Fifth Circuit strikes down fee allocation involving ex parte hearing featuring prominent member of Katrina Litigation Group

I read this recent opinion from the Fifth Circuit about a fee allocation among plaintiffs’ counsel in a class acton settlement.  The case was of interest to me because it involves Don Barrett, of tobacco litigation and Scruggs(less) Katrina Group fame, and if you remember, a fee dispute among Scruggs Katrina Group firms is what touched off the Judge Lackey bribery plot allegedly involving Dickie Scruggs.  In addition, the ethics of the Katrina Litigation Group, as it is now known, are being challenged by State Farm in several Katrina cases.  Here’s one of the latest posts that has information about that.

Finally, I was interested because of the fact the opinion was written by Chief Judge Edith Jones, who chewed out Dickie Scruggs last year during oral argument in the Leonard v. Nationwide appeal, and who had a sharp exchange with William Walker, counsel for the policyholders, during oral argument last year in the Broussard v. State Farm appeal.  In short, no matter who you are, Judge Jones is the toughest kid on the block.

She proved it again in this case, vacating a district court’s approval of an attorney fee allocation where Barrett, one of the co-lead counsel, went to an ex parte hearing with the district court judge and got approved a fee allocation that Judge Jones strongly suggested — or perhaps outright said — was based on misinformation and selective use of evidence.  Here’s the opinion’s opening summary, which gives you a pretty good idea of what is going on in the case:

Lead Plaintiffs’ Counsel in this class action persuaded the district court to divide up a $6.875 million lump sum attorneys’ fee award among more than six dozen plainttiffs’ lawyers accourding to Lead Counsel’s proposed allocation.  This might be permissible, except that the court was so persuaded in an ex parte hearing and apparently without benefit of supporting data.  The Court further accepted the Lead Counsel’s proposed order sealing the individual awards; preventing all counsel from communicating with anyone about the awards; requiring releases from counsel who accepted payment; and limiting its own scope of review of objections to the allocation.  These and other facets of the court’s process are unauthorized and objectionable. . . .

I’m not saying this case has anything to do with anything.  I’m just sayin’. 

An interesting story by John O’Brien of Legal Newsline about bloggers and the Scruggs scandal.  I should have gotten back to John and spent more time answering questions about this, but this last couple weeks has been very crazy for me, not a lot of extra time. 

Anyone reading these words today probably has some idea about the place of blogs in the Scruggs events, you don’t need me to say it.  I’ve probably helped shine the spotlight in some places that needed it.  But I try to guard against letting myself fall prey to blogger triumphalism or feeling self-important. I just try to provide the best analysis I can, the best writing I can, the best entertainment I can, and have fun doing it.  I grew up in North Dakota, and NoDaks believe in staying within themselves.  

I don’t get too caught up in how many people are reading my blog or any of that — mostly I think sitemeters tremendously exaggerate a blog’s audience to make bloggers feel better about themselves.  I know a lot of people read this site, how many exactly I don’t know and I really don’t care, it’s quite a few.  What is more important and always has been is whether I am reaching the kind of people I want to, and I have been very fortunate in being able to do so. When it comes right down to it, this blog is part of the marketing I do as a lawyer, and I’ve made a lot of friends, met a lot of great people.  Some of them are like family to me.  And you folks in Mississippi, I’ve got to say, nicest bunch of people in the world.  You have been very good to me, I look forward to seeing as many of y’all as I can when I come to Mississippi in April for the Mississippi State Insurance Day.  I know I won’t see all of y’all, but as many as I can.   

— Finally, and this is unpleasant to do but necessary, and I think necessary to do publicly to reinforce community norms.  To the person yesterday who spammed me with a whole bunch of comments, the first few of which I was willing to tolerate and publish in the interest of broad-mindedness, but which became increasingly Yosemite Sam-like, pointless and abusive to such a degree I won’t allow them to be published, I have this to say: you are banned from my site for a period of time that is indeterminate, but which in all likelihood will extend beyond infinity.  As I understand it, other sites may have had some difficulties with you as well.  If all you can talk is guff, go start your own blog and talk it to yourself.




Filed under Industry Developments

16 Responses to Fifth Circuit strikes down fee allocation involving ex parte hearing featuring prominent member of Katrina Litigation Group

  1. Impressed

    First, thanks again for providing incredible info. Second, “I just try to provide the best analysis I can, the best writing I can, the best entertainment I can, and have fun doing it.” And you have. You’ve done a superb job. You have continually pulled all of the legal docs (which is an enormous task alone), read and analyzed them, showed us the wording then translated ‘legalese’ so us non-lawyers can understand. You’ve done a tremendous amount of work. Third, “…increasingly Yosemite Sam-like…” Thanks for monitoring the site. Nothing worse for folks out here than to run into pages and pages of “guff”.
    Sorry for the long comment

  2. coast boy

    I WASN’T Planning on attending the ins. day until I heard you’d be there. now I can’t wait! can’t wait to shake your hand!


    The underlying case arose from the E.D. Louisiana. The Fifth Circuit reverses more of that district’s cases than any other district (majority democratic judges in the district). Who was the federal district judge in this case?

  4. Former Mississippian

    It looks like the district judge was Judge Ivan Lemelle (appointed 1998). There’s a website for this class action:


    Lemelle is well-thought of by attorneys. If I recall Shell Oil was selling gasoline that had a chemical that would shut down the automobile while one was driving? It also rendered the gas guage inoperable? Am I correct? The class got a Shell credit card ($20?) and/or repair while the attorneys did quite well.

  6. Ironic

    Scruggs flipped his playbook over and is performing his plays in reverse.
    Instead of MS home cooking, he has motioned to change to an out of state venue.
    Instead of publishing cartoons about his enemies, he is the cartoon.
    Instead of using STOLEN evidence, he wants to suppress court-authorized evidence.
    Instead of hiring insiders, he is attacking their wannabe motives.
    Instead of using relationships, he is attacking a judge’s professional, social, or personal relationships with prosecutors.
    Instead of flying high, Air Scruggs is grounded.
    Instead of feeding the FBI, his own computers are being searched.
    Instead of taking depositions, he is taking the fifth.
    Instead of providing cover, the KLG team claims a whistleblower failed to notify her supervisors or take administrative remedies.
    Instead of sending people to jail, he is…
    One constant is the use of the MS Attorney General for protection. And, PL Blake must be using every trick in the book and his multi-million dollar slush fund to try and purchase a Teflon suit and a favorable verdict for his buddy.


    Not too get too far off subject, but do you know the dollar amount of the sanction against Allstate over the McKinsey documents in Colorado. I know Allstate is still being fined $25,000 per day in Missouri (since the first of Sept?), and now courts in Indiana and New Jersey have ordered their production, and Allstate has promised Florida Ins. Comm. the documents will be forthcoming, but no timetable.

  8. Injustice 4 all

    Edith Jones is not a tough judge or a smart judge but she is your Judge and a believe she has ruled for insurance companies almost if not 100% of the time.
    It is amazing how she awlays seems to be of those panels huh.
    My prediction, she will be first women judge ever indicted.

  9. Edith Jones my judge? Apparently you have not read my criticisms of her. As far as whether she rules in favor of insurance companies or not, I have no dog in that fight and don’t care one way or another.

  10. Cowbell, I have heard but would have to look it up. Offhand I don’t know. The information is available in a Google search, I’m sure.


    Edith nailed this one. How can a federal district judge seal individual awards, and prevent counsel from communicating with each other? “A bird’s nest on the ground,” as Prof Abbott would say. Sure hope all the chatter about Scruggs, et al puts an end to ex parte!

  12. Robert

    The other person in the photo with Jim Hood is Mike Moore.

  13. I’ve been covering this one at Overlawyered for a while. Links at:
    It seemed quite irregular for the judge to go along with concealing the division of fees from both class members and dissident lawyers, so I’m not surprised to see the Fifth Circuit panel taking exception.

  14. Boogiewoogie

    David, how about a little more information on Insurance Day at MSU. Are you speaking? If so, do you know yet when you are on the program?

  15. David Rossmiller

    Boogie, I will be speaking, I think it’s supposed to be for an hour, I’m not sure where in the program I fall. To do an hour’s show, I’ll have to come up with some new material — fortunately I have the best writers around, the team of Hood and Scruggs.


    I’ll bring my cowbell. (Hint: we heartily approve of said artificial noisemakers in Starkpatch!). Any chance you make it to ground zero? Fyi, Starkville recorded hurricane winds of 76 mph on the day of the flood.