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Wing v. Asarco Inc.

ELR Citation: 27 ELR 21207
Nos. 95-36025, 114 F.3d 986/(9th Cir., 06/11/1997)

The court holds that an $8 million attorney fee award for plaintiffs' counsel, which arose out of a $67.5 million settlement in an environmental class action lawsuit and was based on a contingent-risk multiplier, is reasonable under the parties' settlement agreement. The court first holds that the district court's use of a 2.0 multiplier was not an abuse of discretion. The court states that it is not necessary to determine whether contingent-risk multipliers are impermissible when a defendant pays the fees, because in the case at hand, the fee is justifiable on other grounds. The factors the district court looked at—skill, quality, complexity, and results—are not necessarily subsumed in the lodestar. In certain cases, quality of representation and exceptional results can warrant an adjustment to the lodestar. This case was one of those exceptional cases. Even if contingent-risk multipliers were impermissible and this had not been an exceptional case, the multiplier still would be justifiable on the basis of the class counsel's continuing obligations to the class. The class counsel must oversee two programs that will last until 2005 and must administer the distribution process. Next, the court holds that when the district court employed the percentage method as an alternative basis for determining the fee, the figure the court used in calculating the percentage was not too high. The defendant argued that the percentage should be based only on the recovery that the class is guaranteed to receive. However, there was a good chance of total recovery from the defendant's insurer, which was truly valuable to the class, and both parties valued the settlement at $67.5 million, a figure the district court found to be reasonable and arrived at genuinely. Therefore, the fee award is affirmed.

Counsel for Plaintiff
David D. Hoff
Graham & James/Riddell Williams
1001 4th Ave. Plaza, Ste. 4500, Seattle WA 98154
(206) 624-3600

Counsel for Defendant
Peter J. Nickles
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

Wallace, Boochever, and Hawkins, JJ.