Hagens Berman’s $31 Million Consumer Antitrust Fee Award at Risk

The attorneys who represented consumers alleging a conspiracy among makers of computer optical disk drives could see their $31 million fee award reduced after oral argument at the U.S. Court of Appeals for the Ninth Circuit Oct. 21.

Judge Morgan Christen seemed particularly bothered by the fact that plaintiffs’ firm Hagens Berman Sobol Shapiro LLP was awarded 25% of the $124.5 million settlements with defendants Sony Corp., Hitachi-LG Data Storage, Panasonic Corp., and NEC Corp.

That percentage may be the benchmark for normal cases, but courts have agreed to lower that number for megafund cases, she said.

Objector Connor Erwin also took issue with the fact that the final fee award was nearly twice what Hagens Bergman estimated in its bid to be class counsel, calling the award “unreasonable.”

The appeals court should tell the lower court to award the firm the $14.9 million it estimated in its bid and return $16 million to the class, his attorney Robert Clore argued.

Judge Carlos T. Bea seemed to sympathize, saying the objectors argue class counsel did a bait and switch that doubled their fee award.

But Kevin Green, arguing for the indirect purchaser class, said the lower court acknowledged that its fee award was higher than the bid, but the court said it would have been even higher but for the bid.

The bid was just one of many factors the lower court considered when calculating fees, Green said.

Only Judge Jerome Farris outwardly appeared to support the increased fee award. When the bids were made, nobody knew it would take 10 years and $30 million fronted by class counsel, he said.

Everyone is happy with the recovery, and only now is it known exactly what it took to achieve that result, he said.

Clore argued class counsel are experienced attorneys and should have anticipated the high costs when making their bid.

Green of Hagens Berman Sobol Shapiro LLP in San Diego argued for the class.

Clore of the Bandas Law Firm P.C. argued for objector Erwin. Objector Christopher Andrews argued for himself.

The case is In re Optical Disk Drive Prods. Antitrust Litig., 9th Cir., No. 17-15065, argued 10/21/19.