Wing v. Asarco Inc.

114 F.3d 986, 1997 WL 309972
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 11, 1997
DocketNo. 95-36025
StatusPublished
Cited by46 cases

This text of 114 F.3d 986 (Wing v. Asarco Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wing v. Asarco Inc., 114 F.3d 986, 1997 WL 309972 (9th Cir. 1997).

Opinion

HAWKINS, Circuit Judge:

We consider what constitutes a reasonable attorney fee in the context of a written settlement agreement and whether the body of law pertaining to statutory fee awards or “common fund” cases has application here. As part of a $67.5 million settlement of an environmental class action lawsuit, Asarco Incorporated (“Asarco”) agreed to pay the reasonable attorney fees and expenses of class counsel, as determined by the court. Asarco appeals from the district court’s fee award of $8 million. We affirm.

Facts and Procedural History

Plaintiffs brought a class action against Asarco for alleged contamination of residential soils by emissions of arsenic and lead from a local Asarco smelter. On the eve of trial, the parties negotiated a $67.5 million settlement (the “Settlement Agreement”), consisting of: (1) a ten-year $500,000 fund [988]*988for medical monitoring, with Asarco replenishing the fund if needed (the “Medical Monitoring Program”); (2) a ten-year $1.5 million fund to compensate for declines in property values due to the contamination, to be similarly replenished (the “Property Value Assurance Program”); (3) a $5 million cash payment within 7 days of court approval of the Settlement Agreement; and (4) $60.5 million in cash, which was not guaranteed, but would come from Asareo’s potential recovery on an insurance claim. Even if Asarco failed to recover from its insurer, Asarco promised to pay an additional $5 million to the class. The $60.5 million also included attorney fees and expenses as determined by the court, which Asarco agreed to pay directly, rather than detracting from the recovery given to the class. The Settlement Agreement permitted Asarco to take up to two years to pay the attorney fee award if it exceeded $10 million.

A few days later, the parties reached a supplemental agreement regarding attorney fees (the “Attorney Fee Agreement”). Essentially agreeing to a minimum fee award, the parties stipulated that class counsel’s lodestar was equal to or less than $4 million, with expenses in slight excess of $1.5 million, and that Asarco would not litigate this amount. The parties stipulated that “[w]ith regard to any multiplier on the lodestar, either side may argue its position to Judge Dwyer” and that either party could appeal the amount of any multiplier awarded. The Attorney Fee Agreement provided for payment of up to $7.5 million within 60 days, and reconfirmed that Asarco would have two years to pay any amount exceeding $10 million.

Upon approval of the Settlement Agreement,1 class counsel petitioned the court, alternatively, for fees and expenses equal to 25% of the $67.5 million ($16,875,000) or for fees equal to the lodestar times a multiplier of 3.8 plus expenses ($16,782,951.30). After considering both a time-based calculation plus multiplier and a percentage-based figure, the court determined that a fee of $8 million was “fair and reasonable” and also awarded $1.6 million in expenses.

Standard of Review

We review a district court’s award of attorney fees for abuse of discretion. In re Washington Public Power Supply System Sec. Litig., 19 F.3d 1291, 1296 (9th Cir.1994)(“WPfPSS ”). An abuse of discretion is “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993) (citation omitted). When reviewing for abuse of discretion, we cannot reverse unless we have a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996).

Discussion

At the outset, we note that the fee dispute in this case arises out of contract: in the Settlement Agreement, Asarco agreed to pay the reasonable attorney fees and expenses as determined and awarded by the court. The Attorney Fee Agreement did not limit the district court’s discretion in determining the fee. The court clearly recognized that it could award a fee below, above or at the lodestar figure the parties arrived at in the Attorney Fee Agreement. Under the Settlement Agreement, the only constraint on the district court’s discretion was the requirement that the fee be “reasonable.” We hold that the district court did not abuse that discretion.

I. The Multiplier

To determine a reasonable fee, the court first used a time-based calculation plus multiplier. In determining that a multiplier of 2.0 would be appropriate, the court considered a variety of factors, including the risk the plaintiffs’ attorneys took in taking the case on a contingency basis, the quality of [989]*989the Asareo opposition, the ongoing and continuing responsibilities class counsel would have in the case, the quality of the work of class counsel, and the results obtained.

Asareo contends a 2.0 multiplier was an abuse of discretion because: (1) contingent-risk multipliers are impermissible when the defendant pays the fees, and (2) the other factors the court considered — skill, quality, complexity and results — are subsumed in the lodestar. We affirm this award because even assuming Asareo’s arguments are correct, the multiplier is fully justifiable as the “reasonable fee” the parties contractually agreed to. See, e.g., Fadhl v. City of San Francisco, 859 F.2d 649, 651 (9th Cir.1988) (even if district court considers inappropriate factors in calculating the multiplier, appellate court can affirm on any permissible ground supported by the record).

Asareo first argues that the Supreme Court’s decision in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2688, 120 L.Ed.2d 449 (1992), which invalidates the use of contingency multipliers in statutory fee-shifting eases, also prohibits the use of a contingency multiplier any time the defendant pays the fees, mandated by statute or not. See Dague, 505 U.S. at 565-66, 112 S.Ct. at 2642-43 (holding contingency multipliers are not available under statutory fee-shifting provisions of Solid Waste Disposal Act and the Clean Water Act).

Class counsel, on the other hand, contends that this case presents a common fund situation, and is thus governed by our decision in WPPSS, in which we found that Dague does not apply to common fund cases. See WPPSS, 19 F.3d at 1301.

We recognize that this situation is neither fish nor fowl nor fair weather game; i.e., neither Dague (in that the fee-shifting is voluntary and contractual rather than statutorily-mandated) nor WPPSS (in that class counsel’s fee would come from the defendant directly and not out of the class recovery). Although the district court did engage in a Dague debate with counsel, we find it unnecessary to decide whether Dague

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Bluebook (online)
114 F.3d 986, 1997 WL 309972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wing-v-asarco-inc-ca9-1997.