Methods of attorney compensation can vary in different areas of the legal practice.  One unique practice area that stands out for attorney compensation is the class action field.  Class actions play a unique role in the judicial system, and are often the only way by which plaintiffs can be compensated for small harms that are widely distributed, from products liability to securities litigation.  However, part of any class action settlement involves a bargaining process between plaintiffs’ and defendant’s counsel over how much the plaintiffs’ attorneys’ will receive.  In this bargaining process, the financial incentive of the plaintiffs’ attorney is to no longer maximize the recovery of plaintiffs, but rather maximize his own recovery.  Thus, this juncture is a moment of peril for the rights of class members, as the financial interests of the class no longer align with their attorney, which is why class action settlements require court approval.

Recently, Wade Clark Mulcahy worked with the New Jersey Civil Justice Institute to file a brief in with the United States Supreme Court in support of a petition arguing that the Court should take up the issue of attorneys’ fees in class action cases to lay out clearer standards for scrutinizing these fee awards.  The particular case that WCM asked the Court to consider involved a Florida case where plaintiffs sued Duracell batteries for deceptively marketing certain batteries, and plaintiffs’ counsel received over 94% of the total cash recovery provided for in the settlement.  In its pro bono brief, WCM argued that more scrutiny over these settlements is necessary to prevent these types of awards that disproportionately benefit attorneys over their clients and the class.

The petition was recently featured by SCOTUSblog as a “petition we’re watching.” The case itself is Frank v. Poertner, Docket No. 15-765, and is on Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit.