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If the lead plaintiffs’ lawyers in the fen-phen diet drug litigation get their way, the headlines a few months from now will announce that a federal judge has awarded them $567 million in fees for the work that led to a settlement they now say is worth $3.75 billion to $10 billion. In a 198-page brief filed last week, attorneys Arnold Levin and Michael D. Fishbein of Philadelphia-based Fishbein, Sedran & Berman set out to persuade U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania that they and their team set the “gold standard” for putting together a successful “mega-settlement” in a mass tort case. “The outcome of MDL 1203 is unprecedented. One need only refer to the fate of other mass torts to understand the unusual degree to which this litigation realized the promise of the justice system,” Levin and Fishbein wrote. “As demonstrated by the Dalkon Shield cases, the asbestos debacle, Agent Orange, breast implants, orthopedic bone screws and the AIDS blood cases, the legal fate of most mass tort plaintiffs has been to suffer long delays and to receive little compensation.” By contrast, they said, the lawyers in the fen-phen litigation “created the architecture for a $4 billion class settlement that quickly and fully met the needs of 6 million Fen-Phen victims, that provides benefits which will undoubtedly save thousands of lives, that successfully transcends what were once considered insurmountable legal obstacles to class wide mass tort resolution and that protects class members against the substantial financial perils which have caused so many large-scale tortfeasors to seek bankruptcy protection.” As a result, they argue, Bartle should award the full amount allowed under the settlement — which capped fees at $429 million before costs — plus more than $15.9 million in costs. They also argue that Bartle should award an additional $138 million in fees that were set aside in cases brought by plaintiffs who opted out of the main settlement but whose lawyers benefited from the discovery work performed by the class lawyers. Bartle inherited the case from Senior U.S. District Judge Louis C. Bechtle of the Eastern District of Pennsylvania, who left the bench to join Conrad O’Brien. Early on in the litigation, Bechtle had ordered lawyers who represented opt-out plaintiffs in both state and federal cases to segregate some of the fees they earned to compensate the class lawyers. Lawyers in the federal cases were ordered to set aside 9 percent of their fees, and those handling state court cases were ordered to set aside 6 percent. Since then, the opt-out plaintiffs have racked up more than $8 billion in settlements, leading to more than $2.8 billion in fees for their lawyers. Levin and Fishbein argue that the lawyers for the opt-out plaintiffs benefited greatly from the work of the class lawyers whose investigative and legal work made it virtually impossible for the lead defendant in the case, American Home Products, to contest liability. But while the opt-out lawyers have already been paid, the class lawyers have yet to see a penny, even though some have worked nearly full time on the case for years, the brief says. Defense lawyers, too, have already been paid, the brief says, noting that American Home Products paid its attorneys about $1.2 billion to $1.6 billion in fees and costs for defense of the diet drug cases. In their brief, Levin and Fishbein argue that if the court approves the full amount of the fees requested, not counting the amount from the opt-out plaintiffs, the class plaintiffs’ lawyers — who hail from 72 firms — will take home 11.4 percent of the $3.75 billion “face value” of the settlement. But since the settlement also provides significant “non-cash benefits,” they argue that its proper value is much higher and that the lawyers’ fees are just slightly over 4 percent of that amount. Bechtle had ordered that any lawyer who wanted to petition for fees was required to submit a bill to Alan Winikur, a court-appointed accountant with the Bala Cynwyd, Pa., public accounting firm of Zelnick, Mann, & Winikur. In his report to the court, Winikur concluded that 33 of the firms that filed petitions should get nothing since their work did not contribute to reaching the settlement. Winikur also trimmed some of the hours claimed on the petitions from the other firms. In the end, Winikur concluded that the lawyers had logged more than 350,000 compensable hours and racked up fees of more than $100 million at their usual hourly rates. He then calculated an “allowable lodestar” figure for each of the 72 firms. If Bartle agrees completely with the arguments made by Levin and Fishbein, the lodestar figures for the firms would be roughly quadrupled. Assuming a multiplier of exactly four, the top 10 fee earners, not counting fees from the opt-out plaintiffs, would be: � Levin Fishbein in Philadelphia, $72.3 million � Cummings, Cummings & Dudenhefer , in New Orleans, $41.7 million � Greitzer and Locks in Philadelphia, $18.7 million � Lopez, Hodes, Restaino, Milman, Skikos & Polos in Newport Beach, Calif., $18.2 million � Robinson & Cole in Boston, $17 million � Hill & Parker in Houston, $13.8 million � Lieff, Cabraser, Heimann & Bernstein , in San Francisco, $13.6 million � Cohen, Milstein, Hausfeld & Toll , in Washington, D.C., $10.4 million � Tschirn & Thomson in New York, $10.1 million � Roda & Nast in Lancaster, Pa., $9.3 million In the brief, Levin and Fishbein set out to describe for Bartle the sheer volume and the high quality of the work they and their team performed. When the case began, they noted, “a dozen seasoned trial lawyers … moved to Philadelphia and labored away from their families for six months to review more than 9 million pages of documents produced by the defendants, the FDA and other third parties.” The plaintiffs’ management committee — a team of 15 lawyers appointed by Bechtle — conducted more than 100 depositions and made trial-ready video “cuts” of the depositions. They also retained 16 “world class” experts and defended their opinions against Daubert attacks. In court, the plaintiffs’ team attended more than 80 days of hearings and status conferences and more than 250 proceedings before a special master. And when serious settlement talks began, the brief says, the plaintiffs’ lawyers worked round-the-clock for six months, ultimately drafting a 140-page settlement agreement. Before the settlement won court approval, they conducted an additional 50 depositions, attended a fairness hearing that lasted two weeks, and defended the court’s approval in a slew of appeals that resulted in seven separate briefs before the 3rd U.S. Circuit Court of Appeals. “These numbers do not tell the entire story,” Levin and Fishbein wrote. The plaintiffs’ lawyers, they argue, did not simply do a “professional” job but “went beyond the normal call of professional obligation.” From the beginning, they argue, the plaintiffs’ team “approached the whole of this case with moral rigor, a zeal for excellence, and a respect for the integrity of the litigation process.” As a result, they argue, the request for more than $567 million in fees is “relatively modest” when compared to what lawyers earn in similarly large settlements and the fees earned by the other lawyers in the diet drug case — the defense lawyers and the opt-out plaintiffs’ lawyers.

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