NEW CUMBERLAND – As Circuit Judge Ronald Wilson awarded $3.9 million to lawyers who secured a $12.2 million statewide sales tax holiday on appliances, he blistered a court critic who asked for an accounting of the work the lawyers performed.
Although Wilson had allowed Steve Cohen of West Virginia Citizens Against Lawsuit Abuse to speak at a hearing on fees in a class action against Visa and MasterCard in August, the judge's Dec. 29 order retroactively kicked Cohen out.
Wilson began his assessment of Cohen on a gentle note.
"Mr. Cohen has had an interesting, and in many respects, a career that many would envy," Wilson wrote. "A graduate of the University of Southern California with a master's degree in public administration, he has infectious energy and held the prestigious position of press secretary to former West Virginia Governor Gaston Caperton.
"However, Mr. Cohen is not a lawyer. Although he may have a few good ideas, he could not offer helpful legal arguments."
He wrote that he rejected most of Cohen's recommendations outright and ultimately found his requests to be without merit.
"In truth, and probably because he is employed by an organization that seems entirely too partisan when addressing any issue involving plaintiffs' lawyers, his bias towards the Attorney General is so visible that it clouds his effort to deploy persuasive reasoning," Wilson wrote. "It's too bad that Mr. Cohen's organization is so mean spirited in its criticism about our legal system and its lawyers and judges, because it renders the nature of those claims more like an antagonistic ideology rather than a rational and substantive critique."
He wrote that the fee wouldn't cost citizens one cent, noting that Visa and MasterCard would pay it.
"If the attorneys who were successful in obtaining money damages for West Virginians are not paid the entire $3.9 million, the unpaid attorney fees will go back to the credit card companies," he wrote. "The attorneys appointed by the Attorney General in this case were not being paid by the hour and have employees needing to be paid every two weeks."
The fee includes reimbursements of $231,561.30.
"This considerable amount of money would have been their loss if they did not win this lawsuit," he said.
He wrote that a $12.2 million recovery against corporate giants is a success.
"It was not an easy case and at one point in the litigation, I came very close to dismissing it and ruling for the defendants on the issue of the right of the Attorney General to seek antitrust damages on behalf of West Virginia citizens who were injured only indirectly because of violations of antitrust acts," he wrote.
He said "large fees are a necessary and effective tool to deter wrongdoers."
"Collective action on behalf of large numbers of people is the only method of protecting consumers and making offenders pay when the value of each victim's claim is not large enough to cover the cost of litigation," Wilson wrote, noting that attorneys pursued claims that Visa and MasterCard unlawfully forced merchants who accepted their credit cards to accept debit cards.
He wrote that attorneys accused Visa and MasterCard of other unfair, fraudulent, deceptive and anti-competitive practices and that attorneys claimed damages for inflated prices on goods and services.
Visa holds 47 percent of the general purpose credit card market and MasterCard holds 26 percent. In 1996, Wal-Mart sued Visa and MasterCard in federal court in New York, to break the tie between credit cards and debit cards.
In 2003, Visa settled for more than $2 billion and MasterCard settled for more than $1 billion. The New York court awarded class counsel $220,290,160 in fees and $18,716,511.44 in reimbursements.
"West Virginians need to understand that we need to provide lawyers with a sufficient incentive to take cases like this to advocate zealously for our interests," Wilson wrote. "When they obtain benefits for us, they need to be adequately compensated.
"If not, we will no longer have the most qualified attorneys representing us in these important cases."
Wilson mostly left it up to the plaintiff lawyers to divide the money, but he specified a $143,185.79 fee for Barry Hill of Wheeling.
Hill had withdrawn from the case, and the lawyers who stayed on the case did not include him in their fee proposal. Hill petitioned Wilson for a share, and Wilson granted it.
Others dividing the fee are Teresa Toriseva of Wheeling, Guy Bucci of Charleston, George Sampson of Seattle, and Jonathan Cuneo and Daniel Cohen of Washington.