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Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted over how the court divided millions in court-awarded attorneys’ fees. In recent weeks, a trio of Louisiana lawyers have filed a suit in state court in their home state against the two co-chairs of the plaintiffs’ team — Arnold C. Levin of Philadelphia and John J. Cummings III of New Orleans — accusing them of fraud. Levin has now responded by asking that the three be held in contempt of court and by filing his own lawsuit accusing them of abuse of process. Levin also attempted, but failed, to get the Louisiana lawsuit transferred to the federal courts and moved to Philadelphia as part of the In Re: Orthopedic Bone Screw Products Liability Litigation multidistrict case pending in U.S. District Court for the Eastern District of Pennsylvania. But before the MDL panel ruled on Levin’s motion, a federal judge in Louisiana remanded the suit back to state court. The disputes center on how the plaintiffs’ lawyers will share the fees generated when the lead defendant in the case, AcroMed Corp., agreed to pay $100 million to settle all claims. Senior U.S. District Judge Louis C. Bechtle ruled that the plaintiffs’ lawyers are entitled to attorneys’ fees equal to 12 percent of the fund, or $12 million. But early on, it became clear that the lawyers were all going to have to take a cut in pay since their combined bills totaled more than $16 million. The plaintiffs’ lawyers had also run up expenses that exceeded the $5 million they were allowed to ask for in an award of costs. When the lead lawyers in the case proposed a plan for divvying up the fees, a pair of Louisiana lawyers cried foul, saying they were promised they would get their initial investment back “off the top.” Attorney Wendell H. Gauthier of Gauthier, Downing, LaBarre, Beiser & Dean in Metairie, La., complained that while he had invested more than $575,000, he was suffering a deeper cut simply because he had invested it later. By contrast, those who made investments earlier, he said, including Levin, were being paid compounded interest that led to deeper cuts for those who invested later. Gauthier was joined by attorney Calvin C. Fayard Jr. in a brief that also said the fee awards were unfair because an auditor had excluded “non-AcroMed” time. They argued that the proposed division of the fees would result in “gross inequities,” with some lawyers compensated for more than 70 percent of their time while others were paid for just 30 percent of their hours. Judge Bechtle rejected all of the Louisiana lawyers’ arguments. He also refused to give any “multiplier” to Levin and several other lawyers for their work on securing the settlement. Instead, Bechtle (who has since retired from the bench and joined Philadelphia-based Conrad O’Brien Gellman & Rohn) decided that all of the lawyers should suffer the same cut in pay. In October 2000, Bechtle ordered partial distributions of the fees and costs to 32 firms. Levin’s firm, Philadelphia-based Levin, Fishbein, Sedran & Berman, fared the best, earning more than $1.6 million in fees and more than $430,000 in costs. Cummings’ firm, New Orleans-based Cummings, Cummings & Dudenhefer, came in second with more than $1.3 million in fees and $477,000 in costs. Gauthier’s firm was paid about $180,000 in fees and $150,000 in costs, and Fayard’s firm received more than $190,000 in fees and $163,000 in costs. In June 2001, Bechtle distributed the remainder. Levin’s firm again earned more than $1.6 million in fees and more than $250,000 in costs; Cummings’ firm was paid more than $1.3 million in fees and $284,000 in costs; Gauthier was paid $178,000 in fees and nearly $90,000 in costs; and Fayard’s firm was paid almost $190,000 in fees and more than $97,000 in costs. Gauthier filed an appeal of the fee award, but later dropped it. But he didn’t give up the fight. Instead, Gauthier and Fayard, joined by attorney W. Hugh Sibley, filed suit in Louisiana against Levin and Cummings. The suit alleges that Levin and Cummings promised the Louisiana lawyers that any contributions they made to the expenses of the “Plaintiffs’ Legal Committee” in the Bone Screws case would be fully refunded if there were ever a settlement. The suit also accuses Levin of libel and slander, saying he “maliciously” set out to “injure the professional and ethical reputations” of the three Louisiana lawyers. After Levin’s attempt to remove the case to federal court and have it be part of the MDL Bone Screws case in Philadelphia failed, his next move was to go on the offensive by filing a motion in Philadelphia before the MDL judge (after Bechtle’s retirement from the bench, the case was reassigned to U.S. District Judge Ronald L. Buckwalter) asking that the three Louisiana lawyers be held in contempt. “As this court is aware,” Levin wrote, “this dispute has already been resolved unfavorably to these lawyers, and it was appealed by Mr. Gauthier to the 3rd Circuit Court of Appeals, which appeal was voluntarily dismissed, with prejudice, by him.” In the motion, Levin flatly denied Gauthier’s claim that Levin promised him that contributions would be refunded “off the top.” “No such understanding was ever reached with respect to contributions … and no such assurances with respect to payments `off the top’ were ever given by the co-chairs,” Levin wrote. Instead, Levin argues, the co-chairs never had the power to make such promises — a fact that he says Gauthier and the others knew all along — since everyone understood from the beginning that all awards of fees and costs would be decided by the court. Levin also claims that the three Louisiana lawyers added Cummings as a defendant to their lawsuit only to avoid federal diversity jurisdiction since Cummings, too, hails from Louisiana. Instead, Levin contends, the only real target of the suit was Levin himself. As proof, he points to the fact that Cummings has not yet been served with the suit and Gauthier has instructed the process server to hold off on doing so. Adding Cummings to the suit, Levin says, was “a blatant effort to avoid federal court jurisdiction in order to make a collateral attack” on Bechtle’s fee awards. Now Levin has taken a second offensive step by filing his own lawsuit against the three Louisiana lawyers accusing them of abuse of process. The suit was filed in U.S. District Court in Philadelphia as related to the Bone Screws MDL case. In the opening paragraphs of the suit, Levin says he filed it not for the money, “but simply for reimbursement of out-of-pocket costs, including counsel fees, and to deter Messrs. Gauthier, Fayard and Sibley from any further attempts to undermine the MDL court presiding judge’s authority.” Another motive of his suit, Levin says, was to “protect co-chairmen of the Plaintiffs’ Legal Committee and future mass tort litigation plaintiff committees from unwarranted attacks on their character, reputation and professional responsibility.” If he wins and is awarded punitive damages, Levin says in the suit that he would “donate any award of punitive damages to the Historical Society of the U.S. District Court for the Eastern District of Pennsylvania” because he filed the suit to ensure that the orders of federal judges in mass tort cases “are not subject to improper, collateral attacks by well-funded, high-profile rogue lawyers.” The suit seeks an injunction barring the Louisiana lawyers from pursuing their fraud suit. Gauthier could not be reached for comment. Fayard also could not be reached, but an associate in his office, Eric O’Bell, said that Fayard would not comment because the litigation is pending.

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