In re Agent Orange Fee Application of Yannacone

139 F.R.D. 581, 1991 U.S. Dist. LEXIS 16295, 1991 WL 234339
CourtDistrict Court, E.D. New York
DecidedNovember 5, 1991
DocketMDL No. 381
StatusPublished
Cited by4 cases

This text of 139 F.R.D. 581 (In re Agent Orange Fee Application of Yannacone) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Agent Orange Fee Application of Yannacone, 139 F.R.D. 581, 1991 U.S. Dist. LEXIS 16295, 1991 WL 234339 (E.D.N.Y. 1991).

Opinion

AMENDED MEMORANDUM AND ORDER

WEINSTEIN, District Judge:

Victor J. Yannacone, Jr. appeals from the attached memorandum and order of chief magistrate judge Chrein denying Mr. Yan-nacone’s application for further fees and expenses in the Agent Orange class action litigation. For the reasons stated by judge Chrein in the attached memorandum, reversal is not warranted. Mr. Yannacone has not provided adequate documentation to support his claim for expenses incurred during the litigation leading up to the Agent Orange settlement.

Nevertheless, Mr. Yannacone has some justification for his claim for an additional fee based on his efforts subsequent to the 1984 settlement, during which time the court has retained jurisdiction over the case. See In re “Agent Orange” Prod. Liab. Litig., MDL No. 381, 1991 WL 244433 (E.D.N.Y. November 15,1991). The court finds Mr. Yannacone entitled to a fee for his efforts on behalf of veterans and their families who are members of the Agent Orange class.

As indicated by the testimony of judge Pratt and special master Schreiber before the chief magistrate judge, Mr. Yanna-cone’s work was central to the plaintiffs’ ultimate success. He conceived the basic legal and scientific theories on which the case was based. He also invested enormous time and talent in the project by lending .his extensive scientific experience [582]*582in toxic tort and environmental disputes. He earned the trust of many of the plaintiff-veterans.

For his efforts, Mr. Yannacone was awarded $300,000 in legal fees and another $100,000 in expenses at the time of the Agent Orange settlement. See In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296, 1335, 1343 (E.D.N.Y.1985), aff'd in relevant part, 818 F.2d 226 (2d Cir.), cert. denied, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). At the time, this court noted that the award of expenses was made in spite of Mr. Yannacone’s “failure to submit organized documentation.” Id. at 1343.

Since the settlement, Mr. Yannacone has continued his efforts, counseling veterans and their families as to their rights in light of the class action settlement. The veterans came to expect, with justification, that Mr. Yannacone would provide them with trustworthy information and advice important to their welfare and the welfare of their families.

Empirical research suggests that the establishment of meaningful attorney-client communication presents problems even in individual and small group litigation. See Hensler, Resolving Mass Toxic Torts: Myths and Realities, 1989 U.Ill.L.Rev. 89, 92-95. In any large consolidated multidis-trict litigation or class action, the problem of maintaining contact between attorneys conducting the litigation and their “clients” is exacerbated. Often the attorney is located far from his or her clients and there is little communication beyond an occasional letter. While aggregation of cases is often necessary to provide substantive due process, the injured party may well feel that procedural due process is lacking in circumstances where he or she has little contact with the lawyer conducting the litigation, no control over decisions concerning the suit, and no real understanding of what is going on. The need to provide adequate methods of attorney-client communications remains a major problem in mass tort actions, where efficiencies of scale and reduction of transactional costs result in the attenuation of the traditional nexus between attorney and client. See, e.g., E. Lind, R. MacCoun, P. Ebener, W. Felstiner, D. Hensler, J. Resnik & T. Tyler, The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences ix-x (1989) (publication of The Institute for Civil Justice, RAND Corp.) (empirical study indicates litigants express strong desire to control handling and outcome of litigation; positive attitudes toward litigation are linked to belief that litigants’ counsel are trustworthy); see also id. at 87-93 (supporting studies); Tyler, The Role of Perceived Injustice In Defendants’ Evaluations of Their Courtroom Experience, 18 L. & Soc’y Rev. 51 (1984) (major determinant of defendants’ satisfaction with legal system is perceived fairness of process).

There are some means of coping with this problem. In the Agent Orange litigation, for example, fairness hearings held across the nation provided a forum for many hundreds of veterans to speak and for thousands to attend and hear the litigation explained. A telephone answering service paid for with settlement funds has answered hundreds of thousands of inquiries. Pamphlets, letters, and an appeals process for settlement fund claimants have informed class members of their rights.

Mr. Yannacone has assisted in the exchange of information by taking telephone calls, answering letters, and otherwise maintaining contact with veterans and members of their families who knew of his dedication and trusted him. He is entitled to some compensation for his efforts.

That Mr. Yannacone did not keep the detailed records properly required by the Court of Appeals and the chief magistrate judge bears some witness to his selflessness and his lack of venality. Unfortunately, it also means that other lawyers for the veterans who may have done less on behalf of the Agent Orange class received greater fees and disbursements than did Mr. Yan-nacone. The court is thus faced with a dilemma. On the one hand, it is desirable to compensate Mr. Yannacone for his unique contribution in a manner and amount that is equitable relative to the [583]*583disbursements and fees received by other veterans’ attorneys. On the other hand, the court must acknowledge the impediment to compensation created by the entirely appropriate finding of the chief magistrate judge that no further award for fees and expenses incurred prior to the settlement is possible under controlling law.

The solution lies in the court’s continuing power to oversee the class action settlement fund. See In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 179,185-86 (2d Cir.1987) (requiring district court to supervise operation of Class Assistance Program); In re “Agent Orange” Prod. Liab. Litig., MDL No. 381, 1991 WL 244433 (E.D.N.Y. November 15, 1991) (describing uses of settlement fund and court’s retained jurisdiction over fund).

While the court cannot grant Mr. Yanna-cone’s unsupported request for nearly $500,000 in additional expenses plus large legal fees, it awards him a final fee of $200,000 based on his work from the time of settlement to date. He will receive no further award for past or future work.

The Clerk of the Court is directed to arrange for payment upon completion of any appeal.

So ordered.

A. SIMON CHREIN, United States Magistrate Judge.

This matter was .referred to the undersigned Magistrate Judge by the Honorable Jack B. Weinstein to report and recommend on the petition of Victor John Yannacone, Jr. for an increase in his fee and expense award. For the reasons stated below, it is respectfully recommended that this petition be denied.

BACKGROUND

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Agent Orange Product Liability Litigation
373 F. Supp. 2d 7 (E.D. New York, 2005)
Isaacson v. Dow Chemical Co.
304 F. Supp. 2d 404 (E.D. New York, 2004)
In Re" Agent Orange" Product Liability Lit.
304 F. Supp. 2d 404 (E.D. New York, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
139 F.R.D. 581, 1991 U.S. Dist. LEXIS 16295, 1991 WL 234339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-agent-orange-fee-application-of-yannacone-nyed-1991.