October 9, 2009
Fen-Phen Fee of $567 Million
The Third Circuit upheld a fee of $567 million yesterday in the In re Diet Drugs Products Liability Litigation case noting that the amount "through extraordinarily large, is not excessive." Here's an excerpt of the Legal Intelligencer's story:
The ruling is a victory for attorney Michael D. Fishbein of Levin Fishbein Sedran & Berman, who argued in defense of the fee award to the 72 firms that had logged more than 350,000 hours on the case.
It was a setback for two lawyers who led the challenge -- Brian S. Riepen of Dallas and Raymond Valori of Weston, Fla.
Riepen argued that the process Bartle used in calculating the fee award lacked the transparency courts require in common fund cases.
Jordan disagreed, saying: "[T]he fee proceedings were amply transparent under our precedent. Indeed, it is difficult to discern what the District Court reasonably could have done to increase the level of transparency."
Riepen argued that Bartle should have considered and made public the class counsel's individual billing records, but Jordan said, "[W]e have held that courts need not always engage in that time-consuming process."
In a separate appeal, Valori had argued that he was unfairly forced to contribute to the fee award from the fees he had earned through clients who opted out of the fen-phen settlement -- despite the fact that he never took advantage of the joint discovery conducted by the class action lawyers.
Valori also argued that Bartle failed to make the proper findings to support his ultimate conclusion that the $567 million in fees was reasonable.
Jordan disagreed, saying Bartle had made a series of findings that amply supported the fee award, including the finding that the work of class counsel yielded a $6.44 billion settlement fund that benefited more than 800,000 class members.
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