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A federal judge has awarded interim fees of more than $150 million to 83 plaintiffs’ law firms for their work in the massive fen-phen diet drug litigation that led to a $3.75 billion class action settlement. The lion’s share of the fees — more than $51.6 million — goes to Levin, Fishbein, Sedran & Berman of Philadelphia whose top partners took a leading role at every stage of the case. And the interim fees are just a fraction of what the plaintiffs’ lawyers could ultimately earn in the case since it covers only work up to June 30, 2001. In their fee petition, the lawyers asked for $567 million. In a 43-page opinion announcing the awards in Re: Diet Drug Litigation, U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania said he had appointed a five-member committee to recommend how the interim fees should be allocated. Bartle said he had urged all of the lawyers to try to reach an agreed upon allocation without the need for court involvement, but that “this unfortunately was not to be.” As a result, Bartle was forced to resolve some contentious disputes from some of the key players in the case who argued that the lawyers on the fee allocation committee had concocted an allocation plan that was designed to benefit their firms the most. Bartle rejected nearly all of the objections, saying “the allocation of fees is not an exact science” and that he was not inclined to disturb the committee’s proposal without “some credible showing that it is unfair or unreasonable.” About 75 percent of the firms involved had lodged no objection at all, Bartle noted. Bartle found that “by far the most vocal of all the objectors” was a group led by attorney Roger P. Brosnahan of Winona, Minn., who argued that the fee allocation committee had deliberately exaggerated the relative contribution of its member firms at the expense of their firms. Brosnahan, who was awarded $3.85 million, filed objections on behalf of his firm and five others whose awards ranged from $8.9 million to $1.75 million � Lopez, Hodes, Restaino, Milman, Skikos & Polos of Newport Beach, Calif.; Sherman Salkow Petoyan & Weber of Los Angeles; Ashcraft & Gerel of Washington, D.C.; Robinson, Calcagnie & Robinson of Newport Beach, Calif.; and Levin, Papantonio, Middlebrooks, Thomas, Mitchell, Green, Echsner & Proctor of Pensacola, Fla. Bartle said that he respected the positions taken by the Brosnahan group and that he acknowledged the “significant work” they performed during the liability phase of the litigation, but that its objections were “without merit.” In its brief, Bartle said, the Brosnahan group “unfairly accuses the committee of ‘free riding on the efforts of others,’ self-serving and self-interested behavior, misrepresentation, and ‘abusing the court’s trust by distorting the law in order to reward themselves.’” Bartle noted that the Brosnahan group was asking for 60 percent of the interim fee award. “While long on rhetoric, the group provides scant detail as to how this 60 percent will be allocated among its member firms other than to suggest that the court permit its members to decide that question for themselves. It fails even to justify why it is entitled to this amount,” Bartle wrote. “Moreover, it ignores entirely the issue of how the remaining 40 percent should be allocated or what the relative contribution of any other firm should be in its estimation,” Bartle wrote. The Brosnahan group had objected to the method used by the fee allocation committee in deciding the proposed awards. The committee consisted of lead counsel Arnold Levin and Michael Fishbein of the Levin Fishbein firm; Elizabeth Cabraser of Lieff, Cabraser, Heimann & Bernstein in San Francisco; Diane Nast of Roda & Nast in Lancaster, Pa.; and Charles Parker of Hill, Parker & Roberson in Houston. Chaired by Levin, the committee categorized each firm’s participation and commitment to the fen-phen litigation in the four stages — the initiation and organization of the federal multidistrict litigation suit, and the effort to establish liability and develop generic scientific evidence; the efforts involved in achieving class certification and in negotiating, drafting, defending, enforcing and implementing the settlement agreement; case administration in managing all MDL matters and assisting in the process for claims; and efforts in conjunction with the fee litigation. In deciding on the relative contribution of each firm to the overall outcome of the litigation, the committee said it considered numerous factors including the quality of work performed; the relative skill and efficiency of the attorneys involved; the consistency, quantum, duration and intensity of the firm’s commitment to the litigation; the level at which firm partners participated in the litigation; and the extent to which the firm was engaged in the litigation for the common benefit of the class members independent of any case specific recoveries. The Brosnahan group suggested instead that the litigation should have been viewed as having occurred in 10 stages. The 10 stages they proposed were: (1) preparation of initial discovery requests, review of 9 million documents, creation of computerized database and negotiating and briefing discovery-related issues; (2) liability depositions; (3) expert witness development and depositions; (4) defense of Daubert motions and Daubert hearings; (5) creation of trial packages including motions in limine; (6) state court coordination agreements, and nationwide MDL training seminars; (7) creating value and litigation pressure to force settlement; (8) class action settlement negotiations; (9) class action litigation and defense; and (10) claims administration. Bartle disagreed, saying the group’s proposal “would appear to accomplish for itself exactly what it accuses the committee of doing for its owns members: overstating the contribution of its members to the MDL at the expense of other firms.” The Brosnahan group argued that it had direct responsibility for work that constitutes upward of 70 percent of the litigation effort. But Bartle found the group was short on specifics. “Missing from the proposal is any explanation of how the interim award would otherwise be divided among the other firms eligible to participate in it. Given the late stage of these fee proceedings and the length of time it had to consider a constructive alternative to the proposed plan, the Brosnahan group’s failure to offer any specifics is especially telling,” Bartle wrote. “There has been no showing that the committee’s approach produces an unfair or unreasonable result for the eligible recipients. Only the Brosnahan group has objected in this regard,” Bartle wrote. Bartle concluded that the committee’s focus on the four stages it selected “was appropriate” and that “in light of the merits of this approach as well as the paucity of objections, we will not disturb this methodology.”

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