CHARLESTON – Attorneys and law firms that worked on the West Virginia opioid litigation will split more than $141 million from the attorney fee fund.
The Fitzsimmons Law Firm in Wheeling will receive $22.5 million, and the firms of Farrell & Fuller and Powell Majestro will receive a combined total of $20.15 million. Also, because the law firms of Motley Rice and The Webb Law Centre were appointed special assistant attorneys general in the consolidated litigation, their combined aggregate attorney fees are capped at $50 million.
In a 31-page filing dated September 21, Common Benefit Fund Commissioner Christopher C. Wilkes said the total -- $141,057,900 – is 15 percent of the gross recovery of settlements from claims in the consolidated litigation. That total will be used to pay all contingency fees, Attorney General outside counsel contingency fees, common benefit fees and approved litigation expenses in the civil action.
The statewide global settlement total is more than $940 million. All 55 counties and almost every municipality took part in the litigation. The common benefit fund for the opioid litigation was created in 2021 by the state Mass Litigation Panel to provide “a single process for attorneys’ fees and case costs.”
Wilkes said Bob Fitzsimmons of the Fitzsimmons Law Firm and co-lead counsel for the distributor trial track, with with Time Manager John Jenkins, a certified public accountant from Charleston, to finalize and distribute a worksheet for submission of time and expense records.
“The commissioner finds that this amount is fair, reasonable and equitable to the clients, the lawyers and the general public in light of the unique and novel contours of this case,” Wilkes wrote in his September 21 filing. “The commissioner further believes this amount strikes an appropriate and careful balance between the unparalleled complexities and high-risk involved in this litigation while ensuring that sufficient funds are available to address and abate the opioid crisis in our state.”
Wilkes recommended setting aside $13 million from the attorney fee fund for the reimbursement of approved litigation expenses, leaving just more than $128 million to be divided among attorneys and law firms.
Then, the West Virginia First Memorandum of Understanding, created by Attorney General Patrick Morrisey’s office, provided that 27.5 percent of the remaining attorney fee fund be allocated to pay contingency fees for the representation of local government. That total is $35,215,922.50. The MOU specifies the percentage each city and county will recover from that total. Lawyers representing a local government entity should be paid a contingency fee equal to the sum of their client’s local government share percentage in the MOU.
That leaves 72.5 percent of the attorney fee fund, which is $92,841.977.50.
In addition to the previously listed law firm amounts, Wilkes recommends the following amounts be paid for common benefit fees:
* Allen Chesson & Grimes – $50,000
* Chafin Law Firm – $850,000
* Forbes Law Firm – $15,000
* George & Lorenson – $25,000
* Harry Bell – $25,000
* Harris & Holmes – $1 million
* Irpino Avin & Hawkins – $2 million
* Linkous Law – $1.85 million
* Lisa Ford – $46,927.50
* Mullens & Mullens – $100,000
* Morgan & Morgan – $500,000
* Napoli Shkolnik – $1.25 million
* Robert L. White – $25,000
* Skinner Law Firm – $250,000
* Troy Law Firm – $25,000
* Warner Law Offices – $25,000
* Warren McGraw Law Firm – $250,000
* Wooton Davis Hussell & Johnson – $250,000
Writing about Motley Rice and The Webb Law Centre’s classification as special assistant AGs in the case with a $50 million cap, Wilkes says he finds it fair and reasonable because “these attorneys are receiving the maximum amount of attorney fees allowed under the statutory cap.” And, he says the two firms are receiving combined contingency fees of $41,655,050 for the manufacturer and pharmacy settlements in the litigation.
Motley Rice served as lead counsel for the state's public nuisance and state Consumer Credit and Protection Act claims against the manufacturers and pharmacies. The Fitzsimmons Firm and Farrell & Fuller served as co-lead counsel for the distrubutor portion of the case.
“The commissioner recognizes that a large portion of the 72.5 percent portion of the attorney fee fund for the attorney general’s outside counsel contingency and common benefits fees is being paid to those law firms who were appointed and served as lead trial counsel,” Wilkes wrote. “This recommendation, however, is being made only after careful consideration and in recognition of the unique and extraordinary value these law firms added to the outcome of this litigation, which exceeds by hundreds of millions of dollars what West Virginia would have likely received outside this litigation.
“The commissioner also notes that those law firms which did not serve as lead counsel will receive significant compensation through their contingency fees which will reasonably compensate them for their non-common benefit work.”
Wilkes also recommends that the expenses and half of the attorney fees should be paid upon entry of the state Mass Litigation Panel’s order regarding attorney fees and litigation expenses, with 25 percent more paid November 1, 2024, and the other 25 percent paid November 1, 2025.
Wilkes said the West Virginia consolidated opioid litigation is “arguably the largest and most complex legal undertaking in the history of West Virginia jurisprudence.” The state, together with nearly every county and city throughout West Virginia, filed lawsuits against entities they allege to be responsible for the opioid epidemic, including manufacturers of prescription opioids, distributors of the drugs and pharmacies that dispensed them. The lawsuits were filed in both federal and state courts.
