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9th Circuit removes judge who slashed attorney fees from BarBri antitrust class action

A trial judge cannot simply cut by 70 percent the requested $1.9 million attorney fee award in a winning antitrust class action without providing a detailed explanation why he did so, a federal appeals court has ruled.

A Wednesday opinion (PDF) by the San Francisco-based 9th U.S. Circuit Court of Appeals vacated the ruling by U.S. District Judge Manuel Real in a class action over a lack of competition among bar-review prep courses. The three-judge panel also wanted to know why no lodestar multiplier was applied to attorney fees by the trial court in the Los Angeles case.

Class counsel had sought $1.9 million, but were awarded $585,000 in the now-vacated decision, reports Courthouse News. Requested reimbursement of not quite $50,000 in costs was cut to a little over $20,000.

But that wasn’t all. Noting that the case has been to the 9th Circuit three times and, “in a related matter before the same district judge, decimations and denials of attorney fees have been appealed three times, and each time we have reversed the district court, at least in part,” the San Francisco-based federal appeals court ordered that a new judge be assigned to hear the case on remand.

“In light of the history of this case and related litigation, it is clear to us that the district judge would have ‘substantial difficulty in putting out of his … mind’ his previously expressed, erroneous findings and conclusions, and that ‘reassignment is advisable to preserve the appearance of justice,’ ” the court wrote.

Real has previously been removed from a number of other cases, as an earlier 2008 ABA Journal post details.

The National Law Journal (sub. req.) provides more information about the related case to which the 9th Circuit refers in its opinion. That case involved a $49 million settlement over claims that thousands of law graduates had overpaid for BarBri courses.

Lead lawyer D. Alan Harris of Harris & Ruble told Courthouse News that class attorneys are “gratified” by the new 9th Circuit ruling.

The case was originally filed in 2008, and alleged that there was collusion between West Publishing Corp., which offers the BarBri bar exam preparation course, and Kaplan Inc., which offers a competing course, in order to keep class fees high. Harris says that the class action case had involved substantial risk that should be taken into account in determining fair compensation.

“After nearly eight years of litigation, the Stetson case has achieved its principal goal,” Harris said, referring to lead plaintiff Stephen Stetson. “Today, in each of the 50 states, Kaplan offers law school graduates bar-exam preparation courses in competition with BarBri.”

The news articles don’t include any comment from opposing counsel or those who objected to the attorney fees sought by class counsel.

See also:

ABAJournal.com: “Judge Manuel Real Wins Dismissal of Two Misconduct Complaints”