Thursday, February 12, 2009

Follow up with Prof. Miller

From: RDShatt
Sent: 2/9/2009 8:06:44 A.M. Central Standard Time
Subj: Your articles regarding class action attorney' fees

Dear Professor Miller,

In follow up to my email of January 30th to you, I wish to indicate I am interested in some of your articles about class action attorneys' fees, such as "Attorney Fees in Class Action Settlements: An Empirical Study", 1 Journal of Empirical Legal Studies 27-78 (2004). I would like to read the entire article but thus far have accessed only this abstract:

Abstract: Study of two comprehensive class action case
data sets covering 1993-2002 shows that the amount of client recovery is
overwhelmingly the most important determinant of the attorneys' fee award. Even
in cases in which the courts engage in the lodestar calculation (the product of
reasonable hours and a reasonable hourly rate), the client's recovery generally
explains the pattern of awards better than the lodestar. Thus, the time and
expense of a lodestar calculation may be wasteful. We also find no robust
evidence that either recoveries for plaintiffs or fees of their attorneys
increased over time. The mean fee award in common fund cases is well below the
widely-quoted one-third figure, constituting 21.9 percent of the recovery across
all cases for a comprehensive data set of published cases. A scaling effect
exists: fees constitute a lower percent of the client's recovery as the client's
recovery increases. Fees are also correlated with risk: the presence of high
risk is associated with a higher fee, while low risk cases generate
below-average fees. Fees as a percent of class recovery were found to be higher
in federal than state court. The presence of "soft" relief (such as injunctive
relief or coupons) has no material effect on the fee, whether or not the soft
relief was calculated in the quantified benefit for the class used as the basis
for computing the attorney's fee. The study also addressed costs and expenses.
Like fees, these displayed significant scale effects. The paper proposes a
simple methodology by which courts can evaluate the reasonableness of fee

It seems to me it is one thing to investigate and determine what the facts show about amounts of attorneys' fees historically and whether fees in a particular case currently are in line or not in line with precedent, but it is also even more important to evaluate the benefits and detriments of the litigation to not only the plaintiffs but also to members of the public who are not parties to the litigation but for whom the litigation has consequences, in order to reach a determination of whether the litigation justifies the amount of the attorneys' fees.

My blog goes on ad nauseum why I think the amount of attorneys' fees is not justified.

Have you written an article, or can you cite me to an article, that does the kind of evaluation I am talking about and concludes that the amount of attorneys' fees is justified?

Thank you very much.

Robert Shattuck

Sent: 2/9/2009 3:51:31 P.M. Central Standard Time
Subj: RE: Your articles regarding class action attorneys' fees

our paper was not normative in the sense of what fees should be but rather just asked what they are.
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