Duane Morris Class Action Review - 2023 - Report - Page 324
settlement that would create a $21 million common fund to pay verified claims. The
Wanca law firm would receive a third of the common fund, i.e., $7 million as a fee award
pending the district court’s approval. In the Eleventh Circuit, 25% of a common fund
award is presumptively reasonable, and anything above 25% requires the district court
to analyze 12 factors prior to awarding a higher percentage award from a common fund.
In an apparent attempt to reap the benefit of more favorable Illinois law, the Wanca law
firm dismissed the Florida lawsuit before the deadline to notify the district court of the
outcome of mediation and instead filed another lawsuit in Illinois state court, since
Illinois case law precedent allows state trial courts to award one-third of the common
fund as attorneys’ fees in class actions. The settlement achieved in Florida and taken to
Illinois provided that either party could terminate the settlement at any time for any
reason. If terminated, the lawsuit would return to the Middle District of Florida. One of
the putative class members, Pressman Inc., objected to the settlement and retained
independent counsel, Bock, Hatch, Lewis & Oppenheim, LLC (Boch). Smith Medical
terminated the settlement, presumably due to the objection. Arkin refiled suit in the
Middle District of Florida and Pressman filed suit in Illinois. The Illinois suit was later
transferred to the Middle District of Florida and consolidated with the Arkin suit. The
second Florida lawsuit was settled through the efforts of Boch with a $4.5 million
common fund. The Boch settlement was approved with each class member receiving
$1,100.00 and the Boch firm receiving $1.125 million in fees as a 25% fee award from
the common fund. The district court denied a motion filed by Arkin and the Wanca law
firm seeking attorneys’ fees out of the common fund. On appeal, the Eleventh Circuit
affirmed the order. It opined that “only those lawyers who ‘recover a common fund’ for
the plaintiffs are entitled to a portion of the common fund as a reasonable attorneys’
fee.” Id. at 1008. The Eleventh Circuit acknowledged that non-class counsel could be
awarded attorney’s fees under Rule 23(h) if they conferred a substantial and
independent benefit to the class. Here, however, the Eleventh Circuit determined that
the Wanca law firm “subordinated the interests of the class to its own interests” and
raised ethical issues about its conduct. Id. at 1011. The Eleventh Circuit opined that the
only reason for Wanca’s dismissal of the Florida action and the refiling in Illinois state
court was to benefit the law firm.
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Duane Morris Class Action Review – 2023
