Judge To Mull $695 Million Legal Fee

A federal judge will consider today whether to award what some are calling the largest legal fee in a class action lawsuit in the history of America, nearly $700 million, in litigation stemming from the collapse of Enron Corp.

The $7.2 billion in settlements paid by Enron's banks and advisers also set a record, eclipsing the $6.2 billion shelled out over the demise of WorldCom.

"This is the most successful class action ever," a Columbia law professor, John Coffee, said.

The litigation dates back to 2001, when the high-flying energy trading firm imploded after a complex web of off-the-books transactions began to unravel. The bulk of the settlements with financial giants such as Citigroup came in 2005. However, in recent months, the case was rocked by two stunning developments.

In September 2007, the class action lawyer who spearheaded the Enron suit, William Lerach, agreed to plead guilty to a federal felony charge that he conspired to make secret payments to plaintiffs in other securities cases brought in the 1980s and 1990s by Milberg Weiss. Lerach, who became the public face of the Enron litigation when he was photographed carting a box of shredded documents into federal court in 2002, dropped out of the case and resigned from his law practice at a San Diego firm then known as Lerach Coughlin. Lerach, who is in the process of being disbarred, was recently sentenced to two years in prison.

Last month in a 5–3 ruling in a separate case, the Supreme Court effectively eviscerated the legal rationale of the Enron lawsuit, namely that shareholders can recover money from banks and investment firms that may have aided in a publicly traded company's scheme to obscure its financial health. In other words, Citigroup, J.P. Morgan, and the Canadian Imperial Bank of Commerce each agreed to pay billions of dollars to settle a lawsuit where their actual liability turned out to be zero. Others, like Barclay's Bank and Merrill Lynch, dug in.

"It really was the highest-stakes legal poker game in history," Mr. Coffee said. "Some defendants blinked and weren't willing to take the chance, while others proved to be both wise and lucky."

The Columbia professor, who was hired to submit a declaration supporting the award of legal fees, said it was a testament to Lerach's skills that he convinced large corporations to pay billions in a case that turned out to be fatally flawed. "We now know it was an extraordinarily high-risk case because, ultimately, you lost it," he said.

At today's hearing before Judge Melinda Harmon, lawyers for a handful of investors hurt in Enron's fall are expected to argue that the requested fee of about $695 million is an obscene windfall for the plaintiffs' lawyers who brought the case. "Lawyers should not be incentivized to bring novel legal theories that have no merit that challenge companies with financial ruin and thereby get settlements," a leading class-action critic, Lawrence Schonbrun, said.

The fee request is based on an agreement Lerach worked out in 2002 with a major institutional investor in Enron, the Regents of the University of California. That deal set the fees at 8% on the first $1 billion, 9% on the second billion, and 10% of all amounts over $2 billion. The firm Lerach was in at the time, Milberg Weiss, effectively took over the Enron case when Judge Harmon designated the California university system as the lead plaintiff.

A lawyer for the regents, Christopher Patti, said the fee tiers were designed to encourage the attorneys to press for the largest settlement possible. "We did look at other firms," he said. "There were no lower fee rates available, I believe."

Mr. Patti also said it also appeared that Milberg Weiss was the only firm with the financial might to advance the expenses incurred in the case and to go years without being paid for millions of dollars of legal work.

Mr. Schonbrun said a long line of firms wanted to take the case, belying the notion that it was high risk. "This case was highly sought after," he said. He argued that the requested contingency fee would amount to $5,000 an hour for senior lawyers and $2,500 an hour for law clerks.

The Wall Street Journal reported that Lerach's share of the Enron fees would be "as much as $50 million." Reached by phone yesterday, Lerach referred comment about today's hearing back to his former firm. Asked about his share of the fee, he said, "We're not making any comment about it."

A spokesman for the firm, Dan Newman, also declined to discuss Lerach's share, but said there was "a widespread consensus of experts and class members that the record recovery was a phenomenal achievement."

Separately yesterday, a valuation expert who regularly testified for Milberg Weiss in class action cases, John Torkelson, agreed to plead guilty to a federal perjury charge for telling courts that he was an independent expert when he was actually being paid on a contingency basis. Prosecutors said Torkelson waived fees in unsuccessful cases and made up the difference by increasing fees in successful cases. Sometimes, law firms filed court papers seeking reimbursement of fees Torkleson had not been paid, prosecutors claimed.

In what may have been a message to Judge Harmon, the U.S. Attorney in Los Angeles, Thomas O'Brien issued a statement saying, "The cases involving Mr. Torkelson should give pause to all courts tasked with the difficult job of determining the fairness and reasonableness of attorneys' fee and cost requests."

Lawyers have earned larger fees in other cases, such as the tobacco settlement and "mass torts" cases, but those who follow such cases say that the $695 million would be the largest yet in a securities class action.