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They seemed OK with the $16 million in attorney fees, but justices reviewing a huge vitamin price-fixing class action Wednesday were obviously bothered by one fact: Was it necessary for more than 50 plaintiffs firms to be in on the take? “Fifty-five law firms? Did it take that?” 1st District Court of Appeal Justice Paul Haerle asked incredulously. “Don’t you find that a little troublesome?” It raises the question, Haerle told class action queen Elizabeth Cabraser, of “who needs who more” — the plaintiffs or the law firms? In Norris v. Philion, A098354, Berkeley solo practitioner Lawrence Schonbrun is challenging the fee awarded plaintiffs’ firms for reaching an $80 million global settlement with several vitamin manufacturers following a federal criminal investigation into price fixing and market allocation. The settlement itself has already been approved. But Schonbrun — who frequently challenges fee awards on behalf of objectors — contends that attorney fees are too high and reflect an inefficient process that allowed dozens of law firms to participate. In short, he argues that too many firms spent too many hours on the class action, and San Francisco Superior Court Judge John Munter didn’t explore that adequately at trial. “The problem with this case,” Schonbrun said during oral arguments in San Francisco Wednesday, “is rather than have [several] law firms compete against each other, these firms were allowed to cooperate.” Justice James Lambden said nothing during the extraordinary 90-minute session, but Schonbrun’s arguments seemed to resonate with Haerle and Justice J. Anthony Kline. While they breezed past the overall fee amount, suggesting they didn’t think it was out of line, the two justices focused tightly on the number of law firms that have lined up for a piece of the pie. Kline said Judge Munter apparently had no problem accepting the presence of the firms and their need for compensation. “But,” he added, “the question he seems not to have asked is if they were needed.” Doesn’t a judge, he continued, have the authority to designate, say, three law firms at most to handle the litigation, rather than have an army of lawyers wading in from all directions? Cabraser, a partner at Lieff Cabraser Heimann & Bernstein, which was co-liaison counsel for the class, told Kline there is a good public policy reason for not setting an arbitrary limit of three, or even five, firms. Litigation can be occurring in a particular line of cases all around the country at the same time, requiring either a particular expertise or someone in a certain geographic locale, she said. There’s no way of knowing in advance how much of a workload will arise, she said, pointing out that in the current case, her law firm and Saveri & Saveri did a “plurality” of the work, while 10 other firms did the “bulk” of the remainder. Cabraser also argued that limiting the plaintiffs firms could “signal” defendants that they could win a “war of attrition” because they wouldn’t be similarly restricted. Kline and Haerle also seemed troubled by a footnote in one of Lieff Cabraser’s court documents that indicated Munter had delegated the Lieff and Saveri firms sole authority for distributing the attorney fees, rather than resolving that himself. Cabraser argued that Munter hadn’t really delegated his authority, but had signed off on the fees and hours for each firm after examining all the appropriate documentation. “He saw the detailed timesheets of each firm,” she said. “He would have seen duplications or waste.” The fees were not allowed to exceed $16 million, Cabraser said, and Munter left it to the firms to resolve any minor differences. What the judge did, she said, was “SOP” — standard operating procedure — in class actions. Kline wasn’t entirely convinced. “You tell me it’s SOP,” he said. “Maybe it is SOP, but if it is it’s news to me.” Later, however, Kline appeared to do an about-face, downplaying the footnote even though it had been an issue of contention earlier. “It was a footnote in a brief,” Kline told Schonbrun. “It was not a declaration by Judge Munter.” “But,” Schonbrun responded, “we know as lawyers that relevant points are often brought up in footnotes.” Snapped Kline: “It’s a bad lawyer who puts a really important fact in a footnote.” Afterward, Schonbrun and Cabraser agreed that the justices weren’t as concerned about the total amount of the attorney fees as they were the number of law firms laying claim to them. What the justices plan to do about it — if anything — wasn’t clear.

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