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San Francisco solo practitioner Sherman Kassof was shell-shocked Tuesday. He had just read a 32-page ruling in which California’s First District Court of Appeal dismembered him, saying his work on a case against Wells Fargo Bank was not only inconsequential but also far undeserving of the more than $215,000 in fees he had been awarded. Scoffing at Kassof’s argument that the award should have been higher, the court — saying that request could win the “chutzpah award” — ordered the case back to the trial court for a reduction of fees, and hinted that Kassof may have milked the case for what it was worth. “To award an attorney a premium for duplicative work that was neither difficult nor particularly productive, involved little or no risk, may well have delayed settlement, and seems to have been primarily designed to line counsel’s pockets would reward behavior which it is in the public interest (and as well the special interest of the legal profession) to strongly discourage,” Presiding Justice J. Anthony Kline wrote. Justices Paul Haerle and Ignazio Ruvolo concurred. Kassof was stunned, but defiant. “It’s sad they came out so contrary to our position, but, in a word, we procured a benefit for the class of $111 million,” he said. “We had actuarial support, and it was not contradicted by the other side in any substantial way.” Kassof’s lashing came in Thayer v. Wells Fargo Bank, A090429, in which five plaintiffs represented by nine law firms had sued after the banking giant in 1998 notified 164,000 customers — including those with free checking accounts — that they would be charged service fees. Wells Fargo backed off less than three months later, agreed to settle the suits and reached agreement on fees with every attorney but Kassof. San Francisco Superior Court Judge John Conway found Kassof’s lodestar award — the amount reached by multiplying a reasonable hourly rate by the number of hours reasonably expended by a lawyer on a case — to be $140,250. A multiplier — taking into account the quality of representation, the novelty and complexity of the case, the results obtained and the risks involved — upped the award to $215,460. Kassof appealed because he felt the work he had put toward the case entitled him to more money. But Wells Fargo lawyers objected, noting that the award to all nine law firms — including big names like Lieff, Cabraser, Heimann & Bernstein and Milberg Weiss Bershad Hynes & Lerach — totaled only about $1.1 million. They also argued that Kassof and his co-counsel Mario Alioto, who settled his fee fight separately, conducted an unreasonable amount of work on the case, considering how many plaintiffs’ lawyers were in the fray, and that they often duplicated efforts. They argued that Kassof’s lodestar award should not be increased, as Kassof asked, but decreased. The First District agreed, noting not only that the California Supreme Court has OK’d decreasing lodestar awards, but also that the evidence shows that Kassof and Alioto often duplicated other work. As an example, the court pointed to 10 hours of compensation the two got for a conference that “appears to have lasted about an hour.” “Because of this duplication, and the approval by the trial court of all the hours they claimed,” Presiding Justice Kline wrote, “Kassof and Alioto received a combined fee of $402,990 for representing [Ernest] Thayer — which was more than 36 percent of the total fees awarded all counsel for plaintiffs in all five coordinated cases.” The appeal court justices ordered the trial court to re-examine Kassof’s fees, saying “we are loath to ourselves determine the precise amount of the appropriate reduction.” Kassof said Tuesday that he hasn’t decided whether to appeal the ruling, but added that he is ready to prove his work on the case had merit and deserves proper compensation. “We plan to demonstrate to the trial court,” he said, “the character of what we did.”

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