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The Exxon Valdez civil litigation has generated some big numbers: 11 million gallons of oil spilled, 15 years of court proceedings, a $5 billion jury verdict, and more than 7,700 docket entries in Anchorage federal court. In late January, another eye-popping number joined the tally: a $1.3 billion fee for the plaintiffs team. This amount — more precisely, $1,293,373,000 — appears to be the largest fee ever approved by a court. (Some tobacco plaintiffs fees appear larger on their face, but they’ll be paid over decades, reducing their value. Those fees were awarded by an arbitration panel, not a court.) In making the award, federal district court judge H. Russel Holland granted the plaintiffs request for a 22.4 percent contingency fee. “Exxon [Mobil Corporation] put up an unflagging, spare-no-expense defense that might have been overwhelming but for the skill and resources of class counsel,” the judge wrote. He also added more than $350 million in interest (calculated as of April 2003) since the jury’s 1994 verdict. The team is led by two firms not typically known for plaintiffs work: Minneapolis’ Faegre & Benson and Seattle’s Davis Wright Tremaine. Whether those lawyers will ever collect that fee is another matter. Judge Holland has been tussling with the 9th U.S. Circuit Court of Appeals over this case for a few years. In 2002 the appeals court ruled that a $5 billion punitive award was too much and ordered Holland to reduce it. The judge shaved it to $4 billion. When the 9th Circuit vacated that award, Holland reacted on Jan. 28 by increasing the punitives to $4.5 billion. He issued his fee ruling the next day, calculating the contingency fee based on a $4.5 billion recovery. Lead trial counsel Brian O’Neill of Faegre & Benson insists he’s confident the punitive award and the fee will survive, despite the 9th Circuit’s hostility. “I think it has a 99 percent chance of standing,” he says. O’Neill claims he hasn’t calculated Faegre’s share of the award. “I just don’t want to know,” he says, explaining that the exercise wouldn’t be “mentally healthy.” He adds, “The goal before worrying about all these things is to get checks to clients. That’s what drives the whole thing.” O’Neill represents more than 32,000 fishermen, business owners, and others harmed by the spill. The fee, whatever it turns out to be, will be split among more than 60 firms, including plaintiffs-side mainstays like Milberg Weiss Bershad Hynes & Lerach and Lieff, Cabraser, Heimann & Bernstein. Over 15 years, at least 2,348 plaintiffs lawyers and paralegals clocked more than 1.2 million hours on the case, according to the fee application. The most hours were logged by Faegre, Davis Wright, and Seattle’s Keller Rohrbach. Out-of-pocket costs topped $30 million. The fee request alone filled 200 binders. In court papers, Exxon called the plaintiffs fee request unreasonable and faulted the plaintiffs for not turning over sufficiently detailed time records. The company maintained that while a 22.4 percent contingency fee might be approved in run-of-the-mill cases, it should not be used for such a mammoth recovery. Judge Holland dismissed the company’s arguments as “red herrings.” Even with the army they assembled, the plaintiffs still were vastly outspent by Exxon, O’Neill asserts. The company’s lead counsel, O’Melveny & Myers, referred all questions to the client, which limited its comment to a prepared statement. It said it would again appeal Holland’s punitive damages award, and called the oil spill “a tragic accident that the company deeply regrets.” O’Neill, 56, who has spent most of the last 15 years on the Valdez case, says the long wait for payment has been “a big burden” for his firm ["The Gamblers," June 1999]. Sounding wearied from the protracted battle with the energy giant, he notes that the case has exacted a heavy personal toll, too. Of the 15 Faegre lawyers who started on this case with him, only one is in the same marriage or personal relationship: “It’s created a huge amount of personal turmoil.”

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