Antitrust Law Daily Wrap Up, ANTITRUST—EDPa: Drywall Antitrust Case Management Order Approved, Attorney Fees and Expenses Reviewed, (May 13, 2013)

By Tobias J. Gillett, J.D., LL.M.

In multi-district litigation against drywall manufacturers for allegedly conspiring to fix prices for drywall products sold in the United States, the federal district court in Philadelphia has approved a case management order and issued a memorandum discussing attorney fees and expenses (In Re: Domestic Drywall Antitrust Litigation, May 7, 2013, Baylson, M.).

The court "applauds" the counsels’ agreement on the case management order, and their inclusion of requirements for plaintiffs’ counsel to "accurately and contemporarily" record their time and expenses. The court orders the lead counsel to submit reports of the time and expenses to the court for review on a quarterly basis. The reports will be maintained in the court’s chambers, and will not be docketed or filed.

With respect to attorney fees, the court recognizes that attorneys pursuing cases such as the litigation before the court generally "either have a contingent fee agreement with their clients and/or will rely on an award of attorneys’ fees by the court for their fee, if successful." However, the court observes that "[i]f unsuccessful, the attorneys will have done all the work for no compensation." Attorneys usually also outlay funds for expenses that they expect to recoup through a successful result.

The court observes that these circumstances create a tension between doing enough "to win the case, but not to waste time and overload expenses." The court must review orders to enforce the fiduciary relationship between the counsel and the proposed class and to ensure that attorneys treat the class fairly when dividing an award. The court approves the plaintiff’s counsel’s use of the Manual for Complex Litigation in its proposed pre-trial order, and advises reference to other publications of the Federal Judicial Center, including the 2005 booklet Awarding Attorneys’ Fees and Managing Fee Litigation, and to Third Circuit and Supreme Court cases on the topic. The court states that it "believes the entry of Pretrial Order No. 3 is a good and sufficient plan which will enable a fair process if the court may eventually have to rule on attorneys’ fees."

As for out-of-pocket expenses, it was noted that the "the court has no interest in micro-managing experienced counsel." The court recommends that the plaintiffs and defendants coordinate on hiring the same vendor for data collecting, storage and production, and agree on a platform for computer processing. The court notes that government per diems would be a guideline when determining travel expenses.

On April 8, 2013, the U.S. Judicial Panel on Multidistrict Litigation centralized six actions and at least 14 "tag-along" actions against domestic drywall manufacturers in the federal district court in Philadelphia for pretrial proceedings. The actions allege that domestic drywall manufacturers conspired "to fix, raise, maintain, and/or stabilize the prices of drywall products sold in the United States." The defendants are USG Corporation; United States Gypsum Company; L&W Supply Corporation; New NGC, Inc.; Spangler Companies, Inc.; CertainTeed Corporation; Georgia-Pacific LLC; American Gypsum Company LLC; Lafarge North America, Inc.; TIN, Inc. d/b/a Temple Inland, Inc.; and PABCO Building Products LLC.

The case is No. 13-MD-2437, MDL No. 2437.

Attorneys: Lee Albert (Glancy Binkow & Goldberg LLP) for Plaintiffs. Hoeflich L. Adam (Bartlit Beck Herman Palenchar & Scott LLP) for United States Gypsum Co.

Companies: USG Corp.; United States Gypsum Co.; L&W Supply Corp.; New NGC, Inc.; Spangler Cos., Inc.; CertainTeed Corp.; Georgia-Pacific LLC; American Gypsum Co. LLC; Lafarge North America, Inc.; TIN, Inc.; PABCO Building Products LLC.

Cases: Antitrust PennsylvaniaNews