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A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised. According to a law suit filed Tuesday on behalf of 5,600 plaintiffs in the Southern District of New York, Napoli, Kaiser, Bern & Associates convinced diet drug users the settlement with American Home was inadequate, and that the plaintiffs would receive far more if their cases were handled individually. “Their campaign led people to believe that the national class-action settlement was horribly under-funded, and that they would recover larger sums of money if they would allow NKB to represent them,” said Seattle attorney Steven Berman, of Hagen Berman, in a press release. Berman filed the suit along with New York’s Lovell & Stewart. Although they have yet to be formally served in the case, the complaint in Buckwalter v. Napoli, Kaiser & Bern outraged attorneys with the 16-lawyer firm. “The allegations in the Buckwalter action have no merit,” said name partner Marc Bern in an interview Tuesday. “All of our associates and partners pursued all of our clients’ claims zealously and obtained very favorable results for them. We are confident the claims in the Buckwalter action will be dismissed.” The complaint alleges high-pressure tactics by partners Paul J. Napoli, Gerald Kaiser and Marc Bern that included brow-beating plaintiffs in hotel rooms to accept settlements the firm had obtained from American Home Products. The complaint states that some plaintiffs who were persuaded to opt out of the 1999 global settlement, and then later accepted a settlement individually negotiated by the Napoli firm, were rebuffed by the lawyers when they tried to obtain doctors’ records and other documents concerning the talks with American Home Products. The suit accuses the firm of responding to one suspicious plaintiff by sending her a form letter that reads “due to the disaster at the World Trade Center,” the firm has been unable to return to its offices at 115 Broadway. The letter also said, according to the suit: “We believe that all the documents you have requested have been destroyed in the disaster.” However, the suit alleges, the firm’s offices, which are located two blocks from the World Trade Center, were not damaged in the attacks, and that “NKB partners had access to the building and moved all Fen-Phen related documents to defendant Kaiser’s house on Long Island for safekeeping.” But the firm strongly denies these claims. “The allegation about taking the fen-phen files out this office is so ridiculous I don’t know how to respond,” Bern said Tuesday. “We had more than 5,600 files and there was no way that we could take the files out of this office.” In fact, Bern said, a letter was sent out before the firm was even allowed access into its building, at which point, “we had no idea what the condition of any file was.” Once the firm was allowed to return to 115 Broadway, Bern said, a second letter was mailed to the plaintiff saying the firm “would be happy to copy the file and send it out to her. We never had a response.” “These allegations regarding the status of our law firm and the fen-phen files as a result of the Sept. 11 tragedy are, without doubt, false, totally outrageous and couldn’t be farther from the truth,” Bern said. As part of an alleged scheme, the suit claims that the firm ran an “assembly line for clients resisting settlement.” It claims the firm employed Debra Polito, a registered nurse and attorney, to tell clients why, in her “expert opinion,” the settlement represented excellent compensation for their injuries. “Later, a charge for ‘expert witness fee’ appeared on client closing documents,” the complaint states. “Often the so-called expert fees were dated before she even came to the NKB.” The suit alleges that the scheme was launched after Bern became disgusted with the limitation on attorney fees in the 1999 fen-phen global settlement approved by U.S. District Judge Louis Bechtle, who presided over the Federal Court Diet Drug Litigation in the Eastern District of Pennsylvania. Bern and his colleagues began a nationwide campaign to urge plaintiffs to opt out. According to the complaint, instead of negotiating individually with American Home Products as promised, the firm reached an agreement with the company whereby a lump sum would be paid in installments to the firm once it provided the requisite number of releases from plaintiffs. The firm was left with total discretion to distribute the proceeds of the law “with no oversight,” and the chance to earn as much as 33 percent in fees for each case, the complaint states. Plaintiffs who resisted the firm’s inadequate settlement offers were threatened with abandonment by the firm if they refused to accept, the suit claims. The lawsuit charges that the amount of the settlement reached by the firm with American Home Products remains secret. It claims that the firm “made tens of millions of dollars in fees for little effort and no risk.” The suit alleges violations of the Racketeer Influenced and Corrupt Organizations Act, breach of duty of care and malpractice, breach of fiduciary duty and conspiracy. The lawsuit also targets the firm for Bern’s actions in the wake of his disappointment over the terms of the national settlement. It states that Bern planned to ask the federal courts to remove the entire plaintiffs’ negotiating team and pursue what he allegedly called the lawyers’ “very serious ethical breaches.” Bern said he felt it was inappropriate to respond to every allegation in the complaint at this time, saying only that he was certain that the suit would eventually be proven to be groundless. The case was assigned to U.S. District Judge Laura Taylor Swain of the Southern District of New York.

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