Part 2 of 4
The second panel of the NALFA 2011 Attorney Fees Conference held on November 17, 2011 at Loyola Law School discussed “Class Action Litigation & Attorney Fee Awards,” consisting of panelists Los Angeles County Superior Court Judge Carl J. West, Aashish Y. Desai (of Mower Carreon & Desai, LLP), and Brian S. Kabateck (of Kabateck Brown Kellner, LLP). Here are the highlights from this panel discussion.
Judge West indicated that the benefit to the class is a key concern in gauging the reasonableness of fees, with the need for fee claimants to present adequate information on this issue and fee reasonableness. To him, a fee award has to bear some proportionality to the class benefits.
Mr. Desai indicated that fee side deals were gone via past amendments to F.R.C.P., Rule 23 at the federal level, but the same ethical considerations govern in state cases.
Mr. Kabateck expressed his opinion that, in the private attorney general statute area, it was hard to veer from the lodestar and get a multiplier, especially after the U.S. Supreme Court case in Perdue.
Judge West talked about the need to make sure plaintiffs make a pre-litigation demand in state catalyst theory-driven cases, although Mr. Desai opined that some of the results in this area or extensions into other areas are not well grounded. Mr. Desai routinely sends out pre-litigation demands to defendants requesting them to stop the offensive conduct given the recent case law in the area.
Judge West indicated that he believes that prevailing plaintiffs in class actions should be compensated at hourly rates commensurate with that charged by class action defense lawyers, namely, $550-800 per hour in Los Angeles venues.
Messrs. Desai and Kabateck train their affiliated attorneys on billing practices and also direct co-counsel in this area, requiring contemporaneous billing or sharing by co-counsel of billing on a periodic basis to make sure it will pass muster in a future fee submission.
Judge West will appoint lead counsel in state wage/hour and mass tort cases (or hope someone is de facto lead counsel), with Mr. Desai voicing the belief that more lead counsels should be appointed for smooth running in state wage/hour cases.
For cases where the class action benefits depend on redemption rates, Judge West will award an interim fee award for around 70-80% of the lodestar and then examine the actual redemption rates for purposes of making further fee awards.
Mr. Kabateck highlighted the importance of the Ninth Circuit’s Bluetooth decision (654 F.3d 935), indicating that it provided a “roadmap” for federal court approval of class action settlements that might have small monetary benefits--showing the factors that should be weighed. Judge West added that nonmonetary benefits to a class can be significant, especially if it changes the way defendants are conducting business.
Mr. Desai stressed the importance of trying to get discovery into the defense fees in a class action when moving for fees as class counsel.
Mr. Kabateck gave this sum-up to the panel’s presentation when you are class counsel seeking a fee award: “Wear an expensive suit and look humble.”
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