly to the expense of this litigation — approximately 23 percent of the lodestar and 35 percent of the costs — without necessarily contributing an equivalent percentage of value to the litigation.” On remand, the court wants Judge Munter to determine whether: � The firms not on the executive committee materially contributed to the settlement. � The plaintiffs’ co-liaison counsel should have any power to adjust or revise the fee awards to other lawyers. � One thousand dollars an hour for one attorney is appropriate. � And, considering the risks involved, or not involved, a multiplier of 2 for the fees is appropriate.

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