Allapattah Services, Inc. v. Exxon Corp.
| Decision Date | 06 July 2006 |
| Docket Number | No. 91-0986-CIV-GOLD.,91-0986-CIV-GOLD. |
| Citation | 454 F.Supp.2d 1185 |
| Parties | ALLAPATTAH. SERVICES, INC., et art., Plaintiffs, v. EXXON CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Jewel H. Grutman, Lauderdale, FL, Russel A. Cline, Crippen & Cline, Salt Lake City, UT, Daniel G. Jarcho, Mckenna Long & Aldrige, Washington, DC, Gerald M. Bowen, Oakhill, VA, Marshall Joel Osofsky, Moyle Flanigan Katz Kolins Raymond & Sheehan, West Palm Beach, FL, Leah Lariviere, Pertnoy Solowsky & Allen, Sidney Mark Pertnoy, Jay Howard Solowsky, Mark P. Dikeman, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Eugene E. Stearns, Thomas Emerson Scott, Jr., Cole Scott & Kissane, Herman Joseph Russomanno, Russomano & Borello, Miami, FL, for Plaintiffs.
Jamie Lynn Zysk, Bunton & Williams, Terry L. Sullivan, Stuart H. Harris, Martin F. Cunniff, Robert J. Brookhiser, Robert G. Abrams, Coral Gables, Burlington, Weil, Schwiep, Kaplan & Blonsky, Miami, FL, Alejandra Hernandez Pennie, Ted Christopher Craig, Thomas Richard Julin, Martin Leonard Steinberg, Robert Wallis, Exxon Corporation, Legal Department, Houston, TX, Rene J. Mouledoux, Darren B. Bernhard, Lowrey Simon Arnold & White, Washington, DC, for Defendant.
ORDER ON PETITIONS FOR AN AWARD OF ATTORNEYS' FEES, COSTS, AND REIMBURSABLE EXPENSES AND FOR INCENTIVE AWARDS TO NAMED PLAINTIFFS
THIS MATTER is before the Court on the Attorneys' Fee Petition by McKenna, Long & Aldridge LLP [DE # 2108]; Application/Motion by Rylyns Enterprises, Inc. for an Incentive Award [DE # 2109]; Attorneys' Fee Petition by the Grutman Firm [DE # 2112]; Petition of Class Representatives Allapattah Services, Inc., Alberto Gonzalez, Robert Lewis, Inc. and John Pinder (the "Florida Representatives") for an Incentive Award [DE # 2116]; Motion by Certain Class Representatives [Paul Bove, Martin Cook, George Dalton, R. William McGillicuddy and David Wise] For A Common Benefit Award [DE # 2118];1 Petition by Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. [hereinafter "Stearns, Weaver"] for Attorneys' Fees in Three Fee-Shifting States [DE # 2124]; Petition by Stearns, Weaver for Attomeys' Fees, Costs and Reimbursable Expenses [DE # 2126]; Motion by Pertnoy, Solowsky & Allen [hereinafter "Pertnoy & Solowsky"] for Attorneys' Fees Against Exxon Under Court's Fee Shifting Order of September 23, 2004 [DE # 2129]; Motion by Pertnoy & Solowsky for Attorneys' Fees and Reimbursable Expenses [DE # 2131]; Motion by Gerald M. Bowen to Accept Fee Petition and Deem It Filed Nunc Pro Tune [DE # 2174]; Verified Petition of Attorneys Farrell & La Mantia For An Award Of Attorneys' Fees [DE # 2626, 2627 & 2630]; Supplement by Grutman Firm To Motion For Attorneys' Fees and Costs [DE # 2628 & 2629]; Superseding Motion By Pertnoy & Solowsky for Attorneys' Fees and Reimbursement of Expenses [DE # 2635]; Stearns Weaver's Revised and Supplemental Petition For An Award Of Attorneys' Fees, Costs and Reimbursable Expenses [DE # 2637 & 2638], and Supplement to Application of Class Representatives Paul Bove, Martin Cook, George Dalton, R. William McGillicuddy and David Wise For A Common Benefit Fund Award [DE # 2634],2 and an Emergency Motion by Stearns Weaver for Alteration of Attorneys' Fees and Incentive Award Procedures [DE # 2864]3
By my Amended Order on Attorneys' Fees and Incentive Awards Procedures, dated February 7, 2006 [DE # 2613], I bifurcated the hearings on attorneys' fees and incentive awards. Oral argument on the percentage of attorneys' fees and incentive awards to be awarded to Class Representatives was held on Thursday, April 27, 2036. The evidentiary hearing addressing the allocation of attorneys' fees among Class Counsel was held on Wednesday, May 3, 2006, Thursday, May 25, 2306, and Friday, May 26, 2036. The evidentiary hearing concerning the allocation of incentive awards among the Class Representatives was held on Wednesday, June 5, 2006. Final oral argument was held on Monday, June 26, 2006.
In this Order, I first address the percentage award of attorneys' fees to be approved for Class Counsel and the entitlement to, and percentage of, incentive awards to be awarded to the Class Representatives.4 I next address the allocation of the fees and awards. Finally, determine the manner of payment of both attorneys' and incentive awards.
For reasons which I address at length in this Order, I hereby establish the percentage to be awarded. I conclude that Class Counsel should be awarded an attorneys' fee of thirty-one and one-third percent (31 and 1/3%), and that the Class Representatives should be awarded an incentive award of 1.3% (as corrected) to be divided equally among the eight Class Representatives. Class Representative McGillicuddy's reduced incentive award will be paid by Gerald Bowen whose attorneys' fee will be partially forfeited.
Without doubt, this Order deals with a lot of money for attorneys' fees and incentive awards. A casual observer, not familiar with the case, may readily conclude that the attorneys' fees and incentive awards are too high. This case, however, is unique. This is not a situation where a class action is brought, soon settled, and Class Members receive an insignificant award and the lawyers get millions. This is a case that has lasted fifteen years, resulted in two trials, extensive appeals including before the United States Supreme Court, a hotly contested Claims Administration Process, and a settlement whereby Class Members will receive their full compensatory damages and nearly all of their prejudgment interest. It is an unprecedented case where over ninety-two percent of the Class Members will receive a recovery and where, through settlement, twenty-one States will be permitted to participate in any remaining distribution in favor of currently unknown Class Members.
I now articulate, in summary form, the essential rationale behind the award of attorneys' fees in this case. Class Counsel refers to it as the "Gold Standard". Any similarity to this Judge's name is merely coincidental. The essence is straight-forward. The amount of attorney's fees awarded should directly correlate to the number of Class Members benefitted; the amount of money received by each class member; and the risk borne by Class Counsel, over time, in achieving the benefits obtained. Attorneys' fees should be structured as an incentive for lawyers to risk achieving the highest possible benefits for the greatest number of Class Members. This is what happened in this case. It was not only the size of the verdict achieved that was significant, but the staggering number of over 11,000 Class Members who were identified to share in the award.5
During all this time, the attorneys have received no fees and litigated at substantial risk to themselves and in the best interest of the Class. It is time for their contributions, and that of the Class Representatives, to be recognized. The Class itself has recognized the contributions involved by their lack of any significant objection to the awards requested.
The above listed petitions for attorneys' fees and class awards were filed prior to the parties' announcement of a proposed settlement which was negotiated during the Claims Administration Process. Since then, I have received supplemental petitions from Stearns Weaver; Pertnoy & Solowsky; the Grutman Law Firm, and from several of the Class Representatives. In their initial petitions for attorneys' fees, Class Counsel filed requests for an award of attorneys' fees not to exceed one-third of the recovery and an award of litigation costs and expenses (not to exceed 5% of any recovery). The Class Representatives also filed petitions seeking incentive awards of 1.5% (in the aggregate to be divided among them) of any recovery.
Following the original class notification regarding a proposed hearing on the award of attorneys' fees and incentive fees,6 and the subsequent re-notification in conjunction with the Fairness Hearing, six Class Members filed objections to the petitions for attorneys' fees and costs.7 Only three Class Members objected to the petitions by Class Representatives for incentive awards. Of the Class Members who filed objections, three — Thomas Lee, Josephine Choi and Larry Freeland — are represented by an attorney. These three Class Members also filed objections to the proposed incentive awards. All three of these Class Members are represented by Russell A. Cline who has filed an affidavit claiming that he represents in excess of 400 claimants in the Claims Administration Process. Mr. Cline is currently in a dispute with Class Counsel in the Claims Administration Process to determine who actually represents the claimants at issue. This matter remains unresolved at the present time.
Nonetheless, I have reviewed Mr. Cline's objections and find them to be without merit.8 Mr. Cline essentially argues that, under the Camden I method of calculating attorneys' fees, the benchmark range in this case should be between six and ten percent. As to the incentive awards, Mr. Cline objects to the absence of specific monetary declarations by Named Class Representatives Paul Bove, George Dalton and David Wise, and further argues that there should not be an aggregate percentage amount awarded to the Named Class Representatives as a whole. All of these matters are discussed at length in this Order.
At the time the petitions for attorneys' fees and incentive awards were originally filed, it was not possible to determine the magnitude of the total recovery to the Class because the total could only be derived after completion of the Claims Administration Process. A percentage of an uncertain number would not allow calculation of the request for attorneys' fees or incentive...
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