Legal Fee Tracker: 3M earplug settlement lawyers inch closer to $540 mln payout
By David Thomas and Mike Scarcella
Nov 13 (Reuters) -After reaching a $6.01 billion deal with 3M MMM.N to settle the largest mass tort litigation in U.S. history, lawyers for the plaintiffs got a step closer this week to securing their own share of the settlement fund.
3M agreed to the settlement last August, resolving claims consolidated in Florida federal court that flaws with the company's earplugs caused hearing damage in hundreds of thousands of U.S. service members and veterans.
The plaintiffs' lead attorneys at Seeger Weiss; Aylstock, Witkin, Kreis & Overholtz; and Clark, Love & Hutson on Wednesday persuaded U.S. District Judge M. Casey Rodgers to maintain a 9% hold-back on the class funds, paving the way for them and about 60 other law firms in the case to be awarded common benefit fees.
In court papers, the firms said altogether they spent 364,000 hours and a "staggering amount of work and money" on the sprawling multidistrict litigation. That included 16 trials, 10 of which the plaintiffs won, before the settlement was released last year.
The court and the lawyers must still hammer out how to distribute the legal fees that the court set aside, which amount to about $540 million. David Herndon, a retired federal judge who is aiding the court's oversight of the 3M litigation, said in an October report recommending the continued 9% hold-back that the allocation procedures are being developed.
"A tremendous amount of review and analysis will be required to determine the amount of money needed to reasonably compensate common benefit counsel," Herndon wrote.
Lead counsel at the Seeger Weiss, Aylstock and Clark firms did not immediately respond to a request for comment, nor did a spokesperson for 3M.
3M has said its earplugs are safe and effective and denied allegations that they caused hearing loss. Lawyers for the plaintiffs said 93% of claimants will have received their base settlement awards by the spring of 2025.
The Combat Arms earplugs were made by Aearo Technologies, a company 3M acquired in 2008. They were used by the U.S. military in training and combat from 2003 to 2015, including in Afghanistan and Iraq.
Aearo filed for bankruptcy in July 2022 in an effort to resolve the lawsuits, with 3M pledging $1 billion to fund its liabilities. A bankruptcy judge dismissed the bankruptcy last year, finding it was unjustified by Aearo's financial situation.
Bryan Aylstock and Chris Seeger, two lead lawyers representing the earplug plaintiffs, told Reuters at the time that the bankruptcy had been a "gross misuse of the bankruptcy courts."
Aearo's bankruptcy counsel at Kirkland & Ellis earned at least $38 million in legal fees from the case. A spokesperson for the firm did not immediately respond to a request for comment.
--In other legal fee news, a federal appeals court concluded this week that a company's software application for tracking how lawyers and other professionals bill their time was unpatentable.
The U.S. Court of Appeals for the Federal Circuit on Tuesday upheld a ruling against Realtime Tracker, which had accused information technology company LexisNexis [RIC:RIC:RDELG.UL] of infringing its patent related to tracking lawyers' billable hours.
U.S. District Judge Paul Engelmayer in Manhattan sided with Lexis and dismissed the case last year, finding that Realtime's patent covered a patent-ineligible abstract idea.
"Whether by quill or by computer, humans have undertaken such timekeeping for client or customer benefit for centuries," Engelmayer wrote.
Realtime asked the Federal Circuit to reconsider the ruling, arguing in a court brief that the patent covered a "novel software invention" for improving computer functions. But the appeals panel was skeptical at a hearing earlier this month, asking "Can you do that same sort of tracking using a pen, paper and stopwatch?"
Reuters News' parent company Thomson Reuters is a competitor of LexisNexis.
-- A federal judge in San Francisco on Tuesday approved a $2 million fee award for plaintiffs attorneys who negotiated an $8 million data breach settlement with U.S. law firm Orrick, Herrington & Sutcliffe.
The settlement resolved claims from people who said their personal information was compromised in a breach of some of the firm's client data. U.S. District Judge Susan Illston approved the settlement on Friday.
Hackers accessed the names, addresses, dates of birth, and Social Security numbers of more than 600,000 people that were contained in files held by Orrick, the plaintiffs said. Orrick detected the data breach in March 2023, and denied any wrongdoing.
(Legal Fee Tracker is a weekly feature exploring attorney compensation awards and disputes in class actions, bankruptcies and other matters. Please send tips or suggestions to D.Thomas@thomsonreuters.com.)
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