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Attorney Fees and Expenses in Class Action Settlements: 1993–2008

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  • Theodore Eisenberg
  • Geoffrey P. Miller

Abstract

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor recoveries materially increased over time. Although the size of the class recovery dwarfs other influences, significant associations exist between the fee amount and both the fee method used and the riskiness of the case. We found no robust evidence of significant differences between federal and state courts. The strong association between fee and class recovery persists in cases with recoveries of $100 million or more, as do the significant associations between fee level and fee method and risk. Fees were not significantly affected by the existence of a settlement class, the presence of objectors, or opt outs from the class. Courts granted the requested fee in over 70 percent of the cases, with the Second Circuit granting the requested amount least often. In cases denying the requested fee, the mean fee was 68 percent of the requested amount. Fees and costs exhibit scale effects with the percent of each decreasing as the class recovery amount increased. Costs are strongly associated with hours expended on the case.

Suggested Citation

  • Theodore Eisenberg & Geoffrey P. Miller, 2010. "Attorney Fees and Expenses in Class Action Settlements: 1993–2008," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 7(2), pages 248-281, June.
  • Handle: RePEc:wly:empleg:v:7:y:2010:i:2:p:248-281
    DOI: 10.1111/j.1740-1461.2010.01178.x
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    Cited by:

    1. Paul Fenn & Neil Rickman, 2011. "Fixing Lawyers' Fees Ex Ante: A Case Study in Policy and Empirical Legal Studies," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(3), pages 533-555, September.
    2. Stephen J. Choi & Jessica Erickson & A. C. Pritchard, 2020. "Working Hard or Making Work? Plaintiffs’ Attorney Fees in Securities Fraud Class Actions," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 17(3), pages 438-465, September.
    3. Theodore Eisenberg & Christoph Engel, 2014. "Assuring Civil Damages Adequately Deter: A Public Good Experiment," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 11(2), pages 301-349, June.
    4. Blakeley B. McShane & Oliver P. Watson & Tom Baker & Sean J. Griffith, 2012. "Predicting Securities Fraud Settlements and Amounts: A Hierarchical Bayesian Model of Federal Securities Class Action Lawsuits," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 9(3), pages 482-510, September.

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