DETROIT – How much money should the attorneys get who negotiated a settlement from the state in the Flint water crisis?
We don’t know, and may not know for weeks. But we know how much they want: $202 million. And that figure has prompted uproar and outrage and divided legal circles.
“Pigs. These attorneys are greedy pigs,” said one federal judge, who was unwilling to be quoted by name but who has presided over many multi-million dollar settlements.
But Powell Miller, a leading Michigan trial lawyer who has successfully argued many class action cases, disagrees. “Class action lawyers are easy targets, easy to attack. But what people don’t realize is that they risk a lot. They spend thousands of hours and rack up enormous expenses, sometimes for years, before ever getting paid.”
“They sometimes have to borrow huge sums, and if they lose, if the case doesn’t get certified as a class action, they don’t get anything.
You want lawyers who sue on behalf of their clients to have every incentive to fight as hard for them as they can, he said, adding that “defense lawyers, on the other hand, usually get a monthly paycheck, and usually get a higher hourly rate,” said Miller, who has had no involvement with the Flint cases.
Virtually no one doubts that Michigan state government seriously wronged the residents of Flint in 2014, when it forced them to switch to using toxic water from the Flint River.
That water had many problems, the worst of which was that it corroded the pipes and caused many residents to suffer lead poisoning, including thousands of highly vulnerable children.
An army of lawyers sued on behalf of thousands of victims, and many of these cases were bundled into a class action suit. Last year, after prolonged battles, the state legislature agreed, almost unanimously, to settle the cases for $600 million in state money, plus an additional $41 million from other parties who were sued.
That was the biggest such award in state history, and may sound like a lot of money, but there are so many victims that monetary awards for those who suffered most are likely to be small. But they may be even smaller if the attorneys who negotiated the settlement get as much as they are asking for.
The settlement calls for two-thirds of the money to go to the most vulnerable victims – those children under the age of six who may have had their bodies and minds affected by the lead poisoning.
But an analysis by Alexander Collingsworth in the Georgetown Environmental Law Review concluded if the money is evenly divided, “each person who was six or younger when they were exposed will receive just $36,281.25 for their … permanent injury.”
That calculation apparently did not take legal fees into account. The burden on deciding what an appropriate amount of money for the lawyers should be, and how the money will be shared, is up to U.S. District Judge Judith Levy. She held hearings earlier this month in which both the attorneys and Flint residents were allowed to argue about what the proposed settlement should be.
It wasn’t even immediately clear how many lawyers are involved in the settlement, though a request for reimbursement of $7 million in expenses mentioned 41 attorneys from 24 law firms.
There was little or no opposition to reimbursing the lawyers for these expenses. But there were vast differences as to how much their compensation should be for representing their clients.
One Flint legislator, State Rep. John Cherry, said the fees were way out of line, and told a reporter the lawyers should get more like 10 percent of the total, not the 30 percent they requested.
However, a lawyer for the Center for Class Action Fairness in Washington, D.C. argued that in settlements of this magnitude, attorneys have gotten an average of about 17 percent.
But Corey Stern, a New York attorney involved in the case, argued vigorously in favor of lawyers getting the full $202 million.
He said that many of the plaintiffs signed contracts pledging to give their lawyers 33 percent if they won, which is a standard contingency fee in such cases.
Others, however, noted that there is such a thing as economies of scale, and in settlements of this magnitude, an award that large may seem obscene, especially when children who clearly have suffered irreversible brain damage seem unlikely to get enough money to address what may be a lifetime of incapacitating problems.
Judge Levy did not say whether she would accept the fee proposal, or reduce it. Nor did she say how long it would take her to decide. She did say “I personally have a very hard decision to make.”
What we also don’t know is whether she will, as is customary, appoint someone to oversee and decide on how the money will be shared out, either for the victims or the affected residents.
What we do know is that the Flint water crisis of 2014-2016 in anything but over, when it comes to dealing with the fallout from an event that destroyed political careers, and poisoned a city.
Former Gov. Rick Snyder is only one of many former officials facing criminal indictment, and Flint, a city that has been in decline since the 1960s, is still suffering the aftereffects, with no end in sight.
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