Litigation Departments of the Year

Flexibility Is Key to Setting the Fee

Herrick Feinstein's use of alternative fee arrangements helps fuel success

New Jersey Law Journal


Herrick Feinstein's litigation department
Left to right, Herrick Feinstein's Paul Schafhauser, Scott Tross, Ronald Levine and David King

Though part of an AmLaw 200 firm, Herrick Feinstein's New Jersey litigation department represents the full spectrum of clients in commercial litigation, including complex class action suits and title insurance and real estate disputes.

And the litigators in Newark and Princeton have the advantage of being able to draw on the 85-year-old New York-based firm's depth and breadth of experience.

Built for litigation, the firm prides itself on nimble negotiating techniques and flexible fees. Alternative fee arrangements (AFAs) have been in use at Herrick for the past three decades. Tailor-made solutions — such as a fee cap or time limit followed by discount, a deferred percentage with a risk-sharing premium and a fee cap or lump sum by phase — help hedge clients' risk and allow for cost-effective pursuit of legal remedies that might otherwise be unavailable.

Herrick says it has used AFAs regularly and to great effect in traditional litigation. For example, when Winstar Communications Inc.'s Delaware bankruptcy court proceeding was converted from Chapter 11 to Chapter 7, the trustee hired Herrick to review an adversarial proceeding that Winstar had commenced against Lucent Technologies Inc. The firm agreed to cap its fee through trial and take a contingency on top of the fee cap if it obtained a successful result.

Herrick has substantial experience in matters related to electronic discovery and litigation and in fact has an in-house department to provide support to its attorneys. The firm routinely advises clients on all facets of e-discovery, document review management, litigation support applications and discovery issues. Its overarching goal, it says, is to turn electronic data into an advantage, rather than a liability.

Herrick Feinstein by the Numbers
  Firm-wide N.J. Office
Department Size 81 16
Department as percentage of firm (head-count) 48% 46%
Department as percentage of firm (revenue) 48% 46%


Major Litigators:

• Ronald Levine, co-chair, Litigation Department; chair, Best Practices Committee — concentrates his practice on complex corporate litigation with a focus on class-action defense in the consumer products field. He has defended and resolved consumer-fraud and breach-of-warranty actions against leading products manufacturers in New Jersey and New York. He regularly advises clients on social media strategies and crisis management and prevention.

• Scott Tross, partner — concentrates his practice in the areas of real estate, creditor's rights and securities litigation. An experienced trial and appellate lawyer, he has tried over two dozen cases to verdict and has argued a like number of appeals. He is also engages in foreclosure practice, claiming to have foreclosed more than $1 billion in mortgages for banks, insurance companies, hedge funds, investment banks and servicers of securitized debt.

• Paul Schafhauser, partner — focuses his practice on complex commercial litigation and litigation of matters involving real estate, insurance, banking, business dissolutions and general contract disputes, among others. The firm prides him as a practical problem-solver, helping clients succeed in their commercial disputes, title insurance claims, foreclosures, trademark disputes, insurance coverage actions, and construction and redevelopment matters.

• David King, partner — concentrates his practice in complex commercial litigation, including real estate and construction litigation and securities litigation. He is an experienced insurance coverage and reinsurance litigator, having represented both insureds and insurance companies in coverage matters and in pursuing reinsurance claims.

Cases of Note:

Marcus v BMW of North America LLC and Bridgestone Americas Tire Operations LLC, U.S. Court of Appeals for the Third Circuit — Herrick successfully represented the Bridgestone companies in defending a series of class actions involving an innovative tire design that allows a tire to be operated for up to 50 miles after it has suffered a complete loss of air.

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