$57 million fee award for consumer lawyers scratched in chicken antitrust appeal

Federal judge's ruling "fell short", appeals court found
calendar icon 31 August 2023
clock icon 2 minute read

A US appeals court has vacated a $57 million legal fee award to plaintiffs' lawyers who represented chicken consumers in antitrust litigation, after finding a federal judge's ruling on attorney compensation "fell short" and must be revisited, reported Reuters.

In its ruling, a three-judge panel of the 7th US Circuit Court of Appeals said the Chicago federal district judge overseeing the case did not properly consider out-of-circuit fee awards and also certain bids made by the class attorneys in other cases.

The order was the latest in long-running litigation over claims from consumers and others that Tyson Foods, Pilgrim's Pride and others conspired to fix chicken prices. The Hamilton Lincoln Law Institute led the challenge to the legal-fee award.

The appeals court panel, led by Circuit Judge Michael Brennan, did not say what amount would be appropriate for the plaintiffs' firms Hagens Berman Sobol Shapiro and Cohen Milstein Sellers and Toll. US District Judge Thomas Durkin last year awarded them 33% from $181 million in settlement funds.

Brennan said in Wednesday's ruling that "the arrived-upon figure of one-third of the net settlement warrants greater explanation and consideration." Brennan heard the case with Chief Circuit Judge Diane Sykes and Circuit Judge Doris Pryor.

Ted Frank, director at the Hamilton Lincoln Law Institute and the Center for Class Action Fairness, on Wednesday said they hoped the ruling "will ultimately result in the class getting more money."

Steve Berman of Hagens Berman said he was "confident after consideration of the factors outlined by the court judge Durkin will come to the same place" of the prior fee amount.

The consumer attorneys said Durkin was "well positioned" to determine a reasonable fee after "having overseen dozens of related cases generating over 6,000 docket entries, over six years."

The appeals court directed Durkin to take a closer look at fee bids that class counsel had made in pursuit of court appointments to lead litigation. Those bids, Brennan wrote, "reflect the price of co-class counsel's legal services in antitrust litigation."

The panel also said Durkin should give appropriate weight to certain fee awards class counsel won in other non-chicken litigation at the San Francisco-based 9th Circuit. That circuit follows a rule that caps legal fees in certain cases, and so litigating there "informs the price of class counsel's legal services."

The case is In re Broiler Chicken Antitrust Litigation, 7th US Circuit Court of Appeals, No. 22-2889.

For objector John Andren: Ted Frank of Hamilton Lincoln Law Institute and Center for Class Action Fairness

For plaintiffs: Steve Berman and Shana Scarlett of Hagens Berman; and Brent Johnson and Benjamin Brown of Cohen Milstein

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