08-1999 In re: Lawnmower Engine Horsepower Marketing & Sales Practices Litigation

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Civil Procedure
Class actions; attorney fees

In calculating attorney fees in a class action, fees should be based on empirical studies involving settlements in class action litigation.
"[T]he best indicator of what the market would pay class counsel for their services is the data contained in a recently updated study, Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees & Expenses in Class Action Litigation: 1993-2008, 7 J. of Empirical Legal Stud. 248 (2010) (hereinafter "Eisenberg & Miller 2010"). Eisenberg and Miller studied 18 years of available opinions involving settlements in class action litigation in state and federal courts, with a total sample of 689 common fund cases. Included in their study are two tables that provide fee information based on the type of case (antitrust, civil rights, consumer, etc.) and class recovery amount. Id. at 262, 265 (Tables 5 & 7). The tables included in this study are good indicators of what the market would pay for class counsel's services because the tables show what attorneys have been paid in similar cases, and thus what class counsel could have expected when they decided to invest their resources in this case. See Taubenfeld v. Aon Corp., 415 F.3d 597, 600 (7th Cir. 2005) (noting that attorneys' fees awarded in analogous class action settlements are indicative of proper fee level); Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 864 n.30 (E.D. La. 2007) (noting that Eisenberg and Miller study is good approximation of market price for class counsel's services)."

MDL. No. 08-1999 In re: Lawnmower Engine Horsepower Marketing & Sales Practices Litigation

E.D.Wis., Adelman, J.