Judge OKs $150M fees in JUUL MDL, but urges lawyer diversity

Senior U.S. District Judge William H. Orrick, presiding over the massive JUUL litigation, said Monday during a hearing on approval of $150 million in attorney fees that plaintiffs’ firms need to do more to give minority lawyers chances to work on multidistrict litigation.

The judge commented that the work done was excellent and granted plaintiff counsel’s request for fees, overruling an objection that the fee was too high. The attorneys had asked for $150 million, notably lower than their calculated lodestar of more than $202 million. In re: Juul Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation, 19-md-02913, (N.D. Cal., filed Oct. 2, 2019).

The judge commented that while the lawyers working on the case looked diverse gender-wise, he was confused as to why so few women took depositions in the case. “The other thing that I found troubling … the lack of Black and Latino lawyers that did any work in the MDL,” Orrick said.

Plaintiffs’ attorney Sarah R. London of Lieff Cabraser Heimann & Bernstein LLP responded that because there was so much work to do and so little time, who did depositions was determined by whoever stepped up that felt they had the availability, resources and prior experience to handle depositions. She added that in her view, while more depositions were taken by men, some of the most important depositions were taken by women.

“It is stark to me that here you had 62 great firms, and apparently almost no Blacks or Latinos who either are lawyers there, or that the firms put up,” the judge continued. “There are excellent lawyers throughout this country who are not being involved in these MDLs, and when it has such a huge percentage of the caseload, you have to do better. The courts have to do better.”

JUUL was sued by consumers, school districts and municipal governments with claims that the company’s vaping products were unlawfully marketed toward minors. Plaintiffs also claimed they paid more than they otherwise would have if they had been accurately informed about the products’ addictiveness and safety.

“I want to acknowledge the hard work that it took to create that reporting,” Orrick said. “It was unique with MDLs. I don’t know if any of my wise colleagues have picked this up, but to me it was quite interesting and I think important to be able to track diversity efforts.” He said he wanted the data to be made public so it would be available to others who might be interested in doing the same kind of reporting. Because around 65% of cases in the country are handled through MDLs right now, the judge said, it matters to know who is going to work on them.

Taking the judge’s point, London asserted, “Implicit bias runs rampant, even within our ranks. And it’s efforts like this that help shine a light on some of the disparities and provide new opportunities. We have a lot to do within the plaintiffs’ bar to advance and promote and retain lawyers of color. It is a categorical problem in our bar.”

She said that around the country there is an increasing effort to gather data of the racial makeup of lawyers working on cases but there is a roadblock. “Obviously the Supreme Court has made some of these efforts also more difficult,” London bemoaned, pointing to the fact that hiring and job assignments based on race are often seen as unconstitutional.

Neville S. Hedley of Hamilton Lincoln Law Institute represented the objector to the fees request. “This is not an exceptional result. It is a good result,” he said, arguing that while the settlement is a large dollar figure it does not merit a 30% fee award, which is higher than the 25% benchmark of this circuit.

Hedley said that cases of this size tend to see a lower percentage for fee awards and plaintiffs’ counsel took on much less risk than they claimed. “This is essentially a replay of the tobacco litigation,” the attorney said, arguing that the plaintiffs’ attorneys did not really bring novel legal theories to the table and relied heavily on precedent.

Orrick disagreed, expressing his view that the way in which the common benefit work was structured was efficient and made a lot of sense and the way the time was discounted for everyone that contributed to the effort was appropriate.